Thursday, July 9, 2009

TSA: Tyrannical, Silly Agency

Whatever your definition of tyranny, the Transportation Security Administration probably met it last April when it harassed Steve Bierfeldt, the Campaign for Liberty's Director of Development. Steve was catching a flight home after C4L's conference in St. Louis with $4700 in proceeds when federal screeners "detained" him for carrying too much cash. They interrogated Steve, yelling and cursing at him, forcing him to justify his affairs to their satisfaction as though he were a slave rather than a taxpayer footing their salaries.

Steve coolly and courageously withstood their intimidation. He also recorded the encounter on his cell phone -- evidence of abuse that even a bureaucracy as fond of denial and deception as the TSA can't dispute. That evidence and Steve's heroism made national headlines.

Steve is now suing the agency with help from the American Civil Liberties Union. Larry Schwartztol, an attorney there, explained: "Mr. Bierfeldt's experience represents a troubling pattern of TSA attempting to transform its valid but limited search authority into a license to invade people's privacy in a manner that would never be accepted outside the airport context."

True -- but why are such invasions accepted inside the airport context? And just how "valid" is the TSA's "limited search authority"? After all, screeners search every passenger boarding a commercial flight in the US without the slightest suspicion that any of them plans to commit a crime, let alone that he already has. Doesn't the Constitution prohibit precisely that?

"The right of the people," says its Fourth Amendment, "to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated. . . "

That command is so clear even politicians can understand it. The Amendment recognizes no limits to our freedom from unreasonable searches, not even in national emergencies or airports. Nor may government act as if potential victims of terrorism are terrorists themselves and abuse them accordingly.

The Amendment continues, ". . . 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." The Founding Fathers simply assumed and then implied that no search will ever happen without a warrant. And no warrant happens without suspicion so strong it's "probable" that the subject committed a crime. Claiming he could commit one, as is the TSA's habit, doesn't fly. Warrants must also specify the search's who and what and why. This eliminates the fishing expeditions so beloved by the TSA, which "detains" people not only for weapons and too much cash but for illegal drugs, immigration papers of the wrong color, fake ID, and other belongings irrelevant to terrorism. It also makes the agency's harassment of two million passengers each day logistically impossible: cops and courts can't file that many warrants, let alone pretend to suspect that many individuals.

The Fourth isn't the Constitution's only salvo against the TSA. It also prohibits the agency's mere existence. Nowhere among the Federal powers it delegates are "delaying, pestering, and occasionally even killing passengers." The Ninth and Tenth Amendments reserve such mayhem to the states and the people.

Yet in aviation's case, as in so many others, the Constitution is a waste of good parchment for all the homage government pays it. Leviathan's authority over aviation is nigh absolute and has been for decades. For that we can thank judicial decisions and an accident of history.

Modern judges seem to measure their professional skill by how ingeniously they circumvent the Constitution. And so they invented an "interest" for the State in "safe" aviation. Where that interest comes from is anyone's guess -- certainly not from the Creator Who endows on us our inalienable rights. Meanwhile, the Constitution never concerns itself with or even mentions governmental interests. But that doesn't faze the judiciary. It has repeatedly conjured interests from thin air when the Constitution prohibits the Feds from doing as they please. For instance, in the 1870's, the Supreme Court found that the government had an "interest" in controlling immigration though the Constitution never empowers it to interfere with people's movements. Likewise with "safe aviation."

Courts have also cooked up a monstrosity called "administrative search" that annuls the Fourth Amendment. When a government official sticks "administrative" before the word "search," he magically frees himself from the Fourth Amendment's restrictions and requirements because he's no longer conducting a real search. Try that on the next cop who stops you for speeding: tell him you were only "administratively" speeding. "Administrative searches" legalize such Constitutional assaults as health inspectors raiding restaurants without warrants and building inspectors trespassing on construction sites.

These judicial hijinks collided with the Progressive Era to produce the gulag that is today's airport. Like automobiles, aeroplanes got off the ground around the turn of the twentieth century, when politicians and intellectuals were convincing Americans who had formerly distrusted government that it was in fact their best friend. Newfangled flivvers and Fokkers were playthings of the wealthy at first, with other folks greeting the contraptions skeptically or even fearfully. And so enthusiasts encouraged the State's interest in their hobbies: not only were people learning to equate government's regulation with safety, but subsidies and grants salved regulation's sting. Millionaires might own cars, but where could they drive them? There were few paved roads in 1900. Ditto for planes and the infrastructure they require. Rich, politically connected pilots and drivers wanted everyone paying for that infrastructure, not just themselves and their cronies. The Constitution's inconvenient enumeration of powers was small change compared to the dollars involved here.

