"The TSA's Constitution-Free Zone"

Interesting first-person account of someone on the U.S. Terrorist Watch List:

To sum up, if you run afoul of the nation's "national security" apparatus, you're completely on your own. There are no firm rules, no case law, no real appeals processes, no normal array of Constitutional rights, no lawyers to help, and generally none of the other things that we as American citizens expect to be able to fall back on when we've been (justly or unjustly) identified by the government as wrong-doers.

Posted on May 12, 2006 at 1:38 PM • 44 Comments

Comments

Bill TimsMay 12, 2006 2:07 PM

A Canadian IBM'er (born in Egypt) is happily on the list. When he comes to the US (frequently), he announces the fact to security guys and they point him to a much shorter and faster line!

StephenMay 12, 2006 2:38 PM

That's unfortunate: in order to fly, the safest way to travel, you must submit to foregoing basic constitutional protections -- not safe at all.

Pat CahalanMay 12, 2006 2:49 PM

[nitpick]

> in order to fly, the safest way to travel

This "widely accepted as true" statement is based upon a statistical analysis of fatalities per mode of travel, without regards to the particular modes of travel.

Travel by plane is very safe, statistically. Travel by boat (when you're talking about boats that meet the same sort of safety standards that airlines meet) is probably just as safe if not safer.

Train and Boat travel (statistically) appears to be less safe than plane travel because of some large-scale train/boating accidents. However, virtually every story I've read about boating disasters in the last five years is related to either overcrowding of the boat or the horrible condition of the boat in question. Similiarly, train incidents are usually due to poor safety procedures.

If (worldwide) passenger trains and boats were subjected to the same safety standards and procedures as your average airline, I imagine the statistics would show both to be equally as safe as airline travel.

Random GuyMay 12, 2006 3:04 PM

And if we regulated motorcyclists as rigorously as pilots there would be fewer accidents there too.

Unfortunately, people who might wish to travel on trains or boats are only allowed to book passage on trains and boats that exist, rather than hypothetical trains and boats which were more rigorously regulated.

DragonhunterMay 12, 2006 3:06 PM

Interesting. And troubling. But what I have come to expect from our current administration. As another reader of this blog observed recently. "terrorism is the root password to the constitution."

If we surrender all of our rights in the supposed pursuti of security we will end up with neither.

McGavinMay 12, 2006 3:19 PM

I am not a lawyer. Nor am I sure of what I'm about to write. I'm probably wrong.

There is case law that allows search without probable cause as long as it is in the name of public SAFETY. But the agents cannot ask for your ID or use "stuff" they find to arrest you. Taking explosives away from airline passengers is certainly in the spirit of public safety, so hense constitutional. But as soon as the agents start arresting people at the gate, then that is illegal.

Note that the airlines check your ID at the security checkpoint, not the TSA.

Please read my above disclaimer.

MarioMay 12, 2006 3:33 PM

The author notes that the goodwill of the people working for the TSA -- the "kindess of strangers" -- is what saved him from a more draconian punishment. I think it's worth looking at this notion of goodwill; I think it has something to do with our "society of laws, not men," as the author puts it.

I'm no social scientist, but I think that when a person grows up in a society of laws, the end result, on average, is someone quite different from a person who grows up in a society ruled, rather, by men. If we can count, to some degree, on the kindness of strangers, I would attribute this to the fact that these strangers grew up within the system we have enjoyed in the US.

If our american system, however, continues to be continually eroded and undermined, by establishing at various points in our society (under the shibboleth of "national security") a system characterized instead by men and women having the authority to apply government's power arbitrarily, can we count on the next generation of strangers, growing up under this new system, to have the same degree of kindness?

Among all else at risk when we lose our constitutional guarantees is whatever sense of goodwill and kindness americans now have towards one another.

AlanMay 12, 2006 3:43 PM

I don't understand how these people referenced in the articles know they are on the terrorist watch list.

In the months following 9/11, I was given extra screening at the gate about 8 out of 24 times. I assumed it was something about my look. That tapered off and then they stopped doing extra screening at the gate. I do not believe this extra screening had anything to do with the terrorist watch list.

Since then, I've gotten the red "S" on my boarding pass twice, but AFAIK, that was put there by the airline personnel. On one occaision, I got it for making jokes over the phone with the reservation agent about seating me between two obese people. I guess she was obese and didn't like the joke. On another occaision, I expressed my extreme displeasure at having my flight cancelled and getting bumped back not to the next flight (7 pm), but to third and last flight (11 pm). Again, I do not believe this extra screening had anything to do with the terrorist watch list.

