Regular readers know we’ve been less than thrilled with what we consider to be the Transportation Security Administration’s sometimes ham-handed approach to airport screenings. But we’ve never claimed that even the incidents that aroused our ire violated the Constitution’s 4th Amendment ban on “unreasonable searches and seizures.”
Now a three-judge panel for the U.S. Court of Appeals for the District of Columbia has weighed in on the question of TSA screenings. The panel not only sided with the TSA, but suggested that when it comes to full- body scans, the constitutional call isn’t even close.
The court points out that “screening passengers at an airport is an ‘administrative search’ because the primary goal . . . is to protect the public from a terrorist attack.” That’s significant because an administrative search, as the Supreme Court has ruled, “does not require individualized suspicion” and can be justified by the “degree to which it is needed for the promotion of legitimate governmental interests.”
Needless to say, passenger safety is a legitimate governmental interest. If the body scanners are better than traditional magnetometers at detecting liquid or powder explosives — and of course the latter don’t detect them at all — then clearly the government has a strong case. That case becomes even stronger when the agency takes precautions to ensure that images aren’t released to the public or allowed to become the object of leering attention by TSA employees themselves.
And the TSA has indeed taken care to protect the images, the court explains. Its policies to protect privacy include obscuring facial features and deleting images as soon as passengers are cleared.
For that matter, any passenger may opt out of a body scan and get a patdown instead.
The TSA deployed its first scanners several years ago, but it ramped up the number of such screenings last year and continues to expand the program today. And although the scans themselves ignited most of the initial negative reaction, the more aggressive patdowns and searches have ended up provoking more controversy in recent months.
As we have explained before, it just doesn’t seem reasonable — or have anything to do with enhancing security — to subject the frail elderly or young children to intrusive, humiliating searches.
In the most egregious recent case, a sick 95-year-old woman in a wheelchair had to remove an adult diaper to get through airport screening. And yet the TSA was coldly non-apologetic. Officers “acted professionally” and “according to proper procedure,” the agency insisted.
But whether officers acted professionally or according to procedure is beside the point. The problem with subjecting a sick 95-year-old to such an ordeal is that it is entirely unnecessary and has nothing to do with the deterrence of terrorists.
The TSA fulfills a vital role in air travel — and a legal role, as the circuit court has now confirmed — but clumsy, inflexible policies continue to undermine its image and its credibility.
