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Left and Right Finding Common Ground on New TSA Procedures?

The TSA’s escalation of security at airports has further cemented the reality that airports are Fourth Amendment-free zones. Should citizens tolerate this? by

Featuring Interviews with Rutherford Institute President John Whitehead and Pilot Michael Roberts, Who are Suing Homeland Security

The Transportation Security Administration’s (TSA) new procedures for airport security, which include the body scanners (referred to as “porno-scanners” my citizens groups opposed to the machines) and “pat-down” or grope of passengers, continue to infuriate Americans. Stories of TSA agents violating people as they pass through security checkpoints are being amplified, which means the percentage of people who do get the “pat-down” are making certain they register complaints with civil liberties groups, TSA, their congressmen or by posting their experience to websites on the Internet.

Some of the latest news in regards to TSA involves four New York City councilors backing legislation “that would ban the TSA’s full-body scanners from airports inside New York City.” New Jersey state legislature is “considering a resolution on the TSA to stop using the body scanners.” And, in Florida, the CEO of the Sanford Airport Authority, Larry Dale, has been authorized by his board to hire a private screening firm instead of TSA employees.

A recent Senate Commerce committee hearing on Wednesday provided opportunity for senators to express the frustration and outrage of their constituents to TSA Administrator John Pistole. But, for the most part, the Democratic Senators like Sen. Jay Rockefeller (D-W.Va), Sen. Byron Dorgan (D-N.D.), Sen. Frank Lautenberg (D-N.J), Sen. Claire McCaskill (D-Mo.), and Sen. Amy Klobuchar (D-Minn.) all took the opportunity to express gratitude toward Pistole and Homeland Security. And, any questions focused in on the semantics of the implementation of the new security protocol with little attention placed on the possibility of this violating the Fourth Amendment.

The most notable expression of American outrage came from Republicans like Sen. George LeMieux (R-Fla.), “I’m frankly bothered by the level of these pat-downs. I’ve seen them firsthand in airports in Florida. I wouldn’t want my wife to be touched in the way that these folks are being touched. I wouldn’t want to be touched that way. And I think that we have to be focused on safety but there’s a balance.” Sen. Johnny Isakson (R-Ga.) highlighted how Secretary of Homeland Security Janet Napolitano was being terribly insensitive to travelers when she said if Americans don’t like the new procedures “there are other ways to travel.” And, Sen. Mike Johanns (R-Neb.) rightfully asked why, despite his Senate I.D. card, TSA would make him go through the body scanner and then receive a pat-down.

GOP lawmakers in the House have been the ones taking the lead on this issue. Rep. Ron Paul (R-Tex.) introduced the American Traveler Dignity Act to “remove legal immunity from federal employees who subject an individual to any physical contact, x-rays, or aids in the creation of any part of a individual’s body as a condition to travel in an aircraft.” The law would prohibit pat-downs that are tantamount to sexual assault. And, Rep. Ted Poe (R-Tex.) singled out former DHS secretary Michael Chertoff’s connection to companies that have received contracts from the government for these machines and said, “T]he populace is giving up more rights in the name of alleged security. These body scanners are a violation of the Fourth Amendment right against unreasonable searches and seizures …There must be a better way to have security at airports than taking pornographic photographs of our citizens, including children, and then giving apparent kickbacks to political hacks.”

Citizen groups and civil liberties advocates have been receiving attention because of how this is likely a violation of the Fourth Amendment. And, one particular individual, Isaac Yeffet, former head of security for El Al and now an aviation security consultant in New York, is receiving much attention because Israel does not use body scanners, pat-downs or even require people to take their shoes off. Israel, instead, has highly-trained engage in passenger profiling and do behavioral and psychological analysis of all passengers through interviews to determine whether a person is a threat or not. [See end of article for video of his appearance on “Countdown” with Keith Olbermann.]

Of course, on Friday, TSA announced pilots would be exempt from some airport checks. From the standpoint of those waging a campaign to call attention to how TSA is violating the Fourth Amendment, this is a nice way of diminishing the pressure on the agency to get rid of the new security pat-downs and body scanners. The pilots unions had been one reason why the story was receiving so much attention. Now, it’s virtually guaranteed that after the Thanksgiving holiday media coverage of public outrage and what this means for civil liberties in America will subside.

John Whitehead, President of Rutherford Institute and Pilot Michael Roberts

Thank you for allowing me to take more than six hundred words to set up and share with you parts of my interviews with John Whitehead and Michael Roberts. I want to make a point about how progressives or liberal leaders appear to be missing in action. There are a few theories that I have as to why silence pervades the Democratic Party and many liberal organizations that normally would have opposed this if this had been the Bush Administration. But, first, some remarks from individuals who are taking steps to defend American civil liberties from state-sponsored molestation.

Whitehead is a lawyer who “engages in lawsuits where people’s civil liberties are violated. You know, basically primary bill of rights issues.” He is a key attorney behind a Fourth Amendment lawsuit that has been filed by the Institute against Janet Napolitano, secretary of the U.S. Department of Homeland Security (DHS), and John Pistole, administrator of the Transportation Security Agency (TSA), “on behalf of two airline pilots who refused to submit to airport security screening which relies on advanced imaging technology that exposes intimate details of a person’s body to government agents.”

