Docket No. 05-1835-cv IN THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT _________________________ MICHAEL CASSIDY, ROBERT J. CABIN, Plaintiff-Appellants, v. MICHAEL CHERTOFF, Secretary, United States Department of Homeland Security, in his official capacity, THOMAS H. COLLINS, Admiral, Commandant, United States Coast Guard, in his official capacity, GLENN WILTSHIRE, Captain, United States Coast Guard Federal Maritime Security Coordinator, New York Captain-of-the- Port Zone, in his official capacities, LAKE CHAMPLAIN TRANSPORTATION COMPANY, in its capacity as agent of the United States Government, Defendant-Appellees. _________________________ BRIEF OF PLAINTIFF-APPELLANTS _________________________ ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF VERMONT William A. Nelson American Civil Liberties Union of Vermont 52 High Street Middlebury, VT 05753 802-388-6781 Attorney for Plaintiff-Appellants TABLE OF CONTENTS TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . .iii JURISDICTIONAL STATEMENT . . . . . . . . . . . . . . . . . . . .1 STATEMENT PURSUANT TO LOCAL RULE 28. . . . . . . . . . . . . . .1 STATEMENT OF ISSUES PRESENTED. . . . . . . . . . . . . . . . . .1 STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . .2 STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . .4 The Standard. . . . . . . . . . . . . . . . . . . . . . . .4 The Searches. . . . . . . . . . . . . . . . . . . . . . . .6 LCT's "Alternative Security Program". . . . . . . . . . . 11 The Opinion Below . . . . . . . . . . . . . . . . . . . . 13 SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . 15 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 A. The Standard of Review . . . . . . . . . . . . . . . . 17 B. Uncontested Issues.. . . . . . . . . . . . . . . . . . 18 C. LCT's Searches and the Special Needs Balancing Test. . 21 1. The Privacy Interest. . . . . . . . . . . . . . . 25 2. The Nature of the Intrusion . . . . . . . . . . . 28 3. The Special Need . . . . . . . . . . . . . . . . 31 4. The Efficacy of the Search. . . . . . . . . . . . 34 5. The Courts' Role Secrecy and Deference. . . . . 38 D. The Assertion of a National Justification: The Airline Paradigm41 1. Airline Searches . . . . . . . . . . . . . . . . 42 2. Searches Under the MTSA . . . . . . . . . . . . . 44 a. The Statute. . . . . . . . . . . . . . . . . 44 b. The Regulations. . . . . . . . . . . . . . . 46 3. "Punching a Hole in the Fourth Amendment" . . . . 50 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . 53 CERTIFICATE OF COMPLIANCE WITH F.R.A.P. 32(a)(7)(B). . . . . . 53 TABLE OF AUTHORITIES CASES Almeida-Sanchez v. United States, 413 U.S. 266 (1973). . . . . 27 American Arab Anti-Discrimination Committee v. Massachusetts Bay Transp. Auth., 2004 U.S. Dist. Lexis 14345 (D. Mass. 2004) . . . . . . 31 Armstrong v. New York State Commissioner of Correction, 545 F. Supp. 728 (N.D.N.Y. 1982). . . . . . . . . . . . . . . . . . . . . . . . 20 Blackburn v. Snow, 771 F.2d 556 (1st Cir. 1985). . . . . . . . 20 Board of Education of Independent School Dist. No. 92 v. Earls, 536 U.S. 822 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . 22, 25 Bond v. United States, 529 U.S. 334 (2000) . . . . . . . . . . 18 Bourgeois v. Peters, 387 F.3d 1303 (5th Cir. 2004) . . 17, 30, 31 Burdeau v. McDowell, 256 U.S. 465 (1921) . . . . . . . . . . . 19 Cady v. Dombrowski, 413 U.S. 433 (1973). . . . . . . . . . . . 18 California v. Acevedo, 500 U.S. 565 (1991) . . . . . . . . . . 19 Cardwell v. Lewis, 417 U.S. 584 (1974) . . . . . . . . . . . . 26 Chandler v. Miller, 520 U.S. 305 (1997)13, 16, 22, 23, 32, 34, 36, 52 Chevron USA Inc. v. Natural Resources Defense Counsel, Inc., 467 U.S. 837 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . 40, 41 Christensen v. Harris County, 529 U.S. 576 (2000). . . . . . . 41 City of Indianapolis v. Edmond, 531 U.S. 32 (2000) 16, 21, 27, 53 Conley v. Gibson, 355 U.S. 41 (1957) . . . . . . . . . . . . . .4 Delaware v. Prouse, 440 U.S. 648 (1979). . . . . . . . . . . . 39 Ferguson v. City of Charleston, 532 U.S. 67 (2001) . . . . . . 21 Florida v. J.L., 529 U.S. 266 (2000) . . . . . . . . . . . . . 53 Frost v. Railroad Commission, 271 U.S. 583 (1925). . . . . . . 20 Gaioni v. Folmar, 460 F. Supp. 10 (M.D. Ala. 1978) . . . . . . 21 Gregory v. Daly, 243 F.3d 867 (2d Cir. 2001) . . . . . . . . . .4 Griffin v. Breckenridge, 403 U.S. 88 (1971). . . . . . . . . . 21 Griffin v. Wisconsin, 483 U.S. 868 (1987). . . . . . . . . . . 22 Hamdi v. Rumsfeld, 124 S. Ct. 2633 (2004). . . . . . . 31, 39, 40 Illinois v. Lidster, 540 U.S. 419 (2004) . . . . . . . . . 21, 27 Irish Lesbian & Gay Org. v. Giuliani, 143 F.3d 638 (2d Cir. 1998)5 Katz v. United States, 389 U.S. 347 (U.S., 1967) . . . . . . . 29 Kruse v. Wells Fargo Home Mortgage, Inc., 383 F.3d 49 (2d Cir. 2004)14 Michigan Dept. of State Police v. Sitz, 496 U.S. 444 (1990)21, 27, 39 N.G. ex rel. S.C. v. Connecticut, 382 F.3d 225 (2d Cir., 2004)22, 25, 26, 38, 39 New Jersey T.L.O., 469 US. 325 (1985) . . . . . . . . 21, 25, 28 Olmstead v. United States, 277 U.S. 438 (1928) . . . . . . . . 52 O'Connor v. Ortega, 480 U.S. 709 (1987). . . . . . . . . . . . 28 Palmieri v. Lynch, 392 F.3d 73 (2nd Cir. 2005) . . 22, 24, 25, 29 Perry v. Sinderman, 408 U.S. 593 (1972). . . . . . . . . . . . 20 Preston v. United States, 376 U.S. 364 (1964). . . . . . . . . 18 Rakas v. Illinois, 439 U.S. 128 (1978) . . . . . . . . . . . . 28 Rasul v. Bush, 124 S.Ct. 2686 (2004) . . . . . . . . . . . 39, 40 Roe v. Marcotte, 193 F.3d 72 (2nd Cir. 1999) . 22, 23, 26, 38, 39 Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602 (1989)19, 22, 25, 38 Stauber v. City of New York, 2004 U.S. Dist. Lexis 13350 (S.D. N.Y. July 19, 2004). . . . . . . . . . . . . . . . . . . . . . . . . 29, 31, 34 Tarshis v. Riese Org., 211 F.3d 30 (2d Cir. 2000). . . . . . 4, 5 Treasury Employees v. Von Raab, 489 U.S. 656 (1989) 22, 25, 32, 34, 37, 38 Twining v. New Jersey, 211 U.S. 78 (1908). . . . . . . . . . . 21 United States v. Agapito, 620 F.2d 324 (2nd Cir., 1980). . . . 29 United States v. Albarado, 495 F.2d 799 (2nd Cir. 1974) . 38, 42 United States v. Bell, 464 F.2d 667 (2nd Cir. 1972)38, 43, 51, 52 United States v. Davis, 482 F.2d 893 (9th Cir. 1973) . 19, 42, 43 United States v. Edwards, 498 F.2d 496 (2nd Cir. 1974) . . 38, 51 United States v. Lifshitz, 369 F.3d 173 (2nd Cir. 2004)22, 23, 25, 26, 29, 32, 34 United States v. Place, 462 U.S. 696 (1983). . . . . . . . . . 18 United States v. Ross, 456 U.S. 798 (1982) . . . . . . . . . . 19 Vernonia School Dist. 47J v. Acton, 515 U.S. 646 (1995)22, 25, 38, 39 Weixel v. Bd. of Educ. of N.Y., 287 F.3d 138 (2d Cir., 2002). 18 White v. United States, 989 F.2d 643 (3d Cir. 1993). . . . . . 40 Wilkinson v Forst, 832 F.2d 1330 (2nd Cir. 1987). . . . . . . 29 STATUTES 116 Stat. 2066,  (6)-(7) . . . . . . . . . . . . . . . . . . 44 28 U.S.C.  1291 . . . . . . . . . . . . . . . . . . . . . . . .1 28 U.S.C.  1331 . . . . . . . . . . . . . . . . . . . . . . . .1 46 U.S.C.  70102(a) . . . . . . . . . . . . . . . . . . . 45, 47 46 U.S.C.  70102(b)(1). . . . . . . . . . . . . . . . . . . . 45 46 U.S.C.  70103(2)(C). . . . . . . . . . . . . . . . . . . . 46 46 U.S.C.  70103(a) . . . . . . . . . . . . . . . . . . . . . 45 46 U.S.C.  70103(b) . . . . . . . . . . . . . . . . . . . . . 45 46 U.S.C.  70103(c) . . . . . . . . . . . . . . . . . . . . . 45 46 U.S.C.  70103(c)(1). . . . . . . . . . . . . . . . . . . . 45 46 U.S.C.  70101 et seq. . . . . . . . . . . . . . . . . 11, 44 49 U.S.C.  44901(a) (2004). . . . . . . . . . . . . . . . . . 44 5 U.S.C.  706(2)(B) . . . . . . . . . . . . . . . . . . . . . 40 88 Stat. 415 (Aug. 5, 1974). . . . . . . . . . . . . . . . . . 43 REGULATIONS 33 C.F.R. ch. I,  101-105. . . . . . . . . . . . . . . . . . 11 33 C.F.R.  101.105. . . . . . . . . . . . . . . . . . 12, 33, 49 33 C.F.R.  101.120(b) . . . . . . . . . . . . . . . . . . 12, 49 33 C.F.R.  101.120(b)(3). . . . . . . . . . . . . . . . . . . 12 33 C.F.R.  101.120(c) . . . . . . . . . . . . . . . . . . . . 12 33 C.F.R.  101.125(c) . . . . . . . . . . . . . . . . . . . . 13 33 C.F.R.  101.130. . . . . . . . . . . . . . . . . . . . . . 12 33 C.F.R.  101.135. . . . . . . . . . . . . . . . . . . . . . 49 33 C.F.R.  101.205. . . . . . . . . . . . . . . . . . . . . . 12 33 C.F.R.  104.105(a)(1)-(10) . . . . . . . . . . . . . . . . 11 33 C.F.R.  104.105(a)(5). . . . . . . . . . . . . . . . . . . 12 33 C.F.R.  104.130. . . . . . . . . . . . . . . . . . . . 12, 49 33 C.F.R.  104.135. . . . . . . . . . . . . . . . . . . . 12, 49 33 C.F.R.  104.140. . . . . . . . . . . . . . . . . . 12, 33, 49 33 C.F.R.  104.265(e)(1). . . . . . . . . . . . . . . . . 12, 49 33 C.F.R.  104.265(e)(2). . . . . . . . . . . . . . . . . . . 20 33 C.F.R.  104.265(f)(1). . . . . . . . . . . . . . . . . 12, 49 33 C.F.R.  104.265(g)(1). . . . . . . . . . . . . . . . . . . 49 33 C.F.R.  104.265(g)(1). . . . . . . . . . . . . . . . . . . 12 33 C.F.R.  104.292(b) . . . . . . . . . . . . . . . . . . . . 49 33 C.F.R.  104.310. . . . . . . . . . . . . . . . . . . . . . 48 33 C.F.R.  104.400(c) . . . . . . . . . . . . . . . . . . . . 13 33 C.F.R.  104.410. . . . . . . . . . . . . . . . . . . . . . 48 33 C.F.R.  101.200 . . . . . . . . . . . . . . . . . . . . . 12 33 C.F.R.  104.300-305 . . . . . . . . . . . . . . . . . . . 48 RULES F.R.A.P. 4(a)(1)(B). . . . . . . . . . . . . . . . . . . . . . .1 F.R.Civ. P. 12(c). . . . . . . . . . . . . . . . . . . . . . 3, 5 F.R.Civ.P. 12(b)(6). . . . . . . . . . . . . . . . . . . .1, 3, 4 CONSTITUTIONAL PROVISIONS United States Constitution, Fourth Amendment . . . .1, 16, 26, 27 OTHER AUTHORITIES DHS, Implementation of National Maritime Security Initiatives, 68 Fed. Reg. 39240 (July 1, 2003) . . . . . . . . . . . . . . . . . 47, 48, 50 House of Representatives Report 107-405, Maritime Antiterrorism Act of 2002 (April 11, 2002) . . . . . . . . . . . . . . . . . . . . . . . 46 Jennifer E. Smiley, Rethinking the "Special Needs" Doctrine: Suspicionless Drug Testing of High School Students and the Narrowing of Fourth Amendment Protections, 95 Nw. U. L. Rev. 811 (2001). . . . . . . . . . . 24 Jennifer Y. Buffaloe, "Special Needs" and the Fourth Amendment: An Exception Poised to Swallow the Warrant Preference Rule, 32 Harv. Civ. Rights-Civ. Liberties L.Rev., 529 (1997) . . . . . . . . . . . . . . . . . 24 McGinley & Downs, Airport Searches and Seizures A Reasonable Approach, 41 Ford. L. Rev. 293 (1972) . . . . . . . . . . . . . . . . . . . 