L.A. Liberty

The Case Against The TSA

I’ve written (or, more accurately, ranted) about the TSA before, and I’ve recounted my experience opting out of the porno-scanners over the summer that led to my 19-month-old daughter’s diaper being checked for explosives.

As it has for many of us, especially after the TSA announced their “enhanced pat-downs” as a punitive measure once people began opting out of their new scanners, the issue of the TSA assaults has occupied a lot of my time and even more of my rage. And perhaps more frustrating than the TSA agents and the government that eternally strives to control our lives, is the passive sympathizers that go along with whatever their government overlords demand, like the good little sheep (or rather, sheeple) they are.

When I express my concern, my anger, over what the government is doing to us through the TSA, it seems as if I get the same excuses, the most common being “well, I’d rather have this inconvenience than get blown up” or “get over your body image issues.” Though I can almost understand how easy it is to be duped when the statist media is a reliable shill for government largesse.

It’s important that we help people understand the case against the TSA, for if we all withdraw our consent, government loses its power over our lives. So, here’s the case I’ve presented to friends, family, and complete strangers in hopes that I can turn a few more.

1. The Fourth Amendment

The first, and most crucial, argument against the TSA and their procedures is that they violate our liberty, our Fourth Amendment rights.

I have a right, as acknowledged in the Fourth Amendment, to have my person and property secure from unreasonable searches and seizures. This should be all that is necessary to end this argument. There is no “balance” between preserving liberty and furnishing safety - as far as what the government’s role is, liberty trumps safety. As Judge Andrew Napolitano often says: “The government’s first job is to keep us free. If it keeps us safe but unfree, it is not doing its job.”

And this is how our founders recognized our rights.

Benjamin Franklin said, “They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety.” It was Patrick Henry who said, “Give me liberty, or give me death.” Notice that even assured death was preferable to a loss of liberty.

The Fourth Amendment reads:

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.

So if the Fourth Amendment protects us from unreasonable searches and seizures, what makes searches or seizures unreasonable? The Supreme Court has interpreted that searches - such as the virtual strip searches of the kind that the x-ray, backscatter or millimeter wave machines perform as well as the “enhanced” pat-downs - are only “reasonable” when a specific person is being detained by law enforcement 1) for reasonable suspicion in connection with a specific crime, 2) for presenting direct danger to others, or 3) with a warrant (as mentioned in the second part of said Fourth Amendment). In other words, there must at least be probable cause involving a specific person. Violating people en masse is not reasonable.

At this point in my argument, I’ll usually get “you have a choice to not fly” or “flying is a privilege not a right” or “when you fly, you voluntarily give up your rights.” Even TSA agents believe this.

First, to choose between a method of travel or being free from being molested is a Hobson’s Choice. That’s like being told “If you enter your back yard, you will be shot. So you have the free choice to not enter your back yard.” Not much of a choice there.

About flying being a privilege and not a right: if something could be considered a privilege, then what are rights, really? The power to regulate and license is the power to control. Put another way: if some law censors speech, the law does not revoke a right to free speech - it imposes an immoral barrier that violates said rights. Rights are inalienable, irrespective of legal impediment.

And the right to travel has been explicit since the Magna Carta, not to mention the affirmation in the supreme court cases Truax v. Raich, 239 U.S. 33, 39 (1915), NAACP v. Alabama, 357 U.S. 449 (1958), United States v. Guest 383 U.S. 745 (1966) and Shapiro v. Thompson, 394 U.S. 618 (1969). The method of travel is an issue of degree, not of kind.

Additionally, the voluntary nature of flying does not preclude Fourth Amendment protection, which was and is a right of the people to be secure in their persons from the government, not from free entities and individuals voluntarily agreeing to certain terms. The porno-scanners and groping are not part of the terms between the airline and the passenger, they are a violation imposed by the government, a third party.

Walking on the sidewalk is also voluntary, but a police officer cannot stop a pedestrian and look at her naked or frisk her unless the officer believes with reasonable and articulable suspicion that she, specifically, poses a threat, or has been detained in connection with a crime, or a warrant has been issued in her name.

I’ve even been told that by resisting these security measures, I am being ungrateful for what our military endure to “protect our freedom.”

I was born with my rights. We all were. The government doesn’t give them to us, the military doesn’t grant them to us - “we are endowed by our Creator with certain inalienable rights.” But if the military does fight to protect us from bad guys who “want to take away our freedom,” then why should I give up said freedom so easily? Why should I have a problem with terrorists taking away my freedom but not the government taking away my freedom?

