Earlier today, Steven Frischling, author of the Flying with Fish blog over at Boarding Area, posted a piece entitled, How the TSA Legally Circumvents the Fourth Amendment. I am a big fan of Fish’s blog–he is a nuanced writer who carefully chooses each word he writes, avoiding emotional overtures that often cloud reality.
The TSA has always been a hot topic for him and his TSA detention earlier this week only added flames to the fire. But I profoundly disagree with his analysis today, his allegation that current TSA actions do not violate the Fourth Amendment and those who say otherwise are just confused, and I want to walk you through why I do.
First, let’s review the Fourth Amendment. It states, "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
Now, let me summarize Fish’s argument:
A constant complaint from those opposed to the Transportation Security Administration’s (TSA) new ‘enhanced’ pat down searches is that these pat downs violate a traveler’s Fourth Amendment rights…
While the new TSA enhanced pat downs may violate the Fourth Amendment on the surface, what most people are not aware of is that the 9th Circuit Court of the United States ruled on the search of passengers in airports back in 1973, which effectively suspends limited aspects of the Fourth Amendment while undergoing airport security screening.
In 1973 the 9th Circuit Court rules on U.S. vs Davis, 482 F.2d 893, 908, there are key pieces of wording that give the TSA its power to search essentially any way they choose to. The key wording in this ruling includes “noting that airport screenings are considered to be administrative searches because they are conducted as part of a general regulatory scheme, where the essential administrative purpose is to prevent the carrying of weapons or explosives aboard aircraft.”
U.S. vs Davis goes onto to state “[an administrative search is allowed if] no more intrusive or intensive than necessary, in light of current technology, to detect weapons or explosives, confined in good faith to that purpose, and passengers may avoid the search by electing not to fly.”
So far, so good. Though more recent caselaw, which I shall discuss below, clarifies U.S. v. Davis, it is true that airport security screenings are generally classified as valid administrative searches in terms of Fourth Amendment analysis.
But it’s Fish’s conclusions from the above caselaw that trouble me:
These laws give the Department of Homeland Security (DHS) and Transportation Security Administration significant legal latitude to perform the searches utilizing their current procedures without fear of violating the Fourth Amendment. Any attempt to oppose TSA searches citing the Fourth Amendment would be rebuffed unless done through the proper legal channels…
Presently the TSA has what appears to be a “blank check” in writing out what is “no more intrusive or intensive than necessary” and what is “confined in good faith to that purpose.” With the latitude the agency has been granted … not only does a legal precedent need to be set that challenges U.S. vs Davis, but further oversight of the TSA needs to be created by the House & Senate committees responsible for overseeing and funding the agency…
Misinformed yelling does nothing to help bring about the change that is necessary.
I can only assume that the last comment was directed at people like me, who have been arguing for months that the TSA’s full body scanners used as a primary screening device and enhanced pat-downs violate the Fourth Amendment. But as a lawyer in training, I know better than to make unfounded legal conclusions and my argument that the TSA actions violate the Fourth Amendment is based on careful legal research.
Just because the Ninth Circuit ruled that 1973 airport screening procedures were legal administrative searches does not mean that the TSA is not currently violating the Fourth Amendment. In fact, the same court addressed secondary screenings only three years ago.
In Aukai, the Ninth Circuit stated TSA screening procedures are “well-tailored to protect personal privacy escalating in invasiveness only after a lower level of screening disclosed a reason to conduct a more probing search.” (United States v. Aukai, 497 F.3d 955 (2007)).
Employing AIT and enhanced pat-downs as primary screening mechanisms hardly seems to comport to that ruling.
That’s a very simple way of arguing that the administrative search doctrine does not cover manhandling and peeping by the TSA, but a look at how the U.S. Supreme Court has justified the administrative search doctrine further reveals the TSA is at odds with the Fourth Amendment.
In Burger, the Court laid out a three-prong test to determine whether a warrantless inspection was reasonable. A warrantless inspection will be deemed to be reasonable only so long as (1) a substantial government interest exists, (2) warrantless inspections are necessary to further the regulatory scheme, and (3) the statute authorizing the warrantless inspection serves as a constitutionally adequate substitute for a warrant. (New York v. Burger, 482 U.S. 691 (1987)).
I will concede the first prong of the test, but the second and third prongs are problematic to those who claim TSA pat-downs and full body scanners are lawful. Are these inspections necessary? Well, when the Government Accounting Office warns Congress that full body scanners haven’t been tested and may not be able to detect the very type of explosives material the machines were procured to detect, you have to wonder.
As for the third prong of the test, you could argue that the TSA’s organic act, which gives the agency broad and sweeping power to implement airport security, satisfies the requirement, but you might also argue that Congress never intended to allow U.S. citizens to be strip-searched or groped without probable cause in passing the act, even if the language might be construed that way by an overly broad reading of the text.
Fish’s final conclusion is correct: this issue is going to have to be resolved in court if Congress doesn’t step in first, but we don’t need to overturn U.S. v. Davis. The airport screening of 1973 is not remotely analogous to the screening of late 2010 and the Ninth Circuit, or whoever hears the challenge, only has to cite Aukai to argue that such obtrusive searches are only permitted after a passenger sets off a metal detector or arouses suspicion in some other way to give TSOs the probable cause required to conduct such an invasive search.
Matthew,
I have a bit of a correction to your post … otherwise it is excellently written.
