The lawsuit by the Electronic Privacy Information Center (EPIC) which has forced the TSA to allow public “comment” on TSA use of “virtual strip-search machines” (on the basis of a “petition for rulemaking” originally submitted years ago by groups including the Identity Project) is only one of the cases by individuals and organizations seeking to have the TSA’s “screening” practices reviewed by the courts.

Unfortunately, the TSA has still succeeded in avoiding any meaningful judicial review of its actions.

That seems likely to be the outcome of the latest TSA cases to reach U.S. Circuit Courts of Appeals:

On April 3rd in Boston, we attended the oral argument before the 1st Circuit Court of Appeals in Redfern and Pradhan v. Napolitano and Pistole.

Instead of asking a federal court to order the TSA to conduct its own administrative “rulemaking” with respect to the strip-search machines it was already using, the plaintiffs in this case — two Harvard Law School students when the case was filed in 2010, since graduated and now practicing lawyers —  asked the court to conduct its own fact-finding and enjoin the use of naked body scanners.

The U.S. District Court for the District of Massachusetts dismissed their complaint on the grounds that it should have been filed first in the Court of Appeals. That would effectively preclude any judicial fact-finding, unless the Court of Appeals referred the case back to the District Court.

Presumably, the desire to frustrate judicial review of the TSA’s practices supposedly justified by secret evidence never submitted to independent or adversary scrutiny was what motivated Congress when it enacted the law giving Courts of Appeals exclusive jurisdiction over challenges to TSA rules.  Congress knew it couldn’t explicitly make TSA above the law without raising Constitutional questions, but it did its best to achieve that effect in practice.

Redfern and Pradhan appealed to the 1st Circuit, which heard argument on April 3, 2013 from the plaintiffs, the TSA, and Freedom To Travel USA as friends of the court.

Unfortunately, the way that the case has been framed, and the TSA’s response, makes it likely that it will be dismissed as moot without reaching any of the real issues.

The TSA has been using two types of virtual strip-search machines. Both create images of your body as though naked. One uses “x-ray backscatter” to see through your clothes, while the other uses “millimeter-wave” radar to achieve the same result. In either case, those whose naked images show “anomalies” or who decline the virtual strip-search are subjected to an “enhanced pat-down” that includes groping of their genitals, breasts, and buttocks by checkpoint staff.

In their briefs on appeal and at argument, Redfern and Pradhan narrowed the objections in their original complaint, saying that they now object only to the x-ray backscatter imaging, not to the miilmeter-wave radar imaging, and that they only object to the “enhanced pat-downs” in the context of the use of x-ray backscatter scanners.

Meanwhile, the TSA has announced that for its own reasons (i.e. they are even less effective or reliable) it is phasing out the use of the backscatter imaging machines in favor of the millimeter-wave scanners.

The TSA has not explicitly moved to dismiss the appeal in Redfern v. Napolitano as moot, since the phase-out isn’t complete, but suggested at oral argument that the Circuit Court panel had the authority to delay its ruling until the phase-out is complete in June, at which time the appeal could be dismissed as moot.  The panel seemed inclined to accept that advice.

Freedom to Travel USA argued in its friend-of-the-court brief and at oral argument that the Court of Appeals could and should still reach the 4th Amendment issue of the TSA’s (lack of) authority for what were described as “the most intrusive suspicionless searches ever conducted [in the U.S.] outside of jails or prisons” [or at borders or their “functional equivalents”, we would have added].

At least some of the members of 3-judge panel seemed interested in the pat-downs/groping, but the plaintiffs’ seemed not to want to have the Circuit Court reach those issues. And the case was presented solely as a 4th Amendment search case, with no mention of travel as a right.

The next day, April 4th, the 11th Circuit Court of Appeals summarily (i.e. without any explanation of its reasons) denied a motion to transfer a similar, but broader and potentially more significant, case, Corbett v. TSA, back to a District Court for fact-finding.

Proceeding pro se (without a lawyer) Jonathan Corbett first asked a District Court to enjoin the continued use of strip-search machines as unconstitutional. When the District Court ruled that it didn’t have jurisdiction over the case, Corbett appealed first to the 11th Circuit, which upheld the District Court decision that the case belonged in the Circuit Court but declined to transfer the case to itself directly, forcing Corbett to start over with a new filing in the Court of Appeals.

After the Supreme Court declined to review the 11th Circuit decision on jurisdiction, Corbett re-filed the case (as the Circuit Court had said he could) in the Circuit Court itself.

Here’s where things get really bizarre: In its jurisdictional opinion, the Circuit Court had said that it would be OK to file the case as a “petition for review” by the Court of Appeals of the TSA’s action, even though the TSA had never issued any publicly-disclosed rules to “review”.  Not to worry, said the Court of Appeals: We can always transfer such a petition to a District Court for fact-finding. But in its latest unexplained ruling, the same Circuit Court has denied Corbett’s motion for just such a transfer of the case back to the District Court for fact-finding.

(If all this leaves your head spinning, keep in mind that Corbett has now pursued his case to the Supreme Court and back, and to the Court of Appeals twice, without a lawyer.)

The case remains alive in the Circuit Court of Appeals. But since Courts of Appeals have no procedures for trials or hearings on factual (as opposed to purely legal) disputes, it’s hard to know how the Circuit Court intends to proceed, other than by taking all the TSA’s assertions as gospel facts.

And the fact remains that no TSA practice has yet been reviewed on its merits by any U.S. court.

As we mentioned during the recent forum at the Cato Institute and on C-SPAN, that means the only way to get the underlying Constitutional issues before a court is likely to be by refusing illegal orders by TSA checkpoint staff or contractors, and contesting their attempts to impose penalties.

The next round of that resistance is going on in Portland, OR, in the case of “Naked American Hero” John Brennan, who continues to face a TSA  effort to impose an “administrative fine” on him.

Mr. Brennan took off all his clothes at the Portland Airport to show the checkpoint staff who were groping him that he didn’t have any dangerous items under his clothes. The TSA got the local police to arrest him on trumped-up charges of indecent exposure. But he was acquitted: He did nothing indecent, he got naked as an expression of opinion protected by the First Amendment, and nudity per se is not a crime in Portland or many other places.

Fearing (no doubt correctly) that others would be inspired to follow Mr. Brennan’s example, the TSA is trying to fine Mr. Brennan for “interfering with screening“.  That proceeding is dragging slowly on toward an eventual quasi-trial before an administrative law judge. According to the latest update on Mr. Brennan’s Facebook page, he is scheduled to be deposed (questioned under oath) by the TSA on April 17th, a year to the day after his arrest at the airport.  He needs and deserves your support!