A SOLDIER'S PERSPECTIVE
THE WEB'S LEADING MILITARY BLOG SINCE 2004
I’ve long opposed the methods used by the TSA ever since they were created after 9/11. While I’m infuriated that our government has stooped to such invasive measures, I’m more pissed that so many Americans could not care less about it. How many times have we heard “if that what it takes to keep us safe…” followed by [insert the government intrusion policy]? It’s funny that the same people that were complaining about the Patriot Act’s wire taps are the ones that now have no problem with the government tapping into our underwear.
The 4th Amendment 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.”
Before we break this down, it’s important the people understand why we even have a 4th amendment. It comes from a case in the 1760s. There was a lot of smuggling in colonial Boston and British customs agents were given blanket warrants to search anyone, anywhere. Not only could they search anyone wherever they desired, but they had the power to force citizens to assist in the searches. Some merchants filed a losing lawsuit, but the fight empowered opponents to British rule. John Adams would call this case the birth of American independence. The government was out of control and needed to be contained. James Madison and John Adams would later fight hard to ensure that this right was included in the Constitution.
“The right of the people.” The second paragraph of the Declaration of Independence begins, “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” What is liberty but the absence of outside influence over our lives, especially that of the government. The Constitution and the Declaration were written solely out of the belief that the government should have a LIMITED role in our lives, thus ENSURING liberty which is an essential right.
We have the RIGHT “to be secure in their persons…against unreasonable searches and seizures.” What is our person? It’s our bodies. Our selves! The question could well be asked by proponents of an ever-intrusive government what the meaning of “unreasonable” is. Is it unreasonable to fondle a 8-year old to surmise if he/she is carrying explosives or contraband? Is it unreasonable that ANYONE can be forced by the government to a virtual strip search or molestation at the hands of a government agent? Who holds the patent on what constitutes “unreasonable?” Hint: it’s not the government! It’s you and me! WE decide what is unreasonable, not the government. WE decide and the government enforces.
The problem is that too many people are too apt to completely dismiss their rights guaranteed under the Constitution in the name of “safety.” Too many people have surrendered their rights, giving the government the belief that they are justified “unreasonable searches and seizures.” The government only has authority and power to do what we, the people, give it the authority and power to do. The British goons of yesterday are the TSA goons of today. They are no different in trying to strip us of our “inalienable rights” to personal liberty.
The 4th amendment goes on say that “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 amendment places lists three limits of the government: the warrants must be supported by probable cause, they must define where the search is to take place, and they must define what the object of the search is—who or what is to be seized. There is no such thing as a random warrant anywhere but at the airport and yet no one seems to care about that? All in the name of secure flights, even though if a terrorist really wanted to blow up a plane, he wouldn’t necessarily need to be a passenger on one!
This is where the government has failed the people. TSA agents are not trained to identify suspicious individuals. They are trained to randomly select innocent Americans and violate their rights. Where are the trained social observers reading the faces and mannerisms of every passenger wishing to use a plane to get from point A to point B? As an interrogator and debriefer, I’m trained to read people’s actions, facial expressions, body movements and even how and what they write. I can spot a guilty person from across a room, which is why I was so successful as a retail store detective before joining the Army and as an interrogator in it. Where are the TSA’s “social monitors?”
I’ll tell you where they are – buried in political correctness! For some unknown reason, it’s politically correct to remove the breast or spill the urine of a cancer survivor or feel up an 8 year old child than to watch people and make an educated guess about who is suspicious. Our government says, “we’re only looking out for your safety” when in reality they’re taking the easy way out by issuing the blanket warrants that gave birth to the 4th Amendment.
There are baselines that everyone has. If I ran the TSA, trained social monitors would be spread all over the terminal, identifying “suspicious” individuals the moment they stepped out of their car. The baseline observation would start from the moment they are visually picked up. Any deviation from their mannerisms while moving through different environments would tip off an agent for a screening. Standard questioning techniques would quickly identify a guilty party or alert the agent to an innocent citizen, preventing further violations.
But, that’s just too hard for our government. It’s more important that our citizens be inconvenienced instead of our government officials. Specialized training takes a back seat to potentially dangerous technology that allows government official to get their sexually deviant kicks. In legal jargon a “search” is any tactic that infringes a “reasonable expectation of privacy.” A reasonable expectation of privacy is the kind of expectation any citizen might have with respect to any other citizen. This is the argument we are hearing all over the place today: “if I can’t come up to you and place my hands on your private parts, the government shouldn’t be able to either.” The Supreme Court has upheld this standard (Mapp vs. Ohio – 1967), but our government trots along and I continue to hear people say, “I don’t mind!”
The bottom line is that we have these rights so long as we’re willing to exercise them. When we cease to care about being felt up by our government, we lose our rights. A false sense of security is no reason to violate those rights that our ancestors fought so hard to obtain. Benjamin Franklin famously said, “Those who would sacrifice freedom for security deserve neither.” Amen, brother!