You state “But it’s Fish’s conclusions from the above caselaw that trouble me”
I do not make a conclusion of the legality of the that gives the TSA its ability to get around the 4th Amendment. The conclusion comes from the 9th Circuit Court upholding US vs Davis via its ruling in Torbet vs United Airlines in 2002 … after the creation and deployment of the TSA into airports in the United States.
I am not a lawyer and certainly not a Constitutional Lawyer. To make my opinions I not only read extensively on topics, but I seek out opinions of those who are experts.
Later in the week I intend to write a follow up post that discusses how the TSA is operating outside the scope of the original spirit of the law with US vs Davis.
I prefer to not get emotionally involved in these debates. I base my opinion largely on research and those who know far more than I do … which is why sometimes I make educated opinions that go against the popular movement.
Happy Flying!
-Fish
Matthew,
This TSA stuff is getting ridiculous. Sure, the TSA may not be wildly effective, but if extra security measures stop even ONE would be terrorist, it’s worth it, and we should not be complaining about scanners or pat downs.
I would much rather endure a scanner or crappy pat down then have my plane blow up in mid air. Does it suck? Yes. Do I complain? No. I appreciate the job the TSA does and like I said, if it stops even ONE, it’s all worth it.
Then you should have no issue with me searching your house and belongings, as it could possibly save just ONE life.
@Fish: Thanks for weighing in! I’ve read Torbet v. United Airlines as well and that case upheld random secondary searches. But Aukai, five years later, suggests that there must be some–even if flimsy–probable cause to justify a more extensive search.
Here’s a slightly bigger excerpt from the Aukai case:
“Although the constitutionality of airport screening searches is not dependent on consent, the scope of such searches is not limitless. A particular airport security screening search is constitutionally reasonable provided that it “is no more extensive nor intensive than necessary, in the light of current technology, to detect the presence of weapons or explosives [ ][and] that it is confined in good faith to that purpose.” Davis, 482 F.2d at 913. We conclude that the airport screening search of Aukai satisfied these requirements.
The search procedures used in this case were neither more extensive nor more intensive than necessary under the circumstances to rule out the presence of weapons or explosives. After passing through a magnetometer, Aukai was directed to secondary screening because his boarding pass was marked “No ID.” Aukai then underwent a standard “wanding procedure.” When the wand alarm sounded as the wand passed over Aukai’s front right pants pocket, TSA Officer Misajon did not reach into Aukai’s pocket or feel the outside of Aukai’s pocket. Rather, Misajon asked Aukai if he had something in his pocket. When Aukai denied that there was anything in his pocket, Misajon repeated the wanding procedure. Only after the wand alarm again sounded and Aukai again denied having anything in his pocket did Misajon employ a more intrusive search procedure by feeling the outside of Aukai’s pocket and determining that there was something in there…”
Even when administrative security interests are “legitimate and substantial,” the interests “cannot be pursued by means that broadly stifle
fundamental personal liberties when the end can be more narrowly achieved.” Shelton v. Tucker, 364 U.S. 479,488 (1960).Fourth Amendment safeguards “dictate a critical examination of each element of the airport security program.” Davis, 482 F.2d at 913.
I agree that in this case, you have made an educated opinion that goes against the popular movement. But I still think you are still too quick to dismiss the veracity of the opposing legal argument. I would hope you can agree that a strong and emotionless argument can be made that the Fourth Amendment is being violated by the TSA.
@Steve: Thanks for your comments, which I profoundly disagree with.
You present a false dichotomy and as I have stated numerous times in the past, I have yet to see evidence that these more invasive pat-downs or full body scanners provide any additional safety than do traditional metal detectors and less invasive pat-down methods.
But let’s assume, for a moment, they do. Are you in favor of banning all carry-on bags or requiring passengers to totally strip before entering the secure side of the airport? After all, technology isn’t perfect and an even more invasive pat-down might miss something critical. If that stops just one terrorist, would that be worth it?
The ends don’t always justify the means. We need to stop living in fear. That’s the mark of a terrorist victory.
I found your post here Matthew after doing an internet search to find out if the TSA Screening was on it’s way to the Supreme Court.
I’m no lawyer, but I appreciate the law – especially the Constitution. In fact, I’ve spent the last 10 years serving in it’s defense. Maybe that still means something, maybe not.
It’s just wrong. I wish there was a legal term for that. Violates our privacy even if only one person sees the scan image. Violates our safety by exposing us to technology that hasn’t been properly tested. Violates our trust that the AIT units are being sold by a former government official. Violates my stomach to think of my daughters being extensively patted down by a stranger.
There has to be a better way.
How does something end up before the Supreme Court? What steps are taken before it’s finally ruled upon?
Thanks for your post. It was very informative.
-Damon
“He who sacrifices freedom for security deserves neither.” -Benjamin Frankin
@Damon: For thanks for reading my blog. The term you are looking for is unconstitutional. That describes current TSA protocol.
Here is how this issue could eventually make it to the Supreme Court: An aggrieved party would have to sue. Per the dictates of the Aviation and Transportation Security Act of 2001, Circuit Courts have original jurisdiction in settling manners concerning this administrative agency.
So after a Circuit Court, say the 9th Circuit, ruled on whether a citizen’s Fourth Amendment rights were violated by the TSA, the losing party would likely appeal to the U.S. Supreme Court.
The High Court would have the option of either refusing to hearing the case, thereby tacitly affirming the lower court ruling, or granting cert.
