Ferry-terminal searches are way out of line

'We have to search your car."

As part of the War on Terror, police are searching every 15th car in the ferry line. You are to sign a paper that anything found in your car may be used against you. You are to get out of your car and let officers poke through your trunk, your glove compartment and under your seats.

You may refuse, but you will not be allowed to ride the ferry. And you will be looked upon as a bad citizen.

If you are feeling your vinegar, you may ask: By what authority does the state search my car?

The state was asked about that by the American Civil Liberties Union. The answer from the office of Attorney General Christine Gregoire was that the state was "exempt" from answering that question because of the War on Terror. Besides, it was a matter of attorney-client privilege. Gregoire was the attorney and the State Patrol was the client. That is to say, the state was advising itself, and part of its advice was not to tell you.

The ACLU held firm. There was a disclosure law, and the state had to cough up an explanation. After a couple of days it did, sending over a remarkable legal opinion by Kasey Myhra, Washington assistant attorney general. Random searches at ferry docks, Myhra wrote, "are unprecedented in Washington state, therefore there is no clear authority authorizing the practice."

The state constitution, Article 1, Section 7, says, "No person shall be disturbed in his private affairs, or his home invaded, without authority of law."

There was no law. Nor was there an executive order by Gov. Gary Locke, or any other action by him. The idea for searches came from the Coast Guard. That federal agency might have ordered the searches itself, Myhra wrote, but it hadn't. It had suggested the state order them.

Had a Washington court ever approved a random search at a ferry?

Yes — once. It was, Myhra wrote, on one ferry when "officers had probable cause to believe a felon had boarded the ferry and may have been attempting to conceal himself in a vehicle trunk."

That was one ferry, one time. Searches at an indefinite number of ferries for an indefinite time would require an imminent risk to the public. But, Myhra wrote, "To date, the Coast Guard has not indicated the existence of any specific terrorist threat(s)" to the ferries.

No wonder the state wanted its advice kept secret.

The imminence of threat is the key. Al-Qaida has not attacked the United States for nine months. Those attacks were against New York City and Washington, D.C. Previous attacks were against federal U.S. targets in East Africa and Yemen. The likelihood that Osama bin Laden's next assault on the United States will take place at the Edmonds ferry dock is very low.

If terrorists did target a ferry, a search of one vehicle in 15 would not stop them. Real security would require searching everybody, as is done with air travel — that, and some other things, perhaps an armed escort on the water.

In actual war, constitutional rights are sometimes set aside. Lincoln did it, as did Woodrow Wilson and Franklin Roosevelt. In hindsight, they all overdid it. If there is any lesson from history it is not to give up your rights until you see the hair in the enemy's nostrils.

This is not just about searches of cars. In the same week was the news that the "dirty bomb" suspect, an American citizen, had been held at a military base beyond the reach of civilian law. Jeffrey Robinson, president of the Washington Association of Criminal Defense Lawyers, describes it as, "We don't have enough evidence to prosecute him, so we're going to hold him without evidence anyway."

Singapore does that. Cuba does it. Shall America do it?

People say, "There's a war on." No, there is not a war on. Our government was briefly involved in a war in Afghanistan, and threatens to start a war against Iraq. At the moment, it has a police action against a private gang holed up in the Hindu Kush, something like the chase of Pancho Villa into Mexico in 1916.

The danger now is greater, no doubt. But the threat is not yet definite enough to require the searching of our cars, trucks and RVs without probable cause and without law.

Bruce Ramsey's column appears regularly on editorial pages of The Times. His e-mail address is bramsey@seattletimes.com.