X-Ray, Invasive Patdown or old status quo?

Mr. 44,

That was more in response to your idea regarding people filing lawsuits. It will probably encourage more people to file such lawsuits if they think the DA's offices are not going to tolerate the patdowns, either.

And this would only apply to those screeners who do more than the official patdown requires they do.

 

I'm sorry, but exactly what in my argument is non-originalist?

It's non-originalist because it's using an overly broad idea of the 4th Amendment and applying it to a specific situation. (which is your dad's objection to both scanners and pat downs)

Prior to this post, we both know what "originalism" means. The original text of the 4th, and all supporting case law from the earliest times supports an idea that the 4th Amendment applies to the government actively going out and searching citizen's person or homes. Jabba is absolutely correct when he pointed out that checkpoints have always had different standards applied, or simply put, more leeway to what is reasonable under the 4th Amendment.

If a military base has a sign that says "all persons and vehicles who enter are subject to stop and search," the 4th Amendment, from the earliest time I can think of, supports a search without cause, suspicion, or reason, as a condition of entry. If you pull up to the gate checkpoint, military MP's will search under your car, in the trunk, behind the seats, etc.. to their satisfaction before you enter. Probable cause doesn't even apply. You're correct in that you don't have a choice in the search, because your choice comes into play in entering the base or not. You can simply turn around and drive away.

Airport checkpoints are covered by the exact same guiding principle. There's no Constitutional right to fly. There's not even a Constitutional protection of free movement inside or outside of the country. (although maybe the 1st comes closest) By choosing to go to a checkpoint, you're not being sought out for a search.

You can't say "my dad objects to airport checkpoint restrictions," and have it automatically default to a 4th Amendment issue.

That was more in response to your idea regarding people filing lawsuits. It will probably encourage more people to file such lawsuits if they think the DA's offices are not going to tolerate the patdowns, either.

Yeah, I wonder how many allegations the DA's office is going to have to field because of this announcement. Is the office prepared for the caseload?

 

I'd be willing to bet that enhanced patdown got a more thorough legal analysis and writeup internally at TSA/Homeland Security than enhanced interrogation techniques got from the Bush White House.

 

There is a big difference here. You claim that originalism also includes the existing case law interpreting the Constitution. I have never made such a claim. I have always pointed out that while precedent can have value in understanding the original intent behind the Constitution, ultimately every judicial act has to be derived from the Constitution itself, not a foundation of what other people have said about what other people have said about the Constitution. It is case law that causes judicial creep that winds up taking a fairly clear phrase like "public use" and rewriting it into "public purpose".

Again, your charge of hypocrisy is completely false.

And yet, the 4th Amendment would not support a mandatory strip search with cavity searches as a condition of entering a military base.

Your argument here would be valid if I were arguing against all searches. Your problem is that I'm not making that argument. I'm arguing against a specific search (the "enhanced" pat downs). You are basically arguing that merely by posting a sign, the government can require you to undergo any search that it decides to subject you to. Such searches still have to meet the "reasonable" standard of the 4th Amendment, and that standard requires more than just the government saying "we need to do this."

That still dos not give the government the authority to make any search that they wish. The 4th Amendment limits the government to "reasonable" searches, and a general search that affects the most private portions of a person's body does not meet any definition of "reasonable" that I am aware of.

If that were my argument, you would be right. However, that is not the basis for my argument, no matter how much you falsely characterize it as such.

I used my father's concerns as an example, not as a basis, for my argument. If you aren't going to address the actual basis, and instead keep trying to focus only on my example, then don't bother to waste your time.

Kimball Kinnison

 

Well, I'm not sure about that Jabba. The interrogation limit was quite extensively examined. Remember that the legal analysis itself was too in depth and complicated for Pelosi to understand, so she just signed off on it...?(at least according to her)

It's also easier to look at this issue from an originalist point of view by asking a simple question:

If Congress, through public law, or even the Executive, through order, ended all airline travel in the US, what specific Constitutional clause would be violated? Anyone would be hard pressed to find one without resorting to functionalism. In fact, the "common defense" principle in the Constitution would probably support the government's action in this regard.

If airline travel itself can be curtailed, how does airline checkpoints automatically default to an original protection in the Constitution through the 4th Amendment?

