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Left and Right Finding Common Ground on New TSA Procedures?

12:03 pm in Uncategorized by Kevin Gosztola

The TSA’s escalation of security at airports has further cemented the reality that airports are Fourth Amendment-free zones. Should citizens tolerate this? by

Featuring Interviews with Rutherford Institute President John Whitehead and Pilot Michael Roberts, Who are Suing Homeland Security

The Transportation Security Administration’s (TSA) new procedures for airport security, which include the body scanners (referred to as “porno-scanners” my citizens groups opposed to the machines) and “pat-down” or grope of passengers, continue to infuriate Americans. Stories of TSA agents violating people as they pass through security checkpoints are being amplified, which means the percentage of people who do get the “pat-down” are making certain they register complaints with civil liberties groups, TSA, their congressmen or by posting their experience to websites on the Internet.

Some of the latest news in regards to TSA involves four New York City councilors backing legislation “that would ban the TSA’s full-body scanners from airports inside New York City.” New Jersey state legislature is “considering a resolution on the TSA to stop using the body scanners.” And, in Florida, the CEO of the Sanford Airport Authority, Larry Dale, has been authorized by his board to hire a private screening firm instead of TSA employees.

A recent Senate Commerce committee hearing on Wednesday provided opportunity for senators to express the frustration and outrage of their constituents to TSA Administrator John Pistole. But, for the most part, the Democratic Senators like Sen. Jay Rockefeller (D-W.Va), Sen. Byron Dorgan (D-N.D.), Sen. Frank Lautenberg (D-N.J), Sen. Claire McCaskill (D-Mo.), and Sen. Amy Klobuchar (D-Minn.) all took the opportunity to express gratitude toward Pistole and Homeland Security. And, any questions focused in on the semantics of the implementation of the new security protocol with little attention placed on the possibility of this violating the Fourth Amendment.

The most notable expression of American outrage came from Republicans like Sen. George LeMieux (R-Fla.), “I’m frankly bothered by the level of these pat-downs. I’ve seen them firsthand in airports in Florida. I wouldn’t want my wife to be touched in the way that these folks are being touched. I wouldn’t want to be touched that way. And I think that we have to be focused on safety but there’s a balance.” Sen. Johnny Isakson (R-Ga.) highlighted how Secretary of Homeland Security Janet Napolitano was being terribly insensitive to travelers when she said if Americans don’t like the new procedures “there are other ways to travel.” And, Sen. Mike Johanns (R-Neb.) rightfully asked why, despite his Senate I.D. card, TSA would make him go through the body scanner and then receive a pat-down.

GOP lawmakers in the House have been the ones taking the lead on this issue. Rep. Ron Paul (R-Tex.) introduced the American Traveler Dignity Act to “remove legal immunity from federal employees who subject an individual to any physical contact, x-rays, or aids in the creation of any part of a individual’s body as a condition to travel in an aircraft.” The law would prohibit pat-downs that are tantamount to sexual assault. And, Rep. Ted Poe (R-Tex.) singled out former DHS secretary Michael Chertoff’s connection to companies that have received contracts from the government for these machines and said, “T]he populace is giving up more rights in the name of alleged security. These body scanners are a violation of the Fourth Amendment right against unreasonable searches and seizures …There must be a better way to have security at airports than taking pornographic photographs of our citizens, including children, and then giving apparent kickbacks to political hacks.”

Citizen groups and civil liberties advocates have been receiving attention because of how this is likely a violation of the Fourth Amendment. And, one particular individual, Isaac Yeffet, former head of security for El Al and now an aviation security consultant in New York, is receiving much attention because Israel does not use body scanners, pat-downs or even require people to take their shoes off. Israel, instead, has highly-trained engage in passenger profiling and do behavioral and psychological analysis of all passengers through interviews to determine whether a person is a threat or not. [See end of article for video of his appearance on "Countdown" with Keith Olbermann.]

Of course, on Friday, TSA announced pilots would be exempt from some airport checks. From the standpoint of those waging a campaign to call attention to how TSA is violating the Fourth Amendment, this is a nice way of diminishing the pressure on the agency to get rid of the new security pat-downs and body scanners. The pilots unions had been one reason why the story was receiving so much attention. Now, it’s virtually guaranteed that after the Thanksgiving holiday media coverage of public outrage and what this means for civil liberties in America will subside.