42 Michael Polloway, Does the Fourth Amendment Prohibit Suspicionless Searches Or Do Individual Rights Succumb to the Government's 'So-Called' Special Needs? 10 Seton Hall Const. L. J. 143 (1999) . . . . . . . . . 24 New Orleans Times-Picayune (May 15, 2005). . . . . . . . . . . 33 New York Times (November 21, 2001) . . . . . . . . . . . . . . 30 S. Herman, Maritime Transportation Act: An Analysis, 70 J. Transp. L. Logist & Pol'y 412 (Summer 2003). . . . . . . . . . . . . . . . . . . . 45 JURISDICTIONAL STATEMENT This is a civil action seeking injunctive and declaratory relief against officers of the United States government and the Lake Champlain Transportation Company, alleging violation of the plaintiffs' rights against unreasonable searches and seizures as guaranteed by the Fourth Amendment to the United States Constitution. The District Court had jurisdiction pursuant under 28 U.S.C.  1331. On February 16, 2005 the court granted the defendants' motion to dismiss, and formal judgment was entered on February 17, 2005. Joint Appendix ("J.A.") 63, 71. On April 13, 2005, plaintiffs filed timely notice of appeal pursuant to F.R.A.P. 4(a)(1)(B). J.A. 72. This appeal is from a final order which disposed of all claims. This Court has jurisdiction pursuant to 28 U.S.C.  1291. STATEMENT PURSUANT TO LOCAL RULE 28 The appealed decision was rendered by United States District Judge J. Garvin Murtha. The opinion has not been reported. STATEMENT OF ISSUES PRESENTED 1. Whether a complaint states a claim under the Fourth Amendment, sufficiently to withstand a motion to dismiss under F.R.C.P. 12(b)(6), by alleging that suspicionless searches of passengers and vehicles on a rural ferry line, required by the government in the name of anti-terrorism, in fact serve no special governmental needs, utterly fail to further their stated goal, and are purely symbolic public-relations exercises. 2. Whether a locally-approved security program, which includes suspicionless searches of passengers and vehicles on a rural ferry line, fails to pass constitutional muster without a context-specific showing that the searches as conducted are necessary to serve an important government interest. STATEMENT OF THE CASE The case was commenced on October 4, 2004 by the filing of a complaint in the District of Vermont by plaintiff Michael Cassidy, challenging the recently instituted practice of searching randomly selected passengers and vehicles traveling by ferry across Lake Champlain. J.A. 3 (doc. 1). The complaint alleged that the searches, conducted by employees of the ferry's owner and operator, the Lake Champlain Transportation Company (LCT), were mandated by, and performed under the aegis of, the Secretary of the Department of Homeland Security (DHS), the Commandant of the Coast Guard, and the Coast Guard Captain-of-the-Port with local authority over the LCT ferries ("the federal defendants"), all of whom were named defendants along with LCT. The defendants sought and were granted extensions of time to file an answer, and to respond to the motion for preliminary injunction which Cassidy had filed with his complaint. On November 15, 2004 defendants filed motions to dismiss pursuant to F.R.Civ. P. 12(b)(6) and 12(c), alleging that plaintiff had failed to state a claim upon which relief could be granted. J.A. 4 (doc. 17). Plaintiff responded with a memorandum in opposition and an amended complaint (filed as of right before the answer) adding plaintiff Cabin, and incorporating the affidavit of an LCT dock attendant, Erika Tourville, who had been assigned to perform some of the searches. J.A. 4 (doc. 20), 12-30, 32-35. On January 3, 2005 the federal defendants moved to seal and strike portions of the Tourville affidavit on the ground that they contained sensitive security information (SSI). J.A. 5, docs. 24 & 29. Plaintiffs opposed the request to strike, but not the sealing order, and on February 8, 2005 the court ordered portions of the affidavit sealed, while denying the motion to strike. J.A. 60-62. The redacted version of the affidavit is reproduced at J.A. 32-35. The unredacted affidavit is included in a sealed addendum of the joint appendix. Plaintiffs also filed the affidavits of two LCT passengers, Dr. Christopher Filippi, J.A. 9-11 and Anthony Pavone, J.A. 36-40, and a security expert, Navy Lt. Cmdr. Thomas Rancich, J.A. 41-53, and on January 24, 2005, moved to amend the complaint to incorporate all three. J.A.58-59. On February 16, 2005 the court granted the amendment as to the Filippi and Pavone affidavits, but denied it as to Lt. Cmdr. Rancich, having previously determined that his allegations were "more relevant to issues which may be raised on a motion for summary judgment." J.A. J.A. 6 (doc. 37), J.A. 7 (doc. 45). On the same date as his ruling on the motion to amend the court granted the defendants' motions to dismiss, without a hearing. J.A. 63-70. Plaintiffs filed a timely notice of appeal on April 13, 2005, within 60 days of the ruling. J.A. 72. STATEMENT OF FACTS The Standard As Judge Murtha recognized, on a motion dismiss under F.R.Civ.P. 12(b)(6) the court must accept all well-pleaded allegations as true. J.A. 64, citing Gregory v. Daly, 243 F.3d 867, 691 (2d Cir. 2001). This Court will affirm a Rule 12(b)(6) dismissal "only if 'it appears beyond doubt that the plaintiff can prove no set of facts in support of [his] claims which would entitle [him] to relief.' Tarshis v. Riese Org., 211 F.3d 30, 35 (2d Cir. 2000) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957))." It should draw inferences from the allegations "in the light most favorable to plaintiff, and construe the complaint liberally." Id.Irish Lesbian & Gay Org. v. Giuliani, 143 F.3d 638 (2d Cir. 1998) The rule applies "not only the assertions made within the four corners of the complaint itself, but also those contained in documents attached to the pleadings or in documents incorporated by reference." Id. (citations omitted). The facts, for purposes of this appeal, are therefore as stated in the amended complaint, and the referenced affidavits. The Searches Shortly before July 1, 2004 placards appeared at the loading docks of the Grand Isle-Plattsburgh line warning passengers that LCT's facilities and boats were operating "under the security regulations of the Dept. of Homeland Security U.S. Coast Guard[,]" that "all vehicles, baggage and personal items are subject to screening at any time[,]" and that "FAILURE TO OBSERVE SECURITY LEVEL REQUIREMENTS MAY RESULT IN IMMEDIATE REMOVAL OR DETENTION BY LAW ENFORCEMENT AUTHORITIES." J.A. 19-20  26- 29. A flier issued the same day advised that the new measures had been introduced "[a]s a result of the September 11, 2001 terrorist attacks on the United States" and that the Coast Guard and DHS were requiring the company "to conduct random screening of persons, cargo, vehicles or carry-on baggage...." J.A. 31. Similar signs and placards made their appearance the same day on at least one of two other ferry lines LCT operates across the lake, from Burlington, Vermont, to Port Kent, New York. Starting July 1 the dock attendants, who had previously taken tickets and supervised loading and unloading, and who had received only minimal training for this new function, J.A. 20  30.1  4-10, began selecting passengers, apparently at random, and "screening" them. The protocols are as follows: Car passengers are requested to open the trunk, or the tailgate in the case of a station wagon. The screener peers inside, but containers inside the trunk, such as bags, suitcases, picnic coolers, etc., are invariably not searched. J.A. 10-11  6, J.A. 20-21  32. The screeners are instructed that passengers with knives and firearms should be permitted to board the ferries, since these items are not prohibited. J.A. 21  37. Sometimes the screener asks the driver to open windows, to permit a scan of the interior. As with the luggage compartments, containers visible in the passenger compartment are always ignored. E.g., J.A. 10  3; J.A. 23  57- 58. Boarding foot and bicycle passengers, by contrast, are asked to open their carry-ons (e.g., plaintiff Cabin's bike pack) and present them for visual inspection to the attendant. J.A. 21  33-34; J.A. 27  92-94. By contrast with both cars and pedestrians, tractor trailer trucks are not selected for screening at all. J.A. 21  35.1. Other trucks may be screened but only if unsealed and the driver can not show a manifest. Those screenings, like car screenings, involve only a look inside, with no inspection of the cargo. J.A. 21  35. The Grand-Isle-Plattsburgh line is a commuter route for people living in Vermont and working in Plattsburgh, N.Y., and for New Yorkers with jobs in the Burlington, Vt. area. A number of commuters have been selected repeatedly. J.A. 22  46; J.A. 24  67; J.A. 25  72; J.A. 26  82 (plaintiff Cassidy); J.A. 9  1-2 (Dr. Filippi). As explained in the LCT flier, acquiescence to these searches is a condition of boarding, and would-be passengers who refuse must find another route across the lake. The only feasible alternative is via the Rouse's Point Bridge, which involves for Plaintiff Cassidy (who commutes from Colchester to Plattsburgh) a doubling of his daily commute time from two hours to about four. J.A. 23  53. Refusals are recorded and communicated to the other LCT loading docks. The vehicle involved will not be permitted on any LCT ferry until its driver consents to inspection. J.A. 22,  46-51. Nevertheless, the refusing driver may travel freely on the ferry if he or she uses a different vehicle. J.A. 39  15. (LCT operations manager informed passenger he "may go on the ferry, but [his] vehicle is banned.") There may be other consequences of a refusal. The driver quoted above, Anthony Pavone, a New York resident visiting his father in a hospital in Vermont, had twice refused to be searched and took the Rouse's Point bridge. Two weeks later, an investigator named Pat Kelleher from the New York State Police terrorist unit out of Ray Brook, NY called me at my work place. He needed to investigate me due to the fact I refused a ferry search . Based on my conversations with Ms. Stewart and an Officer McDonald at the Coast Guard office she referred me to, it turns out that a second refusal to the ferry search triggers the ferry company to notify the Coast Guard who notified the FBI who