It’s tough to say how the SCOTUS would rule. The SCOTUS, though divided ideologically on a left-right spectrum, seems comfortable with allowing vast executive powers.
I have a lot to say about how the High Court would weigh the issues, but I’ll hold that analysis for now. Bottom line, I don’t think we can predict how the Court would rule right now because the SCOTUS has never directly addressed airport security before.
Matthew…. IMO you’re missing quite a lot about the 4th Amendment in your stated “review” {you merely posted the brief 4A text} with no comment at all about it specifically.
–
The 4A is part of the “Bill of Rights” and states a specific fundamental right: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches”.
There are NO exceptions stated to this basic right… even for wartime or national emergency. There are NO exceptions for newly-invented “Administrative Searches” or “national security” !
4A does NOT guarantee a right of the federal government to conduct ‘reasonable’ searches, although it’s commonly framed that way by most lawyers & judges these days.
The 4A continues briefly to state the criteria for a “Reasonable” search/seizure– a judicial ‘Warrant’ based upon probable cause, supported by Oath/affirmation, and particularly describing the place to be searched, and the persons or things to be seized. If a ‘reasonable’ 4A search could legally be conducted without a warrant/probable-cause/specifics … then there would be absolutely no need at all for the second part of the 4A — but the Constitution’s authors/endorsers put it there very intentionally.
Of course, the 4A has been endlessly debated & adjudicated. But somehow the government ‘Search/Seizure’ power has ALWAYS increased markedly over decades of court 4A interpretation… while the very specific 4A ‘right’ of the people has almost vanished from discussion and formal rulings. Federal judges always seem to find {invent} “compelling” government reasons to expand government search powers… while interpreting citizen rights in the most restrictive view possible.
Therefore, in view of an honest 4A reading — there is no possible way that any TSA search procedures are legal under 4A. None !
It is even illegal for the TSA to briefly stop or redirect an air traveler for a simple metal detector scan. ‘Stopping’ a traveler is a 4A ‘Seizure’ … and is illegal without probable cause, no matter how brief the encounter. Any search of person/baggage/property is likewise totally prohibited.
Mass searches of the traveling public are absolutely prohibited by 4A. Coercing a supposed ‘voluntary consent’ to illegal search/seizure {by threat of denied boarding to passengers) is a separate crime in itself. Freedom of movement & travel is a most basic civil liberty, guaranteed by 5th, 9th and 10th Amendments.
In reality of course, the Constitution & 4th Amendment are just ink-on-paper. If the courts will not enforce 4A {they won’t}… and most lawyers, the MSM, and average citizens casually accept the current official trashing of 4A — then the rapid loss of basic rights will continue here.
@Talbot: Oooh, you’re opening up a can of worms here! I actually tend to agree with your analysis and did not “go all the way” in my IVth Amn analysis because I don’t think it is necessary to win the TSA argument.
Even we assume arguendo that the government has the right to conduct administrative searches (which I am not completely comfortable with as well), that still doesn’t allow for what the TSA is doing now. I think that’s the best way to win this argument.
But you make some good points that I want to take up at a later time.
@Steve Harris: You’re a hero! Unfortunately, there just don’t seem to be that many plane bombings. If we forget the 4th Amn and consider everyone a suspect in more areas, you can save so many more lives. How about drunk driver deaths? Way more common. DUI checkpoints everywhere! Heck, strip search them and feel their gonads in case. Couldn’t hurt right? I mean if it stops one accident. Wait people will still find a way to get into those. No more driving! Or flying since those things crash sometimes. Amendments are pretty dangerous, too. How about that 2nd one? That has to go as well as the 21st. Welcome back prohibition! Already preventing way more deaths than a scanner or gonad grab at the airport, but we can keep going, right Steve? I got it! We can just lock everyone in a cell preventing so many deaths! Ironically, it also prevents anyone from having a life.
@Matthew: I am not a lawyer, but I have been trying to find some indication of how the SCOTUS might rule. In two border smuggling cases that went to the SCOTUS, U.S. v. Flores-Montano and U.S. v. Montoya De Hernandez, it seems that such intrusive searches of a person’s body such as x-ray, pat-down, strip search, or cavity search, require reasonable suspicion. One of those cases involved a search at an airport. Both cases show that searching when there is such probable cause is effective at finding contraband without turning everyone into a suspect and sacrificing the dignity and rights of an overwhelming majority of people who haven’t done anything wrong.
Go ahead and have a field day with anyone exhibiting suspicious behavior, but leave the rest of us, who are just trying to see our families for the holidays, alone. Can’t I expect to fly safely AND not be molested? If we accept this, it will only get worse. Take off your shoes, virtual strip search, intimate pat-down, now inside your undergarments and with the palms,… keep accepting and there is much worse to come.
Also find it odd that to get on the most secure plane in the country, Air Force One, there isn’t more security. If it is not so bad, then the Obama family and all congressmen and senators should be subject to the same screening at the very least. Perhaps up it to cavity search to keep it more secure. That would change the laws very quickly.
Is all of this hullabaloo about pat-downs, nude scans and opt-outs the government’s way, though the TSA, to attempt to allay people’s fear of flying in the Thanksgiving and Christmas season given that the last incident occurred at Christmas time. Is that all this is. Because given the hard facts, the TSA cannot actually prevent a determined act of violence on an airplane.