Within a few decades, the Feds controlled most aspects of aviation. They owned outright such operations as control towers while regulating things like the design of aircraft so heavily they might as well have nationalized the factories. When hijacking planes as a political stunt became popular in the 1960's, most Americans expected the Federal Aviation Administration to subsume aviation's security, too. It gladly obliged, publishing myriad rules that governed everything from the metal detectors it began requiring in airports to a flight crew's response when hijacked (sit tight and comply with the criminals' demands -- cooperation that contributed to the success 19 terrorists enjoyed on 9/11).

The FAA emphasized its liability for passengers' safety in April 2001 when it described its "mission" in "A Commitment to Security": "FAA provides a safe, secure, and efficient global aerospace system that contributes to national security and the promotion of US aerospace safety." It also provided minute and extremely detailed orders to airport screeners. These employees were still private, if by "private" we mean that a company rather than the Feds issued their paychecks. But such companies prior to 9/11 were little more than personnel agencies: they supplied the staff for airport checkpoints, but the FAA dictated in detail everything that staff did, down to the wanding of passengers who set off metal detectors. Blaming "private" screeners for 9/11 is like blaming a secretary for the boss's nasty letter.

Yet that's exactly what politicians did after terrorists easily penetrated the FAA's "safe, secure, and efficient global aerospace system." Most of the Democrats who condemned "private" screening had long hoped to nationalize airport searching and add tens of thousands of members to the American Federation of Government Employees, one of the nation's largest labor unions. Most of the Republicans excoriating "private" airport security were trying to deflect attention from the Bush Administration's failure to prevent 9/11 despite ample warnings. Between them, they capitalized on the day's tragedies to foist yet another bureaucracy on us.

That makes the TSA a political rather than a practical response to terrorism. And it shows in its slapstick "security." For 35 years, the Feds have operated on the assumption that disarmed passengers are safe passengers -- but absolutely no research substantiates this. In fact, both research and common sense tell us that it's just the opposite on the ground, so why would it be different at 35,000 feet? It's the same for checkpoints: presuming that disarmed passengers are a good thing, no one has tested the TSA's methods for finding weapons. There may be less expensive, more efficient ways to secure planes, but no one knows because Congress unilaterally slapped a security system on aviation (with the industry's enthusiastic cooperation: when taxpayers fork over $7 billion annually for the TSA, airlines don't have to).

To this toxic brew you can add employees who are as incompetent as they are surly. TSA screeners are tested frequently on their job skills, whether by the TSA and its parent bureaucracy, the Department of Homeland Security, or the Government Accountability Office or even by the occasional college student. Typically, screeners who never miss your bottle of Chardonnay or Chanel fail to find 65%, 75%, even 90% of the weapons undercover investigators smuggle past them. And they fail this overwhelmingly even though they cheat! Turns out a bureaucrat in the TSA's headquarters was alerting "Federal Security Directors" at airports so that they could inform screeners what the undercover agents looked like and what tricks they'd pull.

Screeners' scores plunged further, to 0%, when a guy completely unaffiliated with the Feds whose plans couldn't be leaked ran his own tests. Nathaniel Heatwole was a 20-year-old college student in 2003 when he spirited packages containing box-cutters, matches, bleach, molding clay, and a note aboard six planes. Nat then emailed the TSA and told them what he'd done; he considered himself a civic-minded hero who'd helped the country by showing the TSA its vulnerabilities. He must have been pretty disillusioned when the TSA ignored him. In fact, his packages would still be aboard all those flights -- except that the airline's maintenance crews found them and snitched to the Feds.

Nat had made an utter fool of the TSA, so the government charged him with a felony. That could have put him in prison for a decade. It eventually settled for fining him $500, putting him on probation for two years, and requiring him to perform 100 hours of community service. Revealing the TSA for a total sham apparently doesn't count as "community service."

But we ought not allow the TSA's failures to obscure its successes. It's a champ at making work: it enables 50,000 screeners, let alone the layers of management that abound in any bureaucracy, to leech off our taxes. And it enormously enriches the corporations that manufacture its gizmos and accessories: its newest toys, millimeter-wave machines that peer through clothing so that passengers appear naked on screeners' monitors, cost $170,000 each -- and the TSA plans to install these pornographic scanners at all 2800 checkpoints nationwide. No wonder corporate America and its media love the TSA.

But the agency's greatest success lies in training formerly free Americans to cringe and kowtow to their rulers. And that endangers us far more gravely than any terrorist.

TSA: Tyrannical, Silly Agency

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