TSA idiots cause diplomatic incident

[Simon_Jester]

All good points. I'd say the TSA security policy is simply so that if something happens the politicians can say "We tried".

This being the case, I'd say that patdowns and nude imagery of people getting on planes cross the line.

A certain amount of bureaucratic and political ass-covering is acceptable, but there has to be a limit on how big a burden of discomfort the government is allowed to drop on the people in the name of looking good to the people. They should not be allowed to make Aunt Hilda's life miserable for the sake of convincing Aunt Hilda that the government is doing a good job of watching for terrorists. Especially when the things affecting Aunt Hilda have very little to do with catching terrorists more efficiently.

Even if they manage to get away with doing it, they shouldn't; in a system with proper oversight they wouldn't.

I'd say the way they are executing this security is unjustifiable. The security itself is justified. The security needs to be more consistent with clear guidelines and policies. The government is in a bad position when it comes to airline security. You have the potential for a huge loss of life and property damage if you fail. The problem is the US government is pretty much experts and jumping from one extreme to the other and appears to be unable to find a rational solution.

When you say "the security," what do you mean? Do you mean having any airport security? Metal detectors? Israeli-style security staff who do a quick interrogation of everyone getting on the plane?

Or do you mean security that takes naked pictures of people getting on planes? Security that involves sexually harassing passengers who don't want naked pictures taken, or who have medical implants that ring alarm bells on the naked-picture scanner?

Or do you mean both?

The measures that the TSA takes in the name of airport security are inseparable from their overall approach to the problem of airport security. As long as they choose technological solutions over human judgement, as long as they are not required to answer to outsiders for violations of passengers' rights, and as long as they are under more pressure to deliver security theater than actual security, this is what we're going to get.

[Sute]

Ars Technica had an article on it. Can't find it immediately. But all you have to do is read between the lines. Its our legal right to opt out of the scanners. But when TSA condems the opt out as being irresponsible, it doesn't take a genius to figure things out. They want you in the scanner and everything is designed to encourage you to use the scanner. So the "enhanced" pat downs are nothing but a tool to humiliate you.

I think the article you want is this one. If I'm reading it correctly, though, the quote about the point being to humiliate people came from another reporter, not any TSA official.

[TimothyC]

It's getting worse:

Capt Amarinder condemns Hardeep Puri’s frisking in US

Punjab Newsline Network
Tuesday, 14 December 2010
CHANDIGARH: The Punjab Pradesh Congress Committee President Capt Amarinder Singh today condemned the frisking of Hardeep Puri, India’s permanent representative to the United Nations in the US.

In a statement issued here today, Capt Amarinder Singh maintained that it was highly commendable that a senior diplomat from India had been subjected to frisking and pat-down search and even asked to remove his turban. “Asking Mr Hardeep Puri, a Sikh to remove his turban is highly condemnable and unacceptable”, he said.

The PCC President observed, it was not for the first time that such humiliating incidents had taken place in the US. He pointed out earlier the Indian ambassador to the US Meera Shankar was also subjected to such search. Prior to that our former President APJ Abdul Kalam was asked to remove his shoes and George Fernandez as Defence Minister of India was subjected to similar treatment, he pointed out.

Capt Amarinder asserted that the United States must have due and reciprocal respect for the largest democracy in the world and its representatives. They need to learn the lessons of diplomatic protocol, he observed.

Ok, the guy in Alabama obviously is going to need help cleaning the runway at Thule, and we've got another volunteer!

[General Zod]

In a statement issued here today, Capt Amarinder Singh maintained that it was highly commendable that a senior diplomat from India had been subjected to frisking and pat-down search and even asked to remove his turban. “Asking Mr Hardeep Puri, a Sikh to remove his turban is highly condemnable and unacceptable”, he said.

I can't tell if that's a mistranslation or a typo.

[Phantasee]

That's a typo. The direct quote after says 'condemnable'.

[Kamakazie Sith]

Based on the law I've quoted and the normal yardstick that whether or not sexual abuse/harrassment having occurred be the perception of the victim, then yeah, they are.

No, they aren't. We'd be able to go back in forth on this all night. I understand your point about there being no recourse for anyone who is a victim of abuse. However, I find it just as unacceptable to label people that perform their job with intergrity as sexual offenders. Sorry, that's just where you and I differ.

I certainly don't agree with the new policies...but it is the policies and the administration that I would go after.

Saying that it has to be this way to make the government look like it's done all it's can doesn't worry. Aside from the fact that other countries manage to do very well in worse conditions without this (read: Israel), such a complaint reminds me of a quote in Futurama:

"And then all 8000 hulls were breached."
"Those fools! If only they had built 8001 hulls! When will people learn?!"

Israel doesn't have the type of civil lawsuit insanity that the US does. Where you can sue someone, or an entity, for being unable to stop someone else.

If a terrorist attack actually manages to work, which is statistically unlikely and was even before 9/11, people will ALWAYS say more could have been done. The TSAs very creation was a result of this. Yet that isn't a rational basis for its creation and certainly not a rational basis for sexually abusing people trying to fly. You object to this, saying that you don't believe the process is malicious, but you never really answered how you tell the difference.

