The Constitutionality of Full-Body Scanners

Jeffrey Rosen opines:

Although the Supreme Court hasn’t evaluated airport screening technology, lower courts have emphasized, as the U.S. Court of Appeals for the 9th Circuit ruled in 2007, that “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.'”

In a 2006 opinion for the U.S. Court of Appeals for the 3rd Circuit, then-Judge Samuel Alito stressed that screening procedures must be both “minimally intrusive” and “effective” – in other words, they must be “well-tailored to protect personal privacy,” and they must deliver on their promise of discovering serious threats. Alito upheld the practices at an airport checkpoint where passengers were first screened with walk-through magnetometers and then, if they set off an alarm, with hand-held wands. He wrote that airport searches are reasonable if they escalate “in invasiveness only after a lower level of screening disclose[s] a reason to conduct a more probing search.”

As currently used in U.S. airports, the new full-body scanners fail all of Alito’s tests.

In other news, The New York Times wrote an editorial in favor of the scanners. I was surprised.

Tags: air travel, courts, DHS, full-body scanners, laws, privacy, searches, TSA

Posted on November 30, 2010 at 12:09 PM • 48 Comments

Comments

Anonymous Prime • November 30, 2010 12:32 PM

it seriously blows my mind that opposition to the TSA’s ever-more-invasive, ever-more-costly, never-more-effective security theater is controversial to anyone at all.

the democratic backlash to the latest round of TSA escalations stinks of partisan sewage.

Henning Makholm • November 30, 2010 1:05 PM

Anonymous Prime is probably being rhetorical, but here are three groups to whom opposition to security theater would be controversial:

1) Those who are genuinely afraid. They’re mostly deluded by propaganda, but their fear, however it arose, is none the less sincere for that.

2) Those who dimly get that there is a freedom-security tradeoff, but misunderstand it to mean that it’s a zero-sum game. In their confusion they think that ANYTHING which lessens the inconvenience and indignity suffered by law-abiding citizens will also, ipso facto, make it easier for terrorists to attack.

3) Anyone in a position to actually effect changes, whose career will be in danger if they allow standards to slip and a subsequent attack is ever successful and can somehow be distorted into having something to do with said slippage.

Membership in the third group appears to be independent of partisan affiliation. As far as my imperfect understanding of American politics goes, both ends of the spectrum have weighty ideological reasons to oppose the radicalization of security theater, and pragmatic reasons not to do so.

Ken Hagler • November 30, 2010 1:05 PM

I think H.L. Mencken said it best:

“The fact is that the average man’s love of liberty is nine-tenths imaginary, exactly like his love of sense, justice and truth. He is not actually happy when free; he is uncomfortable, a bit alarmed, and intolerably lonely. Liberty is not a thing for the great masses of men. It is the exclusive possession of a small and disreputable minority, like knowledge, courage and honor. It takes a special sort of man to understand and enjoy liberty – and he is usually an outlaw in democratic societies.”

BF Skinner • November 30, 2010 1:29 PM

Well in response to @Henning Makholm points 1 and 2… what’s the standard interview answer with a person on the street who is okay with them? “Sure I’m okay with it if it protects us.”

Has there EVER been a follow up. “And if you were told that the scanners are ineffective for their stated purpose. That they still wouldn’t detect the crotch bombers bomb. Are you still okay with it?”
“This is a high tech strip search in public. Are you still okay with it?”
Never seen what looks to be an answer to that.

The standard report I’ve seen says 80% in favor. That number (which by the laws of rounding can’t be correct and might be made up or exagerated). The interviews show “I’m in favor IF…” The interviees don’t make a big deal out of the IF even though it is a big IF.

TSA says we’re driven by reality and intelligence …which is presumedly why they decided that flight crews were ALSO an avoidable risk that must be controlled by xray inspection.

So when they decided that flight crews weren’t a risk — I wonder what changed in the intel chatter. Some intercept saying “Oh no they’re on to our pilot plot. Drop all pilot plots forever.”

Problem is that there are no publically disclosed measurements. Whats the population of terrorists world wide? What’s the population of terrorists in the US? How many have been caught by screening? How many are discouraged from their attempts?