in turn notified the N.Y.S. Police . I didn't know I was banned due to the fact they let my wife and I on the very next day. The investigator asked me questions, later stated there were no problems from what he could tell and thanked me. I now believe there is some sort of investigation record about me concerning this which will jeopardize my job of 24 years. J.A. 37  6-7; J.A. 39  14. Plaintiffs also produced expert opinion evidence on the need for the searches, and their efficacy in achieving their stated anti-terrorist purposes. Thomas Rancich is a Lieutenant Commander in the Navy Seals, recently retired after twenty years' service, with substantial experience in antiterrorism operations at both the command and operational levels. J.A. 41  1. He was also, currently, proprietor of a solo consulting firm, Off-Shore Consulting, and had done work in the ferry industry, including a security assessment of the Woods Hole, Martha's Vineyard and Nantucket Steam Ship Authority, in connection with the new MTSA security requirements. Id.  2. Lt. Cmdr. Rancich's testimony establishes, at least for purposes of this appeal, the extreme unlikelihood of a terrorist attack against one of the Lake Champlain ferries, and the utter futility of the challenged searches in preventing or deterring any such attack. Given the expense and difficulty of mounting any terrorist attack in the United States, and the costs involved ("upon conducting an attack [the terrorist] is going to 'burn' a great deal of assets that will never be able to be used again[,]") international terrorists seek high-impact targets, which LCT ferries clearly are not. J.A. 43-44  7-9. These are very rural routes, and the number of people using these ferries is small....Nothing in the area actually relies on the LCT ferries to survive. Two bridges, Rouses Point and Crown Point, service the same concerns and are not similarly "protected", and [their] destruction would have a much greater cumulative effect (most people in the United States use bridges). And of course a terrorist in transit from Vermont to New York could avoid the ferry completely and take one of the bridges. J.A. 47-48  21. Nothing in the surrounding territory would attract a terrorist's interest. The biggest population centers are Plattsburgh, N.Y., and Burlington, Vt., with nothing else of any size or importance nearby: no military installations of any importance, and no industrial complexes of any national significance. J.A. 48  22. Regarding the searches, Rancich explains in concrete detail why anything less than a full-scale search would be unable to detect explosives, and why a terrorist intending to sabotage the ferry would not use a bomb in the first place. He concluded that LCT's searches serve no security function and are "purely symbolic...." J.A. 44-47 11-19. LCT's "Alternative Security Program" The asserted legal authority for these searches is LCT's "Alternative Security Program," a confidential document, drafted by a private trade association, about which little can be said beyond its legal genesis. The Maritime Transportation Security Act of 2002, 46 U.S.C.  70101 et seq. ("MTSA" or "the act") and its implementing regulations, 33 C.F.R. ch. I,  101-105, are discussed below at pp. 44-50 of this brief. Enacted in the wake of the September 11 attacks, with the intent to enhance security in the maritime industry, the MTSA mandates the creation of national and area plans, as well as ground- level plans tailored to individual vessels and port facilities which were deemed at risk of a terrorist attack. 46 U.S.C.  70103(a)-(c). A DHS/Coast Guard study of the international and domestic shipping inventory determined that ten classes of vessels should be deemed at "high risk" of a terrorist attack, and were therefore subject to various security requirements. 33 C.F.R.  104.105(a)(1)-(10). LCT ferries operating on the Grand Isle and Burlington-Port Kent lines fell into one of these classes,  104.105(a)(5), as vessels over 100 gross register tons or certified to carry more than 150 passengers. Qualifying vessels must operate under a specific Vessel Security Plan ("VSP") or some alternative. VSPs must include, inter alia, provision for passenger and vehicle screening, increasing with intensity with the MARSEC threat level.33 C.F.R.  101.20033 C.F.R.  101.205 33 C.F.R.  104.265(e)(1), (f)(1), (g)(1). The regulations also include various opt-out provisions, allowing for waivers, id.  104.130, equivalents,  101.130, 104.135, and alternative security programs,  101.120(b). An ASP is a third-party or industry organization developed standard that the Commandant has determined provides an equivalent level of security to that established by this subchapter. Id.  101.105. Vessels may avoid part 104 requirements and proceed under an ASP upon a finding by the Coast Guard Commandant that the ASP "meet[s] the requirements of" otherwise applicable regulations, Id.,  101.120(b), and a decision by the local authority that the program is "appropriate to that class of vessel" and will be fully implemented. Id.  101.120(b)(3), 101.120(c), 104.140. LCT ferries operate under such an ASP, drafted by the Passenger Vehicle Association ("PVA"), for use by its members, see http://passengervessel.com /special_update_110203.html, and approved by the Coast Guard Commandant. Id.  101.125(c). The ASP is a classified document, designated as Sensitive Security Information ("SSI"),33 C.F.R.  104.400(c) and the government has declined to say anything about its contents. Absent evidence to the contrary, plaintiffs submit that the searches as observed and alleged are either required or permitted by LCT's ASP. The Opinion Below (J.A. 63-70) Judge Murtha agreed with the parties that the legal standard for these searches was to be found in the Supreme Court's "special needs" caselaw, which requires courts to "undertake a context-specific inquiry, examining closely the competing private and public interests advanced by the parties." J.A. 68, quoting Chandler v. Miller, 520 U.S. 305, 314 (1997). The argument in the district court was about the scale of this "context." The government's justification of the LCT searches rested entirely on national considerations, giving no legal significance to the local facts. The MTSA and its regulations were prompted by a national need, and the LCT searches were reasonable simply because the national program, of which they were a part, was reasonable. That plan, moreover, as a creation of the Congress and DHS's rulemaking, was entitled to deference, which applied both to the asserted necessity of the LCT searches, and the means by which the searches were carried out. Judge Murtha adopted this broad-scale approach. The "special government need[,]" he wrote, was "to provide domestic security...." J.A. 67. Congress' action in enacting the MTSA, the DHS/Coast Guard vulnerability assessments, and "the policies and procedures at issue[,]" were "entitled to deference and not subject to second-guessing by a reviewing court." J.A. 69, citing Kruse v. Wells Fargo Home Mortgage, Inc., 383 F.3d 49, 58 (2d Cir. 2004). The searches as conducted, the court found, contrary to plaintiffs' showing, "further these goals by deterring potential security breaches[,]" and were "conducted in a manner no more intrusive than is necessary to achieve the compelling governmental interest of protecting the safety of passengers and deterring terrorist attacks on maritime vessels." J.A. 69-70. LCT's ASP searches could be approved on this national basis, without regard to local context, by analogy to the nationwide airline search program. "In sort," the court concluded, "...the measures implemented by the defendants are akin to the type of security measures which are employed in the air travel industry and pass constitutional muster." J.A. 70. SUMMARY OF ARGUMENT LCT's "screenings" are searches within the prohibition of the Fourth Amendment because they invade constitutionally protected privacy. Because they have been mandated and encouraged by the government, they cannot be deemed "private" searches, nor can they be validated on a theory of consent; they can be justified, if at all, under the Supreme Court's and this Court's "special needs" caselaw. Judged by those cases these searches must fail. The government is bound to show a concrete, "context-specific" goal; that without suspicionless searches of LCT passengers and vehicles the stated goal would be frustrated; and that the searches are effective, i.e., reasonably calculated to achieve the stated goal. Relying exclusively on national and institutional justifications the government has shown none of that, and the pleadings strongly point the other way on all counts. The government's reliance on airline searches, as the "paradigm" of reasonable nationwide searches and a model for MTSA searches, is misplaced and augurs a dangerous shrinkage of Fourth Amendment protections. First, the genesis of airline searches, and the obvious linkage between hijackings and 9/11 on the one hand, and airline passenger searches on the other, have no equivalents in this setting. The government's basic proposition, "hijackings are to airplanes as 9/11 is to the maritime industry," does not square with common sense or common perceptions. The paradigm is further undermined by the different Congressional and executive responses to airline security and maritime security: a rigid top-down approach for the former, and a locally oriented, bottom-up approach for the latter, aimed at locally tailored, locally approved security plans. The danger of the government's argument is its portability. A small ferry boat is obviously less at risk than a large shopping center, a large bridge, a city bus or subway, streets and sidewalks in downtown neighborhoods, etc. All these venues are "at risk" from international terrorism in the same sense that LCT ferries are, and all fit the "airline paradigm" at least as well as LCT's ferries. ARGUMENT The searches at issue, and their supporting rationale, give rise to grave Constitutional concerns. The basic thrust of the Fourth Amendment is to prohibit searches and seizures without individual suspicion of wrongdoing. The exception is narrow: government can search people without suspicion "only in limited circumstances" where the necessities of the situation require it. City of Indianapolis v. Edmond, 531 U.S. 32 (2000), citing Chandler v. Miller, 