No, I do object to the searches because you can't tell the difference and they don't accomplish any more than less evasive searches do. I just object to your slander of an entire workforce.

You say TSA guards should be monitored, but if a TSA guard legitimately does act maliciously during one of these "enhanced pat downs", how does the MONITOR tell "sexual abuse" from the TSA guard "doing his job despite an overly sensitive traveller"? You don't seem to put much stock in the preception of the victim here, but it looks like the courts may, as lawsuits against the government over these things are starting to pile up.

I imagine there is an establish training on how to search. For example, male police officers are taught how to search females when the situation comes up that a male has to search a female but no female officers are available. You use the backside of the hand for example and when searching the chest area you use the thumb straight down the sternum. If a police officer was searching the chest area with his fingers and palm of his hand...to another trained police officer he is violating that person.

You don't want the government to look like it's being soft on terrorism, but how do you feel about the government looking like it has been propping up an organization of thieves and sex offenders?

No, I don't care how people perceive the government. I'm just sick of the lawsuits that come up because the government failed to stop a madman. Sorry...that's life. Sometimes the bear gets you.

Ahh that's sarcasm there! Well played, sir.

The last part is, but the first part is deadly serious. I am legitimately worried about the safety of my fiance when I drop her off at the airport in January, but not as worried as she is. It really does bother me that she could be selected for one of these "enhanced pat downs" and she could be sexually abused by a security guard, at which point we'd have absolutely no recourse whatsoever, since even if it was witnessed by a crowd of people, the TSA guard can claim that he was merely doing his jod and not a single person could tell the difference. It bugs me that chances are I'm not going to be able to walk her to security to make sure she's unharmed by the people who are tasked with the job of keeping her safe.
[/quote]

Right, I apologize. I understand your concern. I share it.

How fucked up is that, KS? It's pretty damn messed up that the TSA are a MUCH bigger threat to my future wife's well being than ANY terrorist. I know that no terrorist is going to attack a plane from Tucson to Pittsburgh, but I DON'T know that some asshole TSA guard isn't going to add her to the (almost certainly under-reported) list of 1 out of 4 women in the US who have been sexually assaulted in some way.

It's unacceptable. That's how fucked up it is. However, I still object to the preceived malicious intent. This is the government trying to cover all of its bases in typical government fashion.

[Kamakazie Sith]

And they can do that with any security measure ever devised, in any venue, at any point in time. "Why didn't you trap your air-ducts? My husband is dead, and you did not trap your air-ducts!"

Yeah, they do. It just becomes harder to sue and win when you've done all you can.

Of course security is justified. I am not saying that we dont need security at airports, just that these ever more insane methods are unjustified. Forget how they are instituted, the marginal value of safety provided by their monetary, psychological, and social costs is not justified. Why examine someone's prosthesis when a well-trained dog will do a better job?

I completely agree.

Only the ones that do enhance pat-downs. Answer this. If a cop did that sort of search to me at a traffic stop, without any indication that I was dangerous, would I be able to file civil and criminal charges? I am pretty sure I could--blue wall not withstanding.

If you gave your consent...no, you would not.

Ok. Metal detectors are fine, hell, they even work over clothing. Those should detect the vast majority of weapons. Chemical sniffing by both a computer and dogs, perfectly reasonable, and you dont have to feel around someone's dangly bits for the dog to do its thing. Everyone has had their crotch sniffed by a golden retriever, beagle, or german shepherd at some point and thus, the friendly inquisitive dog should not be a problem. No one ever feels like a dog has molested them... unless they know people who are into those things, and the new years eve party gets a little out of hand.

Yeah, all those should take care of any potential risk. Though if someone ever manages to come in with something that defeats those countermeasures then you'll probably have a serious lawsuit on your hands.

Just in case it isn't clear. I do not support the current TSA practices. I just understand why they do it. Until the rabid lawsuits go away in the United States where we can sue video game companies for crazy kids, etc you will see heavy almost oppressive security for transportation methods that pose a risk of massive loss of life and property.

[PeZook]

Ok, the guy in Alabama obviously is going to need help cleaning the runway at Thule, and we've got another volunteer!

You know, it's not really all that clear cut. I checked the relevant convention (The 1967
Vienna Convention On Diplomatic Relations), and it holds two relevant artiles:

Article 26
Subject to its laws and regulations concerning zones entry into which is prohibited or regulated
for reasons of national security, the receiving State shall ensure to all members of the mission freedom of movement and travel in its territory.

Article 29
The person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest
or detention. The receiving State shall treat him with due respect and shall take all appropriate steps to prevent any attack on his person, freedom or dignity.

They seem somewhat contradictory - members of the mission should be granted freedom of movement, but be subject to laws and regulation regarding national security (which means airport screenings), on the other hand their persons are inviolable.

I guess the people who wrote the convention did not foresee such paranoid insanity as this, though it was still customary until a few years ago that diplomats were nevertheless exempt from large parts of these regulations: to the point that spies with diplomatic cover couldn't be arrested!

