Wartime Exigencies

[Anonymous]

Before we agree to curtailing our hobby (voluntarily or at the force of the government) due to the exigencies of wartime, let us first be certain those concessions are necessary and proper for the circumstances. In times of war, the executive branch is given great leeway in the methods it uses to carry out its two-fold wartime duty -- prosecuting the war and protecting the homefront. However, such deference can only be accorded when the United States is at war. When that exceptional wartime state is over, so is the exceptional deference to the executive granted under it.

That railfans are being accosted by police for indulging in a legal endeavour from public thoroughfares is disturbing. More disturbing, however, is talk of background checks and certifications -- all executive encroachments justified by our supposed wartime situation. Let us be clear: WE ARE NOT AT WAR. This may sound strange from someone who watched the towers burn from his office window. But the United States, in fact, is not at war. We were attacked on 11 Sept., that is true. However, the Constitution specifically establishes a procedure through which this country can rightly be said to be at war. In fact, as originally contemplated, it was a glorious process requiring the assent of the two constituencies of this country -- the states (Before their direct election, senators were elected by the state legislatures and represented the states' interests) and the people (The House, being on a 2-year election cycle, remained very close to public opinion). Many would argue that this Constitutional "technicality" should be overlooked. Assuming we are at war (Congress be damned), we have a practical concern to consider: how will we know when the war is over and the temporary deference is to be revoked. There is no Berlin into which our troops can march to tell us the war is over. There is no Hirohito to sign a surrender instrument showing the cessation of hostilities. Is the war over when we've not been attacked for 5 years? -- 10 years? -- Whenever the President says? The framers understood that in wartime, governmental power would necessarily concentrate in the executive branch. They knew also that power is prone to abuse (hence the divisions of three "co-equal" branches). That is why they established a procedure for declaring war and layed it out explicitly in the Constitution.

What does 200 year old parchment have to do with an SD-40? Actually, a lot. While there is no explicit right to take photographs of railroads, there is a right to free speech and another to be free from unreasonable search and seizure. This 4th Amendment guarantee, along with others, has been construed to offer a general privilege of privacy. That agents of the executive (law enforcement) should override these privileges and rights by seizing the railfan and interrogating him due to activity considered suspicious only because of the erroneous belief that we are in a time of war, should make every American -- railfan or not -- cringe. Each seizure (seizure does not always mean custodial arrest), each license plate run through the system, each incident report required to be filed due to the seizure, erodes our rights. It is alarming that while the executive is infringing on our rights and justifying it by means of the specious wartime exigencies argument, we should be debating willingly handing over more rights based on that same flawed premise. Railfanning is not un-American. Taking pictures is not threatening. Observing the comings and goings of trains, noting them, following them on radios and in cars is not aiding the terrorists. Why, then, should we consider restricting ourselves of anything? Why should we concede that law enforcement is right to hassle the railfan by voluntarily refraining from our lawful engagements?

We must be on guard against those who would relieve us of rights without just cause as much as we must be on guard against those with box-cutters or dirty bombs. Further, we must be on guard against ourselves voluntarily surrendering hard-earned rights for hallucinations of wartime exception and illusory promises of security. If we concede our rights to undertake lawful activities without interference from law enforcement, bin Laden will have destroyed more of America than he ever could have dreamt. We must not let that happen.

- MRT

[dknelson]

We are not the only hobby being seriously affected by this new level of suspicion. Locally the observation area at the airport (civil and military) has been closed. The Experimental Aircraft Association notes that members with old military flights realize that they have to be careful not to allow their planes to be stolen and that their own flights might be considered suspicious. Even farmers are getting concerned that someone may try to taint our food supply and I know there are tractor and farm implement fans out there who are likely to arose suspicion if they indulge in their hobby by hanging out at a large farm.
I think what we railfans find frustrating is the idea that we have been doing this all along, that substantial infrastructure exists to support our hobby (magazines, scanners, chat rooms and websites, "hotspots," railroad parks etc etc) and the outside world seems to suspect that this is all new and unprecedented. Have we really been so invisible?
Dave Nelson

[Anonymous]

I must ask this question again. Have you ever been or know of anyone getting arrested for being a railfan? Have you been or know of anyone being arrested for taking pictures of trains? Do you know of anyone being told that they are not allowed to stand on a public place to watch trains? I do not mean questioned, I mean arrested.
TIM A

[JimValle]

Actually, who are we kidding? Railroad photography was banned during WWII and tens of thousands of photos were taken. No matter what they do the railroads can never create a secure environment for themselves. They are just too big, too prominant a part of the landscape and they run through too much open country. Facilities like AMTRAK's coach yard outside 30th St. Station or Norfolk Southern's Conway yard can't be hidden from anybody! The gallery photograph on page 70 of the April issue of Trains is an excellent example of what I'm talking about. If there really is a security threat to our railroads, rousting people who are looking at and/or photographing trains is not going to save them from it. They would be much better off patrolling the rights-of-way looking for explosives, misaligned switches, broken and tampered with rails and vandalized signals. The desire to roust and harass simple spectators and photographers is a classic example of what Mark Twain called "insect authority". That is the tendency of small-minded individuals with a little official clout to throw their weight around.

[edblysard]

Well said.
Ed

[cabforward]

several democrats in the senate filed a lawsuit in federal court alleging some of what your posting states.. it was dismissed as being outside the court's jurisdiction.. next case!

[Anonymous]

As usual, we are blowing every thing out of proportion. There is little that a railfan photoghrapher can supply that is not all ready available in the public domain. For example, the recent issue of Trains gave anyone who wanted to know the list and location of 96 major classification yards. It looks like a great target list for anyone wanting to create havock on our railroads. I photograph weekly and have yet to be questioned while on public property. The railroaders I talk with feel that railfans are an asset to the railroads. Over the years, I've spotted hot boxes, vandals and given crew members rides. I suggest we drop the issue and continue as we have and I suspect the railroads will ease off. At the same time, I'm sure trespassing on railroad property will bring the police and probably should.