My email to the BART Board

Hello, my name is Martin MacKerel. I spoke at the special BART Board meeting about the phone service cutoff on August 11th.

First of all, I want to thank you for listening. A few times I have spoken at public meetings of other bodies, and usually the public participation seems just for show. Your meeting seemed genuine.

I have a couple of responses to statements at the meeting. I agree strongly with Edward Hasbrouck’s point that it is not appropriate for BART staff or the Board to have the sole power to temporarily shut off service; instead, the staff should get an injunction from a judge. This is in keeping with the long-standing American idea of checks and balances.

I believe it was Gail Murray who mentioned that she was uncomfortable with some of the actions we’ve seen by the federal government since 9/11. It’s worth looking at this more closely. Under both the Bush and Obama administrations, we’ve seen a trend where the executive branch assumes certain powers and refuses judicial oversight. The No-Fly List, for example, is just some thing dreamed up by the TSA. A bureaucrat or perhaps even a computer program puts you on the list, and there is no procedure to appeal or be removed. The BART administration should not follow this path; instead, any decision to take an extraordinary action like shutting off cell phone service should be subject to judicial approval and possible appeal.

As was much discussed at the meeting, this does not hold in the case of “imminent” danger. But we should be clear about what “imminent” means. It means immediate: the next few minutes, perhaps – possibly an hour or so. It certainly doesn’t cover the situation on August 11th. There, the staff obviously had enough time to formulate a plan in advance, and even to inform the BART Board. It would not have been unduly burdensome to ask a judge for an injunction. Thus, it is clearly not an example of “imminent” danger, and is in contrast to the hypothetical example of a bomb on premises.

I thank you again for taking time for public comment and consideration. I’m sure you are aware of the important position you hold: the precedent you set will be heard around the country and even the world. I ask you to design a policy that discourages the use of techniques like interruption of cell phone service and incorporates judicial review. And please keep in mind the narrowness of the meaning of the word “imminent” – the exemption is for true emergencies.

Martin MacKerel

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