But I guess that what applied to Soviet diplomats backed up by thousands of nuclear warheads and 15 000 tanks on the border of West Germany doesn't apply to India circa 2010. One would also think that training for such an occurence shouldn't be something difficult: "This is how a diplomatic passport looks like ; People with it shouldn't be patted down. If you need to verify a diplomatic passport, call this number.", which makes the entire incident utterly mind-boggling.

I mean, she's not even hot ; So we can rule out creepy motivations like "HURR HURR I CAN MOLEST A HOT CHICK LAWFULLY".

[Thanas]

International law is also ius communis, which means that even if the Vienna convention does not prohibit such searches (I think it does, but let us stipulate that it does not), the USA may still be bound by legal tradition and decades of usage to not enact such searches.

[PeZook]

Yes, exactly. Also, some more quotations from the convention:

Article 30
1.The private residence of a diplomatic agent shall enjoy the same inviolability and protection as the premises of the mission.
2.His papers, correspondence and, except as provided in paragraph 3 of article 31, his property, shall likewise enjoy inviolability.

Article 31
1.A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State.
He shall also enjoy immunity from its civil and administrative jurisdiction, except in the case of:
(a) A real action relating to private immovable property situated in the territory of the receiving State, unless he holds it on behalf of the sending State for the purposes of the mission;
(b) An action relating to succession in which the diplomatic agent is involved as executor,
administrator, heir or legatee as a private person and not on behalf of the sending State;
(c) An action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions.
2.A diplomatic agent is not obliged to give evidence as a witness.
3.No measures of execution may be taken in respect of a diplomatic agent except in the cases
coming under subparagraphs (a), (b) and (c) of paragraph 1 of this article, and provided that the measures concerned can be taken without infringing the inviolability of his person or of his residence.
4.The immunity of a diplomatic agent from the jurisdiction of the receiving State does not exempt him from the jurisdiction of the sending State.

Article 36
1.The receiving State shall, in accordance with such laws and regulations as it may adopt, permit entry of and grant exemption from all customs duties, taxes, and related charges other than charges for storage, cartage and similar services, on:
(a) Articles for the official use of the mission;
(b) Articles for the personal use of a diplomatic agent or members of his family forming part of his household, including articles intended for his establishment.

2.The personal baggage of a diplomatic agent shall be exempt from inspection, unless there are serious grounds for presuming that it contains articles not covered by the exemptions mentioned in paragraph 1 of this article, or articles the import or export of which is prohibited by the law or controlled by the quarantine regulations of the receiving State. Such inspection shall be conducted only in the presence of the diplomatic agent or of his authorized representative.

So it's not just the person of a diplomatic agent who's inviolable, they enjoy all sorts of protections including explicit prohibitions against searching their luggage, and their property is also inviolable.

Anyway, conventions and lawyering aside, it's just a really low-class thing to do all around, and it would've taken all of five minutes of training to adress the issue which isn't even uncommon: how come all sorts of Indian officials are regularly subjected to these damn pat-downs?

It would've caused no terror incidents to let former Indian presidents, ambassadors and representatives to the UN go through security unmolested, and the US would look slightly less thuggish.

[TimothyC]

But I guess that what applied to Soviet diplomats backed up by thousands of nuclear warheads and 15 000 tanks on the border of West Germany doesn't apply to India circa 2010. One would also think that training for such an occurence shouldn't be something difficult: "This is how a diplomatic passport looks like ; People with it shouldn't be patted down. If you need to verify a diplomatic passport, call this number.", which makes the entire incident utterly mind-boggling.

Exactly. I honestly think that these agents stupidity needs to be punished so that other agents don't do this in the future.

[PeZook]

Hah! Turns out we've talked about the Vienna conventions a lot during my International Law 101 course. According to my notes (they may be wrong, of course), the correct way to interpret Article 26 when it collides with 29 is such: the diplomat is subject to all laws and regulations of the host country, except those explicitly spelled out in the convention.

Now if I understand it corretly (and again, I have to stress it, I may be wrong/have outdated knowledge/misinterpreting something), this means that security regulations apply to diplomats as long as they don't mean violating other articles like 29, 30, etc during enforcement.

So "You have to carry ID with you" applies. "Everyone has to subject to a strip-search at our airports" or "We confiscate all luggage" doesn't.

[Molyneux]

Only the ones that do enhance pat-downs. Answer this. If a cop did that sort of search to me at a traffic stop, without any indication that I was dangerous, would I be able to file civil and criminal charges? I am pretty sure I could--blue wall not withstanding.

If you gave your consent...no, you would not.

So how would you feel about a government statement that anyone choosing to drive a car gives consent to police strip-searches at any time?

[Simon_Jester]

You know, it's not really all that clear cut. I checked the relevant convention (The 1967 Vienna Convention On Diplomatic Relations), and it holds two relevant artiles:

Article 26
Subject to its laws and regulations concerning zones entry into which is prohibited or regulated for reasons of national security, the receiving State shall ensure to all members of the mission freedom of movement and travel in its territory.

Article 29
The person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention. The receiving State shall treat him with due respect and shall take all appropriate steps to prevent any attack on his person, freedom or dignity.

They seem somewhat contradictory - members of the mission should be granted freedom of movement, but be subject to laws and regulation regarding national security (which means airport screenings), on the other hand their persons are inviolable.

