Submit to porn or be groped... your choice

The Fourth Amendment guarantees the people a right against unreasonable searches and seizures, but because of the special risks inherent to air travel, and because we have the option not to fly, U.S. courts have allowed a gradual relaxing of 4A protections at airports.

Lower courts have approved the use of metal detectors on individuals wishing to board an airplane, and the use of x-ray machines for carry-on luggage. These are ruled as being consistent with 4A, and SCOTUS has indirectly suggested agreement. The camel’s nose is Chandler v. Miller, in which the Court stated:

"where the risk to public safety is substantial and real, blanket suspicionless searches calibrated to the risk may rank as 'reasonable' - for example, searches now routine at airports and at entrances to courts and other official buildings."

Since I find myself on airplanes probably no more than three or four time a year anymore, these enhanced security procedures haven’t really bothered me all that much. Sure, I hate having to pull my shoes off, but it is something with which I could live.

The newest set of security procedures, I must admit, has me a bit piqued. The new requirement of either full-body screening (porno-scanning) or “enhanced” pat-down, is going too far.

Most of us will suffer from at least some mild discomfort knowing some random person is peeking at our naked body. It is an invasion of privacy that I don't appreciate.

When they first started showing up at the airports, and because they were being used randomly on an opt-out basis alongside the standard metal detectors, the backscatter scanners were not much concern. Now however, the choice is between being digitally stripped searched or being physically molested by a low-wage security guard employing the same sort of “frisking” once reserved for certified peace officers (with probable cause) searching a criminal suspect.

This pisses me off. I am not a criminal and they have no probable cause to search me. For over 4 more than decades I’ve flown at least a couple times a year. Over a 13-year period between 1992 and 2005 I averaged 100,000 air miles annually. Until 9/11 happened I carried tools in my carry-on, including a pocketknife. Seems to me that if I posed any threat they could have figured it out by now. 

The checks are part of an unsustainable strategy. How in the world do we think that inspecting everybody and all of their belongings for every possible kind of weapon, and treating ever passenger as a potential terrorist, including infant children, elderly females and uniformed crewmembers, is actually making us any safer?

It doesn’t... plain and simple, and given the lack of evidence to suggest that these searches will have any positive benefit at all it all seems "unreasonable" and therefore contrary to 4A to inflict them upon a generally innocent travelling public. TSA is successfully proving that it is quite possible to diminish privacy without enhancing safety.

The scanners raise health issues as well as constitutional privacy issues, and the pat-downs are simply invasive. Those however are the least of our problems. The false sense of security engendered by these checks may cause otherwise vigilant passengers to be lulled, removing the so far most effective security mechinism we have found. 

If there has ever been a terrorist discovered by any TSA security check it has never made the news. Since 9/11/2001, even including United flight 93 on that very day, every terrorist incident on board an aircraft has been discovered and terminated by the passengers.

The cost of these scanners and pat-downs is not worth the price we pay in dignity. There is not an iota of documentable evidence that the violations of our 4A rights serve any claimed purpose, yet the proponents of assert otherwise... and plan to subject people to something that in any other context would constitute sexual assault.

In England, where they also use the machines, there is broad concern that images produced by backscatter scanners may be in violation of that country’s pornography laws. Has TSA considered that the same might be true here? Would using them on children constitute a kiddie-porn violation? If we pat-down instead, what about the potential effect on child sexual abuse victims? Breast cancer survivors? Sufferers of PTSD?

The purpose of the terrorists on 09/11/2001 was to instill fear and to destabilize our economy. Homeland Security has played into their hands on both counts, and We The People have behaved as sheep. As a result, either we non-suspect citizens submit to porno-scanning, or to the nonconsensual touching of our breasts and/or groins, or we refuse both we will be terrorized by our own authorities, sued and fined (note that this link has over 5,000 comments)... all as a condition for simply being allowed to travel…

It seems to me that it is possible to enhance safety without diminishing privacy, but Homeland Security and TSA seem not to be interested in exploring that avenue. All either has accomplished is to cost us a hell of a lot of money, waste a hell of a lot of our time, and serve up a healthy load of fear and mistrust.

Osama must be chortling.

H/T EBM, Marco, TCP, and a host of others.

