May 01 2013

Hearing May 14 in Portland for “Naked American Hero” John Brennan

Does nudity “interfere” with TSA “screening”?

That will be the issue at a hearing before TSA “Administrative Law Judge” George J. Jordan on Tuesday, May 14, 2013 in Portland, OR, in the matter of “Naked American HeroJohn Brennan, who exercised his First Amendment right to express his political opinion by taking off all his clothes [video from TSA/airport security camera] while he was being subjected to “secondary” searching at a TSA checkpoint at the Portland airport on April 17, 2012.

The TSA calls its checkpoint staff and contractors “Transportation Screening Officers”, but they aren’t law enforcement officers and have no police powers.  So when people do things they don’t like, their normal response — if bullying doesn’t work —  is to call the local police. That’s what they did with Mr. Brennan in Portland.  The local police arrested him and charged him with “indecent” exposure. (There is no law against public nudity per se in Portland.)

But an Oregon judge acquitted Mr. Brennan of these criminal charges, finding that Mr. Brennan’s conduct wasn’t “indecent” and was political speech protected by the Oregon constitution.

That should have been the end of the matter. But the TSA was, apparently, afraid that if Mr. Brennan wasn’t somehow punished, too many other Oregonians might start following his example.

So even though a judge had already found that Mr. Brennan’s nakedness at the TSA checkpoint was not a crime, the TSA is seeking to assess a $1,000 fine against Mr. Brennan for “interfering with screening” in violation of TSA regulations (49 CFR 1540.109).

It isn’t clear to Mr. Brennan or his attorney Robert Callahan, even after depositions of Mr. Brennan and the TSA staff, exactly how the TSA thinks Mr. Brennan’s actions “interfered” with anything which constituted “screening”. Any “interference” with normal checkpoint operations appears from the record to have been caused by the TSA personnel, who chose to shut done the screening line rather than screen Mr. Brennan while he was naked. (Yes, we can all see the irony of the TSA insisting on their entitlement as a standard part of “screening” to press against travelers’ genitals until they feel “resistance”, while declining to look at someone’s naked body to see that they aren’t carrying any weapons or explosives.)

The TSA has repeatedly threatened to assess civil penalties for “interference with screening” against people who protest at TSA checkpoints, but this is the first time we are aware of that it has followed through on such a threat.

Because this is considered a “civil” penalty, rather than a criminal proceeding, the TSA isn’t bound by the criminal acquittal, and Mr. Brennan isn’t entitled to a jury trial.  Once the TSA proposes to assess a civil penalty, your only options are to pay whatever fine the TSA has proposed, or to request a “formal hearing” before an “Administrative Law Judge” (ALJ) employed by DHS.  Most agencies employ their own ALJs, but the TSA refers most of its matters requiring review by an ALJ, including hearings civil penalties and FOIA appeals, to ALJs employed by another DHS component, the U.S. Coast Guard.  Mr. Brennan’s case will be heard by George J. Jordan, an ALJ employed by the Coast Guard regional ALJ office in Seattle.

A formal hearing before an ALJ is a fairly high-level kangaroo court, as such things go, with lawyers and the right to call witnesses (Mr. Brennan and the TSA checkpoint staff are expected to testify), but it’s still not a real trial  with all the rights that would entail.

Other courts have ruled that TSA checkpoint personnel ought to know that the First Amendment applies inside TSA checkpoints.  And a rule that requires travelers to “submit to screening”, without providing any further defintion of either “submission” or “screening”, ought to be considered void for vagueness.

But as a result of the same jurisdiction-stripping law that has prevented U.S. District Courts from hearing most challenges to TSA checkpoint practices, the ALJ has no authority to consider the Constitutionality of TSA regulations or orders. That can only be raised in a subsequent petition for review by a Circuit Court of Appeals of the TSA’s decision, based on the administrative record from the TSA hearing.

The formal hearing on the TSA’s proposed $1,000 “civil penalty” against John Brennan is now scheduled to begin at 9 a.m. Tuesday, May 14, 2013, at the U.S. Bankruptcy Court, 1001 SW 5th Ave., 9th Floor, Courtroom #2, Portland, OR.  (This is not a bankruptcy court case, but the TSA is using their courtroom for this hearing.) The hearing is expected to conclude sometime the same day.

The hearing is open to the public, and we look forward to seeing you there.  We haven’t yet found out if photography and/or audio recording will be permitted in the hearing room. We’ll post more information about the hearing, and any updates or schedule changes, as soon as we learn of them.

14 thoughts on “Hearing May 14 in Portland for “Naked American Hero” John Brennan

  1. Looks like to me he should be rewarded for speeding up the process.

    This is more contempt of cop syndrome.

