X-Ray, Invasive Patdown or old status quo?

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.

Except that neither is automatically true. I'm still amazed that you're throwing around concepts such as "civil rights violation" like it's a forgone conclusion.

1)If we were following the proposed EU standard, then the only option would be "go through the scanner or don't fly." As we both know, the EU covers 27 member states and the largest combined air travel market in the world. I think the easiest policy in the US would simply have the TSA adopt the EU's procedure and "say no scanner, no fly" and get rid of the pat down. What do you do then?

2)It looks like Japan mirrors the US standard, and since it tells passengers to remove their coats and jackets for scanning, I'd assume that they use a similar form of body scanner. (it doesn't say which technology is specifically used)

3)If we looked at the El Al standard, it's even more invasive. Your car would be searched by armed guards upon entering the airport, you'd be interviewed by up to 3 psychological screeners, and your bags "down to the toothpaste tube" would be opened and examined.

What does that cover? Probably more than 90% of the world's airline destinations? Great. Modern airline travel involves a loss of choice. It's not the 1960's anymore. All of the major air travel markets have some form of invasive search and checkpoint in order to fly, and millions of passengers don't seem to be affected by it. If you want to avoid high tech invasive checkpoints, then I'm sure there's an airport in Eritrea that would probably fit the bill. Or you might be kidnapped and held for ransom, which would be worse...I don't know.

Or, as I keep saying, instead of focusing on the philosophical construction of free will, just spend the 30 seconds in the checkpoint and continue on to your destination with no worries, and enjoy what is really important.

 

I didn't say it was perfect, Mr44, but it would avoid the need for pat-downs .

Of course, with Israel's methods, you would be trading one form of tyranny (if that is one's perspective) from another.

Peace,

V-03

 

44, are you at all interested in whether the procedure is actually constitutional? The Michigan State Police v. Sitz standard for intrusiveness encompasses the concept that if a "seizure" occurs without probable cause, then whether or not it induces fear and surprise among law abiding citizens is relevant to how intrusive it is. And how intrusive it is is relevant to how reasonable it is and thus to whether it is permissible.

And clearly, the procedure is inducing "fear and surprise" among law abiding citizens. Your call for them to stop feeling "fear and surprise" is I think a bit beside the point.

There's no need to do away completely with pat downs and full body scanners. What's needed here for constitutionality is an intermediate, less intrusive step to establish reasonable suspicion.

 

Jabba, you're misapplying the scope of Sitz. First off, the only issue that was decided in that case was that temporary roadside checkpoints were permissible. That was a big decision, which also goes far beyond a the practice of fixed, permanent checkpoint which were upheld in earlier SC decisions. Additionally, you're also specifically misreading what Rehnquist said while delivering the opinion of the SC regarding "fear and surprise."

Rehnquist Controlling decision said:

"The circumstances surrounding a checkpoint stop and search are far less intrusive than those attending a roving patrol stop. Roving patrols often operate at night on seldom-traveled roads, and their approach may frighten motorists. At traffic checkpoints, the motorist can see that other vehicles are being stopped, he can see visible signs of the officers' authority, and he is much less likely to be frightened or annoyed by the intrusion."

Again, the SC determined that temporary checkpoints were less likely to cause surprise than traffic patrols. Sitz is only marginally appropriate to fixed, permanent airport checkpoints that are contained within a well lit airport. If you want more appropriate court cases, you should look to the Camara decision (387 U.S. 523) which, while it didn't apply to checkpoints, it covered the limits of the 4th Amendment with regards to announced inspections.

There's also US v. Martinez-Fuerte, which applied specifically to border checkpoints, and determined that no cause needed to exist at all. There's a bunch of other ones, which apply to requiring that everyone be searched before entering courthouses, to the authority of closing military bases, and so on. The SC also implicitly upheld one of the main factors that we've been discussing, in that a person can simply turn around and walk away in order to avoid the intrusiveness of a checkpoint.

Every SC court case that I can think of has upheld both temporary and fixed checkpoints and has rejected the 4th Amendment violations brought up in them. That's not to say that this won't be ruled in a different matter, but you're looking at 200 years of legal precedent vs a year or 2 of body scanners..

