If you've gone through TSA's new screening procedures you're likely to have an opinion on them. Some people don't think it's a big deal. Some are concerned about their health, and for others it's an issue of privacy. I was compelled to do a full body scan and a pat down before the new regulations were in place, and I have my opinions on these techniques. In short, I'm not a happy camper with the TSA. We've got some real issues here. These activities can be argued (and I am about to argue) to be in violation of many constitutional rights. Many have argued that they are totally ineffective, nothing more than a veritable dog and pony show to make people feel safer. Still further are arguments that they are rather Orwellian procedures. I'd like to take a few minutes and tackle some of these arguments head on.
One: Constitutional Issues
First, the very real Constitutional issue and the right to travel. I realize that there are really two constitutional questions here.
1) Do you have the right to travel as a US citizen and where, if anywhere, could the government abridge that right?
2) Does air travel fall within the purview of that right if it exists?
I'm going to address both at once, although honestly I think the second one is kind of silly. Nevertheless, I've heard it enough times that I feel like I have to contend with it.
I've read several comments and quotes from around the internets that suggest that travel isn't a right. Phrases like "You don't have to get on a plane" abound. There's this article that quotes a man as saying, "'Travel is not a birth-given right. It’s a choice. And it’s up to our government to make sure we’re safe while we do it.' He called Opt Out Day 'the dumbest thing I’ve ever heard of.'"
First off, let me correct this misconception now. If you're not a criminal convicted of a crime (or legitimately held under due process) you have the right to travel. Period. For details, keep reading.
But let's begin with the economic argument: Flying isn't just for fun, it is a critical part of our interstate and international commerce. The right to conduct interstate commerce is upheld over and over in a surfeit of circumstances by the Supreme Court. Still, you could argue that you don't have to use air travel to conduct your interstate commerce. True, you don't have to unless you live in America in the 21st century where air travel is a very important part of business. To suggest you don't have to travel is to suggest that you don't have to compete with other businesses using commonplace travel methods. As Art Carden argues in his OpEd in Forbes, "The TSA stands between me and those with whom I would like to trade, and I am not allowed to without their blessing."
Next up, let's consider that travel is considered by the Supreme Court to be a right.
And not just any right, but one that has been called, " virtually unconditional" (see quotes below).
357 U.S. 116 (1958) KENT v. DULLES(481)
Justice Douglas writes in the Court's opinion, "The right to travel is a part of the 'liberty' of which the citizen cannot be deprived without due process of law under the Fifth Amendment." In a nutshell he says that unless you are a criminal and have done something wrong the U.S. government does not have right to restrict you from any kind of travel.
Of course he gave an example of an exception to this liberty. Douglas writes that there are situations where the Government believed there was, "the gravest imminent danger to the public safety" which made legitimate curtailing some American's liberty to travel. However, he is specifically referring to the US sending Japanese Americans to internment camps during World War II. Oh, yeah, that thing.
If you're wondering if I just drew a parallel between full body scanners, pat downs and incarcerating American citizens, you're right. I did.
Let me drive this point home with one more quote from Kent v. Dulles
"Where activities or enjoyment, natural and often necessary to the well-being of an American citizen, such as travel, are involved, we will construe narrowly all delegated powers that curtail or dilute them. . . . We hesitate to find in this broad generalized power an authority to trench so heavily on the rights of the citizen."
Not only does this speak strongly to the limits to which the government can curtail travel, it says that it is a very narrow range on how travel can be curtailed. This case is specifically about a passport, but it clearly applies to any instrument related to making travel possible.
If you still think that travel can be restricted by the feds (or states for that matter - thank you 14th amendment) consider these:
In U.S. v Guest, 383 U.S. 745 (1966): the court said regarding travel that, "It is a right that has been firmly established and repeatedly recognized."
Shapiro v Thompson, 394 U.S. 618 (1969), Justice Stewart on travel: "it is a right broadly assertable against private interference as well as governmental action. Like the right of association, ... it is a virtually unconditional personal right, guaranteed by the Constitution to us all." (Check out http://www.usconstitution.net/constnot.html for some light reading on things you probably didn't realize about the Constitution.)
Two: MacGyver Could Blow That Plane Up With a Slinky in his Rectum
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That Isn't Going to Stop Anything
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TSA: the story of Pyrrhic victories
This is the section I'm most concerned with writing. As a kid I had a religious leader who worked for "the company" in a previous life. He wasn't a spook per se, but he did tell me about his job as some sort of doomsday situation comer-upper-with guy. Basically he sat in a room and thought of ways people could attack the U.S. and probably succeed. Turns out, that isn't a hard job if you play the, "how would someone try to take out this aircraft" game. I'll list a few really easy to spot weaknesses that exist that neither scanners or pat-downs won't catch:
Powdered binary explosives. They'll pass through the x-ray machine just fine. And no one cares about your body powder.
