Opinion Forum

TSA “Strip and Grope”: Meet the Fourth Amendment

November 16th, 2010

The new airport security measures meet the definition of “unreasonable search.” UPDATE: Former TSA Assistant Administrator admits that the ‘strip and grope’ violates the Fourth Amendment.

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Under the Fourth Amendment to the Constitution:

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.

More than two hundred years old, the Fourth Amendment and many other parts of the Constitution often get lost or simply ignored in the fog of bureaucracy en route to enhanced governmental authority over United States citizens. That is not a good thing. Unlike much modern legislation, the language of the Fourth Amendment is short, simple, and relatively easy to understand. However, the often incomprehensible gloss applied through legislation and judicial interpretation has made the very important word “unreasonable” difficult to interpret abstractly.

Transportation Security Administration (TSA) full-body scanning and pat-down procedures, also known as Strip and Grope, are now common:

Without regard for threat potential, airline passengers of all ages can now be forced to make the choice between baring their nakedness before a federal agent, or getting a full-body fingertip groping by another federal agent. The advanced imaging technology (AIT) scanners — AKA strip-search machines — now stand watch in more than 65 airports nationwide, with their numbers set to grow by more than 40 percent at year’s end thanks to your federal stimulus dollars.

The procedure is so humiliating and so invasive that even flight crews are rebelling. The 11,000-member American Pilots’ Association just received a letter from its leader decrying the humiliation, radiation danger, and ineffectiveness at deterring terrorism of this strip-and-grope regimen.

Other pilots’ unions have joined the chorus and an “Opt Out” group has urged people not to fly on November 24, when there are normally many Thanksgiving travelers.

As to any radiation dangers, the government has been assured (mainly by the government, so it’s just gotta be right) that there is no cause for concern, even though the 341 scanners now in use are to be increased to nearly one thousand by the end of 2011. For all I personally know to the contrary, the new procedures may be marginally effective in preventing terrorism — even though ACLU Legislative Counsel Chris Calabrese has opined otherwise:

Travelers have the right to opt for a pat-down instead of exposing themselves to the radiation and prying eyes of an anonymous TSA agent in another room. But as ACLU Legislative Counsel Chris Calabrese told USA Today: “Are we giving people two intolerable actions at airports? They can be virtually strip-searched or endure a really aggressive grope?”

That’s exactly what the TSA is doing, in its latest bit of security theater designed to try to make us feel safer without actually increasing safety. And it’s really no choice at all. As Goldberg points out, “the effectiveness of pat-downs does not matter very much, because the obvious goal of the TSA is to make the pat-down embarrassing enough for the average passenger that the vast majority of people will choose high-tech humiliation over the low-tech ball check.” In fact, Goldberg reports that he was told directly by a screener: “That’s what we’re hoping for. We’re trying to get everyone into the machine.”

Here is an account by a Mr. John Tyner, who claims that he became ridiculously ensnared in a spiderweb of TSA bureaucratic hassles and snafus early on the morning of November 13 and was threatened with a $10,000 fine if he left the airport; something he had previously been directed by TSA personnel to do after declining to be groped. It does not appear to be fiction. According to this article, by the evening of November 13 Mr. Tyner had received 70,000 comments, of which only five percent “say I’m an idiot.” He noted that every terrorist act on an airplane has been halted by passengers: “It’s time to stop treating passengers like criminals and start treating them as assets.”

Do these sorts of things violate our rights to be secure in our persons against unreasonable searches? No act of Congress gave TSA agents the power to do these things; the Congress delegated various powers to the TSA and the TSA developed the procedures, evidently with no little or no adult supervision and even less consideration given to the Fourth Amendment.

It appears that substantial discretion is left to low-level TSA employees in deciding what is “reasonable” — substantially more than is left to more “ordinary” and often better-trained law enforcement officers in deciding whether there is reasonable cause to think that a crime has been or is being committed. Can a policeman legitimately stop people on a public street randomly, or simply because he wants to, with no reason even to suspect that they are committing or are about to commit a crime and subject them to highly invasive pat-downs? Can he legitimately do so to everyone walking down a sidewalk? I think the answer is easy: No.

