I've been watching the continuing TSA debacle unfold but haven't had the time to give it serious thought until lately.
I'm not a lawyer and don't profess to be but I was a Police Officer for a long time. As such I do know a thing or two about searches, both the justification for and the mechanics of.
The primary rule on searches is the 4th Amendment. Read that link and take a look at some of the rulings quoted in the body of the article, especially this one:
Chambers v. Moreny, 399 U.S. 42, 51 ('70). Because '[t]he integrity of an individual's person is a cherished value in our society, searches that invade bodily integrity cannot be executed as mere fishing expeditions to acquire useful evidence: 'The interests in human dignity and privacy which the Fourth Amendment protects forbid any such intrusions on the mere chance that desired evidence might be obtained.' Schmerber, 384 U.S. at 772, 769-70.
A 1968 Supreme Court ruling governs what are commonly referred to as Stop and Frisk or Pat Down searches (also called Terry Searches) of people where probable cause to arrest does not exist is Terry vs Ohio. For their own protection, police may perform a quick surface search of the person’s outer clothing for weapons if they have reasonable suspicion that the person stopped is armed. This reasonable suspicion must be based on "specific and articulable facts" and not merely upon an officer's hunch. Terry vs Ohio is an interesting read and a good example of the kind of police work we should expect from all of our law enforcement officers and agencies. A Terry Search is an exterior check for weapons, not a 'check the package' search required subsequent to a probable cause arrest.
So, for most situations where authority wants to initiate a search of your person they need Probable Cause, a Warrant or Reasonable Suspicion with clear and articulable facts that those to be searched are either engaged in or have been/will be engaged in immediate criminal activity. These are constitutional or well established and long standing case laws that govern what the government may do and how they must do it.
I think the requirements, case law, and outlines are pretty clear. Government is restricted in it's ability to conduct searches. You can go through the law and find cases involving involuntary blood draw, exigent circumstances and the like but the overarching concern for 4th Amendment rights is always present, even when exemptions and modifications are granted by courts. By courts are the key words.
One argument in favor of intrusive airport searches is that there is no requirement to fly. Don't want to go through the process? Fine, drive, take a train, boat, etc. Except that's a specious argument. There are many who must travel as a requirement of their job, including but not limited to airline pilots. Their choice is to submit or lose their employment. I want to go to Hungary to visit my daughter and grandchildren. Must Lu and I submit to current TSA screening searches prior to being allowed to exercise our rights as citizens and freely go where we please?
A second is that it's 'not that bad and it's for the public good'. Well, I've conducted my share or searches, both of the pat down and more intrusive varieties and I can confirm that they're anything but 'not that bad'. Every time a governmental agency searches a citizens person it's a seizure and an intrusion and the people being searched are keenly aware it is so. Even the criminals hate them and not just because I'm about to discover that crack rock in his pocket that he has no idea how it got there. It's just a bit dehumanizing. Searches are often necessary and justified and when so they must be carried out as emotionlessly, professionally and thoroughly as possible but they cannot be random.
Lastly, and it's the kicker, in 1973 the 9th Circuit Court ruled in U.S. v Davis that airports were allowed to conduct administrative screenings. It reads in part “noting that airport screenings are considered to be administrative searches because they are conducted as part of a general regulatory scheme, where the essential administrative purpose is to prevent the carrying of weapons or explosives aboard aircraft.” They also noted that the search 'must be no more intrusive or intensive than necessary...' Clearly Homeland Security and the TSA are taking this ruling as far as they think they can get away with. What is going to be needed is a challenge to Davis to either set it aside or modify the ruling. Either that or an understanding by the administration that a lower level of initial screening is reasonable with a more intensive and intrusive search only where probable cause or specific and articulable facts exist to justify such.
Let's talk about the mechanics of a search. Essentially there are 3 types. There may be some differences among the various departments out there but these are representative of the basic policies and procedures all agencies should be following.
-Pat down/Terry. A pat search of the outer clothing for weapons. Illicit substances may be seized if the officer can articulate how he knew what the object was by feel and inference. Deep search, including checking the package are not allowed.
-Subsequent to an arrest. This is where check the package comes in but groping and cupping are strictly forbidden. Normally the search is done by quadrants starting at one side of the upper front of the body and continuing to the leg areas and then switching sides. When the groin area is searched the hand is laid flat against the inseam and then moved upward so the edge of the hand only comes into contact with package area. Bras are searched similarly where only the leading edge of the searching hand is used to bisect the breasts. Cupping either area is considered to be sexual battery. Clothing in non sexual areas is grasped and checked carefully but care is taken to avoid contact which can be misconstrued or crosses the line. If there is further probable cause that contraband exists where the arrest search cannot find it then a strip search may be authorized but that's so rare I never conducted one outside the correctional institution where I started my career. Even then they are always carried out at a jail and in the presence of multiple officers including a supervisor.