Detonators: You probably think explosives look like a lump of play dough with a switchboard full of wires hanging out of it. Well, you've seen too many movies. They call those "Hollywood Wires" for a reason. It's fake. All a detonator needs to be is something that can ignite easily and set off the main explosive. For military grade stuff like C4 or comp B, etc, you need a bigger charge. They are designed to be highly stable, and don't blow up easily. A SEAL team doesn't want something that goes boom if a stray bullet hits it. So what do you need? A hunk of wire with a chemical that gets really hot on it. "You mean like a match head" you say? Well, yeah, that stuff.
"Couldn't you make that crap at home easily and just coat it on a safety pin, headphones, or any of a thousand objects that are totally fine on a plane?" you ask. Well, no, unless you have access to Google. Oh, you do have Google? Well, crap, then you probably should be under observation by the ATF about now. You've got Google and probably access to everything you need to make the detonators!
Biological Agents: do you know how small coach is? Jet Blue has extra leg room, but seriously, you think it takes more than a couple CCs of some agent in a hairspray can to totally 'eff up a plane of people? Did you forget that Anthrax comes in powder form? "Well, yeah, but how would you spread it on a plane," you ask. Come on, really? You don't think someone who wants to take that kind of a risk couldn't get it past security? Do you really think they couldn't figure out a even kind of effective way of being a promulgator of death?
Chemical agents: see above.
The point is a drunk toddler could get passed our new security measures. And frankly, after being checked out by a TSA agent, I can't blame him for drinking.
Of course, if you can't disguise it and pass it through an x-ray machine, there's always your anus. Which, I believe will be the TSA's new motto for Christmas: "Clean Anus, Safe Flight." I got three letters for all you medical types out there: DRE. (No, it's not a rap reference.)
"But Nate," you ask flustered by my callous attitude towards security, "haven't plots been stopped." Yes! Yes they have. By hard working intelligence officers and analysts. By cargo screeners. By people on the plane.
What if we took some more logical steps like spent more on cargo screening or trained people on the proper use of profiling as Malcolm Gladwell explains here. (Ya know, racial profiling doesn't really work, but profiling can be a useful tool if you do it right.)
Three: The Moral Question: Do Guiding Principles Allow This?
I've always been a big believer that morals aren't just a philosophical or religious guide, but the results of practical application yielding good results. Somewhere along the way someone said, "Hey, I'm a lot happier if I really love, care for and am faithful to my spouse." After a while the idea probably resonated with a few people, and we got a moral. It works for a lot of reasons, and we don't really want to go into happiness here. (The Dalai Lama can help you with that.)
A principle or a moral describes how actions should be done when you can't predict outcomes. They're a kind of metaphysical equation. I don't know for sure where I'll end up if I drive X speed for Y time just by looking. But I can calculate that I'll be X*Y miles down the road. I'll probalby be off by a little distance because cars accelerate and decelerate, roads twist and have bumps. But I have a good idea of what will happen.
Above I discussed the Supreme Court's stance of travel as a fundamental liberty. in this case, I suggest that there are other fundamental principles at play. Unreasonable search, personal privacy, freedom from harassment, and perhaps most importantly the idea that the government serves its people and is subject to those who give it legitimacy.
As one explores these principles, it is pretty clear that most, if not all of them are being violated at some level by the TSA's screening process. Now the question I ask you to answer is where will it go? Do you have an answer? Can you predict? Unless you're Marty McFly, you don't and you can't. The best you have is the formula of these principles. That formula has served us well and still does. Of course, it is not a perfect formula. Moral systems never are. Even math and science formulas and postulates are off the mark by some measure. (Isaac Asimov suggests that we are never much more then "not as wrong" as we were before in most any idea. See The Relativity of Wrong for that philosophical debate.) However, if you violate them, you do so because you think you have a better method. Is a bureaucracy feeling you up and looking at you naked a good formula and principles to which we wish to subscribe?
This part's not for the kids: Let me give you an example of why privacy matters to so many. It may not bother you to have them looking at you naked. It bothers me because I know that someone back there will remember what that sexy 16-year-old girl looked like and will, I promise you, go home and enjoy himself to that mental image. It violates what Michael Shaara described in his novel Killer Angels, as the only Aristocracy that actually exists. It is you; it is in your head. That's what we've got, and it is my feeling that anything that violates that principle, anything that violates that moral is unwise and provides no protection.
Americans have their principles. If you can't solve a problem without trampling on them, you are not the right person for the job.
Violate our principles at your own risk, not mine.