It’s like the story of the guy looking for his glasses under a streetlamp. His buddy comes and they search under the light for an hour.
Are you sure it dropped here? He asked.
No said the guy, it dropped half a mile up the road.
Then why are you searching here?
Well the lights better here inni’t?

So why do we increase scruitiny internally beyond what other countries do? Well we can’t do much there and the light is better here. Terrorist really stand out in a crowd of overfed American’s. ya know?

Adam • November 30, 2010 1:29 PM

“In other news, The New York Times wrote an editorial in favor of the scanners. I was surprised.”

A Democrat is in the White House. If a Republican were there, the NYT would oppose the scanners. No need to be surprised.

SnallaBolaget • November 30, 2010 1:34 PM

@Bruce; Though I know it surprises you every time someone has the audacity to disagree with you, I do think you should read that editorial again. It’s not about the scanners, it’s about politicizing the whole airport security process.

What’s more surprising is that the writer of the editorial doesn’t know how to use commas correctly, but mainly it’s extremely surprising that people (and especially people who should be well-informed) still have no idea what “profiling” in the airport security context means. Americans always jump to the conclusion that it’s all about so-called “racial profiling”, which is illegal, it’s ineffective (actually, it’s non-effective), counterproductive and plain stupid.

Instead, it’s about the kind of profiling that has kept El-Al hijack-free in the most high-risk region of the world, and that daily secures Ben Gurion and other Israeli airports. Those profilers know very well that race has nothing to do with being a terrorist or a criminal.

RH • November 30, 2010 1:42 PM

I felt the “in favor” article that you linked was actually well written, and not in favor of the scanners. It was, instead, against those who turn the idiotic mistakes made high up in TSA into political points for 2012. In fact, the author takes one of your points, which is that if we profile and decide elderly white women are safe, that the terrorists will put a bomb on them instead.

The author is saying, “validity of the tests not withstanding, stop using them for political gains.”

And this is coming from me, someone who, historically, supported those targeted by the article.

Snarki, child of Loki • November 30, 2010 1:43 PM

Is there anyone that doesn’t think that Alito won’t be doing a triple-Lutz level pirouette on this issue, if it ever winds up in front of him again?

That’s the way it is with authoritarian creeps; legal precedents and principles are just words to be manipulated to achieve a pre-determined outcome.

Kahomono • November 30, 2010 1:50 PM

“In other news, The New York Times wrote an editorial in favor of the scanners. I was surprised.”

Follow the money.

Brandioch Conner • November 30, 2010 2:07 PM

@SnallaBolaget
“Americans always jump to the conclusion that it’s all about so-called “racial profiling”, which …”

That’s because it seems that it is about racial profiling.

Or more correctly, if you look like you might be an Arab, you get additional “service” from the TSA.

John Campbell • November 30, 2010 2:08 PM

Y’know, I wonder if this ever-rising annoyance of passengers might have the end-game of eliminating a desire to travel as if folks in the gov’t have a stake in conference bridges and supporting technology (though these would likely be easier for the NSA to keep an eye on).

I sometimes wonder if further reducing the mobility of the general population might be a goal… which would make people a bit more “controllable”, though, really, who can possibly profit from this?

Steven Hoober • November 30, 2010 2:49 PM

Does anyone know Common Carrier (et. al.) law as it applies to transport systems? I know based on telecoms, and I’d think that the impossibly invasive screening process long ago passed the point where there is an issue of having to provide reasonable access to the service.

There has always been an exchange of liability, so it’s well understood (except by the fearful and CYA-inclined) that losses at a level above zero will occur. Securing with a goal of zero is overly restricting public access to the system, as I read it, so there could be a legal challenge outside strict legality-of-search constitutionality.

jgreco • November 30, 2010 3:06 PM

@Adam at November 30, 2010 1:29 PM

I wish I could say this was a troll, but you really are correct here. The article is very blatantly partisan, trying to paint the picture that anyone who opposes the scanners must be a republican. It doesn’t make any attempt to actually address the reasons people are opposed to scanners.