And KK, I'm not claiming that the government can enact any search they want. I'm claiming that governmental policy and/or law isn't dependent on what your dad objects to, because that's the argument you've put forth. In other words, just because your dad is bothered by something, it doesn't trigger a 4th Amendment issue. If you have another standard, then that can be discussed as well.

 

Because under the 4th Amendment, any search that the government performs must be "reasonable". Just because flying in an airplane is not a right does not mean that the government can make whatever conditions that they want in order to fly.

The "enhanced" pat downs are the most invasive search you can get without taking someone's clothes off. It is only a short step away from a strip search or cavity check. Because it is so invasive, that means that under any balancing test, the bar for it to be "reasonable" needs to be set comparably high, and the presumption needs to be one of unreasonableness, not that it is reasonable until proven otherwise.

You simply haven't provided any support for how the "enhanced" pat downs are reasonable under any balancing standard. Instead, you have simply argued that the government can simply do whatever it wants. That flies directly in the face of the 4th Amendment.

Kimball Kinnison

 

Well, you posted during my edit, so my point should be more clear. But either way, you didn't answer my questions.

1)If Congress, through public law, or even the Executive, through order, ended all airline travel in the US, what specific Constitutional clause would be violated? Anyone would be hard pressed to find one without resorting to functionalism. In fact, the "common defense" principle in the Constitution would probably support the government's action in this regard.

2)If airline travel itself can be curtailed, how does airline checkpoints automatically default to an original protection in the Constitution through the 4th Amendment?

Next, and it's more clear in my edit above. At no time have I said that the government can exact any search. It's that using existing guidelines is reasonable under the law, until the guidelines are (re)examined. Again, just because someone is bothered by something specific (in this example, it's your dad), a Constitutional violation isn't automatically triggered.

KK, honestly, why is it so difficult just to tell your dad to go through the checkpoint and have him enjoy the extra time with you and your family? I'd bet that he won't have an experience as bad as he is predicting, no matter which method he chooses. If I'm wrong, tell him I'll send him $100, or pay for dinner for you guys during his visit or something.

 

And there is nothing for me to say about this. All the people are being asked to do is either go with the body scanner or get a pat down.

And ever one is throwing out they are being molested. Yet I have to ask do you and KK even know what it's really like to be molested? Why don't you ask those who really were molested. Pat downs don't = being molested.

Then we get the whole 4th Amendment. Let me tell you something. Because I work on aircraft parts if my Boss comes up to me and tells me I have to get a drug test I can pick two options. I can go and keep my job or I can say no and be fired right on the spot. Why becasue I'm working with stuff that affects ever one around the world.

So right here with this whole thing. I can either pick the scanner, get a pat down or just not fly. It's policy based on the issue of safty. Just like it's policy that if the FAA goes to my boss and says I need to get a drug test. Just like it's policy that pilots can only fly and work so many hours based on what is in the FAA book based on the DOT, TSA, and the DOHS. Heck I don't like that I have to go get my eyes checked ever June but to work on the parts I have to based on policy. So that when you fly the plane you are on dose not come crashing to the ground.

 

Let's look at your edit for a moment:

That is not the argument I have put forth. As I stated, I used my father as an example, but you have completely distorted that.

I haven't claimed that it's a 4th Amendment issue because by Dad is bothered by it. If you are going to claim that, then quote where I said that. I have claimed that he has a problem with it because it is a 4th Amendment issue, and then I have provided analysis of the 4th Amendment (analysis that I did myself, not coming from him) to demonstrate why that is the case.

Now, please stop making such blatantly false claims about my argument.

And you haven't exactly answered my questions. For example: Where do you draw the line on what searches would be unreasonable at an airline checkpoint?

I'll answer yours, point blank. Where is your answer for mine?

This is irrelevant. In fact, for the sake of argument, I will submit that there is no direct constitutional issue if the government were to shut down all air travel. (However, equal protection would still apply, so if they are going to allow air travel they cannot arbitrarily prohibit some people.)

This is a straw man. I never claimed that airline checkpoints are a violation of the 4th Amendment. I have claimed that a specific form of search (the "enhanced" pat downs) now being used at airline checkpoints is a violation of the 4th Amendment's protections against unreasonable searches.

Again, you are distorting my claim. My claim isn't that it is unconstitutional because my father objects. My claim is that it is unconstitutional because it is an unreasonable and overly invasive search that is not balanced by the security risks it is claimed to protect against.

