American citizens possess certain unalienable rights, including the rights to not be touched, sexually assaulted, searched, detained or interrogated by their government without specific probable cause and a signed judicial warrant for arrest. Americans cannot "consent" away their unalienable rights, particularly when coerced at the point of TSA's guns and threats of arrest. No officer may ever sexually assault a criminal, more less law abiding American citizens.
Current law provides authority for our government to purchase and implement bomb-sniffing canines who alert to PETN and TAPN like the underwear and shoe bomber had on them. A dog's nose a few feet away seems more reasonable than what is taking place now. And the canines do not have to be German Shepherds...a smart Collie or Lab would do well once trained. Who wouldn't mind Lassie at the airport?
Interestingly Obama White House Press Secretary Robert Gibbs admitted to executive (presidential) authority as the source for the changes:
"First I'd point obviously to what the President had to say on [sic] this Saturday evening in Lisbon, and that is we put in place enhanced security measures..."
http://www.whitehouse.gov/the-press-office/2010/11/22/press-briefing-press-secretary-robert-gibbs-11222010
After discovering yesterday that no apparent link to the actual federal law existed on TSA's website and notifying concerned constitutional attorneys of this fact, today such a link exists (yet still no executive orders, internal policies or regulations are posted). http://www.tsa.gov/assets/pdf/Aviation_and_Transportation_Security_Act_ATSA_Public_Law_107_1771.pdf
There is no readily apparent federal law granting permission for TSA agents to touch American citizen genitals and use high-tech machines to do naked scanning. Indeed, in Kyllo v. US. the Supreme Court held that police could not use new highly revealing thermal imaging (infrared) scanners to look at homes for evidence of crimes without a warrant. Justice Scalia, writing for the majority, explains the Supreme Court’s reasoning:
"We think that obtaining by sense-enhancing technology any information regarding the interior of the home that could not otherwise have been obtained without physical "intrusion into a constitutionally protected area",(Silverman, 365 U.S., at 512), constitutes a search-at least where (as here) the technology in question is not in general public use."
One justice mentioned that allowing the police to scan homes and see a "lady in her bathtub" violated the norms of decency.
Doing the same thing in public airports, with nude body imaging or touching of private areas, goes even farther to violate the law of the land.
Interestingly, even a cursory review of the federal statute provides no basis for Obama's current policy. Here are the relevant portions of the federal airport screening law:
‘‘(4) AIRPORT PERIMETER SCREENING.—The Under Secretary—
‘‘(A) shall require, as soon as practicable after the date of enactment of this subsection, screening or inspection of all individuals, goods, property, vehicles, and other equip- ment before entry into a secured area of an airport in the United States described in section 44903(c);
‘‘(B) shall prescribe specific requirements for such screening and inspection that will assure at least the same level of protection as will result from screening of pas- sengers and their baggage;
...
The only location a "pat-down" is even mentioned in the federal law is in the context of security personnel training and requirements, and the use of a hand-held "metal detector".
115 STAT. 618
‘‘(iv) Screeners performing physical searches or other related operations shall be able to efficiently and thoroughly manipulate and handle such baggage, containers, and other objects subject to security proc- essing.
‘‘(v) Screeners who perform pat-downs or hand- held metal detector searches of individuals shall have sufficient dexterity and capability to thoroughly con- duct those procedures over an individual’s entire body.
Here, the "shall" mandate is for "dexterity and capability" of the screener to perform the job of screening, but there is no federal law authority or permission to touch genitals and do naked scanning. Although the law hints that "procedures" developed might cover "an individual's entire body" such dicta is not legal authority, passed under the laws of due process, to grant the federal government power to do genital touching and nude body scanning.
Furthermore, additional contradictions and inadequacies exist in the federal law.
Apparently not all carry-on and/or checked bags are physically opened and checked under the "positive bag-match programs," yet random persons are now being touched in every private place. For instance, the law reads:
SEC. 110. SCREENING.
(a) REVIEW AND DEVELOPMENT OF WAYS TO STRENGTHEN SECURITY.—Section 44932(c) of title 49, United States Code, is amended—
... inserting the
following:
‘‘(a) IN GENERAL.—The Under Secretary of Transportation for Security shall provide for the screening of all passengers and prop- erty, including United States mail, cargo, carry-on and checked baggage, and other articles, that will be carried aboard a passenger aircraft operated by an air carrier or foreign air carrier in air transportation or intrastate air transportation. In the case of flights and flight segments originating in the United States, the screening shall take place before boarding and shall be carried out by a Federal Government employee (as defined in section 2105 of title 5, United States Code), except as otherwise provided in section 44919 or 44920 and except for identifying passengers and baggage for screening under the CAPPS and known shipper programs and conducting positive bag-match programs.