John Whitehead, President of Rutherford Institute and Pilot Michael Roberts

Thank you for allowing me to take more than six hundred words to set up and share with you parts of my interviews with John Whitehead and Michael Roberts. I want to make a point about how progressives or liberal leaders appear to be missing in action. There are a few theories that I have as to why silence pervades the Democratic Party and many liberal organizations that normally would have opposed this if this had been the Bush Administration. But, first, some remarks from individuals who are taking steps to defend American civil liberties from state-sponsored molestation.

Whitehead is a lawyer who “engages in lawsuits where people’s civil liberties are violated. You know, basically primary bill of rights issues.” He is a key attorney behind a Fourth Amendment lawsuit that has been filed by the Institute against Janet Napolitano, secretary of the U.S. Department of Homeland Security (DHS), and John Pistole, administrator of the Transportation Security Agency (TSA), “on behalf of two airline pilots who refused to submit to airport security screening which relies on advanced imaging technology that exposes intimate details of a person’s body to government agents.”

The Institute is representing Roberts and Ann Poe, veterans of the commercial airline industry, who refused to go through the Whole Body Imaging (WBI) scanners and also refused to be subjected to the enhanced, full-body pat- or rub-down. They insisted the procedures were a violation to their privacy and, since experiencing incidents on Oct. 15, 2010, and Nov. 4, 2010, respectively, both have refused to go to work until they are allowed to do their job without having their civil liberties violated.

Whitehead’s justification for the lawsuit is as follows: “Based on the Fourth Amendment before you strip search or do full-body search on American citizens you have to apply the Fourth Amendment, which requires that there be some reasonable suspicion that criminal activity is afoot, that whoever you’re patting down somehow are [likely to be] engaging in criminal activity. That’s what the Fourth Amendment requires.”

Unlike most Americans and government officials, Whitehead does not believe one has to give up his rights or civil liberties to fly. He understands that Americans find this to be true and he explains that he thinks Americans have “become very compliant” and notes that there are very few people like Roberts or Poe, who are willing to stand up and fight back.

Roberts, who has been running and receiving feedback from pilots, TSA workers and travelers, seconds this idea that Americans are too compliant and says that, while his colleagues and other travelers agree with what he is doing but say they can’t stand up because “they have to travel for work” or they’ve “got a family to feed.” He says they “hate what’s happening” and “absolutely do not agree with it.” But, the way it works, the ability to travel or put food on the table, is being held over their heads and it makes people who want to act out afraid of fighting back.

This, Roberts contends, is “terrorism.” It’s the definition of terrorism, which Roberts characterizes as “coercion by fear.” The government is using “psychological stress and manipulation to make people comply with their abusive demands.”

Whitehead notes how the Department of Homeland Security has become this large and ominous organization spread out all over the United States. He seems to agree with my suggestion that one of the biggest challenges facing civil liberties attorneys is convincing government that concerns over civil liberties supersede the possibility that hundreds of thousands of dollars will be wasted if government just decides to do away with the machines they have recently purchased.

Roberts’ reaction is different. He immediately asks, “Whose money did they spend to buy those machines?” He notes that this is Recovery Act money, which makes it taxpayer money. And, so, we have every right to fight in resistance and should hesitate at the thought that the government might successfully minimize civil liberties protections in this country.

He sums it up like this: The purchase of these machines by the government is corruption of the highest degree. But, even worse, it’s corruption that now is “undermining the very fabric of our society, our whole concept of a free and just society.”

Both of these individuals recently appeared on “The Sean Hannity Show.” (They actually had a bit of trouble with Sean Hannity who didn’t think TSA wasn’t really trained for the kind of security this country needs, which they’re not. They can’t do psychological or behavior analysis of travelers that could really prevent attacks.)

They, lawmakers, and Yeffet are pushing for more common sense security in this country. They are disputing this idea that has become conventional wisdom–the idea that no one has a “right” to fly in an airplane, it is a privilege and individual rights are secondary to the rights of society.