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Kris
I actually had this exact conversation with a friend today. I don’t recall seeing any legal notifications the last time I was at an airport that advised me I was voluntarily relinquishing my Constitutional rights by being on airport property. Then there are all of these articles (none which I can say have solid sources) that claim Muslim women do not have to remove their veils and will only be search about the head and neck. If there is any truth to this, I say it is against my religion to be felt up by anyone who hasn’t bought me an expensive dinner and more than 4 drinks! I will not even make knowing my first name a qualifier, but come on!
I wonder would I be detained at the airport if I demanded to see the warrant for search of my persons as it states in the 4th amendment?
I also came across this article that makes some good points about our reactive gov. measures which cost thousands to implement when the terrorist have already moved on. http://www.washingtontimes.com/news/2010/nov/22/tsa-is-a-joke-to-al-qaeda-too/
There has got to be a better way…
Michael
I’ll not argue the sanity of the searches. They are insane. But there is a far difference between warrentless searches anywhere at anytime and the TSA.
You know exactly where they are and exactly how they are going to perform their search. You can go anywhere in the country you’d like without ever coming in contact with the TSA.
You have a right to be free of warrentless searches, but you don’t have a right to ride on a plane.
And don’t forget, airports are not required to utilize the TSA. They can instead rely on private security. The airports and the airlines are just as guilty of this insanity as the government.
CJ
Michael, that’s inaccurate. I can’t go anywhere I want. I can’t go into an airport. Yes, the airports may use private security, but they are required to abide by TSA regulations in exercising their duties. As a free citizen, why do I have to submit to government intrusion in my rights to travel on a specific mode of travel? That is not conducive to the pursuit of liberty. The airlines don’t make the regulations and don’t implement the search procedures.
Steve
There is a border search exception to the 4th amendment. It applies to any point of entry to includes airports. It applies to people coming and going. I don’t know how they justify this exception for use on citizens using air travel within the US.
Most airports are private property or some version of public private partnership. KInd of like the Pennsylvania Turnpike, it’s owned and operated by the PA Turnpike Commission, yet it’s patrolled by the PA State Police. The police cars purchased for use on the Turnpike can only be used by the PSP on the Turnpike, the other State Police cars are bought by the state.
You can go into an airport, you just can’t go into the restricted area.
“why do I have to submit to government intrusion in my rights to travel on a specific mode of travel?”
Be careful with that, the fed will start searching people on trains and buses just to make it “fair”.
Kris
If terrorist are going to strike why would they limit themselves to passenger planes? There is evidence that terrorist are attempting to use their next attack on cargo planes.
If we look at US history as well as World History to say terrorist will only attack passenger planes is ridiculous. Perhaps we should submit to having check points and searches on Highways? Shopping Malls? Convention centers? Sports events? Grocery stores? The Department of Motor Vehicles? I mean it’s all in the name of “safety” right?
I don’t recall the 4th Amendment being restricted to “private” verses “public” property. What does that even mean? If I invite someone into my “private” home does that mean I have the right to search or frisk them? I don’t think so. In fact the Supreme court ruled in 1968 (The Terry-Stop) that “Frisking” could only be preformed by a “Law Enforcement Official” who can preform the frisk after advising what “suspicious activity” led to the frisk as well as advising where they are going to touch and what they are specifically looking for. It is clearly stated the officer must have “specific and articulable facts” that a crime has been, is being, or is about to be committed before preforming a search or frisk.
Is the TSA assuming ALL who step foot in an airport are engaging in suspicious activity, giving them the right to search and frisk at will?
This is a fearsome slippery slope.
Steve
A border search is different than a Terry search.
If you want to frisk someone before entering your home you may. The 4th Amendment applies to the government searching private citizens not to private citizens searching citizens. If you make a frisk a requirement of entry into your home, that’s on you, your guest may decide not to enter. Say your forbid smoking in your home and a friend lights up, you can ask them to leave. If they don’t and you call the police, they might be charged with trespassing or disorderly conduct but not with smoking in your home.
A store may limit the number of items you bring into a dressing room or they may limit the number of students in a store at a time.
Perhaps CJ can verify, a loss prevention officer in a store may detain and search someone but they don’t make the arrest. So it’s a private citizen (store employee) on private property (the store) searching another private citizen, then either making a citizens arrest or turning the suspect over to the police for arrest. Different rules of evidence apply.
Kris
Steve I see upon further research a Terry search is different from a border search. BTW from what I can find in Supreme Court rulings the definition of a “Border Search” is defined as an International Border. There are no current cases I can find that include “Border Searches” between State lines or travel within the Continental US. If you know of such a case I would be interested to hear of it.
That being said a Border Search does suspend the 4th Amendment in certain respects.Customs officers may stop and search the property of ANY traveler ENTERING or EXITING the United States at random, or even based largely on ethnic profiles. Customs may only conduct searches of the traveler’s BODY — including strip, body cavity, INVOLUNTARY x-ray, and in some jurisdictions, PAT-DOWN SEARCHES only if the Customs officer has REASONABLE suspicion to believe the traveler is concealing illegal contraband, weapons, or explosives.
