Posted by: bkivey | 24 November 2010

Niether Security Nor Liberty

Authorized by the Aviation and Transportation Security Act of 2001, the Transportation Security Adminsitration is charged with ensuring security on all modes of transportation in and connecting to the United States. A part of the Department of Homeland Security, TSA operates with a staff of over 56,000 personnel and a budget of $8.1 billion. While TSA has security responsibility for all forms of transportation, it’s highest visibility is as the primary security screening entity at airports.

I have never been a fan of decisions made in times of emotional distress, particularly decisions made by the Executive and Legislative branches of government. Such decisions tend to be over-reactive and the implications poorly considered. The spate of legislation passed in the aftermath of 9/11 and the creation of ever-more intrusive bureaucracy’s are good examples of bad decisions. As the proverb holds: Act in haste; repent at leisure.

Of late TSA has been much in the news as the agency has implemented whole-body scanners at select airports and intrusive body searches for those choosing to opt-out of the scan. Much of the outrage comes from the belief that a private U.S. citizen going about their lawful business shouldn’t be treated as a criminal suspect just because they choose to exercise their right to travel. Exacerbating circumstances are the fact that TSA’s actions are always reactive, the agency’s efforts focus on things, not people, and they fail to take into account circumstances in toto. Thus we have bans on all sharp objects as a result of 9/11, restrictions on the size of liquid containers because of the ‘shoe bomber’, and the current intrusive searches because of the ‘underwear bomber’. Given the infinite ingenuity of humans, and the fact that a sufficiently motivated person will always find a way to accomplish their aims, this is not an effective strategy. The success rate of goal accomplishment using a reactive strategy is remarkably small. As has been pointed out, a person with explosive stuffed up their butt will get through security. Should that happen, what does TSA plan to do?

Because of the strong feeling engendered by the current security protocols, people have been looking for ways to exercise their right to redress of grievances with the federal government. Upper management in the Executive branch has been notably silent on the matter, seeming to prefer to let TSA leadership take the heat. Remarkable behavior indeed for a chief executive who had no problem inserting himself into a local police matter in Massachusetts but seems unwilling to intervene on behalf of millions of his countrymen.

Perhaps the Judicial branch offers succor. Legal imbroglio being something of a national sport in this country, many folks have been looking at possible remedy through the court system. A little research finds that this may not be as effective as might be assumed.

Starting from first principles, we find that in US Code Section 49, Paragraph 40103, Part 1: The United States Government has exclusive sovereignty of airspace of the United States. Part 2: A citizen of the United States has a public right of transit through the navigable airspace.

The right of transit is not an absolute right: transit through airspace is subject to a number of restrictions found in Section 49, but more importantly, federal authority over right of transit is explicated in the Commerce Clause of the U.S. Constitution found in Article 1, Section 8, Clause 3. Although the Clause only gives Congress the power “to regulate Commerce with foreign Nations, and among several States, and with the Indian Tribes.”, the Supreme Court in Swift & Co. v. United States, 196 U. S. 375 (1905) (discussion here; scroll down), allowed federal regulation of intrastate commerce.

Many folks have pointed to the 4th Amendment, which provides that:

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.

This would seem to prevent the warrantless searches conducted without cause by TSA, but that’s not the case. This point was argued in United States v. Davis  United States Court of Appeals, Ninth Circuit. – 482 F.2d 893. The decision is fascinating reading; not least is that the plaintiff in the case was carrying a loaded gun in a briefcase while trying to board a plane, an act considered a misdemeanor at the time. Equally interesting is that at the inception of federal anti-hijacking efforts in the late 1960’s the Department of Justice and the Department of Commerce used profiling as a first cut in identifying potential hijackers. I don’t see that the intervening 40 years of political correctness have increased either security or liberty.

After citing relevant case law, the court writes in paragraphs 48 and 49:

The essence of these decisions is that searches conducted as part of a general regulatory scheme in furtherance of an administrative purpose, rather than as part of a criminal investigation to secure evidence of crime, may be permissible under the Fourth Amendment though not supported by a showing of probable cause directed to a particular place or person to be searched.

As we have seen, screening searches of airline passengers are conducted as part of a general regulatory scheme in furtherance of an administrative purpose, namely, to prevent the carrying of weapons or explosives aboard aircraft, and thereby to prevent hijackings. The essential purpose of the scheme is not to detect weapons or explosives or to apprehend those who carry them, but to deter persons carrying such material from seeking to board at all.

So that seems to dispose of Fourth Amendment objections to airport security screening. What other legal recourse might there be? What about restraint of trade? If the new security measures impose an unreasonable burden on commerce, by engendering emotional distress or other difficulty among the traveling public, might the federal government be subject to the Sherman Antitrust Act?

I can see how a clever lawyer might argue under Section 2 of the Act that the federal government, by having sole control of  security checkpoints at airports, is attempting “to monopolize any part of the trade or commerce among the several States, or with foreign nations. . . ” This argument might have a chance if TSA did not provide for airports to opt-out of government-provided security and employ private contractors to perform the same functions to government standards. A number of airports currently participate in the program, including San Francisco International, Kansas City International, and a slew of airports in Montana.

Well, what about the ‘unreasonable regulatory burden” argument? It would appear that under the Commerce Clause, that theory would only apply if screenings were conducted by the several States, and as long as the burden was uniform among them, there would be no cause for intervention. The fact that the security measures are instituted and controlled by the federal government renders the argument moot.

I’m not a legal professional, so there may be legal theories that I’ve overlooked, but it appears that the best way to redress this grievance may be through the Legislative branch. Complain to your elected representatives. Insist that security measures be subject to objective and verifiable metrics in order to secure funding. Make a nuisance of your self.

The current and historical government response to complaints about airport security screening is that alternative modes of transportation exist. This may not be the case much longer. Director of Homeland Security Janet Napolitano recently announced that they were going to look at emplacing enhanced security measures at train and bus stations. While one may argue that this a case of proactive action on the part of the Department, the cost – benefit ratio of the risk mitigation is absurd. The action smacks of something done because it can be, not because it is in any way necessary. It is not inconceivable that government minions may tell citizens to literally take a hike.


Tomorrow I will be celebrating that most American of holidays, Thanksgiving, and tomorrow’s post will be a reprint of a Wall Street Journal editorial that appears annually in their Thanksgiving edition. It is my favorite holiday, not least because it involves food. I like to cook in general, and I enjoy preparing holiday meals, as it gives me an excuse to eat better and more elaborate dishes than is normally the case. As usual, everything is prepared from scratch. The menu on the day includes:

  • Deviled eggs
  • Candied yams
  • Seasoned turnip greens
  • Cornish game hen with bread stuffing
  • A 2008 Pinot Gris from a local winery

I’m not a big dessert person, so I’m not sure if that will be included. Hoping that you and yours find something to be thankful for this year.


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