The article’s title, “Politicizing Airport Security” is terribly accurate, though not in the way the author probably intended.

mk • November 30, 2010 3:13 PM

“In other news, The New York Times wrote an editorial in favor of the scanners. I was surprised.” – nothing would surprise me since Judith Miller and the New York Times were so very helpful to bush/cheney in getting us into the war with Iraq, a war we’re still in and paying for. If not for that war, we probably wouldn’t even need those damned full body scanners.

Chasmosaur • November 30, 2010 3:15 PM

While I feel the scanners are invasive and want to see them gone, what I’m really angry about are the pat-downs.

Not because of the pat-downs, per se – I’ve had many of them before (I look Mediterranean, so it hasn’t been unusual for me to be “randomly” pulled on a regular basis since 9/11). It’s the fact that I either have to subject myself to a machine that has unknown health risks, or I have to subject myself to TSO’s who don’t change gloves between searches. One way or the other, it’s a public health risk, on top of the security-theater of it all.

dob • November 30, 2010 3:24 PM

The editorial makes the mistake that all opposition to the scanners are from partisan ideologues, which is manifestly not the case. That being said, it is absolutely true that a good portion of that opposition is from parties that have hitherto been steadfast in their support of the security state under President Bush. Those same parties having spent the past couple of years attacking all of President Obama’s initiatives, regardless of ideological consistency, it’s easy to conclude that their opposition in this matter is rooted not in principles, but in politics. It’s also obvious that the issue wouldn’t have any resonance in the corporate media were there not a right-wing noise machine pushing it.

@Adam might do well to recall the New York Times obeisance to the Bush administration’s ginning up support for the Iraq war, or for its self-imposed embargo of news of its illegal wiretapping program, before he assumes the paper has a reliable partisan leaning.

Mr M • November 30, 2010 3:45 PM

Pistole claims the high rate of false-positives on the “blob” scanners is currently unacceptabile. If he was truly concerned about false-positives, he wouldn’t have an agency to run.

Brian • November 30, 2010 4:04 PM

‘He wrote that airport searches are reasonable if they escalate “in invasiveness only after a lower level of screening disclose[s] a reason to conduct a more probing search.” ‘

So, what I get from that is that “random” searches are actually unconstitutional?

Bob • November 30, 2010 4:05 PM

“If we stop screening elderly white women from Iowa, that’s who the terrorists will recruit.” – from the NYT editorial

Are they serious? This assertion is bizarre, laughable and asinine. When I try to imagine it happening, it involves a bearded guy in a turban and a white-haired farm lady in a gingham dress with a hot apple pie, and the late Leslie Nielsen keeps walking into the scene as Frank Drebin.

The level of paranoia around terrorism has reached a new low.

(The quote is a paraphrase from a few-minute-old memory. It would have been an exact quote, but NYT seems to be having registration problems.)

Brandioch Conner • November 30, 2010 4:31 PM

@Bob
“Are they serious?”

“This assertion is bizarre, laughable and asinine.”

No. It is history.
http://en.wikipedia.org/wiki/Hindawi_affair

Harry • November 30, 2010 5:03 PM

The key question is who decides what constitutes “effective”? When considering the answer keep two things in mind:

A court usually asks experts. Who are the experts here? Mostly Federal employees.
The courts have a long history of defering to the goverment on issues of national security.

IntelVet • November 30, 2010 5:53 PM

“So when they decided that flight crews weren’t a risk — I wonder what changed in the intel chatter. Some intercept saying “Oh no they’re on to our pilot plot. Drop all pilot plots forever.””

It likely was no change in the chatter. It was likely an intelligent person who (finally) realized that a pilot could go through any physical scanner with no problems yet, unless one chopped their hands off, still be able to bring down an aircraft, at will. Even with no hands.

Same thing goes for the rest of the flight crew, at least two pilot versions, because when one has to attend to physiological needs, a cabin attendant must be in the cockpit to allow the absent pilot re-entry to the cockpit.

Dave Aronson • November 30, 2010 6:08 PM

Ken and Mencken are spot on. I see this all the time in things like the question of who is going to do what at the meetings of my Toastmasters club. Let people choose, and they do nothing, don’t get their speech projects done, don’t earn their awards, and don’t improve, while the Toastmaster of the Day is left scrambling for volunteers at the last minute. Assign them to roles, including speeches, and they succeed and are happy, while the TMoD has enough advance notice to bring printed agendas… and (almost) NOBODY complains about being assigned roles.

kangaroo • November 30, 2010 6:16 PM

@Bob: Have you actually SEEN what folks from Afghanistan, Chechnya and the Caucusus look like?

