“Nobody likes having their Fourth Amendment violated going through a security line, but the truth of the matter is, we’re going to have to do it.”
— Mo McGowan, former assistant director of the Transportation Security Administration, speaking on Fox News
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At least someone defending the TSA is willing to admit the obvious regarding the agency’s treatment of constitutional rights.
After all, no one seriously claims the government has probable cause to suspect that the vast majority of travelers subjected to Whole Body Imaging — a sort of high-tech strip search — or newly invasive pat-downs that may include the breasts, buttocks and inner thighs are about to commit a crime. So of course the Fourth Amendment’s ban on “unreasonable searches and seizures” would seem to apply.
But, says McGowan, “we’re going to have to do it” to protect ourselves — meaning we have no choice.
Even if McGowan is right in his security assessment, it’s not clear how a government bureaucracy gets to decide when the Constitution must be finessed. TSA officials may find invasive pat-downs a regrettable necessity, and most Americans may agree, based on what they tell pollsters. But some clearly do not, and won’t so long as the agency’s security measures treat all travelers — from female octogenarians to teens — as essentially equal threats to safety.
Homeland Security Secretary Janet Napolitano predictably upholds the fiction that naked body scans and groin gropes are fully compatible with personal privacy, although she’s keeping an “open ear” to flier complaints.
If that’s true, wouldn’t an obvious first concession involve exempting pilots, who could destroy a plane on their own without explosives and who submit to background checks?
On Tuesday, The Rutherford Institute, a civil liberties outfit based in Charlottesville, Va., filed a lawsuit on behalf of two pilots — Michael Roberts of ExpressJet Airlines and Ann Poe of Continental — who refused to submit to either a whole body scan or invasive pat- down and have been grounded since.
“Although it is well established that subjecting airline passengers to limited searches designed to detect weapons and explosives is consistent with the Fourth Amendment,” the lawsuit argues, “it is equally well established that such searches must be reasonable.”
“Forcing Americans to undergo a virtual strip search as a matter of course in reporting to work or boarding an airplane when there is no suspicion of wrongdoing is a gross violation of our civil liberties . . ., ” adds John Whitehead, Rutherford’s president. “If we allow the government to reverse the burden of proof so that we have to prove our innocence, then we might as well give up on the Constitution altogether.”
Whitehead is a purist on the Fourth Amendment, telling me he also questions the less-intrusive pat-downs we’ve grown used to since 9/11 and which the courts have endorsed. But if we’re going to draw a line, he insists, surely it ought to be somewhere this side of the TSA’s latest procedures.
However powerful their arguments, Whitehead and the pilots probably face an uphill struggle in the courts. Who wants to be blamed for cracking the door to a terrorist attack? As for the public at large, forget it. Most people seemed to back even George W. Bush’s claim that in the fight against terrorism, the president can detain a citizen without charges for as long he likes.
Like most air travelers, I’ll submit quietly to a body scan when my time comes, just as I’ve dutifully removed my shoes, belt, wallet and watch before dozens of previous flights. But I’ll do so with appreciation for those with greater gumption — folks like Roberts and Poe who refuse to acknowledge the omnipotence of the modern surveillance state.
There are some Americans, thank goodness, who still value liberty over supposed security, even at great personal cost.
E-mail Vincent Carroll at vcarroll@denverpost.com.