Remember that TSA searches and seizures of personal property are patently ILLEGAL and against the Constitutional prohibition of searches and seizures without probable cause.
The text in the 4th Amendment is as plain as the nose on your face. A judge who rules against the plain language of the Amendment is a traitor and socialist. Those kinds of judges must be removed ASAP.
We need to have the Supreme Court of the United States rule on this issue soon. Opt-Out is a government slogan, which leaves you thinking that you have a choice — you can submit to a scan search or you can submit to a pat-down personally invasive search; when in fact the TSA is acting as a wholesale violator, and criminal enterprise in violation, of the law.
The penalty for leaving the search area once you have decided NOT to submit to either search is ALSO in violation of the Constitution as a cruel and unusual punishment; TSA’s vulgar purpose is solely to intimidate and bring to submission the very people and Constitution they are sworn to protect. The TSA is the outlaw and should be arrested, forced to cease and desist, and punished for their violations.
TSA should be immediately and completely abolished. Searches should be done ONLY as needed with PROBABLE CAUSE.
The TSA will NOT stop it’s unlawful searches — will not relent, no more than a crook stops robbing banks, until our Congressmen, the people en masse, or the Supreme Court put a stop to it.
Keep your eye on the ball. The lies by Obama and Obama’s administration are corrupting, illegal and sinful. Obama believes he is above the law; LET’S PROVE OBAMA WRONG!
AdrianS:
Whoa, I can see you’re a little upset about TSA policy, but you made quite a leap in those last couple sentences. Keep political affiliations or whatever feelings you have about our president out of this. Keep your eye on the ball (that would be restoring our 4th amendment rights, not a political campaign or proving anyone wrong). Also a little too far on abolishing the TSA and assuming their sole purpose. TSA is fine, however they must operate within the Constitution. The option to not fly is unacceptable. If I do not consent to police search of my vehicle and there is no probable cause, I am free to continue driving. The TSA has been given more power than the police and that power must be removed. After all, your taxes are paying for them and their x-ray machines.
This is pretty ridiculous. Do I want some TSA guy patting me down? Of course not. But in the large scheme of things, pat downs and scanners do make flying a little bit safer so it’s not really a big deal.
I’m not a lawyer, and I am approaching this not from a legal POV, but from one of logic. Here is a letter I sent to TSA tonight…
Your motto, “Your safety is our priority” is a damnable and insulting lie. The proof of this is shown by the faulty premise upon which your security procedures are based, and the logical errors that appear so quickly upon examination of those procedures.
Scanning and groping CANNOT WORK because they are based on false assumptions. Among these are:
2 The assumption that you catch the guilty by searching the innocent.
There are others.
Numbers 1 and 2 are PRIMA FACIE false, and it doesn’t take a rocket scientist to see it.
Number 3 is the sly one, the one that ropes in so many unsuspecting citizens. Benjamin Franklin said “They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety.”, yet it is the policy of TSA to entice citizens to do precisely that. I call that very close to treason, and here is exactly why it is a lie.
There is no such thing as a dangerous weapon, there are only dangerous people.
A terrorist could kill several people with bare hands before being stopped by others. With an improvised weapon (seat belt extender, metal bodied pen, CD ROM, piece of cordage, etc., he could kill several people, hold others hostage, and with only a few team members control an entire plane. Unless of course that plane also held other dangerous people, also like him, who could meet that violence with equal resistance.
I would never be a threat because I am not a terrorist. I could board a plane with a loaded weapon and there would be no incident. Most Americans could do the same. In fact we all drive incredibly deadly machines each and every day, and yet deliberate acts of vehicular homicide are so rare as to be statistically insignificant.
Dangerous people, not dangerous weapons are the risk. Profile behaviors. Do background checks. Use highly trained, effective, and unobtrusive security. Use the Israeli model. Do not lie to the American people, and most importantly, do not continue to offer them the ILLUSION of safety while engaged in a useless, meaningless, ineffectual charade. We are not as godamned stupid as you think we are.
@Steve. Sorry, but really, I would almost rather die via a terrorist than to have a stranger touch my son in places his mother and I have insisted to him no one but us should touch… any parent can understand this…
should we change our saying to him? “Son, now remember, only mommy and daddy can touch you here… or if you are at grandmas and she needs to change you or bathe you… or a TSA agent at the airport whom you have never met before.”
We would all be much safer if passengers were armed. The only proven effective defense against aircraft takeover is the aggressive defensive action of citizen passengers.
@Steve Harris:
How will the TSA patting you down make flying safer? Are you attempting to bring a weapon on the plane? Metal detector would have caught that anyway after which everyone here approves of you being patted down and cavity searched. Probable cause is required and that is not ridiculous. What is ridiculous is that you aren’t any safer with these new procedures because it is still possible to sneak explosives internally. Or they could blow up the entire security area before they are checked. This doesn’t happen, Steve. You know why? Because it just isn’t that common. If you approve x-ray scans and gonad grabs to make things safer, then why don’t you answer to my previous post to you? Huh, Steve? Is it because it tore a huge gaping hole in your pathetic argument? See how ridiculous you sound, Steve? It is a big deal. People are being humiliated and violated on the 1 in trillion chance that someone will attempt another underwear bomb, even through the underwear bomber came on a flight from Amsterdam where the TSA isn’t feeling anyone’s privates. THAT is ridiculous. They should put you in a straight jacket for that kind of paranoia.