When the Arizona immigration statutes came to his attention, President Obama opined that it was horrible that:

[The] law that just passed in Arizona — which I think is a poorly conceived law … (applause) … you can try to make it really tough on people who look like they, “might be illegal immigrants.” One of the things that the law says is local officials are allowed to ask somebody who they have a suspicion might be an illegal immigrant for their papers. But you can imagine, if you are a Hispanic American in Arizona — your great-grandparents may have been there before Arizona was even a state. But now, suddenly, if you don’t have your papers and you took your kid out to get ice cream, you’re going to be harassed. That’s something that could potentially happen. That’s not the right way to go. (Applause.) (emphasis added)

The Arizona law does nothing of the sort. Still, President Obama would have been reasonable in his indignation if people were actually being stopped without probable cause on the way to buy ice cream with the kids, harassed, and asked for their papers as he claimed. They were not and could not be under the Arizona statute. But Obama has shown no indignation of which I am aware that in airports people are now (and not merely potentially) stopped routinely and asked for their “papers.” They are also now subjected to electronic strip searches and, should they decline, are now “groped” by TSA agents — with no reasonable suspicion that they may be committing or are about to commit a crime.

Continue reading this article at Pajamas Media »

Articles written by Dan Miller
Tags: 4th Amendment, body scan, Constitution, grope, patdown, search, TSA
Categories: Law, News, Politics | Comments (8) | Home

8 Responses to “TSA “Strip and Grope”: Meet the Fourth Amendment”

Opinion Forum » What’s the Alternative to Intrusive TSA Security? | November 17th, 2010 at 7:38 am

[…] is alive with complaints, horror stories, and threats to boycott airline travel. In the article just below, my friend Dan Miller very effectively makes the points that TSA’s procedures […]

Brian | November 17th, 2010 at 7:59 am

Dan, I think a large part of the problem is that the meaning of the word “reasonable” seems to have changed to the meaning held by the word “agreeable.” Reason has nothing whatever to do with agreeableness.

The litmus test when I was a patrolman was “would a reasonable person see this event (whatever it might be) and be able believe that a crime was occurring or had just occurred?”. IOW, could a person come up with a logical series “A”, “B”, “C”, etc and DEDUCE that a crime had occurred or was about to occur?

For example, if you were a patrolman and you noticed that a car in the lane next to you had an open passenger window (even car thieves are smart enough to not break out the driver’s window – who wants to sit on broken glass?) AND it was 45 degrees outside AND there was a bandanna wrapped around the steering column, it would be reasonable to conclude that the driver was in fact driving a very recently stolen car. Thus, the patrolman has lawful authority to initiate a traffic stop on this driver/vehicle based upon clearly articulable reasons.

Example #2.
There have been a rash of night-time burglaries in a neighborhood where you patrol. You see a young man (most burglars are young men – race is irrelevant) walking down the street at 2 AM with a lumpy-looking pillowcase slung over his shoulder. A reasonable person should suspect that this young man might be a burglar. You detain him, question him, and even search the bag, whereupon you discover cash, jewelry, a DVD player, a camcorder, and a few other odds and ends. Even better, the owner of the property in the bag was astute enough to inscribe his DL# on the camcorder and DVD player. You run the DL# and discover that it belongs to a woman who is many years older that this suspect appears. It is reasonable to detain him and subsequently search the bag because even though you don’t know for certain yet who the complainant might be (the woman who inscribed her DL number might have pawned this property and it might have been bought by someone else), or exactly what time the burglary occurred, or where, it’s easy to conclude that the crime is fresh. Note that probable cause does not yet exist for this fresh crime, but you have enough evidence to arrest him, take him to jail, and put a 24 hr hold on him until he can be identified, fingerprinted, and questioned by detectives. If it cannot be determined within 24 hrs that he is linked to this crime or any of the other burglaries, he must be released. If he can be linked to this or other crimes, he will be charged because we have risen above mere suspicion to probable cause.

(Sarcasm on)Simply because someone finds himself in the unique position of having booked passage on an airplane(sarcasm off) doesn’t justify what the TSA is doing. It doesn’t even come within a million miles of being reasonable suspicion, let alone probable cause.

Brian | November 17th, 2010 at 8:32 am

There is an even larger problem with all of this, and it is the study of history (or more accurately, the short shrift given to the study of American history). I bet if I did a Jay Leno thing and asked 100 people walking down the street if they knew what a Star Chamber was, I might find 2 or 3 people that could tell me.

The founders could have written just about anything into the Bill of Rights that they wanted, but they specifically chose the issues raised by the 4th, 5th, and 6th amendments. Why do we not want the government to be able to go on fishing trips for crimes/criminals? Why do we not want the government to be able to compel a person to provide evidence or testimony against himself? Why do we not want the government to lock us up for 5 or 10 years before getting around to a trial?