I think normally, Article 26 would be read to refer to specific secure areas, not to the entire country. Diplomats should have freedom of movement through the nation in general, but not into areas where classified documents are stored or the like.

The really interesting precedent is how diplomats are treated in nations with strict internal security regulating the movement of their own citizens- like the old USSR during parts of its history. The US is moving in that direction with the TSA, so those are the precedents most relevant, I think.

And yes, that is a judgment on us.

Based on the law I've quoted and the normal yardstick that whether or not sexual abuse/harrassment having occurred be the perception of the victim, then yeah, they are.

No, they aren't. We'd be able to go back in forth on this all night. I understand your point about there being no recourse for anyone who is a victim of abuse. However, I find it just as unacceptable to label people that perform their job with intergrity as sexual offenders. Sorry, that's just where you and I differ.

I understand the logic, but if the policy of the TSA is to order its people to commit sexual harassment, then the people on the ground who obey are committing sexual harassment. Just as if the TSA ordered them to steal, it would be making its personnel into thieves if they obey the order.

Now, much of the burden of responsibility for this should lie on the people in a position to say "Do this or lose your job when we hire someone who will do it." Which is the whole point of needing oversight and recourse for victims of abuse. It allows the people who order their subordinates to commit crimes to be punished, rather than having all the decision-making power at the top and all the blame falling at the bottom.

Israel doesn't have the type of civil lawsuit insanity that the US does. Where you can sue someone, or an entity, for being unable to stop someone else.

Could you expand on this a bit? My impression was that, for example, lawsuits against the police because someone robbed my house would tend to fail. Was I mistaken?

If I'm right about that, it wouldn't be hard to cover the TSA under such a precedent. Their duty is to catch contraband being smuggled onto planes, or to catch terrorists, but it is not their duty to catch all terrorists or all contraband. That would be impossible.

Because even with all their procedures they can't catch all contraband; this has been proven. If the TSA is so afraid of being sued for failing to prevent a terrorist attack, the only way they have to avoid it is to more or less ban flying.

Should they do that?

You don't want the government to look like it's being soft on terrorism, but how do you feel about the government looking like it has been propping up an organization of thieves and sex offenders?

No, I don't care how people perceive the government. I'm just sick of the lawsuits that come up because the government failed to stop a madman. Sorry...that's life. Sometimes the bear gets you.

Could you expand on this?

It's unacceptable. That's how fucked up it is. However, I still object to the preceived malicious intent. This is the government trying to cover all of its bases in typical government fashion.

The problem is that the heavy-handed behavior they use to 'cover the bases' is indistinguishable from malice. All they've done is create the public illusion of security at the cost of harassing many travelers, severely humiliating some, and effectively barring quite a few American citizens from flying at all.

How is that different from what they would have done if they were actively trying to screw with people, given that they can't afford to shut down the aviation industry? They might be slightly more oppressive if they were malicious instead of just heavy-handed, but to the lady being groped at the checkpoint it really doesn't make a difference.

Only the ones that do enhance pat-downs. Answer this. If a cop did that sort of search to me at a traffic stop, without any indication that I was dangerous, would I be able to file civil and criminal charges? I am pretty sure I could--blue wall not withstanding.

If you gave your consent...no, you would not.

But can you interpret my driver's license as implied consent to do the search? Implied consent has limits. At some point, a citizen cannot be assumed to have waived their rights before they showed up; otherwise, those rights become meaningless because they're inapplicable in the cases where they actually matter.

How intrusive a search does implied consent let you perform? It lets you a breathalyzer at a sobriety checkpoint, according to the Rehnquist court. Does it let you search the trunk of the car? Does it let you perform a strip search of the driver? So far as I know, it doesn't- the average motorist cannot be assumed to have consented to these things.

Nor can the state just decide "Okay, now one of the costs of driving is that you must consent to having your trunk searched at random checkpoints, and if you keep driving from now on it means you must have accepted this, so it's all right to do it." At a certain point, that just means that the state is unilaterally stripping you of your rights and punishes you for protesting. If that can be done indefinitely, you don't have rights at all; only privileges that it temporarily pleases the state to grant you.

Yeah, all those should take care of any potential risk. Though if someone ever manages to come in with something that defeats those countermeasures then you'll probably have a serious lawsuit on your hands.

Just in case it isn't clear. I do not support the current TSA practices. I just understand why they do it. Until the rabid lawsuits go away in the United States where we can sue video game companies for crazy kids, etc you will see heavy almost oppressive security for transportation methods that pose a risk of massive loss of life and property.

Can law enforcement agencies be sued for the actions of criminals? Again, I really did think the precedents were against that.

If not, it might be interesting to see what happens if someone tries to sue the Treasury over the actions of Bernie Madoff...

[Alyrium Denryle]

If you gave your consent...no, you would not.

And I am pretty sure that I have not. Breathalizer yes, being fondled, groped etc, no. In the case of the TSA, there is no reason to suspect that peoplke HAVE consented. Not when legal precedent for real cops has limited said implied consent.

[General Zod]

If you gave your consent...no, you would not.