-Correctional institution. This is where you find routine strip searches. Anyone sentenced to a correctional facility, whether at the federal, state or local levels will be strip searched when they enter the facility, any time they have been outside the facility confines or when the staff suspects contraband has been introduced and is hidden in a body cavity. Keistering is the phrase most often used and needs no further explanation. Even then no physical contact is made with genitalia. If such needs to be done, for instance to remove a secreted object, it is either removed by the inmate or done at an approved medical facility by medical professionals. Never by staff. The reasons are obvious.
You will find things like metal detectors at government buildings, large auditoriums and the like but they are generally considered non-invasive and not really searches as such.
In my opinion the TSA and Homeland Security are exceeding their legal and moral authority. It shouldn't take more case law to introduce common sense and reasonableness into their thought processes but that is exactly where we're heading. If a police officer can't do it to you why should a poorly trained TSA agent be allowed? A fishing expedition is a fishing expedition no matter who's casting the lure and the 4th Amendment exists to protect our rights regardless of the administrations reading of Davis. The rules need to be modified and the TSA staff better trained and screened. Barring that I'm on board with San Mateo County DA Steve Wagstaffe. Incidents of inappropriate touching should be prosecuted as what they are, sexual battery.
I won't criticize without putting forth a possible solution. You need look no further than that Terry vs Ohio case. The officer was a 39 year veteran with 35 as a detective. He was smart, well trained, observant and very experienced. He noticed suspicious activity, watched the men and compiled a list of the specific and articulable facts that led him the the correct conclusion that Terry and his fellows were up to no good. Please note that the third subject, the one without a weapon, was subjected to no further action by the detective.
And that is the answer. Having the TSA staffed by folks no reputable law enforcement agency would touch is insanity. Instead how about this;
There is a wealth of experience out there, both police and military, currently being under utilized. I'm speaking about those who, like me, have put up their uniforms and settled into a life a little less exciting. We have the maturity, education and experience the TSA is crying out for. We'll even work at cut rates. Hell, I'll volunteer. I'll to go to any airport they need me at and I'll work for free. I don't need a salary, I don't need benefits and I don't need a union.
Let's add in another ingredient to our TSA stew. Dogs. I've worked with narcotic and bomb detection dogs and they're pure magic. How about we crank up the procurement machine and put out a request for bids and get a whole bunch more detection dogs out there working our airports. I mean a lot more. Like 2 or 3 orders of magnitude more. Dogs are relatively inexpensive (especially as compared to the unionized TSA) and far more reliable than back scatter scanners being operated by the incompetent and physical searches being conducted by their more morally ambiguous colleagues.
Bring back the metal detectors and x-ray machines for bags. Do more invasive searches only on those you have reasonable suspicion needs further scrutiny.
Will it work? I don't know. Could it work? Absolutely. Don't take my word for it. Ask any retired military or police officer you can find and ask them if they'd be willing and if they could handle the job. If you can't get a 90 percent "Hell Yes!" I'll eat my badge.
Here's the real truth about airport security. Airport screening will catch only the morons and the incompetent. I hate to say this but the truly smart crooks rarely get caught and then usually only by dogged work, a fortuitous break or a mistake. Even then the apprehension almost always occurs at a time and place away from the actual crime scene. I've put a lot of criminals behind bars and, with a few notable exceptions, they were invariably drunk, stoned or stupid.
The real work is done by Intelligence (I'll add detectives to this because they serve many of the same functions) and is done far away from the airline gate. To stop a smart and aggressive opponent it is necessary to intercept him before the attempt is made. We need to stop the bombers and hijackers in their homes and labs, not as they attempt to board.
The Romans understood this dilemma well. They knew that the key to the long term health of their nation and people was their ability to keep the roads open and safe for the free passage of goods and people. When they lost control of their roads they lost control of their empire.
Our skies are the roads that we depend upon. Don't think so? Try and run a business larger than one confined to a single general locality without the ability to hop on a plane and go visit suppliers, customers, investors, etc. Try to imagine a vibrant economy with brisk overseas business ties limited to the speed of an ocean liner. Consider the limitations to education and career opportunities if coast to coast travel was strictly limited to train and automobile.
We are in danger of losing control of our roads. Already the outcry is reaching a fever pitch and people are refusing to fly. Yet the TSA and the government, aside from providing a few reluctant apologies and explanations, show no signs of backing off. It's time for a new solution. It's time for the government to recognize that safety can never be assured but that reasonable and effective precautions can be taken at less cost to our personal freedoms than is currently embodied in the TSA.