 

It's not just the fact of the checkpoint that's relevant, but the nature of the search and seizure. I'd agree that no one has or ever is going to successfully challenge the existence of either temporary or permanent security checkpoints at airports, but the intrusiveness of the search is entirely relevant, and Rehnquist makes it clear in discussing the limits of Sitz. The more intrusive the search, the more likely it "may require satisfaction of an individualized suspicion standard."

The "fear and surprise" to be considered are not the natural fear of one who has been drinking over the prospect of being stopped at a sobriety checkpoint but, rather, the fear and surprise engendered in law abiding motorists by the nature of the stop.

The nature of the stop is exactly what's at stake. Checkpoint, fine. Checkpoint that searches bags - not so likely to induce "fear and surprise," probably ok. Checkpoint that intimately searches the person before establishing reasonable suspicion...maybe not so fine.

 

No, to be direct, that's an incorrect assumption. It's the exact opposite of what you're saying. This isn't a legal forum, but the standards of which you're referring to, such as "compelling interest" or "fear and surprise" apply to universal standards, not specific ones.

It's not a case of any one person saying "I'm fearful of having my butt touched," it's a case of looking at what an average person could determine what's expected of them.

Having a fixed checkpoint, where the alternatives and expectations are laid out, will never fall under the "fear and surprise" legal prong of which you're saying, even if any one person is bothered by them. That's the specific idea expressed in the Martinez case. (in that case, the checkpoint had signs that said things like stop ahead one mile..pull into the right lane, etc...) The public can't be surprised if that's the case, even if any one person suddenly freaked out and pulled into the left lane, or whatever.

There's another case, of which I forget the title, so you can disregard it if you like, that came out of New York, I believe. (I don't remember if it was a district decision, or an SC one)

But basically, the facts were that there was a child support case. The defendant was compelled to go to court, but he was also compelled to undergo a security search to get into the courthouse. (the procedures involved an x-ray for bags, a metal detector, and a pat down if the detector hit) He objected, and said that he can't be made to do both. That is, he said the search was forced because he was subpoenaed for court.

In it's ruling, the court answered that it didn't matter, but that the collective security of the court proceedings outweighed the forced consent for the defendant, so he could in fact, be both forced to attend court, and forced to submit to a search in order to get in. That ruling didn't cover items like which specific search methods were performed, but I'd bet the court would rule in the same way if it did.

This is what you're missing, and what's missing from the JCC thread, because "reasonable suspicion" doesn't apply to security checkpoints like border crossings, courthouses, military bases, public housing units, and airports, because there is no enforcement activity. (which was detailed in the first case I referenced above)

These are the type of rulings that apply more readily to topics like this.

 

I'm not saying you're wrong, just that the Rehnquist opinion seems to be suggesting the opposite. Rehnquist seems to disagree with you in the opinion, and suggests there may be limits of how much of a seizure/search can take place at a checkpoint before at least a reasonable suspicion standard kicks in. Also, the 9th circuit opinions I mentioned above suggest that airport security searches don't hinge on consent in any case re your courtroom security check case. Not necessarily controlling precedent, but food for thought.

 

Except that the ability to determine what is expected of you is only one aspect of determining whether a search is reasonable. That is only one part of the balancing test.

From Michigan State Police v. Sitz:

No one can seriously dispute the magnitude of the drunken driving problem or the States' interest in eradicating it.

...

Conversely, the weight bearing on the other scale-the measure of the intrusion on motorists stopped briefly at sobriety checkpoints-is slight.

When you apply the same sort of balancing to airport screenings, you cannot just assume that the searches are only a slight intrusion.

Yes, the government has a serious interest in preventing terrorism, but that doesn't mean that they can do whatever they want as long as they tell you about it beforehand. Their response still needs to be proportional and limited in its intrusiveness. In Sitz, the Court determined that the brief stops at a checkpoint were only slightly intrusive, because they only interfered with the average person in a minimal manner. However, "enhanced" pat downs are not the same thing as a brief stop at a motor checkpoint. They are far more intrusive.