And I am pretty sure that I have not. Breathalizer yes, being fondled, groped etc, no. In the case of the TSA, there is no reason to suspect that peoplke HAVE consented. Not when legal precedent for real cops has limited said implied consent.

The TSA also has the authority to pat-down minors for an extra bit of a disturbing angle. They can't pat-down anyone under 13 anymore (in theory), but one interesting question is if a cop would be allowed to pat-down anyone under 18 without contacting their parents first and not get the book thrown at them.

[Simon_Jester]

Actually, Zod, under certain conditions I would support the police's right to search legal minors without parental consent, especially when talking about older teens. And I'm pretty sure Terry v. Ohio extends to minors (I could be wrong; do not take my word for this)

But when talking about police searches, we run into the issue of probable cause and reasonable suspicion.

The TSA searches... I don't know, scores, hundreds, maybe thousands of people in order to find one item of contraband, let alone one item that's being carried on a plane with any criminal intent (and thus might be used to commit a crime other than the act of having a banned item while on a plane).

That is not grounds for reasonable suspicion, let alone probable cause, when we're talking about searching random passengers.

Again, this is my problem: the TSA has moved to a level of scrutiny of passengers that real policemen would have to present specific, individual evidence to justify. They would have to be able to say "I saw this person behaving in suspicious fashion X, therefore I stopped and frisked them."

The TSA claims that it has the power to do this to everyone passing through an airport, without any stronger evidence to justify suspicion than "they want to fly on a plane."

And yet real police are trained to a much higher standard and subject to much more oversight. Even then they are not permitted to frisk random citizens who happen to pass by as the TSA does, or to search their personal effects as the TSA does.

[Kamakazie Sith]

I understand the logic, but if the policy of the TSA is to order its people to commit sexual harassment, then the people on the ground who obey are committing sexual harassment. Just as if the TSA ordered them to steal, it would be making its personnel into thieves if they obey the order.

I'm willing to agree with you if you could actually describe in detail what is involved in these searches. However, so far all we have is assumption. Are TSA agents fondling breasts or cupping testicles? (which is what I think that some of you are thinking) Or are they performing a specifically trained method that has existed within law enforcement for a significant period of time?

Now, much of the burden of responsibility for this should lie on the people in a position to say "Do this or lose your job when we hire someone who will do it." Which is the whole point of needing oversight and recourse for victims of abuse. It allows the people who order their subordinates to commit crimes to be punished, rather than having all the decision-making power at the top and all the blame falling at the bottom.

Agreed.

Could you expand on this a bit? My impression was that, for example, lawsuits against the police because someone robbed my house would tend to fail. Was I mistaken?

We're talking about terrorism...not domestic crime. Post 9/11 the government had to scramble to setup a fund for victims of 9/11 and the agreement was "If you take this money...you can't sue the airliner, the government, etc.) The government should not have had to do that.

If I'm right about that, it wouldn't be hard to cover the TSA under such a precedent. Their duty is to catch contraband being smuggled onto planes, or to catch terrorists, but it is not their duty to catch all terrorists or all contraband. That would be impossible.

Indeed...but the lawsuits aren't able doing the impossible they are about doing the possible. Did you do all you could do to prevent this?

Because even with all their procedures they can't catch all contraband; this has been proven. If the TSA is so afraid of being sued for failing to prevent a terrorist attack, the only way they have to avoid it is to more or less ban flying.

Should they do that?

Right, they can't catch everything. However, they are doing everything that can be done to try and that's the whole point.

The problem is that the heavy-handed behavior they use to 'cover the bases' is indistinguishable from malice. All they've done is create the public illusion of security at the cost of harassing many travelers, severely humiliating some, and effectively barring quite a few American citizens from flying at all.

How is that different from what they would have done if they were actively trying to screw with people, given that they can't afford to shut down the aviation industry? They might be slightly more oppressive if they were malicious instead of just heavy-handed, but to the lady being groped at the checkpoint it really doesn't make a difference.

Agreed.

But can you interpret my driver's license as implied consent to do the search? Implied consent has limits. At some point, a citizen cannot be assumed to have waived their rights before they showed up; otherwise, those rights become meaningless because they're inapplicable in the cases where they actually matter.

No, it does not and here's why. Implied consent for your drivers license only stipulates that you will consent to a DUI investigation. The field sobriety tests and the subsequent chemical test.

How intrusive a search does implied consent let you perform? It lets you a breathalyzer at a sobriety checkpoint, according to the Rehnquist court. Does it let you search the trunk of the car? Does it let you perform a strip search of the driver? So far as I know, it doesn't- the average motorist cannot be assumed to have consented to these things.

Well, the difference between implied consent for drivers is that the officer must have established that you are DUI by your driving pattern or odor, etc. However, after that is done then I can seize blood, breath, or urine. We have people refuse to blow in the intoxilyzer all the time. That's fine. We'll just forcibly take your blood.

Given the information I've read from the TSA articles it seems that something has to happen in order for you to be subject to these enhanced pat downs. Like the metal detector going off.