One unreasonable portion of the new policy is the claim that once you enter the security process, you cannot refuse the search process. Fish cites U.S. vs Davis:
“[an administrative search is allowed if] no more intrusive or intensive than necessary, in light of current technology, to detect weapons or explosives, confined in good faith to that purpose, and passengers may avoid the search by electing not to fly .”
These threats clearly do not fall under the description of an administrative search. Fish’s blog posted that the TSA was was expected to clarify this policy to allow you to leave, but I have not seen such an official clarification.
@James,
I respect your interest, but administrative screening only really works if everyone is subject to them. Profiling works on the presumption that you can pre-identify terrorists with a low risk of false positives or false negatives. If they had that kind of technology it should be used in the intelligence community and not left to a $13 hour wage TSO.
Profiling is just as much magical thinking as any other TSA policy over the past 10 years. Designed to catch yesterdays threat, not tomorrows,
I thought this summed up the Fourth Amendment argument nicely:
The Fourth Amendment (Amendment IV) to the United States Constitution is the part of the Bill of Rights which guards against unreasonable searches and seizures. The amendment specifically also requires search and arrest warrants be judicially sanctioned and supported by probable cause. It was adopted as a response to the abuse of the writ of assistance, which is a type of general search warrant, in the American Revolution. Search and arrest should be limited in scope according to specific information supplied to the issuing court, usually by a law enforcement officer, who has sworn by it.
Hey Matt,
Thanks for the considerate blog. Like you, I am very interested in seeing the TSA and its policies on the defendant’s side in the Supreme Court. I don’t have any doubt at all that the current AIT/pat down policies are unconstitutional. I very much want to see them struck down.
As an aside, or really bad soliloquy, I’ll offer that I live in a US city that has one murder per day. That’s a lot more murders than you see on US airlines. Nonetheless, even though there is one murder per day in my city, no one has ever attempted to say that I may be randomly selected for nude scanning or a pat down, just because I wish to enter my own city. But that argument is being made at airports. Because the Constitution applies in my US city, “they” know better than to try. Somehow, the TSA wants to construe that the Constitution does not apply at airports.
In my most recent attempt to fly, I resolved myself that I was willing to miss my flight and go to jail, if necessary, if I were selected for TSA’s bonus round while flying. I made it through with no hassle. Believing in hassle, I found a huddle of 8 TSA employees on the other side. I asked them about their sworn oath, in writing, to “support and defend the Constitution of the United States” as a condition of employment with the federal government. Four out of five feds seemed confused, and I could tell this would not end well. Cutting to the chase, I was told, “You don’t have a right to fly.”. I countered with, “I also don’t have a RIGHT to enter a bank. But in spite of the fact that many, many people have been killed in banks by evil doers, no one has ever tried to suggest that I need to be nudie scanned or patted down to enter a bank.” The TSA supervisor, beaten, said, “Look, these people did not write the law. Your beef is not with them. They are just doing their jobs.” I replied, and I know exactly why the conversation ended, “That defense did not work AT ALL in Nuremburg. That’s why you sign that oath to defend the Constitution – YOU ARE SUPPOSED TO BE THE LAST LINE OF DEFENSE AGAINST ILLEGAL POLICY.” I don’t think he got it, watching him walk away.
Hitler’s Germany and the TSA are in no way comparable. A person being starved to death is in no way comparable to someone brushing against your ‘junk’ in the guise of national security. All the ‘atrocities’ and worse committed by the TSA in airports are mirrored daily by the various police forces in our communities. Two wrongs don’t make a right but wake up and smell the coffee.
My feeling is that of those who complain in and to various blogs and b**ch at TSA agents performing ‘unconstitutional acts’, less than 0.1% of them actually complain to their representatives in congress and president and more than half of them don’t even vote. So we have one group of people being unconstitutional and another group not exercising their constitutional rights.
Which one is the eviler?:)
@MichaelD: I don’t think Mike meant to say that the extermination of a race of people is analogous to the TSA “touching your junk,” but I do see an analogy in this way: I simply do not buy the lame defense of many TSOs that “they are just doing their job.” That is no defense. A proper reflection of what they are doing, most notably the sheer security theatre they are engaged in (stay tuned for an upcoming video post on this subject…), should give them pause.
Until a court rules what the TSA is doing or the organic act that created it is unconstitutional, they are not breaking any written laws. But every TSO disgraces the legacy of Patrick Henry and James Madison each day they show up to work. We can disagree on the extent of security necessary to keep us safe, but if the members of Congress and American people actually believe the TSA is necessary, we should amend the Constitution because I just don’t see the N&P Clause or the Commerce Clause or anything else in our charter giving the federal government the power to do what they do today in the name of national security.
I hinted at it in another post and I’ll spell it out clearly here: I view DHS as a terrorist organization.
As for voting, I have voted in every election since I turned 18. But I certainly haven’t wasted my time writing my Congressman. As it turns out, I worked for my Congressman (and for Bush 43). Maybe it was just his office, but the Congressman never saw a single constituent letter. Hundreds poured in every day and they were all answered by entry-level staffers and interns sending form letters that were signed with an auto-pen.
I also had my fair share of experiences with the White House Comment Line (202) 455-1111. A caller’s name was never recorded and the President never heard or saw any of the comments left. Same story with the thousand of letters that poured in every day. I doubt the policy has changed under Obama.