Tell you what, why don't you just leave my father out of it from now on. I used him a specific example to demonstrate the principles at hand here. Your references to him do nothing to address those principles. Unless you are going to address the actual principles that are behind the argument I made in bringing him up, there is really no reason for you to keep harping on his objection.

For review, the specific principle behind my bringing him up is that he cannot safely

 

anidanami, abuse survivor groups are reporting some people that have been raped or molested have had fairly adverse reactions to both the pat downs and the scanners.

Additionally, your example of how your job treats you is only applicable if we were talking about what pilots have to go through as a condition of flying the plane.

The better analogy for passengers would be more like how you're required to have a license to ride in a car or bus, where all passengers are subject to the same thing.



And I'd point out that KK's being consistent, imo, with his past views, as he's argued against the government controlling the conditions private groups or individuals interact (like, that you can discriminate against whoever you want) because that decision comes from the business. If you don't like the business, you go to a different one. However, these restrictions are from the government, and are imposed upon everyone. Now, if there was a separate terminal at LAX for airlines that didn't have the scanners or the pat downs so that I could decide if I wanted to fly an airline that chose to have scanners and full pat-downs or an airline that didn't, that would be the valid situation. However here the government is forcing all airlines to abide by those rules.

 

I'll respect your wishes and leave your dad out of it to focus on other examples after this:

I haven't claimed that it's a 4th Amendment issue because by Dad is bothered by it. If you are going to claim that, then quote where I said that. I have claimed that he has a problem with it because it is a 4th Amendment issue

I recognize the sentence structure, grammar/semantic difference of course, but don't these just say the same thing from a debate standpoint? All you're claiming is that your dad's standard defines what a Constitutional violation is. Because obviously if your dad wasn't bothered, then he wouldn't claim a 4th Amendment violation. I mean, to give another example, if I said "same sex marriage is automatically a 14th Amendment issue, so it should be allowed right now" would you simply agree? What makes the 14th Amendment automatically apply? Answering back "because it does" really isn't an answer at all.

My problem is that your dad seems to be going by hearsay. Rationally, he knows that the scanners only have minimal amounts of radiation (less so that the actual flight itself) he just wants to lean to the side of caution. Ok. That's his choice. But he also objects to the pat down alternative. Not because of policy, not because of the actual procedure, but because of what he's heard about.

How is that any different than the long ago discussions about something like the Patriot Act, when someone would post "My friend told me that Patriot allows the government to send people to Gitmo," when in fact, the actual text contains no such clause. No matter the topic, someone can't react to their perception and conclude that what they think automatically applies to the actual text, policy, procedure, or law. My point is that none of this applies to what the actual policy is, so you can't claim that there's an automatic violation of the Constitution.

And Lowie, the exception I would take to your last paragraph is that I think you're artificially limiting the scope. If the blanket topic is "travel," then the consumer can simply choose to go take the train, or boat, or drive, or horse, like we discussed before. If someone doesn't want to go through a metal detector, then they can take the train. It's a trade-off, but that's where the choice comes in.

There's never going to be a standard in any major country that allows one airline to do X checkpoint, while allowing another to do Y, while allowing another to have no restrictions at all. You have to look at overall categories of travel methods and then compare them.

 

We have. They've answered.

 

Don't make said clam unless you are going to back it up.

How so you see if I want to drink when I'm not at work what is it to the FAA or my company? Well for them they have to know if I can do my job right. It's my private life after all and it's falls under the 4th Amendment. Problem there is that just becasue I can drink my company has the right to know just how much and how bad. Just like they have to the right to know if the over the counter drug is not going to affect my work.

 

You're ****ing joking, right? Look one post above you!

 

No, they don't say the same thing. That grammatical structure demonstrates two different causal relationships. The former statement claims that the reason I am defining it as a 4th Amendment issue is because my father is bothered by it (stating that the cause is my father's concerns, and the result is the rights violation). The latter states that the concern is caused by the rights violation, and my father's concerns are the result. They are two very different concepts.

