But we do not live in such an environment. We are living in a political era of fiat law. The rule of law in the United States has nearly expired. I would not discourage lawsuits based on the Fourth Amendment, but, to judge by the intellectual caliber of most of our jurists, I am not confident these lawsuits will succeed in getting the TSA out of our hair, pants, bras, and pockets.
“Don’t touch my junk”? As far as the TSA and its meat-inspectors are concerned, you the traveler are nothing but a bundle of junk to fondle, probe, grope, examine, and scan at their leisure. Yet, you must respect TSA’s empowered fondlers and be kind to them. They are only doing their job, and do not establish policies. This, however, was a plea heard often during the Nuremberg trials.
I have cited her before, but, as novelist-philosopher Ayn Rand noted, many years ago in a more “civil” and placid era: "We are fast approaching the stage of the ultimate inversion: the stage where the government is free to do anything it pleases, while the citizens may act only by permission; which is the stage of the darkest periods of human history, the stage of rule by brute force."
A government that is free to do anything it wishes – provided it has a semi-credible excuse, or even a transparently false one, with which to silence critics and cause the citizenry’s collective eyes to glaze over – is a government that has abandoned the rule of law. This is the environment we are presently living in, and have been long before 9/11 or even the first World Trade Center bombing in 1993. I could dwell on such precedents as the Sixteenth and Seventeenth Amendments, which obviate the Bill of Rights, and the myriad federal agencies that have blossomed since 1913 that have contributed to the phenomenon, but that is another issue.
The arguments presented for the continued existence of the TSA and in defense of its “enhanced” but invasive pat-down security procedures and full-body scans have the substance of single-hole Swiss cheese. The TSA has never stopped, foiled, or even detected an attempted airline bombing. It is a purely reactionary organization, as pitifully inept as a “Had I But Known” detective novel. It claims, with a tongue-in-cheek it hopes nobody will notice, that it “knew all along” about incidents after they have happened. If this were true, the incidents would never have occurred, and the American public would never hear the end of it from the TSA’s publicists. It did not foil the Christmas Day bomber of 2009, and it was British security that uncovered the printer-cartridge plot. The Oregon Christmas Tree lighting bomb plot was foiled by the F.B.I. Can the TSA claim an equivalent action? No. The TSA cannot boast of one foiled incidence of terrorism.
The TSA refuses to adopt a more rational security policy, such as the Israeli one, claiming that it would be too expensive, or that Israel’s security conditions are not replicated here. Why is the TSA (indeed, the Department of Homeland Security), so impervious to reason? Any argument for the continuation of arbitrary, police-state power does not hove or defer to reason. Reason is not in the calculations of power-seekers. Reason is their enemy. The TSA seeks to justify its existence, to preserve and perpetuate itself, as any government bureaucracy does that is threatened with redundancy.
The chief reason, a reason which renders specious all arguments for the necessity of the TSA and even for the DHS, is that our government will not eliminate the states that sponsor terrorism – indeed, states that have by proxy declared war on the U.S. At the same time, the U.S. has been engaged in an undeclared, actual combat war for nine years – longer than the Vietnam War, as another article mentioned – and in an undeclared war of intelligence and covert operations ever since the 1993 World Trade Center bombing. This is a state of existential purgatory, in which only the enemy, Islam and its jihadists of all stripes and callings, is comfortable and in which only the enemy prospers, by having not been wiped out, as it deserves to be, and in having been granted the freedom to wage a war of “a thousand cuts.”
The TSA and its futile “preventative” policies conform to that scenario. It is a large, costly knife that inflicts wounds not only on our Fourth Amendment guarantees, but on a bankrupting economy. Jihadists welcome the “enhanced” security, for the TSA forces Americans to endure degradation and violation of their persons and their characters. Their values are held hostage by a government claiming that legalized extortion trumps the Constitution in the name of “national security” and “public safety,” although the nation is less secure and the public is placed at greater risk.
Moreover, the security procedures are egalitarian in nature and treat all travelers as suspects – except Muslims. One could even make an argument that the TSA is also violating the Fifth Amendment, without even affording Americans the benefit of a grand jury. Suspicion of having committed a crime necessarily implies a possible indictment. But who are one’s judges? Rent-a-cops.
This is not the horrible death that jihadists wish upon infidels, but it is the next best thing. Osama bin Laden, Anwar al-Awlaki, and their ilk (Plague and Misfortune be upon them) are jubilant. Seeing Americans squirm at TSA airport checkpoints must be nearly as satisfying to them as seeing their corpses after a suicide bombing, or their body parts strewn in the wreckage of a downed plane, or as splotches of pulp on the World Trade Center plaza before the towers collapsed. The TSA offers jihadists the spectacle of a literal living hell. They could not have devised a better “revenge” upon Americans they have not yet killed. The federal government has done it for them.