This may strike you as funny, but I don’t encourage people to vote. I tell them, if you are not informed on the issues, please DON’T vote. Because when they do is when elections turn into popularity contests.
And that is precisely the TSA problem. The CBS News poll that showed that 80% of Americans are onboard with the TSA’s behavior are likely the 80% of Americans who don’t fly or those who take one trip a year.
If those people researched and pondered the gravity of the TSA’s infringement on our constitutional liberties a bit more, I am confident that whether Democrat or Republican they would be much more hostile to the bull the TSA is pulling in the name of the security.
So what should all the people working for the TSA do? Go on strike and be fired? Quit? With +9% unemployment I am sure those jobs would not be empty for very long. Do you think that if these patriotic unemployed TSA employees at the end of the month would instead of a check for payment of the bills they owed include a note explaining how they were defending the legacy of Patrick Henry and James Madison that there creditors would tell them they didn’t have to pay?
The fewer people who vote the easier it is for people who are only popular to be elected. In an election with only 20% of the people voting you only need to be popular with 11% of the voters to win an election. If 100% of the people vote you need to convince 51% of the voters that you are cute. It is a lot easier to convince 11% of the eligible voters that they should vote for you because you are popular than 51%.
I think it is going to be a long time before the Supreme Court rules on the constitutionality of the TSA. If it were going to happen it would have already happened.
If my calls and letters to my representatives and Barack do not amount to a hill of beans, how effective is this and other blog posts in deterring the TSA?
@Michael: Honestly, I could care less about the slobs (and the good people) who work for the TSA. That they cannot find work elsewhere is a completely separate issue from whether they are gainfully employed (with your tax dollars and mine) in their current roles.
If the TSA is just a gov’t employment program, why not put these people to work building bridges and roads instead of sitting around airports acting like they are keeping us safer?
RE: voting
I see your point, but I still don’t encourage someone who has never studied the issues to go into a voting booth and vote (R) or (D) just because her parents or friends do.
I also think you are right about the SCOTUS ruling on the TSA: it’s an extremely dicey issue that some may feel is best left to legislative branch to adjudicate. But as the supposed arbiters and protectors of the Constitution, I think it is vital that the SCOUTS step in and weigh on this issue.
As to your final point, I don’t pretend to think this blog does much good in turning the popular viewpoint around, I just enjoy discussing this subject. I hate to be so pessimistic, but I really have worked on the inside and our elected officials pay little beyond lip service to our everyday concerns.
If only people who studied the issues voted, then very few people would be voting. Most people go throughout their lives unaware of how or why things work. Do you not use your refrigerator because you do not understand the Carnot cycle. If you have bought your first refrigerator, how did you decide then. Not by the issues governing its function but how it looked and how someone else told you it functioned.
Indeed if most people considered the danger they expose themselves to driving in their car they would never bat an eye about flying even if there were several hijackings a year in which the plane was crashed killing all aboard. Statistically they would still be safer flying than driving. Emotions govern society.
You shouldn’t be so nonchalant toward the TSA. The relevant points are (1) even if they were as patriotic as your heroes Pat and Jim then other people would fill their positions nullifying their sacrifice and (2) some time good people work at jobs where they have to do things which they know are not correct. I know that Judge Matthew has proclaimed that their boss exists unconstitutionally and is a terrorist, that they should go home and that this proclamation and a $5 bill will get you a cup of coffee in any Starbucks. But how long did you watch people delude citizens that their voice was being heard by their elected representatives and not march into Bush junior and whoever else’s office and tell them they were not doing their jobs?
My experiences with my representatives have not been as negative as yours. I have found that if I have a problem and they can do something to help me they will. And sometimes you just have to keep calling back until you reach someone who will help you. Like when you call United to change a ticket. The first few guys may not help you but the seventh will. And then again maybe no one will but it was worth the shot. (OMG a sentence on this website which might be misconstrued to be about getting an upgrade to first class travel 🙂 )
@Michael: But understanding how a refrigerator works is more analogous to understanding how a bill becomes a law, not what the law contains.
And just because (as you correctly claim) others will be willing to step in if other TSOs step down, that doesn’t mean we should just give up!
And I couldn’t just march into W’s office! 😉
Having also worked for a very responsive politician on the county level, I indeed concur that if there is a problem that can be fixed, persistence pays off. And we even saw that on Capitol Hill when conservative Republicans were outraged over the proposed immigration reform that President Bush and the GOP Congress were pushing in 2005 they flooded Congressional offices, including mine, with thousands of letters a day.
While it didn’t change my Congressman’s view, the anti illegal-immigration folks got what they wanted. No amnesty bill.
But we’re getting far off of topic. I think the problem is that people genuinely don’t even read the Constitution and many Americans have NEVER read it. Surely you can agree that if even if citizens don’t take the time or effort to study the platforms of each party and current events closely, they should at least know what our charter document states.
And I feel a plain reading of the Fourth Amendment (no “judicial activism” necessary) renders much of what the TSA does unconstitutional. And the fact that DHS and TSA are using intimidation and retaliatory tactics against those who don’t bend over and comply should raise many alarm bells.
@Steve Harris, I think the Tea Party has just put published a map with crosshairs right about where you live.
I have thought for a long time that the TSA searches were unconstitutional. Some of the arguments against that position are pretty weak. One argument is that I have the option not to fly. Bull. I have to travel to work. I have to work to buy food. I have to buy food to live. So, if I don’t suspend my rights and let the federal government search me I will die. If that is not intimidation, I don’t know what is.
