A Further Perspective

TSA’s Bait and Switch Airport Security Trap

 The reasons why travelers are upset need to be examined.

By 11.22.10

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As public outrage grows over the Transportation Security Agency's new, more aggressive screening procedures -- scanners that reveal body silhouettes, aggressive pat-downs touching intimate body parts -- the reasons why travelers are upset need to be examined, and better ways found to protect us.

First let's find the rules, or can we? TSA's "For Travelers" website subpage shows no hint of what lies in store for passengers. TSA rules are in their "Research Center" subpage. Trolling through various headings and sub-menus yielded no guidance whatsoever. Not that you are safe being unable to find the rules. TSA has a standard line of defense available to any regulatory body: the ancient maxim that ignorance of the law is no excuse. It dates from when laws were rules everyone knew: do not kill the King, violate the Queen, desecrate the Church, steal your neighbor's land or his cow. The modern regulatory state gives us tens of thousands of pages of statutes and regulations enacted pursuant to complex, barely readable laws. Not even attorneys general or Supreme Court justices can know more than a tiny fraction of the whole. Yet the maxim stands, a monument to how fiction trumps reality in today's byzantine legal maze.

The original post-Sept. 11 bargain was this: a passenger may refuse security screening upon deciding not to board a plane. The position taken now by TSA is that once screening is started a passenger cannot refuse to complete the process. This is, put simply, bait and switch. It is a bureaucracy's attempt to circumvent this fundamental rule adopted after 9/11; screeners frequently advise passengers step by step, so that the process gets started innocently and then turns ugly later. Threatening someone who demurs in midstream with a large fine plus prosecution is bad enough; holding someone after screening stops without legal cause to do so is false imprisonment, a tort (civil wrong) actionable in court. It is also a violation of federally created statutory civil rights, and creates a right to file a civil lawsuit against federal or state officers who violate civil rights.

Israeli security neither uses body scanners nor intimate cringe-inducing pat-downs. The former do not detect certain explosives and critics say radiation exposure is low only if they are properly operated, not a given with TSA drones who are hardly radiologists at Johns Hopkins. As for pat-downs, patting down a screaming infant or trembling mom or an embarrassed grandfather makes no one safe. Searching zero-risk passengers makes no one safer. Indeed, because the screener(s) doing the search cannot look for someone who actually might pose a threat, screening zero-risk fliers makes everyone else less safe.

I would take the scanner over having my privates patted; I pity anyone who gets jollies from seeing an outline of my dilapidated carcass on the threshold of my golden years. Are body-cavity searches next, with terrorists already emulating drug mules? Shall we deputize every screener as airport proctologist?

There is a far better way than TSA's to deal with security threats: Israel's way. Israeli security screeners are smart people who look courteously for terrorists, without political correctness; our screeners are dumb people who look, often rudely, for things and bow to political correctness. Israel profiles by behavior; we prattle on about equal treatment regardless of risk profile. News reports say that Homeland Insecurity Secretary Janet "the System Worked" Napolitano is on the verge of exempting Muslim women from certain screening and pat-down procedures, while Christian, Jewish, Buddhist and secular women must endure.

The Christmas 2009 underwear bomber with the unpronounceable name would never have gotten within a mile of an El Al plane. Nor would the 9/11 terrorists have made it on board in Israel -- or gotten past an El Al desk in America. While America singles out Muslim sensibilities for special treatment -- members of the very group from which most terrorists come (yes, we all know that most Muslims are not terrorists) -- Israel singles out security threats by assessing individual risk.

Thursday night, former Bill Clinton flack Lanny Davis said on "Hannity" that he feels safer as a flier when he is searched: a noble proposition -- and on its face a preposterous one. Put simply, Lanny Davis is a zero-risk passenger. Davis said he had watched the late Sen. Daniel Patrick Moynihan being patted down. The late Sen. Edward Kennedy was on a no-fly list for months, amusing Republicans surely, but hardly making us more secure.

How to fix this mess? First, look for people, not things. Second, throw out political correctness and begin profiling by behavior -- not ethnicity. Third, hire people who have put their lives on the line -- literally -- evaluating suspect risk, and lived to tell their stories, not would-be bureaucrats who stare at screens and risk sore backsides. Soldiers and cops are good hires; paper pushers and janitors are not. Give specialty training to people who are smart, skilled, and willing to supplement rule guidelines with independent, intelligent, and instant on-the-spot judgment; do not waste time giving basic training to unskilled dolts who will mechanically apply rigid rules no matter how manifestly absurd the real-life situation. Oh, and please fire the jerks who reduce infants to tears, force a developmentally disabled child to shuck his leg braces and walk through unaided, shout at pregnant moms, etc.

Over the years, repeated tests by teams posing as passengers have shown that contraband, including weapons, can be successfully smuggled aboard aircraft, fooling metal detectors and TSA screeners. We fly safer today because cabin doors are locked and not to be opened, because the Todd Beamer "Let's roll!" protocol is followed by passengers, because air marshals fly with us and because of far better luggage screening. Abusing the sensibilities of passengers is unnecessary, cruel and adds zero to security. And if my privates are to be touched, let it be by someone I choose, not in public and not by a drone at TSA.

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About the Author

John C. Wohlstetter is a senior fellow at the Discovery Institute, author of Sleepwalking With the Bomb, and founder of the issues blog Letter From the Capitol.