On the subject of random enhanced pat downs. Yeah, I don't see how anyone could justify that being legal at all. Initially, I thought that TSA was a private organization and therefore would not be subject to the fourth amendment. (that's right. if you have a house party at your home and you decide that every guest will be stripped searched prior to entry...you can do that because you're not the government).

However, that's not the case with the TSA as they operate under Homeland Security.

Nor can the state just decide "Okay, now one of the costs of driving is that you must consent to having your trunk searched at random checkpoints, and if you keep driving from now on it means you must have accepted this, so it's all right to do it." At a certain point, that just means that the state is unilaterally stripping you of your rights and punishes you for protesting. If that can be done indefinitely, you don't have rights at all; only privileges that it temporarily pleases the state to grant you.

No, it can't. However, cars driving on the road and one hundred plus people being loaded into a dangerous missile are two different things. At some point everyone needs to accept the totality of the entire situation. Comparing passenger planes to cars is ridiculous. When many lives are at risk the implied consent is going to be stricter.

[Kamakazie Sith]

If you gave your consent...no, you would not.

And I am pretty sure that I have not. Breathalizer yes, being fondled, groped etc, no. In the case of the TSA, there is no reason to suspect that peoplke HAVE consented. Not when legal precedent for real cops has limited said implied consent.

The implied consent for boarding an airliner and possessing a drivers license is obviously different. Just like when you visit a military installation. If you get in...you automatically consent to a full search of your person and vehicle and you wave your 2nd amendment rights.

[Kamakazie Sith]

The TSA also has the authority to pat-down minors for an extra bit of a disturbing angle. They can't pat-down anyone under 13 anymore (in theory), but one interesting question is if a cop would be allowed to pat-down anyone under 18 without contacting their parents first and not get the book thrown at them.

Yeah. We can pat down anyone that we have cause to believe is dangerous. You're referring to a terry frisk. If your 13 son/daughter is wearing gang colors and a drive by occurred in the area. I can pat that kid down. If I have probable cause to arrest them then I can search them. (The reason being is kids shoot and kill cops...for some reason the media doesn't like to run those stories as much as dogs being shot...go figure)

So you're familiar with the terminology; A terry frisk is just a pat down. We don't go into pockets and we're just looking for objects that resemble weapons.

A search is I'm going into your pockets looking for contraband and weapons.

[Zed]

If you gave your consent...no, you would not.

And I am pretty sure that I have not. Breathalizer yes, being fondled, groped etc, no. In the case of the TSA, there is no reason to suspect that peoplke HAVE consented. Not when legal precedent for real cops has limited said implied consent.

The implied consent for boarding an airliner and possessing a drivers license is obviously different.

Why should it be?

[Kamakazie Sith]

Why should it be?

Well, it isn't a question of why. It is different because it is.

If you're asking for justification. Well, obtaining a blood alcohol sample from an airliner passenger doesn't really have much utility to the airliners. Airliners also carry many passengers per plane so that means many lives at risk in addition to the use of the plane as a weapon. While cars are dangerous you probably aren't going to rack up much of a body count if you crash a car into a building.

In addition to that there are non-lethal ways of stopping people using cars as weapons. Those don't exist for planes and in the event you do use lethal force against a vehicle driver...usually just that driver dies. When you shoot down a plane...everyone dies. Elementary, Zed.

[Simon_Jester]

Could you expand on this a bit? My impression was that, for example, lawsuits against the police because someone robbed my house would tend to fail. Was I mistaken?

We're talking about terrorism...not domestic crime. Post 9/11 the government had to scramble to setup a fund for victims of 9/11 and the agreement was "If you take this money...you can't sue the airliner, the government, etc.) The government should not have had to do that.

But would anyone have been found to have standing if they had tried to sue the airline or the government?

What are the precedents here that make it realistic for the TSA to worry about being held liable for damages if terrorists blow up a plane? Why are they more liable for my cousin Joe's death if Al Qaeda does it than the police are if the mafia does it?

If I'm right about that, it wouldn't be hard to cover the TSA under such a precedent. Their duty is to catch contraband being smuggled onto planes, or to catch terrorists, but it is not their duty to catch all terrorists or all contraband. That would be impossible.

Indeed...but the lawsuits aren't able doing the impossible they are about doing the possible. Did you do all you could do to prevent this?

When does this kind of lawsuit happen? If it did happen, is it not an adequate defense of the TSA's policies if they simply tell the truth? They can just say "it would be a violation of the constitutional rights of American citizens if we had done this, so it was not possible for us to do this, even if in theory it might have averted a terrorist attack."

Because even with all their procedures they can't catch all contraband; this has been proven. If the TSA is so afraid of being sued for failing to prevent a terrorist attack, the only way they have to avoid it is to more or less ban flying.
Should they do that?

Right, they can't catch everything. However, they are doing everything that can be done to try and that's the whole point.

That's not true. They're not doing everything that can be done.

There are lots of things they could do to be more thorough about catching potential terrorist bombers and hijackers. They could do strip searches. They could ban luggage on planes. They could restrict the privilege of flying to people who passed some kind of "fliers' examination:" a background check to prove that they were not a dangerous radical malcontent.