That notion, although it has been used in history, has never been allowed to stand. Citizens through political leaders have always risen up to challenge the idea that rights or civil liberties can be subverted to keep people “safe.”

Roberts and Whitehead are also directly challenging the corporate welfare by government that has led this country into this mess. A select group of companies (L-3, Rapiscan, and Smiths Detection) have received contracts that are backed by stimulus money. The government has chosen to, instead of investing in jobs, stimulate the economy through scanners that will likely pose health risks to frequent travelers in the short term and passengers in the long term.

Progressives or liberals typically abhor corporate welfare. They have gone after the Bush Administration for violating the rule of law when detaining, interrogating and imprisoning terror suspects. And, they have fought against warrantless wiretapping and other actions sanctioned by the PATRIOT Act and its expansions.

There should be no hesitation. The Democratic Party could repair their image here and gain the support of a number of outraged Americans by taking on the TSA and choosing to support a movement toward a less invasive and more intelligence-based set of security procedures for airports. But, what they will or won’t do is of no consequence: Americans should consider it their obligation to stand up against what government is doing to Americans in airports.

Both Roberts and Whitehead (as I will show later when I publish both their interviews in full) think the private sector is the answer to the problem. The government monopoly on security should be broken. Left-leaning Americans might not like the idea of corporations running security anymore than having DHS handle it and choose to be reluctant and not make common cause with libertarians or conservatives opposing the TSA.

My suggestion is that citizens not let a fear of what might happen after they get airport security to stop violating Fourth Amendment rights get in the way of cooperating and organizing with people they might not normally cooperate or organize with. This is a grand transpartisan opportunity for progressives to gain some credibility and, because two political ideologies often pitted against each other can clearly admit this is wrong, achieve a key victory for citizens over corporate influence in government.

Let’s slay the beast before we worry about what to do in the wake of the beast’s death. This is a mess and a gross violation of American civil liberties that should end now.

Opt-Out Day is on November 24th, the day before Thanksgiving. If one doesn’t have to travel this holiday, don’t. If one has to travel, they should refuse the scanners. When they are forced into being groped by TSA, they should remind them they do not wish to be sexually manhandled. And then, they should share their experience with other Americans by sending a description of what they went through to TSA, civil liberties groups and citizen campaigns that are keeping a close-watch on this police state expansion that has been unfolding.

Senate Hearing with TSA Chief: “Have You Experienced the Law Enforcement-Style Pat-Down?”

6:27 am in Uncategorized by Kevin Gosztola

Head of TSA, John Pistole, goes before a Senate Committee to discuss new changes to airport security, asserts that he will listen to concerns but nothing will likely change.

Head of the Transportation Security Administration (TSA), John Pistole, went before the Senate Commerce, Science and Transportation Committee, to deliver a statement and answer questions on new security initiatives–the full-body scanners (“porno-scanners”) and pat-downs (“grope-a-dopes”). The Committee, which is responsible for oversight of the TSA, attempted to address criticism from civil liberties groups, pilot and flight attendant unions, and passengers.

The hearing with Pistole opened with a statement from the Chairman of the Committee, Sen. Jay D. Rockefeller (D-W. Va.), who has in his career, according to the Center for Responsive Politics (CRP), received nearly half a million dollars in campaign donations from the air transport industry. He attempted to talk about balancing the need to protect the public with citizens’ rights to privacy but talked very little about whether the new procedures violated the Fourth Amendment or not.

Instead, Sen. Rockefeller mostly expressed his conviction that the “threats are very real and extremely ongoing and evolving every day and something hasn’t happened because the intelligence has been so good and that won’t always be the case. So, we’ve had kind of a lucky run here.” This meant normal Fourth Amendment protections might not be able to be afforded. And, why the U.S. could not expect intelligence to always be good was not explained. This seemed to be Sen. Rockefeller’s way of scaring anyone in the “traveling public” that dared to doubt the decisions behind adding the new procedures.

Sen. Rockefeller expressed great frustration, as he seemed to urge Pistole to have TSA be more totalitarian in their security.

“I don’t like going out to Dulles Airport, walking onto an airplane. Not a pat-down, they don’t even look at me,” remarked Sen. Rockefeller.