520 U.S. at 308. The rule against suspicionless searches and seizures is familiar and uncontroversial. Security checkpoints, demands for ID, and "random" searches of belongings are all signature features of police states and martial law regimes. Americans find such regimes frightening and take pride in our difference. The court's permission of suspicionless searches only when an important government need would otherwise be frustrated, is accordingly narrow and carefully guarded. If the government is right, and the generalized "special needs" of 9/11 allow searches of any locale officially declared to be at risk of international terrorism, both the Fourth Amendment's main rule, and the courts' historic role in enforcing that rule, are in for a major pruning. As the Fifth Circuit recently wrote, "This argument is troubling. While the threat of terrorism is omnipresent, we cannot use it as the basis for restricting the scope of the Fourth Amendment's protections in any large gathering of people[,]" in the absence of a more concrete justification. Bourgeois v. Peters, 387 F.3d 1303, 1311 (2004). A chronic, unpredictable threat to the nation does not convert into across- the-board, open-ended authority to search people and their effects without suspicion. A. The Standard of Review The standard of review on a motion to dismiss is de novo, taking as true all the allegations in the complaint, and drawing all inferences in favor of the plaintiffs. Weixel v. Bd. of Educ. of N.Y., 287 F.3d 138, 145 (2d Cir., 2002). B. Uncontested Issues. The parties could not be farther apart on the basic Fourth Amendment issue of when the government may conduct suspicionless searches of its citizens, and what the courts' role should be in making that determination, but they do agree on (or at least do not contest) a number of ancillary points: LCT's screening practices are "searches" within the meaning of the Fourth Amendment. Americans retain a protected privacy right against even a cursory suspicionless search of their luggage, which "is clearly an 'effect' protected by the [Fourth] Amendment[,]" whose contents remain private even if the bag itself is exposed to the public. Bond v. United States, 529 U.S. 334, 336-37 (2000) (suspicionless "squeeze" of a carry-on bag in a bus luggage rack). See also United States v. Place, 462 U.S. 696, 707 (1983). Opening a car's trunk is also indisputably a Fourth Amendment search. Cady v. Dombrowski, 413 U.S. 433 (1973); Preston v. United States, 376 U.S. 364 (1964). Unlike the passenger compartment of a car, the contents of a trunk are not visible from outside, and accordingly "'the privacy interests in a car's trunk or glove compartment may be no less than those in a closed container.'" California v. Acevedo, 500 U.S. 565, 573 (1991), quoting United States v. Ross, 456 U.S. 798, 823 (1982). These inspections are effectually and legally "government" searches covered by the Fourth Amendment even though they are performed by LCT dock attendants. Although a wholly private search falls outside the scope of the Fourth Amendment, Burdeau v. McDowell, 256 U.S. 465 (1921), the cases make clear that a search conducted by private individuals at the instigation of a government officer or authority ranks as a government search for Fourth Amendment purposes. In Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602 (1989), the Court rejected an argument that the Fourth Amendment had no application to searches conducted by private railway officials at the government's encouragement. Id. 614. Even those searches which federal regulations encourage, but do not specifically require, can not be deemed "private" under the Burdeau rule. Id. 614- 15. See also United States v. Davis, 482 F.2d 893, 904 and n.29 (9th Cir. 1973) (reaching the same conclusion for airport searches conducted by airline employees acting as part of the nation-wide anti-hijacking effort). The scheme of the DHS regulations imposes security responsibilities on vessel owners and operators, and LCT's ASP, setting forth specific search requirements, had to be approved by the Coast Guard. The government did not exempt these procedures from the Fourth Amendment by privatizing them. The "consent" to search which LCT passengers must give does not validate the search on the theory of consent (although it may mitigate the intrusion). 33 C.F.R.  104.265(e)(2) requires a warning to passengers that boarding the vessel "is deemed valid consent to screening or inspection" and that failure to consent "will result in denial or revocation of authorization to board...." LCT's flier includes the same warning. J.A. 31. Long-standing precedent holds that government "may not deny a benefit to a person on a basis that infringes his constitutionally protected interests[,]" whether or not the person has an enforceable "right" to that benefit. Perry v. Sinderman, 408 U.S. 593, 598 (1972). See also Frost v. Railroad Commission, 271 U.S. 583 (1925) (state may not impose consent to unconstitutional action as condition for use of public roads). The rule fully applies to procedures which condition privileges on consent to unconstitutional searches. See Blackburn v. Snow, 771 F.2d 556, 567-68 (1st Cir. 1985) (visits to prison conditioned on unconstitutional strip search of visitor); Armstrong v. New York State Commissioner of Correction, 545 F. Supp. 728, 731 (N.D.N.Y. 1982) (continued employment as prison guards conditioned on unconstitutional strip searches); Gaioni v. Folmar, 460 F. Supp. 10, 13 (M.D. Ala. 1978) (access to civic center conditioned on consent to unconstitutional searches). Plaintiff Cassidy lives in Colchester and works in Plattsburgh. He makes his round-trip commute on the Grand Isle ferry four days a week on average. The one-way trip takes about one hour by car. "The 'right to pass freely from State to State' has been explicitly recognized as 'among the rights and privileges of national citizenship.'" Griffin v. Breckenridge, 403 U.S. 88, 105-106 (1971), quoting Twining v. New Jersey, 211 U.S. 78, 97 (1908). The government can not impose an unconstitutional condition on plaintiffs' right to interstate travel. C. LCT's Searches and the Special Needs Balancing Test The term "special needs" was coined by Justice Blackmun in his concurring opinion in New Jersey T.L.O., 469 US. 325, 351 n.7 (1985). In the Supreme Court it has come to characterize a miscellaneous category of searches and seizures, including roadblocks, Illinois v. Lidster, 540 U.S. 419 (2004) (checkpoint stops investigating hit-and-run accident); City of Indianapolis v. Edmond, 531 U.S. at 37 (disapproving drug interdiction checkpoint); Michigan Dept. of State Police v. Sitz, 496 U.S. 444 (1990) (approving DUI roadblock); a long line of drug testing cases involving schoolchildren, employees in sensitive occupations, and others with diminished privacy expectations, Ferguson v. City of Charleston, 532 U.S. 67 (2001) (pregnant women in hospital's prenatal program); Board of Education of Independent School Dist. No. 92 v. Earls, 536 U.S. 822 (2002) (school children in extracurricular activities); Chandler v. Miller, 520 U.S. 305 (1997) (candidates for public office); Vernonia School Dist. 47J v. Acton, 515 U.S. 646 (1995) (student-athletes); Treasury Employees v. Von Raab, 489 U.S. 656 (1989) (United States Customs Service employees seeking transfer or promotion to certain positions); Skinner v. Railway Labor Executives' Assn, 489 U.S. 602 (1989) (railway employees involved in train accidents or found to be in violation of particular safety regulations); and probationers, Griffin v. Wisconsin, 483 U.S. 868 (1987). In this Court "special needs" caselaw includes searches of probationers and parolees, e.g. United States v. Lifshitz, 369 F.3d 173 (2nd Cir. 2004) (computer monitoring of released sex offender); detained juveniles, N.G. ex rel. S.C. v. Connecticut, 382 F.3d 225, 230 (2nd Cir., 2004); D.N.A. sampling of incarcerated sex offenders, Roe v. Marcotte, 193 F.3d 72 (2nd Cir. 1999); and administrative trespasses on private property, Palmieri v. Lynch, 392 F.3d 73 (2nd Cir. 2005). In Chandler Justice Ginsburg spelled out the defining characteristics of this "closely guarded category of constitutionally permissible suspicionless searches[,]" 520 U.S. at 309, as follows: To be reasonable under the Fourth Amendment, a search ordinarily must be based on individualized suspicion of wrongdoing. See Vernonia, 515 U.S. at 664-667. But particularized exceptions to the main rule are sometimes warranted based on "special needs, beyond the normal need for law enforcement." Skinner, 489 U.S. at 619 (internal quotation marks omitted). When such "special needs"-- concerns other than crime detection--are alleged in justification of a Fourth Amendment intrusion, courts must undertake a context- specific inquiry, examining closely the competing private and public interests advanced by the parties. See Von Raab, 489 U.S. at 665-666; see also id., at 668. As Skinner stated: "In limited circumstances, where the privacy interests implicated by the search are minimal, and where an important governmental interest furthered by the intrusion would be placed in jeopardy by a requirement of individualized suspicion, a search may be reasonable despite the absence of such suspicion." 489 U.S. at 624. 520 U.S. at 313-314 (emphasis added). The triggering interest must be "a concrete danger demanding departure from the Fourth Amendment's main rule." Id. 311. As this Court wrote in Roe v. Marcotte, 193 F.3d at 78, quoting Earls, at 830 (emphasis added), the "special needs" standard does not validate searches simply because a special need exists. Instead, what is required is "a fact- specific balancing of the intrusion...against the promotion of legitimate governmental interests." In Lifshitz the Court put it this way, also emphasizing the contextual focus of the test: First, the government must allege a "special need," the importance of which derives both from the particular context in which it seeks to implement searches-whether that of the vulnerability of school children or the sensitive employment situation of certain customs officials-and what the searches are designed to discover-most notably, the perils occasioned by illegal drug use. Secondly, those subject to the search must enjoy a diminished expectation of privacy, partly occasioned by the special nature of their situation, and partly derived from the fact that they are notified in advance of the search policy. Third, the search program at issue must seek a minimum of intrusiveness coupled with maximal effectiveness so that the searches "bear a close and substantial relationship" to the government's "special needs." 