Finally, in reference to what the first poster said, it was intrusive and humiliating to have to open my belt, turn down my pants, etc., but at least I didn't have to wait in a line.

JarrodMay 12, 2006 4:20 PM

It's hard to call it a true 'Constitution-free zone' as you are submitting to the search voluntarily as a condition of getting on the plane. You are, technically, free to avoid the search so long as you are willing to avoid flying.

This doesn't mean that I think they do all that effective a job. Private or government, the safety numbers seem to be about the same level, only the annoyance level has gone up because there is some additional legal authority behind those manning the lines. I do try to make things as easy as possible for them, but that's just because I have no desire to actually end up tagged later for additional security checks.

There are technologies that improve the odds of finding things, and allow us to get past much of the more invasive checking that goes on, but so many people are against things like terahertz-wave equipment (because they can see actual body details through clothing, even though it's virtually impossible to hide weapons or drugs) that we end up with the slower, less-efficient methods. I'd gladly go through that line if it was faster.

IcksterMay 12, 2006 4:50 PM

@Jarrod

I understand the point you're making about the search being technically voluntary, but I'm personally fed up with that argument.

One could make the argument that the only things that are manditory are eating and breathing. Choosing to do anything else is voluntary and therefore can be restricted.

Closer to the situation at hand, there's not much difference between saying that since boarding a plane is voluntary and therefore gives tacit agreement for being searched, then boarding a ship, train, bus, subway, or driving down certain roads are also voluntary and thus give the same tacit agreement.

The only real-world difference is that we've agreed to put up with one, and not the others. Yet.

Dustin MitchellMay 12, 2006 4:59 PM

@Jarrod, Re: the search being voluntary

I would be intersted to see someone try to walk away from such a search. I don't think the TSA would take well to that -- I would expect the searchee to be detained and/or the airport to be locked down.

Pat CahalanMay 12, 2006 5:02 PM

Actually, you can be searched on a ship, train, bus, or subway. If you try and drive the last chunk of the road up to Crystal Palace in Colorado you can be shot well before you get to the gate (there are numerous warning signs to this effect long before you get there).

Winston SmithMay 12, 2006 5:40 PM

@Jarrod:

If it's so voluntary as all that, why haven't we seen competition arise, where the competetive advantage is that "our airline doesn't require all that invasive screening"? Personally, I'm thinking at this point in history, I'd rather pay a couple hundred dollars more in airfare, to retain my privacy, and to support such a challenge to the Surveillance State I now live in.

Slayton I. MusgoMay 12, 2006 5:57 PM

IANAL either, but I believe McGavin above is wrong, as JP Barlow found out. During a search of his luggage for a bomb (electronics in a funny shape showed up on the Xray), a small amount of contraband drugs was found (well hidden, nowhere near the putative bomb).
He was arrested for the drugs and his arrest has been upheld in court (pending appeal?).

another_bruceMay 12, 2006 8:49 PM

after reading the article, the impression of extreme coyness on the part of the author, not revealing what was found in his bag, overcame whatever message he was trying to transmit, and left me assuming the worst.

ShuraMay 13, 2006 6:13 AM

@Jarrod: that's rubbish. The "it's your own choice" argument could, in theory, be made by an airline, for example (a private company who owns the plane and thus has a right to say who can and cannot board it, although they'd of course be bound by existing contracts - which is what a ticket sale would be), but it doesn't apply to the government.

Quite the opposite: the government is bound by the principles of democracy and law. In other words, while the people (and, to a lesser extent, corporations) have a right to enjoy freedom, the government doesn't have that right in the same sense. The government is not an independent entity in the same way that a person or corporation or non-profit organisation or so would be. It does not have rights; it has obligations. The government is (or at least should be) the servant of the people, nothing more.

And that's why your argument doesn't hold. The government simply *cannot* do things just because it wants to do them, without checks and bounds; if you allow that, you'll end up in a fascist dictatorship. Think about it.

jtMay 13, 2006 6:33 AM

@another_bruce

Even if he was carrying "the worst" (anthrax, nuclear material? a bomb?) does that mean he shouldn't be subject to normal constitional processes? If you think that, that's kind of scary.

And if you really think he was carry "the worst" isn't it odd that he was let onto the plane and is not currently being prosecuted to be kept in jail? Does that give you confidence in TSA procedures.