First of all, I'm willing to bet you that my father has forgotten more about radiation than you and me put together. (He has a PhD in physics, and used to teach people how to run nuclear reactors in the Navy.) The radiation concerns that he has expressed are a real issue. For example, this article cites Dr. David Brenner (who helped draft the guidelines for the scanners) talking about potential DNA damage from the backscatter x-ray machines. Estimates ranging from 5% to 20% of the population carry genes making them far more susceptible to such damage, and people who have previously had skin cancer tend to be in the higher risk group.

Based on what he has heard about it from numerous separate reports, including official descriptions of the procedure. Just because he has not experienced one of the enhanced pat downs personally doesn't mean that his interpretation is any less valid. He has experienced standard (Terry stop style) pat downs before, so it's not as though he has no idea what a pat down involves. There is enough information publicly available to draw your own conclusions, and you can't just dismiss it all as hearsay. (Besides, if you want to make the hearsay argument, then aren't you also basing your non-opposition to the enhanced pat downs on hearsay?)

The difference is that he has researched the science behind much of the scanning technology, and he is actually qualified to understand it. He may not hold a medical degree, but he is qualified enough to underst

 

KK, you're a rational guy. You have to recognize that this is the stuff that conspiracies are made of. You can't make people react in a rational way. But you can mitigate irrationality with facts.

If someone (who was just some random guy and wasn't related to you at all) had a concern about the image scanners, you could answer back, "yes, there is some radiation involved, but it's less than a standard x-ray, and in fact, the total amount is less than the amount you'll get during the flight itself." It's not going to start to matter except for frequent fliers. Why is it that scanners have been in use for going on 24 months now, and there's not been a peep about it until some sensationalized accounts popped up on the internet?

But ok. If the person was still concerned, you could recommend that they seek out the alternative method, which is the physical pat down. But what if that random person who isn't related to you at all said "But I'm worried that my Bonnie Prince Charlie is going to be fondled by a TSA worker during the search?" Being the rational guy you are, you could answer back that the TSA policy doesn't allow manipulation of the genitals, and the most extreme area that would be touched is the waistband, lower buttocks, and between the thighs, so such fears are overblown. KK, I never, ever in a million years thought I would be saying this to you, but just read the policy.

Do you actually think it's plausible that the government discovered a surplus of sexually deviant pedophiles, so they created an agency where these workers could grope and leer at will in order to satisfy their insatiable sexual urges? Sex, and the sex organs, are not the focus of the procedure in the slightest. The article I mentioned earlier detailed that of the 36 million visitors who have travelled since the enhanced Pat downs have taken effect, fewer than 700 people have raised any kind of concern. (it doesn't break down who went through scanners, or pat downs, or the nature of their complaints.) But that's still much less than a 1% complaint ratio.

When I last traveled on Amtrak, I still had to pass through a security checkpoint, including x-ray machines for my bags and a metal detector... Since then, I've also taken two cruises (from ports on opposite sides of the country) and had to go through similar security checks. How would you recommend that a person travel from Hawaii to the continental US while avoiding such checks?

And such a summary would seem to work against someone who is trying to point out how unreasonable they are. Honestly, I would tell such a person that checkpoints are a reality of modern inter/intra-national travel, and not be so concerned with avoiding and/or dodging them and focus on having fun with whatever holiday they're on. I don't know what else to say...build a raft and hope for a strong current?

KK, you know I don't work for the TSA, and I don't know anyone who does, but I'm telling you...In a non-specific way, just have whoever may be visiting you to go ahead and fly. I'll go out on a limb and promise that he won't get his sex organs played with, and he'll have all the more time to visit with you. Leave the sensationalism to those who it works on.

 

So, when were you molested? You seem to be speaking for the physically abused, so one can only assume that you yourself have had first-hand experience. If not then don't make stupid claims like that until you do some research. Oh look, looks like everyone else has done your job. Well then?why don't you read it?

 

That's the fascist spirit. You show your boss who's boss...by?blindly following orders. Oookay. Well, we see the limits of your questioning of government: Don't give you health insurance and don't target corporations. But oh yes, we need smaller government. Except at airports. That's where the darkies with the Ko-ran can board planes. And oh me oh my, that would be a terrible thing.

 

Actually, it's not really a policy based on safety. In fact, the two flights where there were possible terrorists they had both boarded. And I'm sure this x-ray technology won't do much better. The problem with the crazy people is that you'll never stop them no matter how many scanners you put up. Or police dogs, or strip searches. Crazy finds a way. So, while you're probably duct taping your house against some terrorist threat the terrorist is already inside of your house--they're in your head.