369 F.3d at 186. The requirement of a clear nexus between government's need and purpose, and the particular search performed, reflects a cautionary approach, see Palmieri, 392 F.3d at 80 ("We think it is wise to be cautious in applying the special needs doctrine") which is also advocated by many commentators.Jennifer Y. Buffaloe, "Special Needs" and the Fourth Amendment: An Exception Poised to Swallow the Warrant Preference Rule, 32 Harv. Civ. Rights-Civ. Liberties L.Rev., 529 (1997)Jennifer E. Smiley, Rethinking the "Special Needs" Doctrine: Suspicionless Drug Testing of High School Students and the Narrowing of Fourth Amendment Protections, 95 Nw. U. L. Rev. 811 (2001)Michael Polloway, Does the Fourth Amendment Prohibit Suspicionless Searches Or Do Individual Rights Succumb to the Government's 'So-Called' Special Needs? 10 Seton Hall Const. L. J. 143 (1999) This Court breaks down the analysis into separate considerations of (1) the privacy interest involved, (2) the character and degree of the intrusion, (3) the nature and immediacy of the government's concerns, and (4) the efficacy of the policy in meeting them." Palmieri v. Lynch, 392 F.3d at 81; United States v. Lifshitz, 369 F.3d at 183, both citing Earls, 536 U.S. at 834. 1. The Privacy Interest The LCT search program targets the general public. In Earls and Vernonia, both approving urine testing of highschool students, the Court stressed the diminished privacy expectation of "children who ... have been committed to the temporary custody of the State as schoolmaster..." Earls, at 830, quoting Vernonia at 654. "A student's privacy interest is limited in a public school environment where the State is responsible for maintaining discipline, health and safety." Id., quoting Vernonia, 515 U.S. at 656. This special status was "central" to the privacy analysis in both cases, as it has been in other cases defining the Fourth Amendment rights of schoolchildren. New Jersey v. T.L.O., 469 U.S. 325 (1985). Accord: N.G. ex rel. S.C. v. Connecticut, 382 F.3d at 230. The same diminished expectation of privacy was central to the Supreme Court's decisions in Skinner and Von Raab, both of which were limited to employees in sensitive occupations. "[T]he expectations of privacy of covered employees are diminished by reason of their participation in an industry that is regulated pervasively to ensure safety, a goal dependent, in substantial part, on the health and fitness of covered employees." Skinner, at 667. See also Von Raab. 489 U.S. at 671-72 ("[I]t is plain that certain forms of public employment may diminish privacy expectations" and "Customs employees who are directly involved in the interdiction of illegal drugs or who are required to carry firearms in the line of duty likewise have a diminished expectation of privacy.") The same limiting factor a well-defined target class with diminished privacy interests characterizes this Court's "special needs" cases. See N.G. ex rel S.C. (children in state custody); Roe v. Marcotte (incarcerated sex offender); Lifshitz (probationers). Nothing similar can be said here. The class subject to being searched is the same class that the Fourth Amendment protects, "the people" who have the right "to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures...." With respect to the trunk searches the government points to a line of Supreme Court precedent involving law enforcement searches of vehicles, and establishing an "automobile exception" for such searches in the law-enforcement context. E.g., Cardwell v. Lewis, 417 U.S. 584 (1974). The exception obviously has no application to the searches of the foot passengers' carry-ons briefcases, backpacks, pocketbooks, suitcases, etc. and its application to LCT's vehicle trunk searches is only tenuous. The automobile search cases exempt most vehicle searches from the requirement of a judicial warrant, but the Supreme Court has never suggested that an automobile can be searched without any suspicion at all, except at international borders. Its roadblock cases, Edmond, 531 U.S. 32; Illinois v. Lidster, 540 U.S. 419, and Sitz, 496 U.S. 444, considered brief stops of cars and other vehicles, but no searches of trunks or containers. In Edmond the Court suggested the possibility of such inspections on hard and specific information ("the Fourth Amendment would almost certainly permit an appropriately tailored roadblock set up to thwart an imminent terrorist attack or to catch a dangerous criminal who is likely to flee by way of a particular route[,]" 531 U.S. at 44), with the plain implication that routinized vehicle searches in the name of anti-terrorism would almost certainly not be permitted. As the Court wrote in Almeida-Sanchez v. United States, 413 U.S. 266, 269 (1973), "Automobile or no automobile, there must be probable cause for the search." This level of protection reflects, and respects, the privacy interest which people in automobiles retain: Though the reasonableness of the expectation of privacy in a vehicle may be somewhat weaker than that in a home, see United States v. Chadwick, 433 U.S. 1, 12-13 (1977), "[a] search, even of an automobile, is a substantial invasion of privacy. To protect that privacy from official arbitrariness, the Court always has regarded probable cause as the minimum requirement for a lawful search." United States v. Ortiz, 422 U.S. 891, 896 (1975) (footnote omitted). So far, the Court has not strayed from this application of the Fourth Amendment. Rakas v. Illinois, 439 U.S. 128, 157 (1978) (White, J., dissenting). Compare the lesser standard for searches of students and employees, T.L.O., 469 U.S. 325 (permitting searches of school children on reasonable suspicion); O'Connor v. Ortega, 480 U.S. 709 (1987) (searches of employees on a case-by-case basis, by general reasonableness standard). 2. The Nature of the Intrusion A visual inspection of hand baggage is not a strip search, and inspection of a car's trunk is not like the thorough stem-to-stern vehicle inspections that can occur at international borders. As far as "actual" privacy expectations go, the government argues, these intrusions are "minimal" common at airports and courthouses since the 1970s, and akin to procedures at other venues, public and private, since September 11, to which most people acquiesce without protest, either from reflex obedience to official demands, or as a demonstration of active cooperation with the government's "war on terror," or for some other reason. But the government's attempts characterize the intrusions as trivial oversimplifies the case. Visual inspections are certainly more intrusive than magnetometer screening. Wilkinson v Forst, 832 F.2d 1330, 1339-40 (2nd Cir. 1987); Stauber v. City of New York, 2004 U.S. Dist. Lexis 13350 (S.D. N.Y. July 19, 2004), at 84-85. Whether a demand to open a handbag is more or less intrusive than the computer monitoring considered in Lifshitz, or the brief and technical "trespass" in Palmieri, may be a matter of opinion. The Fourth Amendment privacy interest has a subjective as well an objective component. Katz v. United States, 389 U.S. 347, 361 (U.S., 1967) (Harlan, J., concurring); United States v. Agapito, 620 F.2d 324, 329 (2d Cir., 1980). Being required to open a handbag or briefcase for inspection may be trivial to many, but a vulnerable youngster, or a senior citizen with old-fashioned sensibilities, or a country person with country sensibilities, might feel it as officious and painfully intrusive. Unlike urine testing, there are also situational variables. A purse or a backpack may contain embarrassing or comment-provoking objects. A car's trunk may hold clues about the driver which the driver may not want known. Finally, subjective privacy expectations may depend on locale. September 11 has taught us that cities are terrorist targets, and most city dwellers experience handbag and briefcase searches in that light. People like appellants and their affiants, living and working in rural areas, remote from large cities, with a long tradition of and respect for privacy typical of rural areas, may take a different view. The government's characterization of the intrusion as trivial assumes, or prescribes, a uniform sensibility which does not exist. But the magnitude of these intrusions does not depend on a single instance. If a single "pop the trunk" order can be dismissed as trivial, the second, third, and nth iterations can not. This is a continuing intrusion, repeating itself at unpredictable intervals, which seems intent on continuing for the foreseeable future, as long as "terrorism" remains a threat. As President Bush put it in a speech to the 101st Airborne Division, the threat is not limited to Al Quaeda or Afghanistan: There are other terrorists who threaten America and our friends, and there are other nations willing to sponsor them. We will not be secure as a nation until all of these threats are defeated. Across the world, and across the years, we will fight these evil ones, and we will win. New York Times, November 21, 2001. In Bourgeois v. Peters, 387 F.3d at 1303, the Eleventh Circuit enjoined police magnetometer searches of protestors at a demonstration against a military installation, the School of the Americas, in Fort Benning, Georgia, which the authorities attempted to justify on the basis of the War on Terror. The court wrote, We cannot simply suspend or restrict civil liberties until the War on Terror is over because the War on Terror is unlikely ever to be truly over. September 11, 2001, already a day of immeasurable tragedy, cannot be the day liberty perished in this country. Id. 1312. The Supreme Court remarked on the same open-endedness in Hamdi v. Rumsfeld, 124 S. Ct. 2633, 2641 (2004): "If the Government does not consider this unconventional war won for two generations ... Hamdi's detention could last for the rest of his life." The open-endedness of these searches puts them in sharp contrast to the search program upheld in American Arab Anti-Discrimination Committee v. Massachusetts Bay Transp. Auth., 2004 U.S. Dist. Lexis 14345 (D. Mass. 2004), on which the government relied in the court below, approving suspicionless searches of subway passengers in Boston, during the Democratic National Convention, for a brief period of time, from July 26 through July 29, of last year. Compare Stauber v. City of New York, 2004 U.S. Dist. Lexis 13350, granting an injunction against suspicionless bag searches of people demonstrating against the Republican National Convention. 