2. Sexual Assault and Homeland Terrorism

The so-called “enhanced pat-downs” (which, in law enforcement parlance, are more accurately described as “custody searches,” invasive searches that lie between basic pat-downs and full strip- or cavity-searches administered to people who have been arrested) that require touching of genitals and inside bras is literally sexual assault. They reach beneath the underwire of the bra and squeeze breasts to ensure there are no explosive implants. They slide their hands upward on the inner thigh until they feel resistance from the genitalia with their palms. They reach inside pants and pass their hands completely around the waist, even making contact with pubic hair. They reach between the legs from behind and swipe their fingers against the gonads or labia. In any other context, the TSA agent would be thrown in jail. How does a parent teach their children that strangers can’t touch them “there”… unless they’re wearing a government uniform? Few rights are more sacred than getting to decide who gets to see you naked or touch your body.

And don’t be fooled to believe that the images are somehow obscure. Both the backscatter x-ray and the millimeter wave machines are simply photo-realistic strip search machines: they remove our clothes for us. The images provide so much detail that a TSA member attacked coworkers who mocked the size of his penis during a training session.

So they can see you naked, and they enjoy it.

Even when the assault is not considered sexual in nature or concentrated on the reproductive organs, it is still often a dehumanizing and humiliating act of terrorism. Like the four year old boy who was forced to remove his leg braces and go through a scanner unassisted. Or like the 71 year old man whose pants were ripped off. Or the 61-year old cancer survivor who was left soaked in his own urine when his colostomy bag was negligently pulled from its seal. Or like the cancer-survivor who was forced to remove and present her prosthetic breast for inspection. Like the young boy who was searched shirtless, or the terrified little girl who didn’t want to be touched by strangers. Like the man who was harassed for carrying $4,700 in cash, or the woman whose personal checks were taken from her and who was forced to answer questions because of a suspected “divorce situation.” Like the countless individuals fined, threatened, bullied, mistreated, or arrested for daring to ask questions or for recording their encounter.

To the TSA, safety is second to intimidation and control. People tend to love power. Time and time again it has been shown that when people are given power - especially un-earned or merited - over people, they enjoy and abuse it. Their inner megalomaniacs emerge. And having the legal authority to touch people or see them naked, including underage children, provides definite incentive for sick people to apply for the job, like the TSA Agent who was arrested for raping a 14-year old child. It is natural that this job would attract power-hungry perverts, especially those who would respond to a “Now Hiring” ad on the underside of a pizza box.

And we mustn’t fall for the excuse that the agents are just doing their job. Throughout history there have been willing participants in evil regimes who excused their activity as just “following orders” - but history does not and should not absolve them of their actions. Sating inner demons while hiding behind rules or superiors is an unfortunate dark mark on the human psyche, as the Milgram Experiment has shown.

3. Health concerns

The scanners emit cancer-causing ionizing radiation in the X-ray spectrum, which damages and mutates both chromosomal DNA and structural proteins in human cells. (See also here, here, here, here, and here.)

The backscatter scanners are about as likely to kill you as a terrorist bomb, about 1 in 30,000,000. So at face value, the risk trade-off is a wash. Unlike a terrorist bomb, however, radiation exposure is cumulative. Worse still, the figures for the radiation exposure are actually the best case scenario. Improper calibration, misuse, or malfunction can contribute significantly more radiation. Also, because the radiation targets the skin without passing through the body, the radiation is multiplied in that one location.

And the millimeter wave scanners, which some hail may be safer because they rely on radio waves instead of x-rays, may not even be as safe as claimed. These devices use frequencies in the Terahertz range, “near the resonant frequency of the bonds in the acid base pairs in DNA [and] RNA. So there is an unknown risk of chromosome damage.”

[Update: the majority of the radiation from X-ray backscatter machines strikes the top of the head at “20 times the average dose that is typically quoted by TSA and throughout the industry.” The scalp is where 85 percent of the 800,000 cases of basal cell carcinoma diagnosed in the United States each year develop.]

4. Expensive Costs

The costs are extreme, and continuously growing (trademark of all government bureaucracies). Hundreds of millions, even billions, of dollars are spent per year on purchasing and maintaining the machines. Each of those machines require a minimum of three agents to operate. The number of TSA employees seem to be between 65,000 and 100,000, whose salaries total in the millions of dollars. And their salaries will skyrocket if they unionize as they seem primed to do.

There’s also the hidden costs that the increased airport delays will impart on the economy, to the tune of around $145 million per year.

But total costs are not so straightforward; there is a subjective cost that must be weighed against the benefits. After all, you can completely eliminate terrorist hijackings of airplanes by grounding every airplane. But this is, of course, impractical. It would destroy the airline industry and cripple our economy with the epic loss of productivity - not to mention the moral costs that come with prohibition that make people less free and less happy. Or, passengers could be handcuffed to their seats, or sedated - both would surely make the likelihood of a terrorist hijacking drop to near zero, but neither pass a reasonable cost-benefit analysis.