That's really all a terrorist needs: a few million gullible idiots who'll do anything to feel safe. So?thanks? You allowed the terrorists to win. But let's not forget: USA USA USA!

 

So we can agree that any TSA that touches genitals should be arrested because in no way should that part of the body be touched?

And I'd point out, I am only going to get an x-ray if it's very medically necessary specifically as it's a health issue. It'd be like saying opium's just fine because it's not as bad as heroin. It negates that I'm going to avoid both if at all possible. Case in point, I had a foot injury about 2 years ago, and I opted not to get an x-ray to find out if I had a broken toe because it wasn't medically necessary as broken or sprained, they were going to have the same treatment for me. Because I don't want unnecessary x-rays.


Incidentally, I'm not sure I remember having security that high on amtrak a few years ago, although my memory could be bad. Although I know one guy on there had said he prefers Amtrak because it's easier to transport drugs on Amtrak.


anidanami, that accidents have occurred does not mean that we must constantly be ramping up security measures on EVERYONE. The incidents you listed and involving flights all around the world, spread out over 9 years, resulted in 603 deaths. Alcohol-related crashes kills that many people every 6 days in the United States alone. The risk of dying due to terrorism is minute, and that some deaths happen sometimes is just as ridiculous here as saying we should ban people from having pools because of the number of accidental drownings that happen each year in pools.

If you don't want to die on a plane, DON'T FLY. 749 people have died in 2010 in plane crashes. How many of them were victims of terrorism? ZERO. If you look at what's happened since 9/11, just on US flights, 383 people have died in commercial plane crashes. How many of THOSE were killed because of terrorism? ZERO. (to best of my research)

 

Certain people aren't wired to do their own thinking; they depend on other people to do their thinking for them. That's why they're so eager to surrender to authority, no matter who that authority is or what they say.

That doesn't apply to everyone on that side of the argument, of course. Just certain people.

 

Mr44, just because you disagree with a position does not mean that it is irrational. It's quite presumptuous of you to label someone who disagrees with you in such a fashion.

The concerns have been out there about the scanners for quite a while. However, the newer "enhanced" pat downs (which have been the real source of the controversy) have only been in use for about two weeks. You can ignore the real concerns all you want, but that doesn't change what they are.

Mr44, you know that the policy on paper and how it is applied in practice are two completely different things. There have been multiple credible accounts, including several with video and audio recordings, indicating that in practice your characterization is not accurate.

This is a straw man yet again. I have not claimed that the TSA workers are "sexually deviant pedophiles", nor anything like unto it. I have simply spoken of the effects of the "enhanced" pat downs that are being used in practice.

You are missing the point. Think of it logically here, in the abstract. The case that Jabba cited argued as part of the 3 tests that as long as you can ch

 

Of course, we could simply end a lot of this nonsense by doing what the Israelis do, which is interview-twice-everyone getting on a flight. Once at the door, a second time at the gate. Millimeter-wave scanners are non-radioactive (I think), and could be used for luggage and individuals who raise concern. Of course, my idea will raise cries of "racial profiling", although in a recent interview, the security chief for Tel Aviv airport commented that "if we interview everyone, no-one is being profiled".

I don't know, El-Al has been pretty safe for a long time. America just might want to give it a shake.

Peace,

V-03

 

You are missing the point. Think of it logically here, in the abstract. The case that Jabba cited argued as part of the 3 tests that as long as you can choose to travel by another method, a security check could be reasonable. Well, let's apply that logic to other forms of travel....If I tell you that I can force you to do X if you want to A, I can do that because you don't have to A, you can always B. However, if I also then, independently, say that I can force you to do X if you want to B, and I can do that because you don't have to B, you can always A, what does that logically mean?..(abridged for space)

I don't think that I am. The goal is for someone to visit their grandson or whoever for the holidays, that's the point.

Would it help if I agreed that logically, you are absolutely correct? But you can put up all sorts of logic trees, Venn diagrams, and somesuch, but that's not going to matter with regards to real life. Because if planes, trains, and automobiles, er.. I mean cruise lines have security checkpoints, you're going to have to go through them in order to utilize them. There's no convenient way to avoid them simply to prove the concept of choice through logic.