3. The Special Need In the court below the government characterized its "need" as "preventing a recurrence, on whatever scale and by whatever means, of the events of September 11." Federal Defendants' Motion to Dismiss (J.A. 4 (doc. 17)) at 22. For Judge Murtha the special need was the broadest possible: "to provide domestic security...." J.A. 67. These are obviously goals of compelling importance, but the issue is not the government's generalized need to defend against terrorism, but its special need to conduct particular searches, searches which would otherwise violate the Fourth Amendment, in doing so. As this Court wrote in Lifshitz, the Supreme Court "has been reluctant to ratify implausible or overbroad assertions of 'special needs.'" 369 F.3d at 185, citing Chandler v. Miller, 520 U.S. at 318-322 and Von Raab, 489 U.S. at 677-78. The government must show more than an abstract or general need, but rather one which "derives both from the particular context in which it seeks to implement searches" and "what the searches are designed to discover...." 369 F.3d at 186. The complaint and supporting affidavits allege a lack of that kind of need. It is certainly not obvious, or undebatable, that this small, remote rural ferry line, of no strategic importance, is at special risk of a terror attack, i.e., more at risk that other plausible targets. Nothing in the record indicates even so much as ordinary vandalism, and the government has pointed to nothing in the context, the proximity of structures or facilities of strategic or symbolic importance , which might be jeopardized by an attack on the ferries. Lt. Cmdr. Rancich, an expert with years of experience in anti-terrorist work, including the specific question of ferry security under the MTSA regulations, J.A. 41  1-2, confirms what seems obvious: that international terrorists seek high-impact targets, such as "critical nodes whose destruction will have a direct effect on the population or targets that will have a cascading effect throughout the population"; and the LCT ferries are not such targets J.A. 47-48  21. He is not alone in his view that the Coast Guard and DHS are "protecting things that will never be attacked" or his opinion that some antiterrorist exercises are "no more than stunts." New Orleans Times- Picayune (May 15, 2005) (quoting a homeland security consultant, speaking at a Navy-sponsored conference). It is not even clear that any Coast Guard or DHS official has ever found otherwise. As explained above, these searches are mandated by a privately drafted ASP, a security program which the Coast Guard Commandant decided "provides an equivalent level of security" to the part 104 regulations, 33 C.F.R.  101.105, and which was then determined, on the local level, to be "appropriate" to the class of vessels to which LCT ferries belong. 33 C.F.R.  104.140. These findings of sufficiency and "appropriateness" are not findings of necessity, of the sort required by the special needs cases. The "necessity" decision, if it was made at all, was made by LCT and the Passenger Vessel Association, whose motives are those of private entities, including convenience and cost-savings. Use of a trained dog, for example, or a security officer to ride the ferry, or video surveillance at the loading docks or on board, are all reasonable security measures in common use. None of them involves invasion of Fourth Amendment privacy, but all of them would require an outlay of funds. LCT's passenger and vehicle searches, by contrast, needed no new hires, and seem to have incurred no other major expenses. 4. The Efficacy of the Search In Lifshitz the Court vacated a probation condition requiring computer monitoring, in part because "the efficacy of the monitoring condition is not pellucidly clear." 369 F.3d at 192. That would be putting it mildly for the searches in this case. To be reasonable a search must serve its purpose, such that "an important government interest...would be placed in jeopardy" without it. Chandler, 520 U.S. at 314; Von Raab, 489 U.S. at 624. There must be "a minimum of intrusiveness coupled with maximal effectiveness so that the searches 'bear a close and substantial relationship' to the government's 'special needs.'" Lifshitz, 369 F.3d at 186. Last year in Stauber v. City of New York, 2004 U.S. Dist. Lexis 13350, the Southern District held that that New York City police could not conduct suspicionless searches of the possessions of demonstrators at the Republican National Convention. Without questioning the government's assertion that the convention was a potential terrorist target, the court held that "the defendants have provided no information to suggest that the bag search policy will address the kinds of threats that the NYPD may face at demonstrations." 2004 U.S. Dist. Lexis, supra, slip op. 88. Proponents of the search have not shown that the invasion of personal privacy entailed by the bag search policy is justified by the general invocation of terrorist threats, without showing how searches will reduce the threat. Id. Terrorist attacks generally involve hijacking or sabotage, or both (as on 9/11). Hijacking, however, is not a danger which the LCT vessel security screening even arguably addresses. Putting aside the extreme unlikelihood of hijacking a vessel on the enclosed inland waters of Lake Champlain (as opposed to those operating in an ocean harbor or on the open sea), transporting firearms and knives on the ferry is commonplace. And see J.A. 21  37. The searches do nothing to prevent a passenger bent on pirating a Lake Champlain ferry from doing so. The object of the screenings is explosives: incendiary devices and bombs, which could sabotage or sink the vessel. But unlike the careful screenings of carry-on luggage at airports, the ferry searches as currently conducted are stunningly ineffective and logically incomprehensible: for passengers in vehicles a visual inspection of the passenger compartment and the trunk, but not the contents of any containers, even large containers. For foot and bicycle passengers an inspection of the contents of suitcases, bike bags, etc. For some trucks, no screening at all; for others a "look" inside. Lt. Cmdr. Rancich explains why even thorough, properly conducted searches would do virtually nothing to enhance security against terrorist attack. First, LCT ferries are the unlikeliest of terrorist targets. Second, there are easier and safer ways to sabotage a ferry than by a car bomb. Finally, LCT ferries, which carry vehicles and passengers on an above-waterline deck, could be sunk only by a sophisticated "shaped" charge, because "explosive force tends to the path of least resistance and would largely be deflect[ed] up and out by the decking, resulting in minimal penetration of the vessel." J.A. 44-46. Finding no practical justification for the drug searches under consideration in Chandler, Justice O'Connor wrote, What is left, after close review of Georgia's scheme, is the image the State seeks to project. By requiring candidates for public office to submit to drug testing, Georgia displays its commitment to the struggle against drug abuse. The suspicionless tests, according to respondents, signify that candidates, if elected, will be fit to serve their constituents free from the influence of illegal drugs. Id. 321. That symbolic purpose, the Court held, could not justify departure from the Fourth Amendment norm. As Justice Scalia wrote in a similar vein, dissenting in Von Raab, I do not believe for a minute that the driving force behind these drug-testing rules was any of the feeble justifications put forward by counsel here and accepted by the Court. The only plausible explanation, in my view, is what the Commissioner himself offered in the concluding sentence of his memorandum to Customs Service employees announcing the program: "Implementation of the drug screening program would set an important example in our country's struggle with this most serious threat to our national health and security." App. 12. * * * To be sure, there is only a slight chance that it will prevent some serious public harm resulting from Service employee drug use, but it will show to the world that the Service is "clean," and--most important of all--will demonstrate the determination of the Government to eliminate this scourge of our society! I think it obvious that this justification is unacceptable; that the impairment of individual liberties cannot be the means of making a point; that symbolism, even symbolism for so worthy a cause as the abolition of unlawful drugs, cannot validate an otherwise unreasonable search. Von Raab, at 686-87. "In my view[,]" he wrote, "the Customs Service rules are a kind of immolation of privacy and human dignity in symbolic opposition to drug use." Id., at 680-681. The symbolic purpose of the LCT searches is both apparent and explicit. J.A. 37  8 (ferry captain told Mr. Pavone company wanted to "create awareness"). Their obvious futility is part of what plaintiffs and their affiants, along with Justice Scalia, find so objectionable. "I don't think it is right," Mr. Pavone explains, "that I am supposed to sacrifice my rights so that LCT can pretend to do searches which are ineffective...." Id.  11. 