AnonymousMay 13, 2006 3:23 PM

Ickster, Dustin, Winston, and Shura:

I'm not sure that you understood what I meant. I don't care for the intrusive searches, either, though they're a fact of life for right now. I'm all for technology that keeps bombs off of planes -- it's hard to argue otherwise. The problem is that the best technologies for this often do not make it to the airports, and instead are demonized as too invasive.

However, complaining that it's unconstitutional when it has been ruled otherwise doesn't do anything, and slippery slope arguments are logical fallacies in and of themselves. If all you'll do is complain to a few people around you, you're not doing anything.

Have you written to your congressional representatives? I don't mean e-mails -- I mean written out a unique, self-composed letter, and mailed it through the US Postal Service. Those are the most likely to get any sort of response.

So here's your assignment: Given the condition that pre-boarding searches of some sort are not going to go away, come up with a way of conducting the search that fits within the limits of the Constitution as you understand it, and which provides a reasonable chance of intercepting a malicious package.

Dustin: I have seen a person walk away from searches, when he realized that they left something in his carry-on luggage that could trip an alarm. He was not detained, and nothing happened to shut down the terminal.

Welcome To Our WorldMay 13, 2006 11:35 PM

Constitution-free zone? Why so surprised? That is the state inhabited by every legal visa holder (and, yes, by every law-abiding "illegal" too). Welcome to our world. Can't vote but must pay taxes, just like it used to be. Just like blacks in South Africa, or women in ancient Greece, those of us not fulfilling an arbitrary condition (then it was whiteness or maleness, now it is having been physically born on this slab of land) are denied rights that once upon a time someone wise asserted were unalienable and of *all* men.

Wake up people; the American Dream - it's finished. You're not in The "Land of the Free" anymore, you're back in Ye Olde Europe - the place from which your great-forefathers escaped. And you should be ashamed of yourselves, those of you who have allowed it to happen. (And don't blame 9/11. US immigration policy locked your doors long before that pin-prick on what was a great land happened.)

And the survey says...May 13, 2006 11:51 PM

Jarrod,

You're missing the whole point (of the philosophy underpinning the Constitution). You are free unless you do something that violates someone else's freedom or life. Your freedom isn't contingent on you not-flying, or not-walking-in-a-bad-beighbourhood, or not-[insert anything else that isn't a violation of some other free person's right to life or liberty]. That is (or, judging by this article, *was*) the beauty of the American Way.

JakeSMay 14, 2006 7:26 AM

for a sidelight on the constitution-free zone, look at the last item in Janice Turner's column in yesterday's London "Times":
http://www.timesonline.co.uk/article/...
(the headline, and the first item, are about Martha Stewart and a British TV series; perhaps interesting, but not relevant here).

AnonymousMay 14, 2006 10:49 AM

It wouldn't be hard to get the rules on searches changed for flying. All sheeple would have to do is stop flying until the rules are changed. When corporations lose money, politicians listen.

Richard BraakmanMay 14, 2006 12:26 PM

If enough people stop flying... it seems more likely that the government will give money to the airlines to bail them out.

AnonymousMay 14, 2006 4:50 PM

@Jarrod: "~ (because they can see actual body details through clothing, even though it's virtually impossible to hide weapons or drugs) ~."

Um, no.

Tell me it is "impossible" to sneak something past security, and I'll give you 50 different ways to do it. If your magic scanner were so accurate, there would be no need for any police/guards whatsoever after the security checkpoint, because this magic scanner would've rooted out all of the weapons or drugs.

Hasn't ever happened, isn't happening, won't happen. As long as people are involved (designing, building and/or running the system), then that system has flaws that can be exploited.

PillBoxMay 14, 2006 4:51 PM

@Jarrod: "~ (because they can see actual body details through clothing, even though it's virtually impossible to hide weapons or drugs) ~."

Um, no.

Tell me it is "impossible" to sneak something past security, and I'll give you 50 different ways to do it. If your magic scanner were so accurate, there would be no need for any police/guards whatsoever after the security checkpoint, because this magic scanner would've rooted out all of the weapons or drugs.

Hasn't ever happened, isn't happening, won't happen. As long as people are involved (designing, building and/or running the system), then that system has flaws that can be exploited.

