Security v Liberty: The TSA and the Fourth Amendment

***This is a research essay I wrote for my ENGL research writing course last quarter. I thought that I would also share it with my RS friends. — Yoyo***

September 11, 2001.  Four commercial airliners are hijacked, the World Trade Center Towers One and Two are destroyed, The Pentagon in flames, a crater in a pasture outside of Shanksville, PA, and close to 3,000 people murdered.  Without question, this was the worst day in the history of the United States.  The tools with which nineteen hijackers wrested control of four commercial airliners were astoundingly low-tech and efficient; box cutters, off-the-shelf pepper spray, brute force, sheer will, and imagination.  In response, Congress predictably reacted by removing the responsibility of security from a bureaucracy that failed to provide it (the Federal Aviation Administration) and gave it to another, just-created bureaucracy, the Transportation Security Administration (TSA).  The TSA’s mandate is simple – ensure the safety of air travel by preventing another 9/11.  However, there are better ways to achieve security than by the sacrifice of privacy and liberty to an unaccountable and unelected bureaucracy.

The Fourth Amendment guarantees protections from “… unreasonable searches and seizures” and that “… no Warrants shall issue, but upon probable cause … describing the place to be searched, and the persons or things to be seized.”  Since its ratification, the definition of “unreasonable” in addition to when warrants and probable cause are required has evolved into the concept of the “Administrative Search Exemption” commonly referred to as a “dragnet” search.  The TSA uses this concept to justify the constitutionality of searching all passengers as a prerequisite of commercial air travel.  However, the increasingly intrusive nature of the searches preformed by the TSA has crossed the line from administrative application to criminal suspicion and therefore may be in violation of the Fourth Amendment. 

In a paper published by Ms. Eve Primus, an Assistant Professor of Law at the University of Michigan Law School, Ms. Primus provides a detailed look into the case law concerning the Fourth Amendment and the Administrative Search Exemption specifically.  In it, Ms. Primus states that, “As the category of administrative searches tried to accommodate both kinds of searches [dragnet and subpopulation], it gradually lost the ability to impose meaningful limitations on either one.”  Dragnet searches target all persons within a given area.  Under existing (and strikingly limited and recent) case law, if the search is administrative in nature, those performing the search are not required to obtain a warrant or need probable cause.  As Ms. Primus points out, “… the administrative search exception functions as an enormously broad license for the government to conduct searches free from constitutional limitation.”

Furthermore, recent challenges questioning the quality of security provided by the TSA by industry insiders has been met with retaliatory measures.  In a rather public dispute with the Charlotte-Douglas International (CLT) Airport’s Director of Security, John Orr, the TSA has refused to recertify the airport for trivial reasons.  The State of Texas Senate withdrew HB 1937 from consideration after a letter was received from the Justice Department threatening suit and/or the TSA cancelling all flights originating in the state, if the measure passed.  HB 1937 was designed to prevent security screeners from touching a person’s genitalia and other “private parts” when a person attempts to pass through a checkpoint.  Other complaints regarding how the TSA enacts comprehensive policy changes without a proper (or any) public comment has led to court challenges.  One group brought forth a court challenge, causing the 3rd Circuit Court of Appeals in Washington DC to remand and require that the TSA to submit one such rule enactment for public comment.  This has become bureaucracy run-amok.

Anyone who has ever stood in a TSA line will attest that the approach to passenger searches lacks certain common sense.  The search protocols and rules are reactionary, superfluous, and cumulative.  In many cases, as demonstrated below, the cause of the security breach occurred overseas and outside of the jurisdiction of the TSA.  However, that did not impede an automatic and compulsory rule change:

  • When jihadists used box cutters to hijack airplanes, the TSA mandates that no passenger can carry nail clippers in carry-on luggage.
  • When a jihadist on a flight originating from England fails to blow up a bomb in his boot, the TSA mandates that flip-flops and sandals must be x-rayed.
  • When a jihadist plot to detonate a gel-based explosive on a transatlantic flight is foiled in London, the TSA bans baby formula and bursts a bladder cancer survivor’s urostomy bag covering him in his own urine, TWICE in eight months. 
  • When a jihadist on a flight originating from Yemen and Europe fails to blow up a bomb in his underwear – six-year-old children and 93-year-old cancer patients are subjected to pat downs and virtual-imaging strip searches. 
  • When a jihadist plot is foiled in Yemen to bring down commercial cargo planes with bombs planted in printer ink/toner cartridges, the TSA reacted by banning passengers from bringing cartridges and printers on over a certain size.  **Author’s note – Was this REALLY a problem?  Were passengers bringing commercial toner cartridges as carry-ons before?

Proponents of the TSA’s approach argue that the policies and rules must remain secret to provide for the safety of the public at large and that behavioral analysis and profiling infringes on the civil liberties of those classes of people targeted (Crowley, 2010).  However, it can be argued that by not applying a common sense approach to airport security is what truly infringes on the liberties of all people and the resultant policies only provide an illusion of security, subjecting the public to a bit of “Security Theater.”  

If the primary goal is that of air safety, an effective and efficient privatized (possibly subsidized) system should be implemented.  Common sense and other low-cost yet effective tools would be employed at every airport, instead of what we have today; expensive, high-tech, and intrusive gadgets whose overall effectiveness is questionable.  In short, all ticket agents and checkpoint officers should be behavioral analysis experts trained to assess each passenger; bomb and drug-detecting canine units should patrol every security checkpoint bottleneck and terminal; and the latest intelligence would provide an up-to-date target profile for suspects – and flagging those fitting the profile.  This approach provides the best security for the dollar and does not infringe upon the privacy and civil liberties of the public at large.  That is, if the primary goal is that of air safety. 

However, the motivation of the TSA today seems to be that of “looking busy” trying to catch “terrorists” while “being fair” in doing so.  This politically correct approach is why a hypothetical Ibrahim Abu Rashadi Abdullah Muhammed from Iraqistaniya or a Wilhiem-Robbert Josef Marx of an ultra-radical, neo-Nazi sub-fringe group affiliated with an airplane-hating group HSNF – HumansShouldNOTFly – could breeze through security while Mother Superior and Little Sally Pigtails are subjected to “enhanced pat-downs.”  It is just a bunch of theatrics so Mr. and Mrs. P. C. Taxpayer can FEEL safe.

There are better ways to achieve security without sacrificing our liberty to an unaccountable and unelected bureaucracy.  Individual profiling, personal-to-person interactive behavioral analysis, and bomb-detecting canine units are proven and effective detection and deterrent systems that come at a much cheaper cost, economically and ethically.  When will America begin to hold accountable bureaucrats who unapologetically infringe upon our privacy and civil liberty?

“Do I understand the sensitivities of people? Yes. If you’re [sic] asking, am I going to change the policies? No.”

– TSA Director, John Pistole.