Surely, each senator or congressman could probably get themselves a personal TSA agent to meet them at the gate every time they fly out. Like at a gentleman’s club, they probably could get a favorite girl (or guy depending on whether the senator or congressman is suppressing homosexuality or not). They could run their hand up and down in a non-threatening but authoritative fashion and make sure the senators have peace of mind when traveling to their destination. If that’s what Sen. Rockefeller would like to see happen, the Ministry of Love, I mean, Department of Homeland Security could probably do that.

A round of opening statements took place after Rockefeller completed his statement in defense of government violating your civil liberties (he even slipped in a jab at Democrats who didn’t like “the FISA” because they said it violated privacy).

Sen. Amy Klobuchar (D-Minn.) was particularly interesting because she used her opening statement to treat the many outraged constituents who have been calling her as petulant, unreasonable and unrealistic people:

“I want to say a few words on passenger screening at my own risk given the calls that have been coming into my office on these screenings. I appreciate the steps forward that you made. I have been a fan of the AIT [Advanced Imaging Technology]. I think it’s going to show things that you didn’t know about before.”

She seemed to suggest that perhaps dangerous objects or non-metallic explosives have gotten through prior to now and the escalation would now ensure those objects and explosives didn’t get through. That just sounded like more conjuring of fear with no basis in reality at all. Plus, in March, the Government Accountability Office (GAO) published a report that said, “It remains unclear whether the AIT would have detected the weapon used in the December 2009 incident based on the preliminary information GAO has received.”

The most awkward and revealing exchange took place when Sen. Byron Dorgan, who in his career, according to CRP, has received over $300,000 from the air transport industry, asked Pistole to explain the pat-down checks:

SEN. BYRON DORGAN: Pat-down checks. There’s reason for people to be concerned and to express that concern publicly. You explain precisely why it is necessary for us to have Advanced Imaging Technology (AIT). Have you been subjected to the law enforcement-style pat-down implemented nationally?

JOHN PISTOLE: I insisted that I receive that pat-down before I ordered that it be deployed nationwide. Also, Department of Homeland Security Secretary Janet Napolitano, Department of Homeland Security Assistant Secretary Loot, and other senior members of Homeland Security received that pat-down to see–not see, experience–so they would know what that involved before we rolled that out.

DORGAN: And your impression?

PISTOLE: It was thorough.

DORGAN: I understand. But, your impression beyond the fact that it was thorough?

PISTOLE: Well, the whole purpose is…

DORGAN: Did it make you uncomfortable? I mean, what was your impression personally?

PISTOLE: Yeah, yeah. It was more invasive than what I was used to. Of course, what is in my mind from almost 27 years with the FBI and all my counterterrorism work since 9/11 is what are the plot that are out there? And, how are we informed by the latest intelligence? And what do we have to do to assure the American people that we are being thorough? So, the answer is it is clearly more invasive. The purpose of that is to obviously detect those types of devices that we had not seen before, for example, last Christmas. I am very sensitive and concerned about people’s privacy concerns. And, I want to work through that as best we can. The bottom line is, we need to provide for the best possible security. [emphasis added]

Again, in March the GAO indicated they were uncertain “porno-scanners” would have detected the condom bomb the underwear bomber set off. But, more importantly, the premise of this exchange is frightening because of what it attempts to establish. Sen. Dorgan, no matter his intention, is somehow under the impression if the top officials in Homeland Security understood what the new procedures feel like to passengers then passengers would be less angry. They’d be more willing to accept the procedures and not criticize them as violations of privacy.

One might remember how news personalities like Mancow or writers like Christopher Hitchens elected to be waterboarded to see if it was “torture.” Political leaders were telling political leaders that didn’t believe waterboarding was torture to go get waterboarded. News personality Rick Sanchez had someone test a taser on him. The reactions somehow were meant to illuminate whether society was reasonable or not to react the way it was reacting to waterboarding or tasers. The public has cooled down overwhelmingly when it comes to tasers and waterboarding remains justifiable to many. And now, in this case, senators, representatives and top ranking Homeland Security officials are testing the demeaning procedure known as a “pat-down” on their selves to prove they can take it and the assumption is, if they can handle it, the public can too.