FIlias CupioMay 14, 2006 7:10 PM

It seems to me that with proper software, those terahurtz scanners could be made acceptable:
Image recognition software identifies the parts of the body, and anything which looks like it is not body.
Anything not-body plus a small surrounding area is displayed to the security guard, so the guard doesn't see enough body to get anything salacious. There can be software overrides so (s)he doesn't get to see particularly sensitive body areas, or too large an area of body, even if there is something not-body there - in this case the system tells them there is something, but doesn't show - they then fall back on alternative methods - "Excuse me sir, but please put your sporran through the x-ray machine, or hold it higher"

LeinsterMay 14, 2006 8:45 PM

So this guy "Hannibal" accidentally takes some illegal weapon in his cabin baggage (something so serious he will not say what it was, but admits it was for self-defense), he finds that everyone is polite, respectful and helpful to him, and he ends up with a quite small fine.

This becomes a bloggable issue because:
1. An admittedly activist friend (not a lawyer) describes the TSA as "a Constitution-free zone";
2. The same friend (still not a lawyer) told him that at the TSA "you have no Miranda rights";
3. There is allegedly no real appeals process;
4. There are no case law (precedents) to use; and
5. His lawyer was unsuccessful in finding an attorney who specialized in the area.

The problem is that most of these points are baloney and the rest are trite. Let's look at them one by one:
1. Hannibal's friend Bill is spouting bovine excrement, and the phrase which gave this article its name is nothing but a campaign slogan. There is absolutely no aspect of the TSA's operations that either does or could suspend the operation of the US Constitution.

2. The issue of Miranda rights has been widely confused, due in no small part to cop shows. Additionally many rookie cops are taught to Mirandize almost by reflex, in order to avoid accidental omission. But the fact is that a suspect only needs to be Mirandized if he is a) under arrest; b) going to be interrogated whilst in custody; and c) the prosecution later wishes to use the interrogation as evidence in a criminal trial. If any of these conditions do not apply, there is not now and never has been any requirement for Mirandizing (there are also a few special cases where Mirandizing does not apply even if all those conditions DO apply, e.g. you do not have to be Mirandized before consenting to a blood test). In Hannibal's case, there clearly was not any need for Mirandizing since they already had all the evidence they needed (he was caught red handed!) and he was not arrested anyway. If there had been a legal requirement for Mirandizing, and he was not, then that certainly could have been used to throw out any evidence gained through interrogation.

3. There is an appeals process. The claim that it is somehow not "real" because it only applies after a conviction is silly; all appeals processes only apply after a conviction as there is no need to appeal an acquittal!

4. There is case law. Of course there is not much, because it is a relatively new law. The same problem applies, for a short time, to ALL new laws!!

5. I typed federal administrative attorney into Google, and found one in under 5 minutes. The idea that there are not any attorneys available who specialize in Federal administrative law is so ridiculous that I can only assume that anyone who believed it did so only because they really wanted to.

Basically, Hannibal just took too much advice from a friend whose passion greatly exceeded his knowledge.

RogerMay 15, 2006 1:02 AM

@FIlias Cupio:
> It seems to me that with proper software, those terahurtz scanners could be made acceptable:

They're already designing in something like that. Doesn't show the face at all, and blurs the chest and groin unless it detects a significant mass of material that isn't human tissue.

In any case, the image is far more blurry than people seem to think. THz waves penetrate several cm into human tissue, and are reflected back out from a continuous range of depths. Consequently the image is like photographing a human-shaped smoke cloud.

People got the impression the system produces crisp images because they only saw low-resolution photographs of THz images. If you see a good photograph of a THz image, e.g.:
http://optics.org/objects/news/11/7/15/...
or (4.4 MB AVI):
http://www.thruvision.com/video/...
you can see it really isn't all that salacious.

Nor is there any reason anyone would want to sharpen the resolution of the body surface, but rather, penetrate non-suspicious materials (like people) slightly deeper if anything. Because in fact the real value of THz scanners isn't their ability to "see through clothes" (although that's what excites journalists), but the fact that many chemical moieties exhibit distinctive THz emissions.

AnonymousMay 15, 2006 8:35 AM

Thank you Roger, for this interesting information.

Nonetheless I fear that such devices reveal information about me that I don't want to escape my personal control, e.g. raw data that could be mined with statistical methods to measure my skeleton for later recognition on camera data, or estimate health or race parameters to discriminate me.

Thus I demand that the software must not store or transmit the data, and is controlled and "plumbed" (not arbitrarily updateable, especially not remotely) like it should be in voting machines.

Roger, could you kindly point out differences between THz scanners and X-ray backscatter scanners ?

derfMay 15, 2006 9:47 AM

After watching countless blonde women get fondled by the TSA, I'm not impressed at their ability to separate potential terrorist suspects from their adolescent hormonal responses. Considering that any agency that attempts to test the security by trying to smuggle contraband through generally succeeds more often than not, I'd say this experiment has failed rather spectacularly.

