The Fourth Amendment to our U.S. Constitution states “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.”
Boiling it down to the issue with the TSA, the Amendment would read:
“The right of the people to be secure in their persons 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.”
Thus, to allege that the Federal Government is infringing upon our 4th Amendment Rights, one would need to prove that:
- The search is unreasonable
- The search is without probable cause
- There was not a warrant, oath or affirmation
THE SEARCH IS UNREASONABLE!
The Supreme Court has held that to satisfy the Fourth Amendment, a search of a student by school officials [Federal Government] must be reasonable at the start. In the case of Savana Redding, the court found the strip search to be unreasonable and without cause. Yet, at least she was accused of possessing prescription strength Ibuprofen on school grounds — against the rules.
In the case of the TSA vs You and Me, the Federal Government, under the guise of security, is requiring U.S. Citizens to show their naked bodies to Federal Agents or allow Federal agents to touch their (usually clothed) genitalia. The question of whether or not that search is reasonable might be answered by comparing the security requirements of air travel to that of other areas in the U.S. that need to be most secure.
Are there AIT Scanners and Aggressive Pat-Downs required to enter the White House? NORAD? The Pentagon? The Supreme Court? The Capitol? A University Of Nebraska Football Game? A St. Louis Cardinals baseball game?
How about the Northern U.S. Border? The Southern U.S. Border?
If those security-necessary locations are not employing the same rigorous screenings, why is the airport front and center? One could kill 50 thousand football fans with a bomb in their underwear. Since 9/11, the terrorists haven’t been able to get past a few airline passengers!
I was recently at the U.S. Capitol and the Supreme Court and such rigorous screenings were not required. If it’s not required at the above sensitive locations, then it is not reasonable as a pre-condition for passenger flight.
Additionally, it has been widely reported that other more reasonable methods for reviewing airline passengers are available:
- Obscured AIT Scans
- Thermal Infrared
- Psychological Profiling
THE SEARCH IS WITHOUT PROBABLE CAUSE!
Simply put, the purchase of an airline ticket and arrival at an airport is no more probable cause to require an unreasonable search than the purchase of a baseball ticket and arrival at the stadium.
If the person purchasing the ticket exhibits any of the tell-tale signs of such terrorist activities (one-way tickets / no baggage / cash purchase) or is on a terrorist watch list, the TSA can easily ‘affirm’ that there is ‘probable cause’ to aggressively search or scan.
Otherwise, there is not probable cause to search / scan a 3-year-old, nun, Marine, cancer survivor or a pilot.
THERE WAS NOT A WARRANT, OATH OR AFFIRMATION
Again, pretty simple, a judge didn’t even hear your name.
A local radio host suggested a couple of things.
1. (Paraphrased) “You don’t have a right to go to any restaurant you want. They can have signs that say they reserve the right to refuse service to anyone. “
While that is true, restaurants are not going to refuse your patronage without a good reason (probable cause). Additionally, there are other restaurants that I can frequent. In the case of air travel, the Federal Government (again) has taken away my right to choose. There are no non-groping, non-porno-scan options for me.
2. (Paraphrased) “If left to their own devices, an airline’s invasive security methods might be much worse should they be assigned with the task of handling their own security.”
I strongly support the idea that American Airlines, Delta, and Southwest would handle their own security. To keep customers at their doors, the airline would have the desire to match the desire to keep their planes bomb-free with the passengers’ desires to be clothed, untouched, and protected by the 4th Amendment. Then, I (you know… …with freedom) could choose the airline whose security screening methods best meet my concern for safety and my 4th amendment rights.
The TSA does not care about the passengers’ desires — obviously. As Janet Napolitano said, “Don’t fly!”
Under the free market paradigm, if American Airlines chose to subject all its passengers to full body scans and aggressive pat-downs, then I could choose to fly on an airline that chose to use magnetometers, light pat-downs, and psychological screening — say Delta. If Jet Blue decided to use Racial and Religious Profiling, magnetometers, and below-the-knee AIT Scanners, I might decide to fly with them.
And, if Southwest decided to “refuse service” to anyone known to be a Muslim or of Arab descent, I’d buy stock!
Freedom and the free market would provide the necessary security and screening options for the U.S. Citizen traveler!