Let me give you a clue — they’re “Caucasians”. Some have blue eyes. Half of them lack penises. Checkout your Bosnians as well.

That’s without considering converts.

Read Malcolm X’s description of the Mecca hajj.

Or just read.

Brandioch Conner • November 30, 2010 8:23 PM

@IntelVet
“It was likely an intelligent person who (finally) realized that a pilot could go through any physical scanner with no problems yet, unless one chopped their hands off, still be able to bring down an aircraft, at will.”

The question is … how do you know that it is really a pilot that just skipped through security?

The problem is that a guy could impersonate a pilot to avoid the scanning and then hand off a bomb to a guy who just went through the scanner.

Then the fake pilot leaves the airport with the next crowd.

Richard Steven Hack • November 30, 2010 9:03 PM

People keep arguing and nitpicking over what is a “viable scenario”, like the post above.

Here’s the bottom line AGAIN: There are an INFINITE number of “viable scenarios”. The word “infinite” in that sentence is perhaps hyperbole but it’s not far wrong.

The reality is that security is not a zero sum game. It’s not a case of “you have security” or “you don’t have security.” No matter WHAT you do, an intelligent, motivated opponent CAN and WILL bypass your security and attack you in whatever manner he intends.

The ONLY security you can EVER have is how you deal with the following two issues: 1) Detecting WHO IS your enemy and WHERE he is and MONITORING his actions and IF POSSIBLE defeating him BEFORE he can attack you, and 2) how you deal with the ACTUAL ATTACK if 1) fails.

This is basic martial arts – situational awareness and fluid trained ability to respond to an attack effectively.

NOTHING the TSA is doing will prevent another terrorist attack AND another terrorist attack on EITHER an airport or a plane. All it requires is for a terrorist group to expend the time and effort and patience to find and develop the means to bypass the existing security. And there is NO WAY the TSA can inflate that cost in time and effort to the point where an attack is not feasible. A GIVEN attack scenario may be made infeasible, but the overall range of attack scenarios can NOT be reduced SIGNIFICANTLY because the overall range is so HUGE, limited as it is only by human ingenuity.

Read Richard Marcinko’s “Red Cell” book about how his Navy SEAL team evaded and compromised US military security all over the world, including Air Force One’s hangar and the President’s cottage at Camp David – and airports.

Look at the response of the Internet to the Fed’s crackdown on intellectual property “theft” sites by denying DNS services – people are now designing “alternative DNS” systems to bypass the legally controlled DNS system.

Once AGAIN, the bottom line is: You can haz better security, you can haz worse security – but you CANNOT haz security.

Bob Gezelter • November 30, 2010 11:41 PM

The enhanced pat-downs and gloves are an interesting issue.

I was able to find a reference on the TSA www site that a person being screened has a “right to a fresh pair of gloves. In addition, I suspect that part of the problem with the pat-downs is the lack of accountability for a specific pat-down.

The questions of efficacy and safety of the scanners, particularly with those who use them frequently or other reasons for concern regarding radiation exposure are another issue entirely. Interestingly enough, founding TSA Administrator McGaw also observed that a few trips through the scanner were not a problem, but then went on with words to the effect that those who go through the scanner far more often may have a valid concern.

The citation to the TSA www site concerning the right to fresh gloves, and a link to the interview with Mr. McGaw are contained in my two blog posts on the subject, “Searching for Airline Security” (at http://rlgsc.com/r/20101122.html) and “Searching for Airline Security, Part Deux” (at http://rlgsc.com/r/20101126.html).

greg • December 1, 2010 3:37 AM

@Richard Steven Hack

There is nothing illegal about alternative DNS systems, private or public.

Nothing illegal at all.