Foreign Policy magazine carried an insightful article that focuses on the costs to the U.S. of trying to maintain the stasis of a besieged nation after every foiled terrorist attempt, costs which the jihadists are well aware of. David Gartenstein-Ross discusses the ruminations of bin Laden, and also cites Inspire, the English-language online magazine produced by al-Qaeda. Bin Laden demonstrates that he knows his enemies, while our government does not wish to identify its enemies.
In his October 2004 address to the American people, bin Laden noted that the 9/11 attacks cost al Qaeda only a fraction of the damage inflicted upon the United States. "Al Qaeda spent $500,000 on the event," he said, "while America in the incident and its aftermath lost -- according to the lowest estimates -- more than $500 billion, meaning that every dollar of al- Qaeda defeated a million dollars."
Gartenstein-Ross opens his article with this revealing paragraph about Inspire:
The cover features a photo of a UPS plane and the striking headline: "$4,200." It is referring to the recent cartridge-bomb plot, and specifically the great disparity between the cost of executing a terrorist attack and the cost to Western countries of defending against asymmetric warfare -- costs now numbering in the billions of dollars a year and climbing. The magazine warns that future attacks will be "smaller, but more frequent" -- an approach that "some may refer to as the strategy of a thousand cuts."
After revealing the nature of the Islamists’ phase of economic (as opposed to violent or stealth jihad) warfare against the West and especially against the U.S., the Foreign Policy article ends with this observation:
The point is clear: Security is expensive, and driving up costs is one way jihadists can wear down Western economies. The writer encourages the United States "not to spare millions of dollars to protect these targets" by increasing the number of guards, searching all who enter those places, and even preventing flying objects from approaching the targets. "Tell them that the life of the American citizen is in danger and that his life is more significant than billions of dollars," he wrote. "Hand in hand, we will be with you until you are bankrupt and your economy collapses."
Jeffrey Rosen, in an article in The Washington Post, “Why the TSA pat-downs and body scans are unconstitutional,” predicts that the TSA’s “enhanced” security measures are probably headed for a Supreme Court ruling.
Although the Supreme Court hasn't evaluated airport screening technology, lower courts have emphasized, as the U.S. Court of Appeals for the 9th Circuit ruled in 2007, that "a particular airport security screening search is constitutionally reasonable provided that it 'is no more extensive nor intensive than necessary, in the light of current technology, to detect the presence of weapons or explosives.'"
That is the kind of ruling that does not auger well for Fourth Amendment guarantees.The TSA has not discovered serious threats, nor does it tailor its measures to protect personal privacy. It is above the law and need not promise or deliver anything. Alito’s opinion is simply an instance of judicial waffling.
In a 2006 opinion for the U.S. Court of Appeals for the 3rd Circuit, then-Judge Samuel Alito stressed that screening procedures must be both "minimally intrusive" and "effective" - in other words, they must be "well-tailored to protect personal privacy," and they must deliver on their promise of discovering serious threats.
Rosen also discusses the back-scatter machines (the porn-o-rama ones) and how ineffective they are, the ones in which former Homeland Security chief Michael Chertoff has a vested interest in selling to the government.
The backscatter machines seem…to be the antithesis of a reasonable search: They reveal a great deal of innocent but embarrassing information and are remarkably ineffective at revealing low-density contraband.
A World News Daily article, “Shocker: TSA’s nude scans would miss taped-on bombs,” substantiates that claim:
"Even if the [X-ray] exposure were to be increased significantly, normal anatomy would make a dangerous amount of plastic explosive with tapered edges difficult if not impossible to detect," Kaufman and Carlson wrote. A further disadvantage is that the X-ray backscatter units are not effective at detecting explosive packages that are contoured to supplement the natural features of the body, even when the explosive packages are concealed on the front or the back of a person.
Which means, if it absorbs this bit of information, that the TSA will likely initiate a further measure requiring its agents to either bathe travelers with increased dosages of radiation to reveal those contours, or become extra-personal in its pat-downs. Are Americans ready to be “kind” to TSA agents, and allow them to become their “huggy-bears”?
I hope not. The best guarantee of our Fourth Amendment rights would be for our government to eliminate states that sponsor terrorism: Iran, Saudi Arabia, and North Korea. The only alternative is for this self-besieged country, is to bleed to death, to perish from “a thousand cuts,” half of them inflicted by our own government, and the other half by our chortling, snickering killers.
Will we return to the rule of law? We shall see.