But you aren't addressing that. The most you will say about the intrusiveness of the searches is that people should just avoid them by going through the scanners. Except that you can't just force someone to "consent" to an intrusive search because (for one reason or another) they are unable to go through the less intrusive option given. (For example, someone confined to a wheelchair cannot use the scanners. If the only option that the TSA offered was the intrusive pat downs, they would almost certainly be considered unconstitutional on the level of intrusiveness alone. Why, then, is it valid to compel some individuals to undergo those intrusive searches because they are unable to use the less intrusive option? Does someone in a wheelchair have less of a 4th Amendment right to privacy than someone who isn't disabled?)

Until you can actually address the level of intrusiveness, you've basically ignored the core of the issue.

Kimball Kinnison

 

Lowbacca_1977 wrote: "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)"

I notice that no one has challenged Lowbacca's info so I'll assume that what he says is correct. With that said, I believe that this naked body scanning and enhanced pat-down (groping and squeezing, etc.) nonsense is NOT being done for the reason of catching brown-skinned Muslim "terrorists" wearing "rags" on their heads or any other kind of "terrorists" for that matter, but to dog-train the American public into accepting government tyranny and repression.
What's worse is that this is going on in COURTHOUSES as well. Imagine the outrage of having to choose between being subjected to a virtual strip search or being groped and molested when having to report for JURY DUTY of all things!! And it's not as if jury duty is an option, either!! As Ron Paul says, when are we going to stand up and say enough is enough? How about if everyone reporting for jury duty on any given day stood outside the courthouse and protested the groping and the body scanning and REFUSED to go inside! What a concept! We also need to start suing the TSA for civil rights violations and get criminal indictments of TSA employees. These TSA employees need to be charged with sex crimes and dealt with accordingly (jail/prison time and registering as sex offenders). After all, they AGREED to do these things as a condition of their employment. Do we have the backbone to start doing these things or do we just roll over and accept this brutal, repressive Soviet style tyranny? Nikita Khruschev said (in the 1950's when it was called the Soviet Union)"We will bury you!" Well, it certainly looks like they have, doesn't it? Remember, those who would trade freedom for "security" deserve (and will get) NEITHER!

 

KK, you misssing my point. The Sitz case in Michigan was a big in the law enforcement realm regarding temporary checkpoints. The Sitz case didn't address actual search methods or rules for such checkpoints, it merely established that they weren't intrinsically a 4th Amendemnt violation. But that's because DUI checkpoints are an offshoot of the criminal enforcement action that the government undertakes. You need probable cause to make a DUI arrest, and the sobriety checkpoint is a method to develop that probable cause, which is why the details of that case fell like they did. It has very little to do with what were talking about here. There are numerous other court decisions that relate to fixed checkpoints that have nothing to do with enforcement action. But what you can't do is look at a case like Sitz, conclude that since it's a 4th Amendment case, that it must apply.

Security checkpoints don't need reasonable suspicion, probable cause, or anything like beyond a shadow of a doubt to exist, as those are all specific legal concepts. That doesn't mean that airports are Constituional free zones. You could even compare and contrast the differences in the government's responsibility inside of an airport. An undercover DEA agent, for example, still needs articulatable grounds for anything more than a consensual stop. He'd need probable cause for a full search and arrest. But that's the standard that exists for criminal procedure and/or enforcement action. None of those exist at the TSA checkpoint that might sit 15 feet away inside of the same airport. Your assumption that the enhanced pat down, by its nature, is automatically a civil rights violation is false. However, you are correct in that enhanced pat downs could be ruled unconstitutional by some authority, but it's not an automatic idea, and not for the reasons you're indicating. A court authority could also uphold the scanners and/or pat downs. That's the nature of the law.

 

Source.

 

Except that the part that I quoted does apply. It was the Court's summary of the balancing test for determining whether a specific search is "reasonable" under the 4th Amendment. Or are you arguing that at an airport security checkpoint, that balancing test no longer applies? If that is your argument, then please post your legal authority for that claim.

Again, you are distorting my arguments.

Let me put this in plain English for you. I AM NOT CHALLENGING THE CONSTITUTIONALITY OF AIRPORT SECURITY CHECKPOINTS. I am challenging the constitutionality of a specific type of search that has recently started being used at airport security checkpoints. That makes for a very big difference. Even at a checkpoint, the searches performed need to be "reasonable" to be allowed under the Constitution. That means that they need to meet the balancing test weighing both government interest and personal privacy.