Peter A. • December 1, 2010 4:02 AM

@BF Skinner at November 30, 2010 1:29 PM

Re: 80%

That figure can be pretty legitimate. I guess they’ve asked five poeple and four of them had no issue with pornoscanners.

ab • December 1, 2010 6:00 AM

@Brandioch Conner
The problem is that a guy could impersonate a pilot to avoid the scanning and then hand off a bomb to a guy who just went through the scanner.

Then the fake pilot leaves the airport with the next crowd.

Or it could be a real pilot, scheduled to work on one flight, who hands over the bomb to a guy traveling on another flight.

Sadly also possible.

ab • December 1, 2010 6:05 AM

@Peter A.
I guess they’ve asked five poeple and four of them had no issue with pornoscanners.

—

Well somehow considering today’s Western society used to self-baring behavior through reality-TV, sexting, and other channels…I am not sure if I would be surprised…

IntelVet • December 1, 2010 6:28 AM

Brandioch Conner,

Couple of points.

Pilots do not need tools (bombs, guns, etc.) to create mayhem. You either trust a properly identified pilot or you don’t. Scanning a crew-member, including flight attendants, for contraband is simply security theatre. It serves no purpose other than “entertaining” the traveling public while they wait.
Some pilots carry guns, bypassing security already. What would prevent them from carrying contraband?
Why create complication? Why have fake pilot carry a bomb, with all the uncertainties of two different people meeting and transferring a device, an operation likely to fail? I understand plenty of airport personnel (secretaries, mechanics, caterers, politicians, etc. ) bypass “security” already, pilot not needed.
If you want to use a device, why not have poorly compensated security personnel transport such through security. They are rarely, if ever, investigated should alarms sound. I have seen that happen many times.

A properly identified pilot should not seem to be a problem. My cousin, a pilot, says that there is a system, rare though it is, using two different databases, updated multiple times daily, to properly identify crew-members. He says that without his part, he cannot fly, at all. Even to ride in back.

BF Skinner • December 1, 2010 6:48 AM

@John Campbell ” if further reducing the mobility of the general population might be a goal”

Well it was written about as far back as Plato or am I confusing the republic with More’s Utopia?
Informally it’s been done or attempted here in the states. During the Great Flood of 1927 one of the reasons spoken about for not evacuating black folk off the levies (the white folk were evacated to higher ground) was that if they got outside of the flood zone the white planters would lose their labor force. As it turned out being betrayed and left out in the elements like that was a cause of the migration to the north.

@IntelVet “person who (finally) realized that a pilot could go through any physical scanner”
This was rather my point. Of course it was a stupid thing for them to do. But TSA SAYS they are performing their mission because of fact based threat assessments. What they are in fact DOING is applying the same control to everyone (‘cept powerful political people and people who fly general aviation and now flight crew, 12 years olds and younger and anyone with a body cavity) blindly, by rote, which reduces the effectiveness of the ‘security’. I would so like to stop air quoting the word security.

@Brandioch Conner “a guy could impersonate a pilot ”
or other member of the flight crew…Valid scenario. So why did TSA give them a pass? Cause they are responding to things OTHER than the risk. Their analysis didn’t include that possibility and thought the argument that the pilot already controls the plane was valid (which they also didn’t initially consider in their analysis).

Since we already have a case of a pilot downing his own jet in the 90s and ancedotal stories of drunk, distracted and tired pilots being a more likely risk I think a different sort of screening for them is required. BAC tests at the cockpit, psychological screening and background investigations on a periodic or ongoing basis.

Richard Steven Hack • December 1, 2010 7:39 AM

Greg: Reread what I wrote. I didn’t say anything about alternative DNS systems being “illegal” – just alternatives to the “legally controlled” ones – “legal” meaning subject to control by the state.

And in fact, while alternative systems are not illegal now, wait a while – they might become so if they grow enough to threaten state attempts to control the Net.

American • December 1, 2010 9:16 AM

From the Times article:
“Americans know the difference between a big scanner and big government.”

Strangely, no I don’t see the difference.

Calvera • December 1, 2010 9:57 AM

“Constitutionality of Full-Body Scanners”

The Constitution & 4th Amendment are now quaint 18th Century historical papers– Federal politicians/lawyers have effectively neutered them. No U.S. court will now enforce the 4th Amendment at airports.