Another argument is that the “Patriot Act” makes it legal. Again, bull. They can’t change the constitution with a law. It says so in the constitution. The responsibility to change the constitution is retained in the fourth branch of government, the people. The congress cannot change it, courts cannot change it, the President cannot change it. Only the people, through a vote of the individual states, can change it.
I believe that the Patriot Act is illegal, and those who voted for it, as well as the judge(s) who apparently do not understand what “shall not be violated” means have broken their oaths (at best) or committed treason (at worst). Their oaths require that they “protect and defend the constitution against all enemies, both foreign and domestic”. That is in the constitution too.
Let me first say that this discussion is one of the most insightful I have EVER read… Kudos to Matthew and Steve especially.
There’s one thought, though, that has not been raised concerning those that set off metal detectors. As a wearer of an artificial leg since the age of 4, I take great, GREAT exception to being searched – EVERYWHERE – just because I happen to have metal between my knee and ankle. After being assaulted in the following airports: Detroit, JFK, Hartford, Roanoke, Dulles, Reagan, Orlando, Miami, Milwaukee, Chicago, Denver, Phoenix and Seattle (hope I got them all) I can state with UTMOST certainty that the current system totally violates my rights… unless someone out there can demonstrate that people with medical assistive devices are highly correlated with the propensity to carry explosives. Flying While Handicapped… the new Driving While Black. That’s exactly why I refuse to fly. Gave up a management consulting job because of it. And you lawyerly types… I took this to the Michigan Federal Court and was told that the Circuit Court was not the proper venue. It needed to go to the Appellate Court – case dismissed without prejudice. So exactly how does one go to an Appellate court without a ruling to appeal?
Fish,
Nice job. This has been the most informaive bit I’ve run across re: TSA and the general decline and fall of the whole notion of by of and for.
We as a people have set this process in motion. Through apathy and fear and ignorance (too much TV?), we have already donated our souls and bodies to the science of politics.
I can’t speak for Messrs Madison and Henry, but I can speak as a Son of the American Revolution, that our modern government has trampled on the Consttution to the point where I fear it is no longer reteiivable. The liberites that my ancestors my fought to establish have been abandoned right under our noses.
Whether with Wendy (I have an artificial hip) or many of your other writers (e.g., I have two grown daughters), the unproven, intrusive and most likely dangerous (who calibrates those machines?), not to mention patently uncontitutional activities of the TSA are to be expected from a governmental entity whose final authority has recently found hidden language in our original charter identifying corporations as having the same rights as individuals.
The best we can hope for is that maybe somewhere down the road, long after the USA has become just another third world nation, that some manner of human life will remain and we can serve as a lesson for some future “nation” on what not to do. To paraphrase Mr. Jefferson ‘tyranny is when the people fear their government’. How ironic that as taxpayers we fund our own humiliation. It would be funny if it were not so pathetic.
Thanks for the space.
Bill
I accidentally came across this blog while researching how I might get out of having to be groped/searched by the TSA. As a soldier in the US Army I am ALWAYS picked for these so-called random searches because they believe 1) As a government employee I will be compliant 2) It will further their cause and 3) I will set an exemplary example of compliance for other passengers who might otherwise object to the intrusive and illegal searches. As a soldier I swore an oath to protect the Constitution of the United States, as a citizen I swore the same, by default, by accepting and submitting to it as the supreme law of the land. Contrary to what the FAA believes, these policies are offensive and hurtful to me. My hands are tied, however, from ever fulfilling the obligation of my oath to protect the Constitution by the same means the TSA uses. It is time that it is put to an end. I pray that every good citizen who is subjected to these illegal searches at a US airport gets the name of the person who performed it and the agency they work for and takes the issue to court. Flooded by the suits, the courts would then have no choice but to rule on the constitutionality of the searches.
I also found this discussion while researching my options concerning the full body scans.
I have two questions. First, you and Fish agreed that the TSA is using a 9th Circuit Court of Appeals ruling that allowed “administrative searches” at airports. I assume that there must be some characteristics that distinguish an “administrative search” from a “law-enforcement search” (or whatever the correct legal term is). Wouldn’t the fact that full-body scans and intrusive pat-downs are being conducted by TSA employees under the auspices of the TSA–a law-enforcement branch of the government–by itself disqualify them from being categorized as administrative searches?
I would also like your response to Heather’s opinion that more lawsuits will make it more likely that our complaints will get a timely hearing in court. I will be traveling in a month, and my options are two: be searched and sue, or take a train.
“Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.”
@Rev. Long
“Administrative” searches are performed by law enforcement. They are one of a few types of exceptions to the 4th amendment that courts have agreed with.
As I understand it, basically, the airport searches might potentially fall under three search exceptions:
(1) Administrative exception — generally require that searches are minimal and restricted as much as possible to a specific danger. This could be used for law enforcement to justify random driver tests for inebriation (they aren’t allowed to search the car or passengers or whatever, unless they obtain probable cause) in order to keep roads safe. They could be used by law enforcement to justify searches at a particular place (train station, building, etc.) if they have a credible threat that a bombing or other terrorist event would occur on a particular day. Before 2010, however, the administrative exception has never been used in such a broad and invasive manner as in the TSA searches.
