Nov 22 2010

Self-restraint is not the solution for the TSA

This morning on the “Today” show, TSA Administrator and former FBI agent John Pistole said that the TSA is “actively rethinking its policy” to require all travelers to submit to either an x-ray virtual strip search or vigorous groping of their breasts and genitals.

We aren’t reassured or appeased.  The process of “rethinking” described by Pistole, like the TSA procedures themselves, would remain entirely secret, internal, and extra-judicial.

The problem with the TSA is not with exactly how it has exercised its secret, standardless administrative “discretion,” but the fact that the TSA has been allowed to opt itself out of the rule of law.

Last Friday the New York Times editorialized that, “The government could start by making their screening guidelines clear.”  The government could do so — but the TSA won’t unless it is forced by direct orders from the President, the Congress, or the Federal courts.  We cannot rely on the TSA to restrain or reform itself.

There are no laws or published regulations defining what the TSA is allowed to do. The TSA has claimed in response to our requests that all of its procedures and directives for airport checkpoints are exempt from the Freedom of Information Act (FOIA). The DHS Privacy Office ordered the TSA not respond to our request for these documents without approval from the DHS “front office”, including the White House liaison. Apparently that approval has never been given. We’re still waiting.

When John Gilmore challenged the checkpoint practices in court, the DHS refused to show him the documents that they showed the judges “in camera” to persuade them to dismiss his case. The Supreme Court refused to consider his appeal of this secret lawmaking.

Former Secretary of Homeland Security Chertoff said repeatedly and publicly that administrative DHS “no-fly” decisions should be exempt from judicial review. Neither current DHS Secretary Napolitano nor President Obama have done anything to dissociate themselves from that position.

Now the ACLU and EPIC are both collecting reports and complaints about what happens at TSA checkpoints. But we have no confidence that public exposure of what is happening will in itself prompt any change in behavior by an agency whose motto appears to be, “We don’t care – we don’t have too.” Everyone already knows that the TSA is groping grandmothers, probing under diapers and sanitary napkins, and requiring removal and examination of breast and other prostheses.  All while threatening or even arresting those who try to protect themselves by documenting the process with photographs and/or recordings.

EFF has information on how to complain to the TSA and DHS.  But those complaints would also be dealt with, if they aren’t ignored, solely by secret procedures within those agencies.  What, if anything, is done as a result will remain unknown to the complainants and the public.

Clearly, the TSA has crossed the line of what the traveling public will tolerate. But the solution is not for the TSA to retreat slightly (and perhaps only temporarily) in response to public outrage. That will only leave us with endless scrimmages over where to draw the line, with the TSA not an iota less invasive than the most intrusive processes that they think they can get away with.

The real need is to put the TSA — for the first time in its existence —  clearly within the rule of law.  That’s why we think what’s most important about EPIC’s lawsuit against the TSA is not the specific issue of virtual strip searches (important though this is) but the fundamental complaint that the TSA has ignored formal petitions for rulemaking. EPIC’s central claim is that the TSA has refused to give public notice of proposed rules, accept public comments, and make a public determination that could be subjected to review by the Federal courts.

Liability, both organizational and personal, is also important. Talk to a lawyer about bringing a criminal complaint or civil lawsuit against any TSA employees or contractors who act illegally against you.  We’re pleased to see discussion of citizens’ arrests of overreaching (so to speak) TSA and contractor gropers. At least some local prosecutors are open to possibly pressing such charges. That’s especially significant at San Francisco International Airport (SFO), where the screeners are out on an especially thin limb of liability as private contractors rather than employees of the TSA or any other government agency.