5. The Courts' Role Secrecy and Deference A disturbing feature of this case, distinguishing it from other special needs cases, is the near-total opacity of the search protocol. The Supreme Court cases on which the government relies include, as a necessary component of their special needs analyses, a thorough consideration of the searches under review. See, e.g., Vernonia, at 657-660; Skinner, at 608-12, 621 n.5, 622 n.6, 627 n.7; Von Raab, 489 U.S. at 661-62, 672 n.2; Sitz, at 447-8. The same is true of this Court's recent special needs cases, e.g., N.G. and S.G. v. Connecticut, 382 F.3d 225, 2004 U.S. App. LEXIS 18834 (2nd Cir. 2004) at 6 (detailing the state's juvenile strip search policy); Roe v. Marcotte, 193 F.3d 80 (2d Cir. 1999) (limits on discretion in DNA sampling and use), as well as its airport search cases on which the government heavily relied in the district court. See United States v. Albarado, 495 F.2d 799, 801-803 (2nd Cir. 1974); United States v. Edwards, 498 F.2d 496, 499 (2nd Cir. 1974); United States v. Bell, 464 F.2d 667, 668-69 (2nd Cir. 1972). LCT's search procedures, by contrast, are secret. As a consequence the Court does not know (and is being ask to approve without knowing), the answers to some key questions. For example, What is being searched? The searches observed by Plaintiff and his affiants have not included luggage or bags inside vehicles, but the government insists that this "does not mean that vehicular passengers are never selected for baggage screening," Federal Defendants' Motion to Dismiss (J.A. 4 (doc. 17)) at 32 n.19, leaving the issue of "more extensive searches" wide open. Id., at 19 n.15. Are the searches random? Or are the searchers allowed discretion to pick and choose? Guaranteeing the absence of such discretion is critical to the constitutionality of roadblocks, see Sitz, 496 U.S. at 454, citing Delaware v. Prouse, 440 U.S. 648 (1979), and other special needs search programs, e.g., Roe, 193 F.3d at 79-80 (where the court could be certain that no discretion was left to the DNA samplers); N.G. ex rel. S.C., 382 F.3d at 227-28. In this case the government says, in effect, that the Court need not be concerned. What are the consequences of refusal? What if contraband is discovered? In Vernonia, the Court had been assured as to the consequences of refusing to take the test, and the consequences of failing. 515 U.S. at 658. In this case the government stands mute on both points. The government attempts to finesse this impediment to judicial review with a call for judicial deference, an argument it has made without success in other post-9/11 cases, notably Hamdi v. Rumsfeld, 124 S. Ct. 2633, and Rasul v. Bush, 124 S.Ct. 2686 (2004), and which should fare no better here. In Hamdi the government argued in support of its detention of persons deemed "enemy combatants," that courts should be restricted "to investigating only whether legal authorization exists for the broader detention scheme," deferring to the government so long as that articulated basis "was a legitimate one...." Id. 2645. The Court soundly rejected that claim, id. 2650, holding that the government's weighty interests did not "trump a citizen's core rights to challenge meaningfully the Government's case and to be heard by an impartial adjudicator." Id. There are two reasons to reject the government's call for deference here. First, nothing in Chevron USA Inc. v. Natural Resources Defense Counsel, Inc., 467 U.S. 837 (1984), undermines the courts' statutory authority to set aside agency action which is "contrary to constitutional right, power, privilege, or immunity...." 5 U.S.C.  706(2)(B). White v. United States, 989 F.2d 643, 647 (3d Cir. 1993). If the Supreme Court's special needs opinions are unanimous about anything, it is that the constitutional reasonableness of this category of these searches is a question for the courts, not DHS or Coast Guard. As Hamdi and Rasul make clear, this basic judicial role has not been altered by September 11. Second, the deference argument is irrelevant to the particular agency action at issue. The government recognizes that this is not a facial challenge to the DHS regulations, but a challenge to the LCT search program. Neither the MTSA nor part 104 of the regulations mandates these searches. Rather, they have been required by the particular ASP which LCT submitted to the appropriate regional Coast Guard authority, and which that authority then approved as appropriate to LCT's operations. That local Coast Guard decision clearly lacks the force of law. It is not the sort of agency action entitled to deference under Chevron. United States v. Mead Corp., 533 U.S. 218, 234 (2001); Christensen v. Harris County, 529 U.S. 576, 586-587 (2000). D. The Assertion of a National Justification: The Airline Paradigm In the district court the government did not attempt to defend the LCT searches with any local facts tending to show that they are reasonable or necessary, and in any event, on this motion to dismiss, this Court is bound to accept plaintiffs' contrary showing as true. Its attempted justification is single- mindedly national: searching passengers on all vessels of 100 gross register tons or more, a class of vessels which the Coast Guard and DHS determined to be at "high risk" of a terrorist attack, is a reasonable response to the threat posed by 9/11, just as searching airplane passengers is an accepted response to hijackings and terror. This superficially plausible claim (if airplanes, why not boats?) calls for scrutiny into the genesis of airline searches and the legislation and regulations governing them. The "paradigm" fails for a number reasons, not least because Congress and the executive have chosen to address the security issues of planes and boats very differently: a uniform national search requirement for the former, and a flexible, locally-oriented approach to the latter. 1. Airline Searches Airport searches were the immediate response to a concrete threat to airplanes. The airport search is a direct reaction to wave of airplane hijackings which began in 1968, at which time popular feelings of fear and anger, and ultimately rage, called out for some program to safeguard air flights, and understandably so. United States v. Albarado, 495 F.2d 799, 801 (2d Cir. 1974). Hijackings occurred at the rate of about one a year from 1961 to 1967, rose to 18 in 1968, and soared to 33 (out of 40 attempts) in 1969. United States v. Davis, 482 F.2d 893, 898 (9th Cir. 1973). See also McGinley & Downs, Airport Searches and Seizures A Reasonable Approach, 41 Ford. L. Rev. 293-97 (1972) for a summary of the U.S. airplane hijacking history. In addition to firearms alleged and real used in 117 incidents, other weapons include knives, razors, bombs, a hatchet, an ice pick, and a tear gas pen. Albarado, at 804. The threat of this horrific history was compounded by the unique vulnerability of airplanes. We need no citation of authority or statistics to establish that domestic international hijacking of airplanes poses a continuing hazard to public travel. Human life and property have been jeopardized by the mentally ill, the political terrorist and the criminal extortioner who have in recent years discovered that an airplane in flight, despite all its engineering sophistication, is a uniquely fragile and vulnerable target when a passenger or crew member is threatened by a weapon or an explosive. United States v. Bell, 464 F.2d at 669-670. The federal government responded promptly to the public outcry with a directive requiring mechanical surveillance and other security measures at "all gateway airports" and other sites. "A Program to Deal with Airplane Hijacking," 1970 Public Papers of Presidents of the United States: Richard Nixon 742-43 (G.P.O. 1971), quoted in Davis, 482 F.2d 899 n17. Congress's response was the same, mandating as part of the Air Transportation Security Act of 1974, reasonable regulations requiring that all passengers and all property intended to be carried in the aircraft cabin in air transportation or intrastate air transportation be screened by weapons-detecting procedures or facilities...prior to boarding the aircraft.... 88 Stat. 415 (Aug. 5, 1974). The post-9/11 statute mandates, without exception, the screening of all passengers and property, including United States mail, cargo, carry-on and checked baggage, and other articles, that will be carried aboard a passenger aircraft operated by an air carrier or foreign air carrier in air transportation or intrastate air transportation.... 49 U.S.C.  44901(a) (2004). This history is scarcely a "a paradigm" for the search of ferry boat passengers. Ferries are not notoriously hijacked or sabotaged, and the connection between September 11 and passenger vessels of 100 gross register tons or greater is not obvious (as the connection between skyjacking and airport security was), except in the sense that almost anything could be a target for terrorism. 2. Searches Under the MTSA And Congress' action was not a uniform nationwide requirement to screen passengers and luggage, but exactly the opposite: a legislative program which allowed generous room for local differences, requiring vessels and facilities to operate under locally tailored VSPs and ASPs, and other "equivalent" programs. a. The Statute The MTSA, 46 U.S.C.  70101 et seq., was enacted on November 5, 2002 on findings that United States ports "are often very open and exposed and are susceptible to large scale acts of terrorism that could cause a large loss of life or economic disruption." 116 Stat. 2066  (6)-(7). In an effort to enhance port security Congress called upon the Secretary of DHS and the Coast Guard to "conduct an assessment of vessel types" and port facilities, to identify those types "that pose a high risk of being involved in a transportation security incident." 