Not only are these body-scanners totally prohibited by the 4th– ANY stop or search of travelers at all by TSA is completely illegal.

…the 4th Amendment & 150+ years of formal American jurisprudence REQUIRE specific, supportable suspicion by government agents that a specific crime is afoot by a specific person(s)… to conduct a stop or search.

A 4th Amendment “reasonable” stop/search requires specifics … government agents do NOT have general legal authority to stop or search anybody/everybody…no matter what the circumstances {even in wartime}.

The primary purpose of the 4th Amendment was precisely to prohibit such ‘general’ Stop/Search Authority… as is now exercised by TSA across the nation.

American founders under British Colonial rule had bitter first-hand experience with government ‘general search authority’ via the infamous Royal “Writs of Assistance” — that gave British rulers complete, open-ended
legal authority to search American colonists anywhere/anytime.

There’s ample historical evidence that the British exercise of these tyrannical “Writs of Assistance” was the precipitating factor in starting the American Revolution. Thus, the founders wanted to clearly prevent similar tyranny in their new government.

A general stop/search authority is extremely dangerous & unreasonable to the liberty of a free citizenry — that’s why the 4th Amendment existed (until SCOTUS and the 9th Circuit Court abolished it).

Coercion of travelers into ‘consenting’ to illegal TSA searches… by threatening denial of air travel is a separate crime in itself; freedom of movement & travel is a fundamental right guaranteed by the Constitution and U.S. Federal Code.

Body-Scanners themselves are hardly a problem… when the whole concept of rule-of-law has been destroyed.

phred14 • December 1, 2010 10:49 AM

The thing that continues to strike me is that we have this assumption that “the security process” begins in the security line. I’m under the impression that with Israel, the security process begins at least upon approach to the airport, if not sooner.

It would seem to me that the security process should begin with the flight reservation, including if needed rights and definition of “necessary” information collection. By the time you get to the first physical security checkpoint, your information should be waiting and matched to you.

Someone here wrote about a low-risk woman carrying a bomb planted by her higher-risk husband. Information like this may have come out, given advance notice. Habits that thwart advance notice, like paying cash for a one-way ticket already raise flag as a risk situation.

I have a friend who shares first and last names and middle initial with a known porn publisher, so he gets grilled any time he flies overseas. A little more checking quickly verifies him, but it would be both more polite to him and permit resources to be better used elsewhere had they simply done a little info-work first.

BF Skinner • December 1, 2010 10:59 AM

‎”The people who committed these acts are clearly determined to try to force the United States of America and our values to withdraw from the world. Or to respond by curtailing our freedoms. If we do that, the terrorists will have won. And we have no intention of doing so.” SECDEF Donald Rumsfeld.
Huh. Who’d’ve thought.

@Calvera “when the whole concept of rule-of-law has been destroyed.”
Geeze Take a breath or you’ll get the vapors or pop an artery. Overheated rhetoric is unhelpful. Just makes people stop listening to you. And just because people stop talking to you? Isn’t because you won the argument.

Yes it’s an infringement.
No the entire corpus of US law and jurisprudence has not been overturned because of it.
This is something that in the exigency of the moment the USG has done.
And yes it is over-reaching and must be corrected.
Have you tried, uh, participating in the political process?
Protest has worked a little, though more people need to know about the program and it’s lack of effectiveness in detail.

But it’s time for the other two branches to check and balance the Executive’s actions.
It’s why Bruce and his co-litigants filed suit on the issue.
It’s why Rep Paul submitted H.R.6416 – American Traveller Dignity Act of 2010

Have you contacted your congress rep to tell them to support it? Do so. Tell them TSA’s actions are abridging our rights with no gain. Did you see Pistole testimony? They were not a sympathetic group to speak to. If they don’t see it educate them. They do listen when people are yelling at them.

mcb • December 1, 2010 11:11 AM

@ Calvera

“Not only are these body-scanners totally prohibited by the 4th– ANY stop or search of travelers at all by TSA is completely illegal”

Interesting. Was screening legal when done by private contractors hired by the airlines or the airport?