What this all seems to suggest is if people cannot get in line and get with the program and cooperate, they’re overreacting and, in some cases, may need to be dealt with for obstructing law and order (e.g. John Tyner whom TSA threatened with a civil suit and an $11,000 fine). It suggests that in some cases the people who have the most influence on public debate can decide whether the Fourth Amendment matters or doesn’t matter.

But, perhaps, the final part of Dorgan’s questioning is what said the most about the unfolding conflict between the public and the TSA:

DORGAN: And my understanding is that the October change went from using the back of a hand gliding across a person to a different approach. You might describe that–

PISTOLE: The back of the hand is still used in some aspects. I would prefer not to go into, um, specific details of in an open hearing simply because I don’t want to give a road map to say that’s exactly what the technique is and so how can we defeat that. We’ve just seen the ingenuity, creativity of al Qaeda particularly in the Arabian Peninsula with these last three attacks. I’d be happy to go into great detail in a private hearing. Honestly, any member who has not experienced that pat-down who would like to do that–I wouldn’t offer it but an experienced qualified security officer would be glad to do that.

Initially upon watching this exchange, it would seem that Pistole turned bashful when asked this question and didn’t like that the details he was being asked to provide might sound obscene (after all, Jeffrey Goldberg of The Atlantic reported from a Baltimore Airport TSA informed him the new procedure requires searching up and down a person’s thigh and between their legs until they meet “resistance”). Describing the nature of the pat-down would likely sound like sexual assault. Of course, in this case the senators understood the context of the sexual assault was security so, if meant to keep Americans safe, it could ultimately be acceptable.

Really, Pistole did what every authoritarian does when he or she is confronted with the bizarre notion that he or she must explain or justify the reasons for certain actions, policies, procedures, etc: Pistole suggested that information must remain classified.

Had this been a casual conversation perhaps in a café or bar setting, someone would have looked Pistole in the face and called him out for being fucking ridiculous. The “road map” he alluded to is no secret. It is engraved in every American’s mind that has just experienced this procedure for the first time in the past month. It has been described multiple times on blogs and in the news so if terrorists could really memorize how a TSA agent was going to grope them and develop a strategy to outsmart the agent so he or she could get through the security checkpoint the reality is this country would have probably been attacked by now. If the terrorist is part of a far-reaching network of individuals that hates us for our freedom, the moment the transition to new procedures began he or she would have hit America.

The content of the hearing only affirmed what Goldberg pointed out: “The pat-down, while more effective than previous pat-downs, will not stop dedicated and clever terrorists from smuggling on board small weapons or explosives.” Why? Because if TSA, in the pat-down, does not plan to cavity search all assholes and vaginas there will still be a risk posed to air travel.

And, if the aim of TSA is to humiliate passengers so that they use the porno-scanners, as Goldberg also suggested, then the public really has to be concerned about being conditioned to accept going through a machine that will likely pose risks because of radiation. Frequent travelers will surely begin to come down with cancer.

Cancer might be worth it to some who are not just afraid of flying but also flying and dying in midair or flying and dying as one collides into the ground or a building. But, shouldn’t one get to know exactly what Homeland Security is doing and whether the machines actually can prevent incidents like the one that touched off this escalation in security? I mean, if you’re going to get cancer to keep the greatest country on the third rock from the sun safe, doesn’t one get to know that this isn’t all just part of some government kickback to people like Michael Chertoff, who allegedly was looking for a contract for some scanning machines and exploited the shock of an incident in order to get a contract and do some profiteering?

No, because Pistole and others don’t want the terrorists to be able to use their creativity and ingenuity to get around the machines. That in authoritarian speak means the public doesn’t have a right to know because the agency in charge doesn’t want the public to know what it knows because the public might further question the agency about its knowledge. (Donald Rumsfeld might say here, “Known knowns will remain known unknowns to a public that just doesn’t have to know the knowns that we know are not unknown unknowns.”)

That means until WikiLeaks leaks a bunch of TSA reports on homeland security Americans will be expected to trust that giving up one’s Fourth Amendment rights is required in order to survive in this post-9/11 world of terror. They will be expected to submit to a security regiment that really just gives off the illusion of security because, in reality, nothing can ever be 100% safe.