Bag match programs and canine use permit TSA to opt out a bag from individual opening and physical searches if it is connected with a passenger aboard the aircraft.
‘‘(e) MANDATORY SCREENING WHERE EDS NOT YET AVAIL-
ABLE.—As soon as practicable but not later than the 60th day Deadline. following the date of enactment of the Aviation and Transportation Security Act and until the requirements of subsection (b)(1)(A) are met, the Under Secretary shall require alternative means for screening any piece of checked baggage that is not screened by
an explosive detection system. Such alternative means may include 1 or more of the following:
‘‘(1) A bag-match program that ensures that no checked baggage is placed aboard an aircraft unless the passenger who checked the baggage is aboard the aircraft.
‘‘(2) Manual search.
‘‘(3) Search by canine explosive detection units in combina- tion with other means.
‘‘(4) Other means or technology approved by the Under Secretary.
It is time for airports to cease and desist allowing TSA to run rampant over our constitutional rights. An airport can opt out of TSA:
‘‘§ 44920. Security screening opt-out program
‘‘(a) IN GENERAL.—On or after the last day of the 2-year period beginning on the date on which the Under Secretary transmits to Congress the certification required by section 110(c) of the Avia- tion and Transportation Security Act, an operator of an airport may submit to the Under Secretary an application to have the screening of passengers and property at the airport under section 44901 to be carried out by the screening personnel of a qualified private screening company under a contract entered into with the Under Secretary.
If you fly, you might consider video-taping TSA's screening actions, particularly obtaining the names and/or badge numbers of the agents. You have a right to know who the government agent is that is screening you. Limits on liability extend only to acts done under a reasonable belief of the imminency of violence:
SEC. 144. LIMITATION ON LIABILITY FOR ACTS TO THWART CRIMINAL VIOLENCE OR AIRCRAFT PIRACY.
Section 44903 is amended by adding at the end the following:
‘‘(h) LIMITATION ON LIABILITY FOR ACTS TO THWART CRIMINAL VIOLENCE OR AIRCRAFT PIRACY.—An individual shall not be liable for damages in any action brought in a Federal or State court arising out of the acts of the individual in attempting to thwart an act of criminal violence or piracy on an aircraft if that individual reasonably believed that such an act of criminal violence or piracy was occurring or was about to occur.’’.
It appears that the TSA is relying upon regulations and policies which are written directly by the White House. Such appear unlikely to be upheld as the law of the land when confronted with the laws of sexual assault and other torts, and the US Constitution's protections. TSA agents who perform such invasive pat-downs and naked scans are likely exposing themselves to civil damages because the random pat-down selections of children, American families and nuns do not fulfill the imminency requirement for reasonableness. Indeed, there are reports that special interest groups have been providing the Obama White House with directives on utilizing illegal search methods.
There are reports that TSA is opting out muslim women from invasive pat-downs and nude bodyscanners because of pressure and directives from CAIR, a national muslim advocacy center.
The present national security policy is flawed and is not grounded in the truth of who is trying to kill our citizens. The Israeli method appears to be the best approach as Tel Aviv has no naked scanners or invasive "pat-down" assaults. Americans should also be concerned with the security threat that Obama has placed as a TSA top advisor with a top-secret security clearance. There are reports he is a Syrian-born-muslim extremist with ties to terrorists and his close relative is also in a classified-accessible top post at Homeland Security. Read that report
here.
The good news is, federal law does appear to provide the TSA administrator Mr. Pistole with the ability to exempt individuals from enforcement regulations "if... in the public interest." Aviation Security title, subsection "Law Enforcement Powers," provides in subsection (r):
‘‘(r) AUTHORITY TO EXEMPT.—The Under Secretary may grant
an exemption from a regulation prescribed in carrying out this section if the Under Secretary determines that the exemption is in the public interest.’’.
If you would like to seek legal assistance in opting out of the invasive searches, and in defending your constitutional and unalienable rights, please call our office.
© 2010. Daniel L. Cox.* The Cox Law Center, LLC, Francis Scott Key Historic Law Office, 104 N. Court St., Frederick, Maryland 21701. All rights reserved. http://www.coxlawcenter.com/
*Daniel Cox is licensed to practice law by the Maryland Court of Appeals. This article is for educational and informational purposes only, to advance the interests of justice. Nothing in this article should replace competent legal advice from a licensed attorney and this article should not be relied upon as legal advice. Reading this article does not create any attorney-client relationship. For legal advice, please contact a licensed attorney.
