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TSA ‘Strip and Grope’: Meet the Fourth Amendment (Updated)

The new airport security measures meet the definition of "unreasonable search." UPDATE: Former TSA Assistant Admin admits that the 'strip and grope' violates the Fourth Amendment.

by
Dan Miller

Bio

November 16, 2010 - 8:00 am

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 Agency (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.

There are different and far better ways to counter terrorist realities. Israel uses them with great success and Rafi Sela, an Israeli airport security expert, has characterized scanning devices as “worthless”:

“I don’t know why everybody is running to buy these expensive and useless machines. I can overcome the body scanners with enough explosives to bring down a Boeing 747,” Rafi Sela told parliamentarians probing the state of aviation safety in Canada.

“That’s why we haven’t put them in our airport,” Sela said, referring to Tel Aviv’s Ben Gurion International Airport, which has some of the toughest security in the world.

He offered to provide briefings to people with appropriate security clearances. However, scanners are lucrative and don’t need to be effective; they just need a good lobby. And the naked-scanner lobby is small but well-connected.

Be all of that as it may, all politically correct people know that there is no such thing as Islamic jihad and that to “profile” people plainly exhibiting a relationship with Islam would be offensive to all true liberals.

Being Muslim or a member of some other currently protected class probably helps to avoid unpleasant strip searches, being groped, or “no fly list” alternatives. Being an elderly grandmother or a young man or woman busy caring for small children probably does not. Were someone dressed in Muslim garb, speaking in an Arabic language, and too busy kneeling in prayer to permit an electronic strip search and then subjected to a “grope” search on pain of being refused boarding, he would probably be seen by some as having more compelling objections and would certainly gain more support from such patriotic organizations as CAIR, which has issued the following advice to Muslim women who wear the hijab:

* If you are selected for secondary screening after you go through the metal detector and it does not go off, and “sss” is not written on your boarding pass, ask the TSA officer if the reason you are being selected is because of your head scarf.

* In this situation, you may be asked to submit to a pat-down or to go through a full-body scanner. If you are selected for the scanner, you may ask to go through a pat-down instead.

* Before you are patted down, you should remind the TSA officer that they are only supposed to pat down the area in question, in this scenario, your head and neck. They SHOULD NOT subject you to a full-body or partial-body pat-down.

* You may ask to be taken to a private room for the pat-down procedure.

* Instead of the pat-down, you can always request to pat down your own scarf, including head and neck area, and have the officers perform a chemical swipe of your hands.

* If you encounter any issues, ask to speak to a supervisor immediately. They are there to assist you.

According to “Islamic scholars,” airport body scanners (also) violate Islamic law:

The Fiqh Council of North America — a body of Islamic scholars — issued a fatwa this week that says going through the airport scanners would violate Islamic rules on modesty.

I doubt that CAIR’s suggested procedures would work very well for an elderly Roman Catholic priest, or for that matter, anyone else claiming personal modesty.

It has been held that anyone foolish enough to enter an airport security area can be searched without his consent if there is probable cause. Under United States v. Aukai, 9th Cir 2007:

[W]here an airport screening search is otherwise reasonable and conducted pursuant to statutory authority, 49 U.S.C. § 44901, all that is required is the passenger’s election to attempt entry into the secured area of an airport. Under current TSA regulations and procedures, that election occurs when a prospective passenger walks through the magnetometer or places items on the conveyor belt of the x-ray machine.

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.” (internal citations omitted, emphasis added)

The reasonableness of the current “electronic strip or grope” procedures is at best highly questionable not only because reasonable cause is not required but also because they are likely far more extensive and intensive than necessary to make air travel even slightly safer.

The new Congress which convenes in January can stop this nonsense. One way would be to deny funding to the TSA for specific things as suggested here. Without funds to operate, to buy new electronic strip equipment, to maintain existing units or to hire the increased numbers of employees then needed to grope, the TSA would have to stop such foolishness. I don’t think the federal government can use unpaid gropers for the latter, no matter how happy they might be to “work” for nothing more than the joy of groping. If the new Congress does not put some brakes on the TSA and other federal agencies run amok, their abuse of discretionary power must be tested in the courts.

The Electronic Privacy Information Center is doing so in a case currently before the Court of Appeals for the D.C. Circuit; it is there rather than in a lower federal district court for procedural reasons. Action by private (but now less “private” than before) aggrieved parties in federal district courts will be expensive and difficult.

Meanwhile, the ACLU is on the case, perhaps even for the rest of us should the Congress be unwilling to do its job:

If you’ve been forced through an AIT or want to report abuse during airport passenger screening, contact us using this form. We’re collecting individuals’ stories in order to determine the scope of this problem and evaluate future action. The information you provide in this questionnaire will be kept confidential unless we contact you and obtain your permission to share it with others.

Maybe, just maybe, even the ACLU can do some good if it finds the time and motivation to try.

Update: Left Coast Rebel captured former TSA Assistant Administrator Mo McGowan on Fox, admitting that the “strip and grope” violates the Fourth Amendment.

Dan Miller graduated from Yale University in 1963 and from the University of Virginia School of Law in 1966. He retired from the practice of law in Washington, D.C., in 1996 and has lived in a rural area in Panama since 2002.
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