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Strip Searching the Casual Terrorist

In the news, across dining room tables, and around water coolers from coast to coast–everywhere–is heard the public’s outrage at being strip searched and/or physically groped by government toadies. And for what? Because people opted to purchase a seat on an airplane, in order to travel from Point A to Point B. And each of those seemingly innocuous purchases, in turn, set off loud alarms within the federal government, because, surely everyone who purchased a ticket is the essence of evil in the world, hell bent on rampages of destruction in the air.

The federal toadies have proclaimed loudly that the only way to ensure our national security is to treat each and every American as a potential terrorist, though they don’t phrase it quite so directly. Instead, they exclaim that being strip searched, and possibly groped, is the next step in the evolution of air travel security, and it is necessary if we are to guarantee our national security (which sounds very much like saying “we’re doing it for the children”). And, while it’s true that, since September 11, 2001, we’ve not seen another incident involving aircraft, that success is not due to our having subjected our citizens to potentially humiliating violations of their persons. And the success of the virtual strip searches has not been proved. Indeed, TSA officials reported that in one year, the scanners identified 130 illegal, prohibited or dangerous items that were seized before they could make it on the plane. The officials opted to identify only one of those 130 items–a syringe full of heroin–ironically, the one item least likely to be used in downing a jumbo jet. That should call into question the precise nature of the other items: what were they, and what’s the likelihood that they were potentially implements of terror?

All of this pales in comparison to the question all should be asking. Is the federal government, in subjecting everyone to these searches, in violation of constitutional protections? The answer is almost certainly yes.

The Fourth Amendment to the Constitution states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The Fourth Amendment came about largely as a result of general warrants issued during the colonial years. Magistrates were compelled to issue them based on nothing more than mere suspicion of the local tax collector, or even an informant. The warrants themselves had no real limits, in that they permitted blanket searches of anything and everyone in an area, and colonists had no recourse against them.

According the the Fourth Amendment (hereafter, “4th”), all American citizens have the natural right to privacy; that is, to be free of unwarranted intrusion of their persons, homes, etc., by the government. That, however, is not the whole of the amendment, as it continues, in the same sentence, stating that no warrant shall be issued without probable cause and it must describe the person of things to be searched and/or seized. Note that the second half of the sentence ties to the first, making evident that before government may invade our privacy it must have cause enough to obtain a warrant (there are exceptions to this, but all are based on the requirement of probable cause).

Even the Supreme Court, that most estimable of bodies which routinely distorts the Constitution, has found that government’s interference with the natural right to privacy is nearly sacrosanct. When a citizen can demonstrate that he has a reasonable expectation of privacy, government’s freedom to infringe that right is subject to the 4th. In Katz v. United States, 389 US 347, the Court wrote that:

What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. … But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.

Surely, a person entering an airport for the purpose of traveling on an airplane seeks to “preserve as private” his naked body, and that constitutes a reasonable expectation of privacy. With that in mind, it seems unreasonable that government can require him to disrobe (either literally or virtually), without probable clause. In support of that, in Terry v. Ohio, 392 US 1, the Court ruled that:

An officer who reasonably believes that “criminal activity is afoot” in a public place may stop an individual suspected of wrongdoing and “conduct a carefully limited search of his outer clothing” for weapons that could be used against the officer.

In another case, Bond v. US, 529 US 334, the Court ruled that police cannot feel and squeeze passengers’ luggage in order to try and find illegal drugs. Carrying this ruling to its logical conclusion, it stands to reason that if police cannot squeeze luggage, they most certainly cannot squeeze the passengers themselves, even when looking for non-drug-related contraband, absent probable cause, a warrant, or an outright arrest.

The use of backscatter or millimeter wave scanners, which virtually disrobe passengers–and the more invasive “pat downs” to which we may also be subject–is clearly a violation of the protection afforded citizens by the 4th. Public safety is one of the quintessential functions of government, but when, in doing so, it robs citizens of constitutionally protected natural rights, it has violated the law. There exist other, more efficient and less costly technologies that have been proved to work to better effect, and we should demand their use.

Benjamin Franklin once said, in a 1775 letter to the Pennsylvania governor, “They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety.” Are we they?

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This entry was posted on Friday, November 19th, 2010 at 4:00 pm and is filed under Constitution, Politics. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.

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