The Institute is representing Roberts and Ann Poe, veterans of the commercial airline industry, who refused to go through the Whole Body Imaging (WBI) scanners and also refused to be subjected to the enhanced, full-body pat- or rub-down. They insisted the procedures were a violation to their privacy and, since experiencing incidents on Oct. 15, 2010, and Nov. 4, 2010, respectively, both have refused to go to work until they are allowed to do their job without having their civil liberties violated.

Whitehead’s justification for the lawsuit is as follows: “Based on the Fourth Amendment before you strip search or do full-body search on American citizens you have to apply the Fourth Amendment, which requires that there be some reasonable suspicion that criminal activity is afoot, that whoever you’re patting down somehow are [likely to be] engaging in criminal activity. That’s what the Fourth Amendment requires.”

Unlike most Americans and government officials, Whitehead does not believe one has to give up his rights or civil liberties to fly. He understands that Americans find this to be true and he explains that he thinks Americans have “become very compliant” and notes that there are very few people like Roberts or Poe, who are willing to stand up and fight back.

Roberts, who has been running and receiving feedback from pilots, TSA workers and travelers, seconds this idea that Americans are too compliant and says that, while his colleagues and other travelers agree with what he is doing but say they can’t stand up because “they have to travel for work” or they’ve “got a family to feed.” He says they “hate what’s happening” and “absolutely do not agree with it.” But, the way it works, the ability to travel or put food on the table, is being held over their heads and it makes people who want to act out afraid of fighting back.

This, Roberts contends, is “terrorism.” It’s the definition of terrorism, which Roberts characterizes as “coercion by fear.” The government is using “psychological stress and manipulation to make people comply with their abusive demands.”

Whitehead notes how the Department of Homeland Security has become this large and ominous organization spread out all over the United States. He seems to agree with my suggestion that one of the biggest challenges facing civil liberties attorneys is convincing government that concerns over civil liberties supersede the possibility that hundreds of thousands of dollars will be wasted if government just decides to do away with the machines they have recently purchased.

Roberts’ reaction is different. He immediately asks, “Whose money did they spend to buy those machines?” He notes that this is Recovery Act money, which makes it taxpayer money. And, so, we have every right to fight in resistance and should hesitate at the thought that the government might successfully minimize civil liberties protections in this country.

He sums it up like this: The purchase of these machines by the government is corruption of the highest degree. But, even worse, it’s corruption that now is “undermining the very fabric of our society, our whole concept of a free and just society.”

Both of these individuals recently appeared on “The Sean Hannity Show.” (They actually had a bit of trouble with Sean Hannity who didn’t think TSA wasn’t really trained for the kind of security this country needs, which they’re not. They can’t do psychological or behavior analysis of travelers that could really prevent attacks.)

They, lawmakers, and Yeffet are pushing for more common sense security in this country. They are disputing this idea that has become conventional wisdom–the idea that no one has a “right” to fly in an airplane, it is a privilege and individual rights are secondary to the rights of society.

That notion, although it has been used in history, has never been allowed to stand. Citizens through political leaders have always risen up to challenge the idea that rights or civil liberties can be subverted to keep people “safe.”

Roberts and Whitehead are also directly challenging the corporate welfare by government that has led this country into this mess. A select group of companies (L-3, Rapiscan, and Smiths Detection) have received contracts that are backed by stimulus money. The government has chosen to, instead of investing in jobs, stimulate the economy through scanners that will likely pose health risks to frequent travelers in the short term and passengers in the long term.

Progressives or liberals typically abhor corporate welfare. They have gone after the Bush Administration for violating the rule of law when detaining, interrogating and imprisoning terror suspects. And, they have fought against warrantless wiretapping and other actions sanctioned by the PATRIOT Act and its expansions.

There should be no hesitation. The Democratic Party could repair their image here and gain the support of a number of outraged Americans by taking on the TSA and choosing to support a movement toward a less invasive and more intelligence-based set of security procedures for airports. But, what they will or won’t do is of no consequence: Americans should consider it their obligation to stand up against what government is doing to Americans in airports.

Both Roberts and Whitehead (as I will show later when I publish both their interviews in full) think the private sector is the answer to the problem. The government monopoly on security should be broken. Left-leaning Americans might not like the idea of corporations running security anymore than having DHS handle it and choose to be reluctant and not make common cause with libertarians or conservatives opposing the TSA.

My suggestion is that citizens not let a fear of what might happen after they get airport security to stop violating Fourth Amendment rights get in the way of cooperating and organizing with people they might not normally cooperate or organize with. This is a grand transpartisan opportunity for progressives to gain some credibility and, because two political ideologies often pitted against each other can clearly admit this is wrong, achieve a key victory for citizens over corporate influence in government.

Let’s slay the beast before we worry about what to do in the wake of the beast’s death. This is a mess and a gross violation of American civil liberties that should end now.

Opt-Out Day is on November 24th, the day before Thanksgiving. If one doesn’t have to travel this holiday, don’t. If one has to travel, they should refuse the scanners. When they are forced into being groped by TSA, they should remind them they do not wish to be sexually manhandled. And then, they should share their experience with other Americans by sending a description of what they went through to TSA, civil liberties groups and citizen campaigns that are keeping a close-watch on this police state expansion that has been unfolding.

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Kevin Gosztola

Kevin Gosztola

Kevin Gosztola is managing editor of Shadowproof. He also produces and co-hosts the weekly podcast, "Unauthorized Disclosure."