All those things would reduce the risk of a terrorist attack on a plane. The TSA has not done and does not propose to do any of them, for obvious reasons- that it would infringe on passengers' rights, that it would make flying too great a burden for the average citizen, or make it outright inaccessible to the average citizen.

The same reasons apply when we talk about what the TSA is doing already. The TSA does not get a blank check to do everything they can imagine doing that would make a terrorist attack some tiny fraction more difficult. There are limits, and their behavior needs to be examined against those limits.

But can you interpret my driver's license as implied consent to do the search? Implied consent has limits. At some point, a citizen cannot be assumed to have waived their rights before they showed up; otherwise, those rights become meaningless because they're inapplicable in the cases where they actually matter.

No, it does not and here's why. Implied consent for your drivers license only stipulates that you will consent to a DUI investigation. The field sobriety tests and the subsequent chemical test.

How intrusive a search does implied consent let you perform? It lets you a breathalyzer at a sobriety checkpoint, according to the Rehnquist court. Does it let you search the trunk of the car? Does it let you perform a strip search of the driver? So far as I know, it doesn't- the average motorist cannot be assumed to have consented to these things.

Well, the difference between implied consent for drivers is that the officer must have established that you are DUI by your driving pattern or odor, etc. However, after that is done then I can seize blood, breath, or urine. We have people refuse to blow in the intoxilyzer all the time. That's fine. We'll just forcibly take your blood.

You can take a blood sample; can you search the trunk of the car?

Again, the point here is not the exact limits of implied consent in this case. The point is that implied consent is not unlimited. You do not get a blank check to do whatever you damn well please at a sobriety checkpoint, nor should you. Sobriety checkpoints are not "Fourth Amendment Free Zones."

Airport security checkpoints aren't either. In both cases we can define some reasonable degree to which the right to freedom from search and seizure is limited by circumstances, yes. But that doesn't mean that the right disappears, or that we can excuse every imaginable form of search and seizure by saying "well if you don't like it, don't fly."

Nor can the state just decide "Okay, now one of the costs of driving is that you must consent to having your trunk searched at random checkpoints, and if you keep driving from now on it means you must have accepted this, so it's all right to do it." At a certain point, that just means that the state is unilaterally stripping you of your rights and punishes you for protesting. If that can be done indefinitely, you don't have rights at all; only privileges that it temporarily pleases the state to grant you.

No, it can't. However, cars driving on the road and one hundred plus people being loaded into a dangerous missile are two different things. At some point everyone needs to accept the totality of the entire situation. Comparing passenger planes to cars is ridiculous. When many lives are at risk the implied consent is going to be stricter.

The flip side of that is the relative probability of anything going wrong.

Drunk driving causes something like ten thousand deaths a year, and it's a mathematical certainty that there will be drunk drivers on the road pretty much any day of the year- more than usual on some days.

Terrorist hijackings cause fewer deaths- but that's not the important part. What's important is that the overwhelming majority of passengers are not terrorists. Nor have they given anyone any reason to suspect that they are terrorists.

Grant for the sake of argument that even one terrorist will kill 200 people by getting through security (given the track record of terrorists on planes post-9/11, this is a bit generous to the terrorists). If we're arguing from numbers, that justifies being 200 times more forceful in our TSA search policies than we would be if we were dealing with the risk of a single person being murdered.

Suppose that one person in a hundred shows an anomaly on an X-ray backscatter detector for being funny-shaped; I'd be surprised if it was that low. Suppose that one person getting on a plane in every billion is a terrorist with a bomb; given how many passengers board flights in the US per year that would be about one would-be bomber per year, which is if anything more frequent than the reality.

So we use those numbers (one in a hundred sets off the detector, one in a billion is a terrorist with a bomb). That means that for every person who sets off the detector, there is a 0.00001% chance they're a terrorist with a bomb. There is a 99.99999% chance that they're just some poor random person who looks funny on a backscatter machine- because of a medical prosthesis, because of a medical condition, because they absent-mindedly forgot something and left it in their pocket, but in any case, someone who is not a security threat.

Again, we are being 200 times more harsh than we would if it were just a single life at stake here. So it seems logical to treat this person, who has a 0.00001% chance of being a terrorist, much as we would if there were a 0.002% chance of their being a murderer.

So we can treat this as equivalent to a case where we are presented with fifty thousand people, when we know that one of those people will kill someone if allowed to pass through security undetected.

How relevant are the rights of the fifty thousand people in this case? Do you have "probable cause" to engage in intrusive searches of all fifty thousand people to catch one murderer? Or do you need more justification than just the fact that each person has a 0.002% chance of being the murderer?

[Alyrium Denryle]

The implied consent for boarding an airliner and possessing a drivers license is obviously different. Just like when you visit a military installation. If you get in...you automatically consent to a full search of your person and vehicle and you wave your 2nd amendment rights.

Yes. Because a military base is necessarily a secured installation.

If you're asking for justification. Well, obtaining a blood alcohol sample from an airliner passenger doesn't really have much utility to the airliners.

You are defining the analogy in terms which are over-narrow. It is a matter of the relative level of intrusiveness. A breathalizer is not exactly intrusive, and considering the narrow scope under which random breathalizer tests are done--times and places of greater than usual per-capita levels of drunk driving in this case--the precedent does not come down in favor of searches as intrusive as a molestation pat-down.