In the TSA’s case I found this article which sites Supreme Court cases that gives TSA and Homeland Security the right to circumvent the 4th Amendment and write a “Blank check” to do anything they want.
http://boardingarea.com/blogs/flyingwithfish/2010/11/20/how-the-tsa-legally-circumvents-the-fourth-amendment/
Just because you do something wrong 1000 times doesn’t make it eventually right.
Steve
I had wondered about the travel between states as well. International airports are considered points of entry. They could make the argument that even if you have a ticket to go from Newark NJ to Houston TX, there is nothing stopping you from buying an international ticket once you pass security.
Also in the past courts have ruled that a magnetometer is considered a “non intrusive search”, and as such doesn’t violate the 4th amendment. Think of the children in some schools that are required to walk through a mag everyday to enter school.
I’m guessing that the backscatter xray falls into the non intrusive search category too. It is the act of opting out that creates the reasonable suspicion to conduct a pat down.
Dave Ortgiesen
“Those who would give up essential liberty, to purchase a little temporary safety, deserve neither liberty nor safety.”
Benjamin Franklin
Where are you willing to draw the line? Are you willing to allow your home to be randomly searched in the name of national security? Allow yourself to be dragged off the street or out of bed and taken to a ‘secure’ area to be interrogated in the middle of the night? Would you like to live in a society where you know your neighbors are reporting your activities to the Stasi… er, KGB… er, authorities? Give ‘em an inch…
Witness the Patriot Act.
What gets me is that all the measures that have been implemented in US airports have not resulted in the capture of one terrorist…not a single one. While the Patriot Act tramples the civil liberties of American citizens, the one measure that has proven effective in other countries – profiling – is not used here because it is not politically correct. TSA better not even THINK of patting down a woman in a hijab, but it’s perfectly OK to strip a 6 year-old boy. This is absurd! We weren’t attacked by the Swedish bikini team, for crying out loud, we were attacked by Muslim extremists. How can our government justify stomping on the United States Constitution while eschewing a proven tactic in combating terrorism?
CJ
I’m against the Patriot Act as well, however I need to correct something. It doesn’t “trample” civil liberties except in very specific cases that virtually all Americans won’t be a part of. I work within the limits of the Patriot Act and can state that for a fact. My problem with the Act is the POSSIBILITY of what it can be used, while it has yet to get there.
Toddy Littman
Want to put a stop to this? SF95 is the beginning. You can download it HERE.
Want an idea what information you need to file this claim form that when denied a hearing is the TSA and United States Government granting permission to sue, as well as what else you could do? Please read this.
If we make this more inconvenient and expensive than the rise in the government’s Lloyd’s of London liability insurance policy, they stop.
This is what they did to get banks to give loans with no money down, no interest, and when someone doesn’t have a job, and why they could do bank “sit-ins” to stop a foreclosure too. President Obama was involved in a large part of this, he was significant to how ACORN grew, he was the lawyer who used the following basis of a lawsuit that ended up settled on an entirely different idea, that banks are not providing enough economic opportunity:
NATURE OF THE ACTION
1. This is a civil action brought by Selma S. Buycks-Roberson, formerly known as Selma S. BUYCKS, on behalf of herself and all other African-Americans who made home loan applications to CITIBANK, and whose applications were rejected because of their race or color, or because of the racial composition of the neighborhood in which their property was located. This action seeks injunctive relief and monetary damages for violations of U.S.C. § 1981 and 1982; U.S.C. § 3605 and U.S.C. § 1691 –http://www.clearinghouse.net/chDocs/public/FH-IL-0011-0001.pdf
They used race to get programs instituted that provide a means or redistribution of wealth as though a Constitutional Right is violated when a bank denies a loan application!
Here, with the TSA screening policy, there is no question the 4th Amendment is being violated since we aren’t even accused of a crime, and, should we decide to opt out after entering the check point we’re deemed a suspect without any probably cause. Through I guess since the passage of healthcare the unalienable right to freedom of choice is gone, and their using further fascist government denial of that to impede our unalienable right to travel.
And I personally think this is Obama’s Revenge for November 2nd.
I’ll copy this to CJ’s website and posted here because I am so certain these are the signs that the Germans, Russians, and I am sure you soldiers even know more countries people who ignored these, these signs of a Dictator, a test to see if the people know anything about how to control their government, or do they demonstrate the incompetence necessary for the government to assume control of their lives. In America it is our incompetence that has granted this government an ever intrusive role. Our Founders knew the role of the government they created, and our schools today don’t even consider teaching us the Federalist Papers, but if not them, then our parents should have, yet, they too didn’t know, and it is this which has led up to the oppression situation we find ourselves in.
Thank you CJ
P.S. Please know the unalienable rights are not what’s listed but a larger body of rights innumerable to mention, and the Bill of Rights an echo of the existing limits on government, express in order to get Rhode Island to ratify the Constitution.
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