J.D. Bertron • December 1, 2010 11:13 AM

“If terrorists learn that elderly white women from Iowa are exempt from screening, that’s exactly whom they will recruit. ”

Wow, that guy’s a genius. That’s why he’s writing editorials for the NY times.
Sadly, John Pistole must have the same IQ.

George Orwell • December 1, 2010 8:11 PM

The “underwear bomber” story is a lie, a false flag event, I believe, simply to justify the use of the naked cancer scanners. The State Dept wasn’t going to let him on that flight but were overruled by U.S. intelligence agencies.

On Jan 27, 2010, there was a House Committee on Homeland Security hearing titled “Flight 253: Learning Lessons from an Averted Tragedy.”

During the hearing, Patrick F. Kennedy, Secretary Management of the Department of State, stated that “They had the individual under investigation and our revocation action would have disclosed the U.S. Governments interest in the individual and ended our colleagues’ ability to quietly pursue the case and identify terrorists’ plans and co-conspirators.”

According to a recent article, “The revelation that U.S. intelligence agencies made a deliberate decision to allow Abdulmutallab to board the commercial flight, without any special airport screening, has been buried in the media. ‘Revocation action would have disclosed what they were doing,’ Kennedy said in the testimony before the House Committee on Homeland Security. Allowing Adbulmutallab to keep his visa increased the chances that federal investigators would be able to get closer to apprehending the terror network he was accused of working with, ‘rather than simply knocking out one solider in that effort.'”

Additionally, there were eye witness reports from passengers on Flight 253 that the suspect was escorted onto the aircraft by a “sharp dressed man.” Why wasn’t this information breaking news like the original story was? The politicians and the media didn’t want it to be, because they wanted to use this event to justify the enforcement of the new body scanners.

http://homeland.house.gov/Hearings/index.asp?ID=234

Clive Robinson • December 1, 2010 10:30 PM

@ mcb,

“Interesting. Was screening legal when done by private contractors…”

Probably the 4th was designed to stop abuse by the state only.

Back at the time the constitution was writen it was excepted custom and practice that a ships captin could search any cargo befor embarcation and that applied to the cargo that was passengers and their possessions.

The idea which is possibly behind that of other judgmets is that if “A captin is responsable for his ship” he can only be “responsable” if he has the “authority”, but only within the remit of the vessel and it’s safety.

Importantly you as individual outside of the captins jurisdiction have a choice to enter that jurisdiction or not. When you don’t have this freedom as with already being within the juresdiction of the nation state it is recognised that in return for “lawfull authority” the state has to yield absolute authority in the right of search and seizure of those going about their lawfull occasions else tyranny is assumed to be in place.

And at it’s core the constitution was about removing the tyranny of “Kings”.

Unfortunatly a recent judgment about body scanners in courts and other such places got it wrong. Only the defendant has no choice of being their (and thus should be excempt from scanning) everybody else including the prosecution had “choice” and thus could have avoided the scanners by not working in the legal proffession.

This change in viewpoint about “choice” I expect will have some odd results down the line, because it recognises that even when choice is available you should not of neccessity by crossing into a juresdiction be compelled to unlimited authority. It raises the ugly spector of “ceding responsability” thus no entity being held responsible for abuse.

Calvera • December 2, 2010 8:33 AM

[” Interesting. Was screening legal when done by private contractors hired by the airlines or the airport ? ” — mcb]

–

Previous “private” passenger screenings {started back in the 1970’s} were not private at all — they were commanded by the Federal Government thru the FAA and other government agencies. The airline companies merely acted as proxies for the government… and would have been shut down/punished if they did not follow orders. Those were Federal ‘orders’ — directly violating the 4th Amendment, no matter who actually conducted the individual searches at airports. It was a charade, partly to get around the 4th… but the Feds no longer worry about the 4th at all.

Most state constitutions embody identical language of the 4th Amendment– but state & local government have also thrown basic American civil rights overboard.

Note also that no private business has legal right to search your person at all. All businesses have legitimate security concerns, but imagine a restaurant, movie theater, supermarket, etc. demanding pat-downs, X-rays, and search of customer pockets/purses… as a condition of doing business. Picture some minimum-wage McDonald’s teenage employee groping your wife or daughter… as a condition of buying a cheeseburger ! That would be totally illegal under numerous Federal/State/Local criminal assault laws & civil public-accommodation laws.