It is insufficient to say that those things are bad (which they obviously are). Why are those things bad? At least in part, what it comes down to is what Brianna Aubin argued a couple days ago in Limited By What. The other part is that if you are ignorant of our history as colonies, it is terribly difficult to understand the “Why” of the danger inherent in permitting the government to do those bad things.

Ultimately, it comes down to the fact that we are free and sovereign, another fact which I don’t think many people understand with much clarity. Absent a classical liberal education, freedom and sovereignty are difficult concepts to grasp.

Tom Carter | November 17th, 2010 at 8:52 am

Brian, what you say is obviously right and you’re well-positioned to say it. However, there are people out there intent on blowing our airplanes out of the sky. That’s not a question, a supposition, or a suspicion — it’s a fact. Some of those people want to do it by getting on the aircraft and blowing up themselves (or their children) along with everyone else. That’s also a fact. As far as I’m concerned, what TSA is doing is similar to the “falsely shouting fire in a theater” doctrine that limits free speech. I value the Fourth Amendment as much as anyone, but I’m willing to see it limited in this case because I really don’t like the image of body parts and flaming aircraft debris falling out of the sky.

There are also other terrorism threats that we need to pay more attention to and devote more resources to, e.g., port security and especially containerized cargo, checked airline baggage, trains (including subways), buses, etc. All the measures necessary to protect us invariably limit our personal and economic freedom. Irritating and distasteful, yes — but what’s the alternative?

Brian | November 17th, 2010 at 9:37 am

How do they do things in Israel for El Al flights? I’m not suggesting that we should follow their model down to the last jot and tittle, but it could be instructional.

But I do have a suggestion. Why don’t we…..GASP…profile more probable suspects? In both of the scenarios I enumerated above, the suspects in question fit the profile of auto thief and burglar, respectively. It is neither fortunate nor unfortunate that being Arab and Muslim fits A PART of the profile. Those are merely facts, and along with other things that fit the profile, make a likely suspect – or not. Other things that fit the profile: place of birth, places traveled to recently, nationality. As I said, religion and language are but two things to consider in the profile. Those things alone don’t make a person a terrorist, but they do bear closer scrutiny. Not all Arab Muslims are terrorists, but the overwhelming majority of terrorists are Arab Muslims.

It is rational to be more suspicious of Arab Muslims than it is to be suspicious of people wearing cowboy hats, wranglers, ropers and a Copenhagen ring in their hip pocket. By the way, that second profile fits me, and I have been searched at the airport wearing those very things. It is logical to deduce that I am Christian or atheist merely because I am white and speak with a drawl because those are the two most common religious choices for someone that comports himself the way I do. Therefore, it is logical to conclude that it is very unlikely that I am any sort of terrorist threat.

The law, above all else, must be rational. Irrational laws, or the irrational application of them, can lead us back to Star Chambers and other such encroachments.

If the TSA is justified in this, where we’ve identified perhaps a few hundred terrorists out of the 10s of millions of tickets that have been booked on domestic flights, or international flights whose final destination is the states, then surely you would agree that we are justified in doing the same thing to young black men between the ages of 15 and 30, whose incidence of crime (wanted, been to jail/in jail, or out on parole/probation) is 1 in 3.

If we can justify an invasion of our privacy for a 1 in million shot, why can we not for a 1 in 3 shot? If we start making exceptions, where do we stop making exceptions? How do we rationally justify making one exception but not another?

Tom Carter | November 17th, 2010 at 12:18 pm

Israeli procedures are discussed here. I also discussed them in the next article.

Perhaps we’re down to a choice of least bad alternatives. Accept what we dislike in terms of search and seizure, or go down the road of profiling. The first is at least reasonably fair in terms of the way it impacts individuals; the second makes certain groups of people second-class and won’t eliminate randomly scanning and patting lots of other people. All things considered, I think the first choice is more friendly to the Constitution and more ethical.

Dan Miller | November 17th, 2010 at 5:56 pm

Here is another article, just up on Pajamas Media, discussing the Israeli procedures with some input from airline Captain Sullenberger, he of last year’s fame when he managed to make an emergency landing on the Hudson River due to a terrorist suicide attack by some obviously Islamist birds. With more than thirty years experience, he would probably qualify as an experienced airline pilot. The argument is that Israeli airport procedures focus on human intelligence and that the TSA procedures should but don’t.

The second video is pretty funny.

What’s the Alternative to Intrusive TSA Security? | Current News World Web Source for News and Information | January 1st, 2013 at 3:45 pm

[…] is alive with complaints, horror stories, and threats to boycott airline travel. In the article just below, my friend Dan Miller very effectively makes the points that TSA’s procedures […]