Nowhere has the Supreme Court ever ruled that searches at a fixed checkpoint are inherently reasonable merely because they are at a fixed checkpoint. In fact, they have repeatedly applied the balancing test in those circumstances. For example, consider this summary from US v. Martinez-Fuerte:

The Fourth Amendment imposes limits on search and seizure powers in order to prevent arbitrary and oppressive interference by enforcement officials with the privacy and personal security of individuals. See United States v. Brignoni-Ponce, 422 U.S. at 422 U. S. 878; United States v. Ortiz, 422 U.S. at 422 U. S. 895; 387 U. S. 528 (1967). In delineating the constitutional safeguards applicable in particular contexts, the Court has weighed the public interest against the Fourth Amendment interest of the individual, United States v. Brignoni-Ponce, supra at 422 U. S. 878; Terry v. Ohio,@ 392 U. S. 1, 392 U. S. 20-21 (1968), a process evident in our previous cases dealing with Border Patrol traffic-checking operations.

When you look farther to the cases that the cite (particularly US v. Brignoni-Ponce, which references Almeida-Sanchez v.

 

Okay, so you sacrifice some liberties for safe air line travel. And yes, this is my opinion, the argument that it is not a violation of my civil rights has been well argued and well thought out, but I still do not subscribe to it. On this point I choose to respectfully disagree.

That being said, the air line issue is a knee jerk reaction as I stated before and it's a poorly thought out one and one that is being executed in entirely the wrong direction. If you look at the countries that deal with terrorism on a daily basis, it is not the air lines that are being targeted but other forms of mass transportation and places of assembly. So, we allow the knee jerk for the air ports. Then somone in Washington finally figures out what the real trends are in terrorism and what then? Do we now knee jerk and you have to go through a pat down on the street or a body scanner at any cross walk? Because you know, your walking near a hotel and they seem to be popular targets lately in other parts of the world. Or, you are going to walk past a side walk cafe', and because those have been blown up with great regularity do we now pat down anyone within fifty feet of it? How far does it go and when does it stop?

this link while not totally inclusive does give you with a broad stroke a decent idea of the number of casualties by terrorism and the method. I caught an airline reference TWICE. Again, going back to what I posted earlier, it goes back to properly staffed and trained people, and some actual police work to stop these things from happening and by having open communication between all the "alphabet" agencies that are responsible for this. If you haven't read the 9/11 commission report, please do and marvel at how many times the ball got dropped there. These guys could have been stopped before they got on the airline.

Lastly, as far as US Terorrism goes there was a poster whom specifically singled out arabs or arab looking/muslim people. that falls under racial profiling. With all do respect to that post, with the exception of 9/11 and the original WTC bombing the vast majority of the events that could be classified as terror were carried out by white men.

 

The TSA humiliated a cancer-surviving flight attendant today by forcing her to show her prosthetic breast.

Who here thinks that's okay? Who wants that to become a part of our lives, something we tolerate as if it were normal or sane? How much more humiliation do we plan to take here? How much more?

 

It should be obvious I don't have a position on this. I'm not psychologically dismayed personally about being groped a bit in the name of security, and I honestly don't know how this would come out if it came up for SC review.

But I think it's important for the government to address all of the following:

1. Provide high level radiologists/nuclear medicine experts to discuss the potential health consequences of the scanner technology publicly.

2. Get an independent assessment through surveys, focus groups, interviews, etc., of the range of psychological reactions to the enhanced pat downs and people's fears about radiation exposure and make this process fully transparent and public.

3. Provide a public high level legal review from the Justice Department and independent 4th amendment experts of the constitutionality of the procedure.

4. Provide a public report (and really publicize it through media talk shows, PSAs, etc.) about what makes this procedure absolutely necessary for security and provide detailed information about what alternatives were considered, etc.

5. Really consider providing some kind of streamlined pre-check clearance to ease the burden on frequent fliers who are the backbone of airline profitability.

All this needs to be aired transparently and publicly.

When we talk about objectivity of journalists re that other thread, this is where it would be so useful if the press would try to actually do its ******* job.