    I’ve have asked the following everywhere and cannot get an answer. If you’re “screened”, why do they need your name? I thought it was against the laws and constitution to track the citizenry of the US. And How does an agency decide who a private company lets onto it’s planes.

    I wish I could afford own airline : CnC Cash and Carry airlines.”At CnC if you have the cash we have a seat.”

  2. These folks aren’t even able to draft a simple Notice of Hearing in intelligible English. It just gets sicker and sadder, doesn’t it?

  3. After extensive negotiations with both the Bankruptcy Court and the Coast Guard ALJ, we’ve gotten permission for audio recording of the hearing. The Bankruptcy Court is “standing firm”, according to its clerk, on enforcing its local rules 5072 and 5073 against filming and photography, even though this isn’t a Bankruptcy Court proceeding and the applicable TSA rules don’t restrict filming or photography.

    Radio reporters or anyone else who might want to record the hearing should contact ALJ Jordan’s clerk in Seattle in advance. As it was explained to us by the clerk of the Bankruptcy Court, the ALJ’s clerk will send a list of everyone who the ALJ has “approved” to bring in audio recording equipment, which the U.S. Marshalls will have at the entrance to the building. Anyone who asks in advance should be approved by the ALJ, since there is no TSA rule or order by the ALJ against audio recording, but it’s not clear if anyone who doesn’t get on that list in advance will be able to bring in any audio recording equipment.

    The Bankruptcy Court first tried to claim that its rules against photography and audio and video recording are not intended to restrict First Amendment activities, but are purely “security” measures to protect against disclosure of building interior layouts and details that might facilitate terrorist attacks. Eventually they backed off from trying to defend a prohibition on audio recording as a “security” measure.

    Per rules 5072-5073 as above, cellphones and laptops are allowed in the building and its courtrooms, as long as they aren’t used for recording. It’s perverse that more sophisticated devices that include recording functionality are allowed, but that simpler recording devices that don’t also contain phones or general-purpose computers aren’t. So much for any expectation of a rational relationship between court rules and technology.

  4. Is observation of the legal process in this case expected to be limited to people able and willing to provide documentation of their identities upon entry to the courthouse?

  5. @PhilMocek – Probably. The Bankruptcy Court normally allows entry only to those able and willing to show government-issued photo ID credentials. In a previous case, Foti v. McHugh, in which the Identity Project was co-counsel on appeal, the 9th Circuit Court of Appeals upheld a requirement to show government-issued photo ID to enter the federal courthouse in Oakland, CA, even when that led to a civil case brought by a pro se plaintiff being dismissed for failure to appear (because the plaintiff, who had no government-issued ID, wasn’t allowed into the building to appear to argue his own case).

  6. ALJ Jordan issued an Order Regarding Courtroom Security and Photography, Recording Devices, Broadcasting and Wireless Communication devices in Administrative Hearing on May 9, 2013. Although the order was issued in response to our inquiries regarding procedures for obtaining permission, if necessary, to record the hearing, we weren’t told about it until late the next day.

    ALJ Jordan’s order photography, audio or video recording, and live broadcasting of the heating, “unless specifically authorized by a judge”. The order does not specify to which judge, according to what procedures, one should apply for such authorization.

    We had already been told by the clerk of the Bankruptcy Court that the chief judge of the Bankruptcy Court had approved a “waiver” authorizing us to bring an audio recorder into the building and use it to record this hearing. So far as we can tell, this satisfies the requirements of ALJ Jordan’s order. So far as we know, that authorization remains in effect, and we expect to be allowed to record audio of the hearing.

    It’s unclear how ALJ Jordan’s order, or the “waiver” approved by a judge of the Bankruptcy Court (which may apply only to us or may be general), will affect others. Anyone who intends to record the hearing should try to contact either or both Ms. Heather MacClintock, Clerk to ALJ Jordan (206-220-7105,, and/or Ms. Charlene Hiss, Clerk of the U.S. Bankruptcy Court for the District of Oregon (503-326-1500), in advance if possible.

  7. Pingback: Papers, Please! » Blog Archive » Audio: “In the matter of John Brennan”

  8. Pingback: Papers, Please! » Blog Archive » Does the TSA have any “precogs”?

  9. Pingback: Papers, Please! » Blog Archive » TSA fines “Naked American Hero” $500

  10. The trial transcript makes references to “Tr. at …” I presume this means trial report or treatise. Where can we find that document?

    I am especially interested in this:

    34. Likewise, the secondary EDT screening cannot be conducted on a passenger’s bare
    skin. (Tr. at 32)

    How is a “secondary ETD screening” conducted if the the TSA has already allegedly found traces of explosives on clothing?

    Thank you.

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