BeansMay 15, 2006 12:27 PM

Just a clarification regarding informal logic (re: Anonymous, 14 posts above):

"[S]lippery slope arguments are logical fallacies in and of themselves" is a false statement.

Rather, slippery slope arguments may be either fallacious or non-fallacious.

I.e., claiming something like "if a constitutional rule is disregarded, the world will devolve to anarchy, and the world will ultimately explode in a blaze of glory" is a fallacious slippery slope argument.

Claiming something like "if a basic constitutional rule can be disregarded willy-nilly, there is no particular reason why other constitutional rules might be disregarded in the same manner (e.g.,...)", while being a slippery slope argument, is not necessarily fallacious.

Sorry for being pedantic.

SamiamMay 15, 2006 3:04 PM

Mario: The most trivial of web searches will show you that those who have been forced to rely on the "good will" of the TSA have fared overwhelmingly, if not universally, poorly. Exceptions are probably random, and accidental.

All: Perhaps what is needed is a strategy to get ALL common given name/surname combinations onto the Federal watchlist. Let's see this system function when 25% or more of passengers booked for a flight get Red "S".

RogerMay 15, 2006 7:21 PM

@Anonymous of May 15, 2006 08:35 AM:

> Roger, could you kindly point out differences between THz scanners and X-ray backscatter scanners ?

Certainly. There are quite a few differences, of course, because the difference in wavelength used is so great: about 6 orders of magnitude, in fact. Some of the significant practical differences include:
== Pros ==
* While backscatter X-ray machines emit a very low dose and are generally regarded as safe, THz waves are non-ionising and pose absolutely no risk to living tissue (in fact the level of exposure from an active scanner is far less than exposure from ubiquitous natural sources);
* Many materials of interest naturally emit measurable amounts of THz waves, allowing completely passive scanners to be built. These are particularly useful for wide area imaging, where it might not be practicable to illuminate the whole area with the sensing waves;
* Sophisticated backscatter X-ray systems can be used to identify particular atomic elements in the target, which can help to identify its composition, but they do not give information about the exact chemical bonding in amorphous materials. Thus with backscatter X-ray it would be very difficult to distinguish between, say, a nitramine type explosive vs. German sausage (which contains similar elements). THz wave spectroscopy on the other hand can often identify individual chemical moieties, so at least in principle it could be set up to, say, display all opiates as bright green.

== Cons ==
* Terahertz imaging is a much newer technology, with many possibilities still being developed;
* Ability of X-rays and Thz waves to penetrate solid objects is quite different, so there are some materials that are imaged better with X-rays, and vice versa. Generally speaking, however, THz waves have much lower penetration.
* In particular, unlike backscatter X-rays, THz waves have essentially no ability to penetrate solid metal objects (although they easily detect that they are there).

AnonymousMay 16, 2006 7:52 AM

Thanks Roger for your answer to my post; I see you know quite a lot about all this!

I must admit, though, that the ability to "identify individual chemical moieties" supports my suspicion that scanner data can be used to estimate health condition or race.

RogerMay 17, 2006 4:29 AM

> ...suspicion that scanner data can be used to estimate health condition

That is entirely possible. Indeed there is quite some interest in THz scanning from the medical community, for diagnostic purposes.

However it is unlikely that security scanners would be optimised for this purpose. Rather they would be tuned to ignore human tissue so far as possible, in order to highlight weapons or contraband.

> or race.

Not unless races were associated with substantial chemical changes in the body, which they are not (if they were, that would undermine the now accepted view that race is a largely conceptual construct).

Of course, it is trivial to remotely sense skin colour.

Scott AllenJune 24, 2007 2:29 PM

"Interesting. And troubling. But what I have come to expect from our current administration. As another reader of this blog observed recently. "terrorism is the root password to the constitution.""

Truth be told it was both major parties in Congress that, along with the current administration, overwhelmingly voted to create the TSA and define the ways in which it is administered. The creation of the TSA had very little opposition from either major party, so which one could be deemed competent enough to reform TSA or the DHS now? Neither if you ask me.

KorkutOctober 24, 2008 3:46 AM

In any remote sensing there are ways of training the operator/software in the worst case with trial&error basis and in this case for the passive TeraHertz applications there is certain future of success. Moreover, there are active THz scanners but as you know this kind of devices show the body parts in detail. Taking into consideration the "electronic dogs" sensors of very high sensitivity, one can deduce that air transport will stay the most secure way as before.

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