 

And here we go: TSA pat-down leaves bladder cancer survivor covered in urine

So, scanner catches anomaly (his urine bag). He gets selected for patdown. He tried to tell them of his condition and his bag, but they said they didn't need to know. And then during the pat down they break the seal on the bag and he got covered in urine. He couldn't clean himself until he got on the airplane.

Ridiculous.

 

"But if this country is going to sacrifice treating people like human beings in the name of safety, then we have already lost the war."
From that article of Vivec's, it's a great quote.

 

Well, it's not very hard to give-up treating people like humans when that's what our culture has done already. As a society we've already made electronics and cars and clothes more valuable than people. So this is just the logical next step.

Obama calls pat-downs frustrating but necessary. Good to know he comes down on the side of airport theatre. He's a nice patron of the arts.

 

Obama - change we can pretend in

 

A boycott could make a huge difference.

Just by boycotting the body scans and opting for the pat down, a small number of boycotters could bring security lines to a standstill.

Security protest could disrupt Thanksgiving travel

This is democracy in action. If you're traveling on Wednesday, I'd urge you to participate. I'm sure TSA will do an end run by suspending the procedure through the holiday weekend.

Up to 20 percent of holiday fliers will be asked to use the full-body machines ? meaning tens of thousands could be in a position to protest.

As I posted above, committed frequent flier travelers could easily bring this new procedure down.

So if you oppose this policy, get on Facebook, get on Twitter, and spread the word about National Opt-Out Day this Wednesday. Participating is completely legal, you are simply exercising your choice under the new policy. Take a grope for the good of the group.

 

http://www.langerresearch.com/uploads/1118a1%20Airport%20Security.pdf
ABC poll on support now, and things are going in right direction, it seems.

64% support scanners and 32% oppose them. 48% support the pat downs and 50% oppose those.

More noteworthy, people that fly once a year or more support scanners by 58% and oppose it by 37%, while 44% thought the pat downs were justified and 54% thought pat downs aren't justified.

Additional note, 2/3rds of people are not worried about terrorism, and it looks like 20% say that this will make them travel less, and 10% say this will make them travel more.

 

Professor Peter Rez at Arizona State University has calculated that he chances of a single scan causing someone cancer is one in 30 million.
According to some articles, 20% of fliers will be asked to go through these scans this Thanksgiving. Based off of 2008, 756.4 million people flew on US airlines. That means with those statistics, in a given year, we'd expect 150 million people to be scanned, and of those, 5 would get cancer each year with the scanners.

The chances would be 20% that any particular terrorism attack would be caught with those scanners, roughly, and then on top of that, for comparison, in the last decade, there has not been any deaths in the U.S. on an airplane from an explosion that would have been prevented by these scanners.

 

Mr44, how does it feel knowing your policies are helping the terrorists win?

Link.

 

Mr Hand says "if you're here, and I'm here, then doesn't it make it our policies?"

That's just silly though. And I could give you an in depth lecture about what I've personally sacrificed if I thought you were even remotely serious.

Until then, I've said that a pat down or a scanner isn't that big of a deal because that's what we have. You can simply walk through a scanner and not be obsessed with security just as easily as you can refuse to walk through a scanner and be obsessed with the down fall of civil rights, and every degree in between. The Israeli method that's been touted around here relies on paying armed guards and investing in trained interviewers. While not as expensive as 5 figure scanners, the Israeli method also works better on a smaller scale, and is just as invasive. If the US wanted to have a serious dialog on security and what it means, fine. But every method involves costs.

 

The problem I have with your inane 'it's no big deal' view is that it is a very big deal. And if people keep saying, "It's no big deal," then it's never going to be fixed or even stopped. So, while it may not be a big deal in this instance in your mini-fascist little view; it will eventually lead to a very big deal. People are being treated like criminals and being abused by TSA employees. Don't you even have a 'Hey this is ****ed up' gene? A bull**** detector of any sort?

Oh hey, look: "Q: Is this security theater?" "A: 100 percent. It won't catch anybody.". And this is a security expert saying that. So, I am glad you're sticking up for the right to treat other Americans like prisoners in their own country, I do think you're way off the mark and misguided. Way out of the universe misguided.

By the way, I do not read Reason hardly at all since they're so stupid they make the Drudge Report look respectable, but even when these idiots are against something then maybe there is a reason to be so concerned.