Our tax dollars would be better spent finding and stopping potential terrorists before they even step foot at the airport, something that does not require treating the population like cattle.

5. Corruption

Beneath the surface of the deployment of the virtual strip search machines lies a hidden story of corporatism, cronyism, and corruption. In other words, government business as usual.

The driving force behind the scanners — the man who mandated their manufacture and pushed their adoption by TSA, a subsidiary of DHS — is former Clinton U.S. Attorney and former Bush Homeland Security chief Michael Chertoff. He currently runs a private security firm through which he, using his unique “expertise” at DHS, has prompted the scanner’s adoption. He whores himself off on countless news sources as a security expert extolling the virtues and necessity of these machines. And why would he do this? Because he facilitates the sales of these devices and thus profits substantially from every scanner sold.

Another person of note is Deepak Chopra (not the famous one). He is the head of Rapiscan, one the main manufacturers of these machines, who just so happens to be a close ally of Barack Obama (and who donated heavily to the president’s campaign). He even joined Obama on his recent trip to Asia. Now, he’s making millions (nearly half a billion) selling his machines to the government.

George Soros, the ‘progressive’ billionaire puppet-master who bank-rolls the leftist agenda and big government politicians (and who contributed heavily to Obama’s campaign, both in funds and substance), also profits greatly from the implementation of the scanners: he owns over 11,000 shares of OSI Systems, the company that owns Rapiscan. [Note: Soros just dumped his shares two days ago amidst public pressure.]

This is how government works.

6. Flying is Safe

Flying is one of the safest activities you can participate in, and is by far the safest form of travel. 114 people die, per day, in traffic accidents. Meanwhile, the chances of being on a flight that crashes and kills people, anywhere in the world (accidental or intentional), is 1 in 4,178,464. Put another way, it would be within statistical probability for someone to fly once per day for over 11,000 years without incident.

The odds of falling victim to an airborne terrorist attack, as previously mentioned, are about 1 in 30,000,000. You are more likely die of a bee sting (1:1,200,000) or get struck by lightning (1:280,000). You are eight times more likely to be killed by the police than by a terrorist.

Almost every other daily activity we perform is more likely to harm us than facing the danger of a terror attack: driving, smoking, swimming, eating, walking, bathing, sexing, cooking…

You are much more likely to be killed performing mundane chores, such as by a car accident (1:6,500) or even a gunshot (1:35,000). In fact, cigarettes, sun, and other ordinary consumables like beer and fries and pork rinds are most likely to kill you by giving you heart disease (1:5), cancer (1:7), or stroke (1:23). Must people strip and be groped everywhere they go?

7. Security Theater

These scans and custody searches do nothing to make flying safer. As personally invasive as these procedures are, there are still gaping holes that present a greater threat than the random nun or 19-month old child.

First, TSA agents miss potential weapons regularly. Cargo and checked luggage is not inspected any more thoroughly than carry-ons, and even less thoroughly than people at some airports. People can still bring in large amounts of liquid inside medical containers such as contact lens solution bottles, making the liquid ban moot. The scanners are, at best, marginally more effective than metal detectors while being orders of magnitude more invasive and dangerous. The government has even admitted that the porno-scan machines are unlikely to detect low-density materials such as thin plastics, gels and liquids. PETN, the explosive material used by the underwear bomber, shows with little to no contrast against human skin and is one of these low-density materials unlikely to be detected. Al-Qaeda has already began shoving bombs up their anuses, which would never be detected short of a full body cavity search. People who work at the airport are not screened through the TSA the same way, so they can bring something in and leave it in a bathroom or trash-can for a passenger. In fact, the numerous parties with access to planes - food providers, cleaners, maintenance crews, etc. do not have to pass through these same screenings every time they come in contact with a plane. The so-called “ID-triangle” is a complete joke and can be bypassed with rudimentary photoshop skills and a stolen credit card.

Also, these procedures by the TSA would not have prevented the attack on 9/11. In fact, the knives and box-cutters the terrorists reportedly used were perfectly legal to bring on board. The major problems stemmed from government agencies not sharing information, government not acting on already acquired intelligence, government bureaucracies being inherently inefficient and not updating watch lists, pilots who were disarmed by the government, and the fact that up until that point, plane hijackings were for negotiating terms, typically a prisoner exchange, not to use the plane as a missile. If you notice, four of the five major problems listed were the government’s fault - and the fifth was unavoidable.

Three things protect us from an attack now: reinforced cockpit doors, armed pilots, and passengers who are vigilant during a flight.