Airliners also carry many passengers per plane so that means many lives at risk in addition to the use of the plane as a weapon. While cars are dangerous you probably aren't going to rack up much of a body count if you crash a car into a building.

No... but you are far far more likely to die in a car accident, or kill someone yourself--through drunk driving alone--than you are to die in a mishap(terrorist or otherwise) on a plane. The risk is FAR lower. So your logic makes no sense. How is it that a more intrusive search is justified by LESS per-capita risk?

Implied consent has limits. Those limits are based, or should be, on some sort of utilitarian logic. Some judge, because IIRC there is some sort of precedent with implied consent because even if that got through the legislature, that did get challenged, weighed the benefit vs the risk of drunk driving and concluded that the risk justified implied consent in DUI investigations, but did not justify searches of a trunk, or body-cavity searches.

If that level of per-capita risk justified that limited searching scope, then it stands to reason that the far far far lower per-capita risk in airports CANNOT justify the even more intrusive searches done by the TSA. Period. You have no leg to stand on here.

[Kamakazie Sith]

But would anyone have been found to have standing if they had tried to sue the airline or the government?

I don't know. Whatever standing they had it was enough to make the government set aside $7 billion with an average payout of 1.8 million. In order to truly know a civil suit would have actually had to take place.

What are the precedents here that make it realistic for the TSA to worry about being held liable for damages if terrorists blow up a plane? Why are they more liable for my cousin Joe's death if Al Qaeda does it than the police are if the mafia does it?

I don't know how realistic they are. I'm just pointing out that it is a concern for the airliners, and the government.

When does this kind of lawsuit happen? If it did happen, is it not an adequate defense of the TSA's policies if they simply tell the truth? They can just say "it would be a violation of the constitutional rights of American citizens if we had done this, so it was not possible for us to do this, even if in theory it might have averted a terrorist attack."

I think you're missing the point. The point is that the government considers it a concern enough to award people millions of dollars without a battle at all.

The same reasons apply when we talk about what the TSA is doing already. The TSA does not get a blank check to do everything they can imagine doing that would make a terrorist attack some tiny fraction more difficult. There are limits, and their behavior needs to be examined against those limits.

I agree.

You can take a blood sample; can you search the trunk of the car?

I've answered this a few times now.

Again, the point here is not the exact limits of implied consent in this case. The point is that implied consent is not unlimited. You do not get a blank check to do whatever you damn well please at a sobriety checkpoint, nor should you. Sobriety checkpoints are not "Fourth Amendment Free Zones."

I'm not saying you do.

Airport security checkpoints aren't either. In both cases we can define some reasonable degree to which the right to freedom from search and seizure is limited by circumstances, yes. But that doesn't mean that the right disappears, or that we can excuse every imaginable form of search and seizure by saying "well if you don't like it, don't fly."

I agree.

The flip side of that is the relative probability of anything going wrong.

Drunk driving causes something like ten thousand deaths a year, and it's a mathematical certainty that there will be drunk drivers on the road pretty much any day of the year- more than usual on some days.

Terrorist hijackings cause fewer deaths- but that's not the important part. What's important is that the overwhelming majority of passengers are not terrorists. Nor have they given anyone any reason to suspect that they are terrorists.

Grant for the sake of argument that even one terrorist will kill 200 people by getting through security (given the track record of terrorists on planes post-9/11, this is a bit generous to the terrorists). If we're arguing from numbers, that justifies being 200 times more forceful in our TSA search policies than we would be if we were dealing with the risk of a single person being murdered.

Suppose that one person in a hundred shows an anomaly on an X-ray backscatter detector for being funny-shaped; I'd be surprised if it was that low. Suppose that one person getting on a plane in every billion is a terrorist with a bomb; given how many passengers board flights in the US per year that would be about one would-be bomber per year, which is if anything more frequent than the reality.

So we use those numbers (one in a hundred sets off the detector, one in a billion is a terrorist with a bomb). That means that for every person who sets off the detector, there is a 0.00001% chance they're a terrorist with a bomb. There is a 99.99999% chance that they're just some poor random person who looks funny on a backscatter machine- because of a medical prosthesis, because of a medical condition, because they absent-mindedly forgot something and left it in their pocket, but in any case, someone who is not a security threat.

Again, we are being 200 times more harsh than we would if it were just a single life at stake here. So it seems logical to treat this person, who has a 0.00001% chance of being a terrorist, much as we would if there were a 0.002% chance of their being a murderer.

So we can treat this as equivalent to a case where we are presented with fifty thousand people, when we know that one of those people will kill someone if allowed to pass through security undetected.

How relevant are the rights of the fifty thousand people in this case? Do you have "probable cause" to engage in intrusive searches of all fifty thousand people to catch one murderer? Or do you need more justification than just the fact that each person has a 0.002% chance of being the murderer?

I agree the TSA searches are excessive. That wasn't what I was examining though or even arguing against. It's the idea that these searces malicious in nature or that TSA agents are sexual predators without justifying these statements.