UPDATE, via Wing Nut Daily and courtesy of TUX.
Former TSA Asst. Administrator says that the scanners and pat-downs are a 4A violation.

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Unconstitutional

Rep. John Boehner (R-Ohio) calls the recently passed healthcare reform bill “the most unconstitutional thing I have ever seen.”

Really? The most unconstitutional you have ever seen? Either you have a short memory or you are fond of rose colored shades, Mr. Boehner.

Congress has done far worse. For reference I would point to HR 3172, enacted by the 107th Congress on September 19, 2001, signed into law by President George W. Bush on October 26, 2001. The Patriot Act was a true bipartisan effort, with the House voting 357-66 in favor of the measure, and 98-1 in the Senate.

The USA Patriot Act of 2001, a contrived acronym for “Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorists,” is the most blatantly unconstitutional legislation to stumble through Congress since the Alien and Sedition acts of 1789. Before recent revisions, the Patriot Act violated Article I, Section 9 of the Constitution by suspending the Habeas Corpus and Bill of Attainder provisions, and it all but vacated the protections of the First, Fourth, Fifth, Sixth, Seventh and Eighth, Thirteenth and Fourteenth amendments.

Eight years have passed since Patriot became law. Stories of abuse still surface in tales of government lies and extravagances, with U.S. citizens delivered into a byzantine morass of legal entanglement on flimsy, sometimes contrived evidence. Reading the stories and listening to the court cases makes one think of the old Soviet Union.

As an example, take the sad case of Brandon Mayfield, an attorney and citizen of the U.S.A. Mayfield was jailed and held in federal lockup for 19 days… as a material witness against himself. His house was searched and bugged, computer files (even those pertaining to clients, which violated attorney client privilege) were downloaded and seized, and the children’s homework copied. It was Mayfield’s daughter’s Spanish homework, combined with a misidentified fingerprint, which convinced the FBI that Mayfield was involved in the March 2004 Madrid train bombings.

When the FBI’s “evidence” was finally presented to a judge, the case was tossed on its ear. The FBI had utilized the now infamous Section 215 to make unlawful entry into the Mayfield home, plant listening devices, download computer files, and seize evidence to support what turned out to be a bogus charge that even the Spanish authorities scoffed at.

Section 215 grants the FBI the power to seize a vast array of sensitive personal information and belongings, including medical, library and business records, using a secret intelligence court that does not require any suspicion of individual criminal activity. Although a court order is required to obtain these records, judges are compelled to issue them, making judicial review in this process nothing more than a rubber stamp.

Patriot amended 15 different federal laws, including the Foreign Intelligence Surveillance Act (FISA) of 1978, the Electronic Communication Privacy Act (ECPA)of 1986, the Computer Fraud and Abuse Act and the Family Education Rights and Privacy Act. The act authorized roving wiretaps and the so-called “sneak and peek” warrants, obliterated the wall between foreign and domestic intelligence, and amended the definition of domestic terrorism.

Robert Levy, senior fellow in constitutional studies at the Cato Institute, has written that the Patriot Act represents "the looming sacrifice of civil liberties at the altar of national security." The Mayfield family learned the truth of this all too well, and their case is but one of hundreds.

You want unconstitutional? Look no further than the truly bipartisan Patriot Act. The healthcare boondoggle doesn’t hold a candle to that. Mr. Boehner’s pomposity is nothing more than clownish, but standard right wing fare. The Democrats have behaved similarly in the past, so I don’t pretend to give them a pass, but this crop of Republicans is definitely pushing the limits of the legitimate.

Supreme Court Justice Louis Brandeis, writing in his dissent in Olmstead v. United States (1928), said it best. “Experience should teach us to be most on our guard to protect liberty when the government's purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.”

I’m old enough to remember a time when all of the Congress didn’t suck all of the time, and there were at least a few rational members on both sides of the aisle. Those days, it seems, are long gone.

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For further reading, try Section 505 and the National Security Letter and the related cases, Doe v. Ashcroft (2004) and Doe v. Gonzales (2005). Other Patriot related cases include Muslim Community Association of Ann Arbor v. Ashcroft (2006), Humanitarian Law Project v. Ashcroft and the associated Humanitarian Law Project v. Reno, which was an earlier challenge to Bill Clinton’s Antiterrorism and Effective Death Penalty (AEDPA) Act.
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