I'll just repost what I predicted earlier in the the thread:

I can see that we're going to have countless rounds of wasteful lawsuits. There will probably be a Congressional inquiry or two. And the end result will not change anything. Oh, the specifics may change. TSA will probably have to wear "puritan gloves" or similar themed concession that no one else in the entire world would even think of. Instead of a body image scanner, the government will probably invest millions of dollars to design another alternative- let's call it a Tachyon data collector, and yet someone will object to it, put up a Youtube video, and start a whole new round of outrage.

 

Of course, we could simply end a lot of this nonsense by doing what the Israelis do, which is interview-twice-everyone getting on a flight.

And V, the problem with El Al's security methods is that they are much more extensive than what you indicate, because Israel sits in a unique situation. El Al's methods would cause A LOT more issues in other countries:

El Al's legendary security measures

From the website:

Passengers checking in for El Al and other airline departures at Ben Gurion are requested to arrive three hours before their flight. Cars, buses and taxis are examined as they enter the airport compound by uniformed guards armed with submachine guns. Plainclothes security guards are stationed at the airport entrances, patrolling the terminal in loose-fitting jackets that cover bulging weapons holsters. Cars are prevented from making more than momentary stops to dispatch and unload passengers and luggage.

Upon arrival, travelers are subjected to rigorous and time-consuming questioning. While passengers are asked perfunctory questions like -- "Who packed your bags?" and "Do you have any weapons?" -- inspectors are really looking for travelers giving evasive answers or hiding information. Passengers can be interrogated separately by three different screeners.

By questioning passengers, guards can quickly spot those who appear nervous, Leo Gleser, a former El Al security officer and head of security consulting firm ISDS recently told The Associated Press. Gleser said passengers are profiled -- while most Israeli Jews quickly pass through security inspection, Arabs and certain foreigners are singled out for intense grilling. pieces of luggage are opened and carefully inspected, down to the contents of the smallest toothpaste tube. Sophisticated high-tech explosives detection equipment is used to examine all luggage, according to a former El Al security chief, Tuvia Livneh. While similar scanning equipment is used for spot checks at other airports, no other airline requires as many luggage scans as El Al.

What makes El Al's methods so legendary is because they're so detailed. But which seems more like a police state? If you think there are lawsuits regarding a pat down, imagine having to open up your car for a submachine gun wielding guard?

 

No, the point is that a person should not be required to undergo either an invasive physical search or a health-risking scan in order to travel as a general rule. It is a violation of their civil rights.

Again, you are distorting my argument.

The argument is not against security checkpoints in general. It is against specific methods that are unreasonably invasive and being used at the security checkpoints.

Your argument was explicitly that they can still take the train/plane/etc. Except that logically, that falls flat when you start applying the same protocols to other transportation methods, or you look at situations (such as a person in Hawaii) where alternatives are not available. Now, once that argument was logically demolished, you are abandoning it and going back to basically saying "it's inevitable, just give up."

You can't argue that an unreasonable search is reasonable simply because there is a more unreasonable option that they could also choose. The criteria isn't whether it's more reasonable than another alternative, but whether it is unreasonable. You have completely failed to demonstrate how the search itself is reasonable.

Kimball Kinnison

 

Our friends in the JCC brought up Michigan Dept. of State Police v. Sitz, 1990, which is a SC opinion and thus directly relevant precedent.

Sitz held that sobriety checkpoints were permissible as a technique. Brown v. Texas set up a standard of balancing the state's interest with the effectiveness of the technique and the level of intrusion, but Rehnquist's opinion modified that somewhat.

In Sitz, Rehquist declares the checkpoint stop a "seizure," which was reasonable in promoting the state interest in preventing drunk driving, as it was followed by a very unintrusive assessment for reasonable suspicion. If some reasonable suspicion was found, it led to a field sobriety test.

The Sitz opinion suggests that the "fear and surprise" caused to law abiding citizens by the prospect of an enhanced pat down or scan in an airport might make it an unconstitutional intrusion.

What seems key in Sitz is that if there is some sort of generalized stop and seizure (e.g. the airport security line) reasonable suspicion has to be established FIRST before law enforcement can move on to a more intrusive warrantless search.

If I were applying Rehnquist's Sitz standard, I'd conclude that the body scans and enhanced pat downs are not going to be permissible before reasonable suspicion is established by some other less intrusive method.