Benjamin Franklin, underwear and TSA scans

“They that can give up essential liberty to obtain a little safety deserve neither liberty nor safety.”
Benjamin Franklin, 1775

Some years ago a terrorist on a plane tried to ignite his shoes, and the government responded by requiring air travelers to remove their shoes to be put through an x-ray machine.

Later, there was an alert that someone was carrying small containers of chemicals that could be made into a bomb, and in response air travelers were required to separate their toiletries for inspection and also to have them in small containers.

More recently, a suspected terrorist was found to have explosives hidden in his underwear, and now air passengers are required to go through an x-ray machine that essentially sees through a person’s clothing.  Or if they decline to go through the x-ray machine, they are required to submit to an “enhanced pat-down.”

The latest measure, particularly the enhanced pat-downs, has sparked a vigorous national debate.  Some citizens feel that the government has gone too far in terms of invading their privacy rights.   Others say that while the enhanced pat-downs may be a personal invasion, the resulting protection, is worth giving up some personal rights.

This national debate involves our basic rights and it must remain both civil and respectful of the other party’s view.  These issues are too important for a simple “right or wrong” solution.  And, there is no “one size fits all” solution.

An appropriate starting point would be the relevant words of the Fourth Amendment:

“The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated………”

The critical word is “unreasonable.” The issue is what is reasonable and conversely what is unreasonable.  It is suggested the resulting solutions must to be flexible and effectively meet the particular danger.  Thus, the clash between our privacy rights and the right to our lives free of terror.  Let’s be clear, there can be no dispute or debate concerning the horrific result from a successful “event.”

What did the members of the first Congress understand “unreasonable searches” to mean?  James Madison, the primary architect of the Bill of Rights (and the Constitution) recognized this tradeoff more than 200 years ago.

“Perhaps it is a universal truth that the loss of liberty at home is to be charged against provisions against danger, real or pretended, from abroad.”

As citizens, we need to participate in the debate:

• Where do we draw the line as to what is a reasonable search and when is a search unreasonable?
• What factors must be considered in developing a response?
• Do the enhanced pat-downs violate the Fourth Amendment?  If so, what would be an effective alternative?
• If a terrorist was found to have explosives hidden in a body cavity, and the government started cavity searches at airports, in your opinion would those searches violate the Fourth Amendment?  If your answer differs from the preceding question, why did you change your position?
• Are we seeing the death of our liberty (is) by a “thousand small cuts?” If so, what should be done to reserve that direction?

These are serious issues and require serious reflection.
Let us hear from you.  This is important!

Comments

comments

Comments

  1. says

    It will end when the TSA screening becomes so burdensome (due to the continued accretion of reactive patches) that commercial passenger air travel becomes impractical and ceases to operate in the United States.

    The TSA Administrator will then hold a press conference triumphantly declaring “MISSION ACCOMPLISHED.” And for the one and only time, a TSA official will be giving the public the complete and honest truth. Because the truth is that the only truly effective way to eliminate the threat of terrorist attacks on aviation is to eliminate aviation.

    Then all the TSOs will be redeployed at train stations, bus stations, subway stations, and highway checkpoints. There they will administer the Homeland Security Genital Squeeze Inspection, to which all persons in the Homeland voluntarily consent whenever they leave their homes, in accordance with the Revised Standard Operating Procedure (classified Tippy-Top Secret).

Trackbacks

  1. [...] – Arguments made in a legal brief filed by the Electronic Privacy Information Center (EPIC) in its lawsuit against the Dept. of Homeland Security, decided July 15, 2011. THE CONSTITUTIONAL RESPONSE: The U.S. Supreme Court has never ruled directly on the constitutionality of screening passengers at the nation’s airports, but has suggested in cases involving other kinds of searches that airport searches are vital to public safety. In the first federal court test of full-body scanners, the Court of Appeals for the D.C. Circuit earlier this month rejected the constitutional challenge (What would Ben Franklin think of the TSA scanners?). [...]

  2. [...] – Arguments made in a legal brief filed by the Electronic Privacy Information Center (EPIC) in its lawsuit against the Dept. of Homeland Security, decided July 15, 2011. THE CONSTITUTIONAL RESPONSE: The U.S. Supreme Court has never ruled directly on the constitutionality of screening passengers at the nation’s airports, but has suggested in cases involving other kinds of searches that airport searches are vital to public safety. In the first federal court test of full-body scanners, the Court of Appeals for the D.C. Circuit earlier this month rejected the constitutional challenge (What would Ben Franklin think of the TSA scanners?). [...]

  3. [...] THE CONSTITUTIONAL CLAIM: "The TSA's body scanner program violates the Fourth Amendment… The TSA subjects all air travelers to the most extensive, invasive search available… The TSA rules require individuals to submit to a digital strip search that is maximally intrusive." – Arguments made in a legal brief filed by the Electronic Privacy Information Center (EPIC) in its lawsuit against the Dept. of Homeland Security, decided July 15, 2011. THE CONSTITUTIONAL RESPONSE: The U.S. Supreme Court has never ruled directly on the constitutionality of screening passengers at the nation's airports, but has suggested in cases involving other kinds of searches that airport searches are vital to public safety. In the first federal court test of full-body scanners, the Court of Appeals for the D.C. Circuit earlier this month rejected the constitutional challenge (What would Ben Franklin think of the TSA scanners?). [...]

  4. [...] THE CONSTITUTIONAL CLAIM: "The TSA's body scanner program violates the Fourth Amendment… The TSA subjects all air travelers to the most extensive, invasive search available… The TSA rules require individuals to submit to a digital strip search that is maximally intrusive." – Arguments made in a legal brief filed by the Electronic Privacy Information Center (EPIC) in its lawsuit against the Dept. of Homeland Security, decided July 15, 2011. THE CONSTITUTIONAL RESPONSE: The U.S. Supreme Court has never ruled directly on the constitutionality of screening passengers at the nation's airports, but has suggested in cases involving other kinds of searches that airport searches are vital to public safety. In the first federal court test of full-body scanners, the Court of Appeals for the D.C. Circuit earlier this month rejected the constitutional challenge (What would Ben Franklin think of the TSA scanners?). [...]

  5. [...] – Arguments made in a legal brief filed by the Electronic Privacy Information Center (EPIC) in its lawsuit against the Dept. of Homeland Security, decided July 15, 2011. THE CONSTITUTIONAL RESPONSE: The U.S. Supreme Court has never ruled directly on the constitutionality of screening passengers at the nation’s airports, but has suggested in cases involving other kinds of searches that airport searches are vital to public safety. In the first federal court test of full-body scanners, the Court of Appeals for the D.C. Circuit earlier this month rejected the constitutional challenge (What would Ben Franklin think of the TSA scanners?). [...]

  6. [...] Benjamin Franklin, underwear and TSA scans | Constitution DailyDec 1, 2010 … “They that can give up essential liberty to obtain a little safety deserve neither liberty nor safety.” Benjamin Franklin, 1775. Some years ago a … [...]