[P.S. Clive Robinson]:

There are NO {zero} exceptions stated in the 4th Amendment rights… even for all out war.

“Customary” old maritime procedures do not legally apply at all. The supposed ‘authority’ of ship’s captains’ to inspect “cargo” …absolutely did NOT apply to searching the person & personal belongings of passengers.

uk visa • December 2, 2010 9:19 AM

I’m not a believer in Full-Body Scanners but looking at the unexpected consequences – if people won’t tolerate them and therefore don’t travel we should see a useful fall in CO2 emissions…
😉

mcb • December 2, 2010 10:19 AM

@ Calvera

“Note also that no private business has legal right to search your person at all. All businesses have legitimate security concerns, but imagine a restaurant, movie theater, supermarket, etc. demanding pat-downs, X-rays, and search of customer pockets/purses… as a condition of doing business.”

I’m more inclined to imagine private businesses engaged in potentially hazardous operations – operating large equipment, trucking, railroad, mining, chemical manufacturing, power generation, handling of radioactive materials – which make inspection of ones person (including random drug screens and fitness for duty physical exams) and effects (including package and vehicle searches for contraband or hazardous items) entering or leaving the facility a condition of employment or access. The business may have no right to search but you may choose to grant permission in exchange for other consideration. These are matters of contract law not civil rights issues.

PS Your point of the airlines or airports acting in compliance with FAA regulation (though perhaps not as its agent) is well taken.

HJohn • December 2, 2010 2:34 PM

Come on, folks. Yes, there are some people who pick sides based solely on partisan grounds, but that is also not the case. It certainly is possible someone would support scanning shoes but not full bodies with no regard to political affiliation.

For the record, I always opposed taking my shoes off at airports and having to reduce my liquids. But I feel far less violated by that than by a full body scanner.

BF Skinner • December 4, 2010 7:46 AM

@calvera “[P.S. Clive Robinson]: There are NO {zero} exceptions stated in the 4th Amendment rights”

Well in the document no but those godlike founders created a process for modification and clarification in the Judiciary. That’s why Terry and exigent searches are lawful.

But Clive is right the 4th is aimed at Gov’t abuse. Have you a private citizen ever recieved a warrant from another private citizen?

Search and seizure from private citizens by private citizens is generally considered breaking and entering and robbery.

Repossession is an interesting area where an agent of a debtor reclaims collatoral. And private security searching people suspected of shoplifting and locating one-way mirrors and camera’s in changing rooms is in a very narrow zone
lawful.

Calvera • December 4, 2010 4:37 PM

{ @calvera : “There are NO {zero} exceptions stated in the 4th Amendment rights”}

[“Well in the document no but those godlike founders created a process for modification and clarification in the Judiciary. That’s why Terry and exigent searches are lawful.” — BF Skinner ]

Total Nonsense, ‘BF Skinner’.

There was absolutely NO process created by the founders for the “Judiciary” to modify/clarify the Constitution & 4th Amendment.

The ONLY process created for changing the Constitution is the formal amendment process stated clearly in Article V… and ONLY Congress (not SCOTUS) has the severely limited authority to even propose specific new amendments/changes.

Again, the facts: There are NO exceptions to 4th Amendment rights !

SCOTUS & lower courts have zero Constitutional authority modify the Constitution or create exceptions to the 4th Amendment.

Also, the alleged “principle” of judicial review authority– that the Supreme Court (SCOTUS) gets to determine what laws are constitutional–is not stated anywhere within the U.S.Constitution. SCOTUS granted itself such supposed judicial authority in Marbury v Madison, 1803… out of thin air

{Nancy Pelosi could claim the same type of ‘constitutional-review authority’ today, if she felt like it — and it would be just as invalid}.

By its own definition, “Judicial Review”, states that whatever a current SCOTUS-majority ‘decides’ is what the Constitution legally ‘says’.

{…so much for having a ‘written’ constitution}. The very concept is ludicrous, but commonly & irrationally accepted by most Americans these days.

The 4th Amendment stands as written– all TSA searches are absolutely unconstitutional (blatantly illegal acts).

Schneier on Security