(2) Consent exception — searches are legal because people consent to them. This is usually enforced by saying that the alternative is to be refused service. Prior to 2001, this exception worked for the vast majority of cases, and if someone refused to be searched, they would just be escorted out. The TSA no longer uses this justification, since it doesn’t allow them to search people who don’t consent. They are therefore afraid that if they only escalated searches when they suspected something, the customer could simply refuse the search and exit without being searched. Thus, terrorists could theoretically “probe” the security system to try to find ways to get through without searches being escalated. TSA wants to require searches whether or not you are refused boarding, thus the consent exception is useless to them. (This is also the part of reason why non-passengers were excluded from the gate area after 2001 — it is harder to require consent for a search in order to fly if you weren’t actually flying.)
(3) Lastly, the “stop-and-frisk” exception requires probable cause. A police officer could stop and frisk you even on the street if he had probable cause to believe that you were acting illegally (carrying a bomb, etc.).
Before 2001, airport security largely depended on the consent exception for most passengers, and when someone was flagged by a metal detector, they had probable cause under the stop-and-frisk exception to search further. Administrative searches were only necessary in unusual circumstances, such as escalated security when there was a specific terrorist threat that justified greater security measures.
Since 2001, the fourth amendment has been eroded by this reclassification and broadening of administrative exceptions.
In any case, I wanted to clarify that all of these exceptions are for law enforcement, and there is good legal reason that they exist. But now they are being read much more broadly than in the past.
When you buy a ticket your consenting to the security rules and hence consenting to the TSA requirements. All your arguments above are a waste of time. LOL Just dont buy a ticket and dont worry about it … take a car or boat.
@steve: You win the ignorant post of the day award. Thanks for playing.
@Matthew,
🙂
@Matthew
I found your blog, while researching for my topic for an argumentative essay I’m writing on airport security and how it should not be a violation of our privacy and the 4’th amendment to the U.S Constitution.
I found your information and argument very informative and leads me to believe I may not find enough research material to back up my thesis that “Airport security is a necessity, without violating our privacy and the 4’th amendment to the U.S. Constitution.
Can you suggest any references that may be beneficial for my argument?
I am also searching for data that shows how the current body scanners and pat downs have stopped terrorist acts since this became the TSA security process. How many people have been caught with this process?
I believe you are on the right track with this argument and I’m hoping to show that I am also.
I live in the state with the motto ” Live free or Die”
I believe in thorough airport security, with out violating our rights to privacy and the 4’th amendment. How can it be changed to not violate the 4’th amendment?
Also at what point do we become a police state for the sake of security?
Thanks
Tom
@Tom, I’ll have more to say soon, but unfortunately this post is now a bit out of date. Check out EPIC vs. DHS (2011):
http://www.reuters.com/article/2011/07/18/uk-usa-security-aviation-idUSLNE76E00U20110718
TSA did unnecessary search
Rammed fingers into my genitals
Damaged my epididimus (right genital)
Confirmed by doctor as inflamed
In pain for 60 days
They are getting sued for that and may be time to challenge on 4th amendment. Technology has come a long way and invasive patdown was utterly unnecessary in my case and led to genital injury.
@Matthew, Thank you for the case and the reuters article.
Yes, I see this is an old post, but got it in a search
I will keep up on your home page.
Thanks Tom
“If a law is unjust, not only is it your right to disobey, it is your duty” ~ Thomas Jefferson
Steve Harris November 21, 2010 at 02:23 pm
Matthew, This TSA stuff is getting ridiculous. Sure, the TSA may not be wildly effective, but if extra security measures stop even ONE would be terrorist, it’s worth it, and we should not be complaining about scanners or pat downs.
I would much rather endure a scanner or crappy pat down then have my plane blow up in mid air. Does it suck? Yes. Do I complain? No. I appreciate the job the TSA does and like I said, if it stops even ONE, it’s all worth it.
THAT’S just it. They have NEVER stopped ONE terrorist. As a matter of fact, they have REPEATEDLY failed to even detect weapons and explosives. Calling the TSA highly ineffective is putting it nicely and is an understatement. As for as terrorists are concerned, the TSA is a complete and total waste of money. And then you have TSA employee’s being criminals themselves by stealing from passengers while searching their luggage and belongings. All the while harassing, intimidating and treating innocent passengers rudely, inappropriately, and akin to sexual assault. They are a walking, talking violation of the U.S. Constitution.
Abolish TSA? Wow! to whomever said that. Why do we need patdowns?…”because the metal detector will catch that.” Wow! again. So many dumb comments on here. The cold hard truth is that there are a bunch of morons in this world that kill themselves ALL the time….but not w/o killing as many other people as they possibly can. I know if I was going to do that, what funner way than blow up an a/c?! DO YOU GUYS NOT WATCH THE NEWS????? Every other day this shit happens in malls, schools, etc.
Who’s the moron that said I would almost rather die than have my kid groped by TSA?? Jackass! Keyword is “ALMOST!” What about your kid? Rather they die than be subjected to a patdown? So much incredibly dumb shit that’s been said here it’s ridiculous. I have a right to fly! Where does it say that. Flying is a privilege just like everything else in life. Me going through security isn’t going to save ANYONE’s life when I fly, but nobody knows that but me. I don’t who the hell you are, you better damn well go through security. Well 4th amendment rights this or that! If you have such a great case, then take it up with the supreme courts! Oh that’s right, EVERYONE must be corrupt in the system!! Waste of time, what a joke most of you are!