The TSA, on the other hand, has not stopped a single terrorist. Not ONE.

8. The Procedures Make Us Less Safe

So not only does this whole “security theater charade” NOT make us safer, it actually makes us LESS safe: it bottlenecks passengers in the least secure area of the airport and the false sense of security makes the passengers and airlines less vigilant while on the ground. Removing the incentive and accountability to maintain safety from the airlines is not unlike the regulatory capture that helped lead to the BP oil spill. Plus, had the government not already disarmed pilots and passengers, 9/11 would likely have never happened - at least not how it played out. Even if the terrorists had tried to take control of the planes that day, the death toll would have likely been in the dozens at worst, not in the thousands.

And things are not only more dangerous in the airport and on the air: because these procedures are pushing people to drive to their destination instead of fly, the TSA is forcing people to choose, as has already been established, a much more deadly form of travel.

Enough is enough

First the FAA disarmed passengers and pilots. Then, after 9/11, the TSA was born and knives and sharp objects were disallowed from the plane, including silverware in first class. After the shoe bomber’s failure, we were forced to remove our shoes. When the liquid bombers failed, most liquids were banned. When the underwear bomber was thwarted by passengers, the porno-scanners were introduced. When a bomb-like device was found in a printer cartridge, ink cartridges over a certain size were banned. When people began opting out of the porno-scanners, the more invasive “pat-downs” were introduced as a punitive measure.

But enough is enough.

We ought not acquiesce to the state’s impractical, inefficient, invasive, expensive, and dangerous procedures by relinquishing the very freedoms that our government is supposed to protect.

The TSA must be abolished, and responsibility of security must be returned to the airlines and airports, where there is greater accountability and incentive for safety, efficiency, and customer service. An airline that fails to take appropriate safety precautions to the satisfaction of customers will not do well. Same with airlines that treat their customers like cattle to be groped and ogled.

What would a free market in airport security look like? It’s hard to say (for the same reason central planning doesn’t work - to paraphrase Hayek, there’s no way to imagine what can be designed by millions of people acting freely; and to paraphrase Mises, it would be impossible to implement it properly or efficiently even if planned by all-knowing angels). But if I were to guess: for starters, airlines will likely roll back the invasive scanners and searches, keeping metal detectors and baggage x-rays but allowing us to keep our shoes, sodas, and nail clippers. The airlines would likely implement some basic behavioral profiling and risk assessments, much like the kind that Israel employs with great success. I would not be surprised to see flight attendants trained in danger detection and defense. There could be one or two or more armed, plain-clothes security personnel (employed by the airline) hidden on every flight. In fact, maybe some airlines will allow passengers to remain armed (who would dare hijack a plane leaving Houston, for instance, filled with armed Texans?). For the especially wary traveler, some airlines may offer shackled flying where every passenger is comfortably strapped to his seat and may only be released from his restraints by a flight attendant who will personally escort him to and from the restroom. And who knows what methods and technologies await us in the future? Only the fervent competition of a free market would allow for flexible implementation of advancements. The point is: the airlines, because they have the most to both gain and lose, will find the most efficient methods to ensure safety while remaining sensitive to the privacy and needs of the flying public. No government can ever provide such balance.

In the mean time, if you must fly, don’t make it easy for your Fourth Amendment rights to be violated:

Opt out of the naked body scanners.
Do not allow yourself to be screened in a private room. Stay where there are witnesses and the greatest likelihood of multiple surveillance cameras.
Demand that the TSA agent put on fresh gloves. The reused gloves that have been put on the bodies and inside the clothing of other people could carry lice, fleas, and even infections such as herpes.
When you are groped and custody searched, try to have some sort of recording taking place. Either set up a camera in your bag or ask a fellow traveler who would not be going through this procedure at the same time. There are no federal laws or TSA regulations against recording the TSA as long as you do not interfere with the security process, but be discreet.
Explain - politely - that they are violating your Fourth Amendment rights. Remember that the TSA agents are bullies who have the power to boot and blacklist without having to prove a crime or violation was committed, so tread carefully.
Report your TSA abuses to the American Civil Liberties Union, Electronic Privacy Information Center, and, of course, the TSA itself. Write to DHS Secretary Napolitano, your congressperson, senator, mayor, governor, district attorney, airline, travel agent, and airport management. Consider filing a police report if you feel the TSA agent may have gone too far.

After persistent public outrage, the government will undoubtedly pretend to give in with some half-measures, but we must not rest until the TSA is abolished. Because no matter how bad things may seem now, the government always finds a way to make things worse.

Posted November 22, 2010 at 3:24pm in TSA ∆ 4th Amendment | comments || home