46 U.S.C.  70102(a). For those vessels falling within the high risk category, the Secretary was then required to conduct individual vulnerability studies, identifying the threats and the weaknesses of any current security arrangements. Id. 70102(b)(1). Following that assessment, the administration was to develop three levels of plans: a "National Maritime Security Plan" prepared by the secretary, id.,  70103(a); Area Maritime Security Plans for different regions, id.,  70103(b)); and "vessel and facility security plans" for individual vessels and facilities. Id.  70103(c). Preparation for this third level plan was consigned to private sector decisionmaking in the first instance. Id., 70103(c)(1).S. Herman, Maritime Transportation Act: An Analysis, 70 J. Transp. L. Logist & Pol'y 412 (Summer 2003) In marked contrast to the unitary top-down requirement of airline searches, the MTSA does not specify searches of all passengers in all vessels, or speak of searches at all. The local-level plans for vessels and facilities should provide, inter alia, for (i) establishing and maintaining physical security, passenger and cargo security, and personnel security; (ii) establishing and controlling access to secure areas of the vessel or facility Id. 70103(c)(2)(C). The particular measures were to be decided on a case by case basis, as the legislative summary makes clear, using the example of ferries to underscore the need for flexibility: Vessel and facility antiterrorism plans must be developed by owners and operators of vessels and facilities that the Secretary believes may be involved in a catastrophic emergency.... To effectively implement this system, the Secretary will need to determine whether a particular vessel or facility poses a risk of being involved in a catastrophic emergency. For example, a ferry carrying a small number of cars across a river may not pose a risk of being involved in a catastrophic emergency. However, a ferry carrying several hundred commuters to work may be involved in just such an emergency. The vessel's area of operation or the type of cargo carried on board also may affect the decision as to whether the vessel or facility may be involved in a catastrophic emergency. For example, a ship offloading in a remote facility may not pose a threat of being involved in a catastrophic emergency. However, the same ship entering the Port of Los Angeles may pose such a threat. H.R. Rep. No. 107-405, 107th Cong., 2nd Sess. (2002). Security in general, and the need to conduct searches in particular, was ultimately a local decision, made in light of local needs and circumstances. b. The Regulations The regulations carry forward the same flexible, locally-oriented approach although in a different form. The overall study of the shipping inventory called for by  70102(a) was referred teams of experts and professional risk consultants, whose work is reported (within limits of confidentiality) in the Federal Register. DHS, Implementation of National Maritime Security Initiatives, 68 Fed. Reg. 39240, 39246 (July 1, 2003). The analysts were charged with addressing the Coast Guard's need "to prioritize vessels and facilities based on the vulnerabilities to potential security threats and the consequences of potential incidents." Various strategies were employed. We used a systematic, scenario-based process known as Risk-Based Decision Making (RBDM) to meet those needs. RBDM ensured a comprehensive evaluation by considering the relative risks of various target and attack mode combinations or scenarios. Id. 39243 (emphasis added). The group then developed a Port Security Risk Assessment Tool, or PS-RAT, which was given to local Coast Guard officials to complete. Because these results did not support national comparisons, a second risk-assessment tool was generated, the National Risk Assessment Tool (N RAT), which provided a foundation for risk-based prioritization and subsequent regulatory assessment closely aligned with the guidance on conducting security risk assessments recommended by the GAO (GAO/NSIAD-98-74, GAO-02-150T, GAO-03-616T). The results of the N RAT provided a national evaluation of the relative security risk facing the Marine Transportation System of the U.S. Id. 39244 (emphasis added). The report goes on to explain subsequent processing of these results; the consideration of relative threats, vulnerabilities, and consequences of various terrorist scenarios, id. 39244-45, and to state its conclusion as to the types of vessels which were rated as high risk, a list which includes "[a]ll domestic passenger vessels subject to 46 C.F.R. subchapter[s] H and K[,]" id. 39246, a class which includes vessels rated at more than 100 gross register tons. As noted, two of the three ferry lines run by LCT fall into this category. The second study which the MTSA calls for, of particular vessels and facilities, the regulators referred to the owners and operators, or third parties acting for them, to generate a detailed Vessel Security Assessment (VSA). 33 C.F.R.  104.300-305. This self-assessment must then be submitted with the operator's proposed VSP or alternative program. Id.  104.310, 104.410. Regarding the substantive content of VSPs the part 104 regulations state specific requirements, but also allow the Coast Guard virtually unlimited authority to grant waivers, variations, and exemptions. At MARSEC 1, the vessel's owner or operator must, among other security measures, Screen persons, baggage (including carry-on items), personal effects, and vehicles for dangerous substances and devices at the rate specified in the approved Vessels Security Plan (VSP); 33 C.F.R.  104.265(e)(1). "Screening" is defined as "a reasonable examination of persons, cargo, vehicles, or baggage for the protection of the vessel, its passengers and crew." 101.105. Additional measures at MARSEC 2 may include "[i]ncreasing the frequency and detail of screening of people, personal effects, and vehicles being embarked or loaded onto the vessel[,]" and "[d]enying access to visitors who do not have a verified destination;" id.  104.265(f)(1), (5), while MARSEC 3 may require (among other things) screening all persons, baggage and personal effects. Id.  104.265(g)(1). But section 104.292(b) allows ferry and other passenger vessel operators to bypass some of the MARSEC 1 search and identification requirements by implementing alternative measures. Or the operator may apply for a waiver of any of the  104 requirements "that the owner or operator considers unnecessary in light of the nature or operating conditions of the vessel."  104.130. Or the operator may propose an "equivalent" measure.  101.135, 104.135. Or the operator may seek approval of an "Alternative Security Program" under  101.120(b) and 104.140, which is the route that LCT chose to go. The drafters of the regulations stressed these various alternatives, and encouraged owners and operators to pursue them. See 68 Fed. Reg. 39294-5. Because of confidentiality restrictions, and also because of the posture of this case, almost nothing can be said about the decision to search passengers and vehicles on the LCT ferries: why searches were thought necessary or useful, how the particular search program was arrived at, what security concerns justified it, what alternatives were rejected, etc. All that can be said with certainty is that it was not a national decision, but a local one, based on the papers submitted in support of the ASP application. The local decision to search LCT passengers was not the result of a national decision that all passengers on "high risk" vessels should be searched, because neither Congress nor DHS has decided that all such passengers should be searched. That essential difference between the MTSA and the statutes and regulations governing airline traffic undermines the government's claim that airline searches are "paradigmatic" of the searches at issue in this case. 3. "Punching a Hole in the Fourth Amendment" The airline cases specifically warn against the use the government is now trying to make of them, Today airports, tomorrow some other forms of search, which may be "applied to everyone" in the words of Judge Friendly's majority opinion. It is all too easy to permit encroachments upon personal liberty whenever there surfaces "a barbarism hidden behind the superficial amenities of life." See R. Heilbroner, An Inquiry into the Human Prospect 15 (1974). Airplane hijacking is not the only "barbarism" which may result in calls for new means of investigation and detection "applied to everyone." Edwards, 498 F.2d at 502 (Oakes, J., concurring). Judge Oakes feared that "cries of 'danger' from those whose primary concern is 'security'" would cite these decisions to "to justify hitherto unknown searches." Id. 503-504. Judge Mansfield had the same misgivings. If the wave of hijacking could limit Fourth Amendment freedom, then other emergencies, such as "the sharp increase in the rate of serious crimes in our major cities could equally be used to justify similar searches of person or homes in high crime areas based solely upon the 'trained intuition' of the police." United States v. Bell, 464 F.2d at 675-76 (concurring opinion). History reveals that the initial steps in the erosion of individual rights are usually excused on the basis of an "emergency" or threat to the public. But the ultimate strength of our constitutional guarantees lies in their unhesitating application in times of crisis and tranquility alike. "If the provisions of the Constitution be not upheld when they pinch as well as when they comfort, they may as well be abandoned." Home Building & Loan Assn. v. Blaisdell, 290 U.S. 398, 483, 54 S. Ct. 231, 256, 78 L. Ed. 413 (1934) (Sutherland, J., dissenting). No necessity exists for punching a hole in the Fourth Amendment.... Id. Justice Ginsberg wrote in the same vein in Chandler v. Miller, noting that "'[t]he greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.'" 520 U.S. at 322, quoting Olmstead v. United States, 277 U.S. 438, 479 (1928) (Brandeis, J., dissenting). The government's claim here, based on September 11 and the War on Terror, punches a bigger hole than Judge Mansfield could have imagined. International terrorism, we know, can strike anything, anyone, anywhere and any time. A "commensurate" response implies the same virtually unlimited power to search. If the overall threat were enough, random stops on the road, random frisks of pedestrians and random searches of vehicles would be constitutionally "reasonable," warranted by "special needs" beyond the scope of normal law enforcement. This comes close to martial law, and the surveillance practices of authoritarian states, and while plaintiffs do not suppose the government would espouse that result, its argument in favor the LCT ferry searches contains no limiting principle to prevent that broad erosion of Fourth Amendment rights. The Fourth Amendment allows the relaxation of its normal protections to meet special needs at a specific site, like "an imminent terrorist attack," Edmond, 531 U.S. at 44, or a bomb threat, Florida v. J.L., 529 U.S. 266, 273-74 (2000). It does not permit suspicionless random searches of passengers and vehicles on the LCT ferries for the foreseeable future. CONCLUSION For the above stated reasons the judgment appealed from should be reversed and the case remanded to the district court. Dated: June 6, 2005 Respectfully submitted, ______________________________ William A. Nelson 52 High Street Middlebury, VT 05753 802-388-6781 Counsel for Plaintiffs CERTIFICATE OF COMPLIANCE WITH F.R.A.P. 32(a)(7)(B) I hereby certify that this brief contains 13,313 words, in compliance with the word volume limitation of F.R.A.P. 32(a)(7)(B). ______________________________ William A. Nelson