I recently wrote here about constitutional limitations on the new Transportation Security Administration (TSA) strip and grope procedures. They subject us to the sorts of governmental control the Constitution was intended to prevent and violate Fourth Amendment prohibitions in ways highly up close and personal. Some illumination, albeit indirect, is shed by the Supreme Court’s 1968 decision in Terry v. Ohio, 392 U.S. 1 (1968), the essence of which is that a search of one’s person must be reasonable and no more intrusive or degrading than the circumstances mandate. Searches shocking to ordinary human sensibilities fail to meet that test.
belatedly grasping the political liabilities from the TSA screening uproar, but seem to have few options in dealing with the problem.
The new talking point word from the White House on the controversy is “balance” — with the suggestion that the Transportation Safety Administration would keep the same policies but look for ways to demonstrate more sensitivity. …
The consensus in the administration seems to be that the Department of Homeland Security didn’t do a good enough job of getting out in front of this story and communicating to travelers. This is the default position for the administration when political troubles arise: The product was fine, but the marketing was poor.
That seems pretty lame, and highly disruptive protests are likely and even a few protesters could be very disruptive. Some municipal officials are rebelling. It is not because of poor marketing. TSA Administrator Pistole stated that “not many people could have predicted” the latest outcry. That speaks poorly about Mr. Pistole’s ability to be proactive as well as his apparent perception that the American public is docile, eager to obey, and easy to control. His statement also suggests an incredible lack of situational awareness by those who devised the new TSA procedures.
Although the TSA, in response to a public uproar, is considering ways to make its procedures less objectionable in the long run, there are no plans for short term change “we can believe in.” Of perhaps some interest is this statement in the linked Reuters article:
Authorities … a year ago … prevented a Christmas Day attempt to blow up a flight to Detroit with a bomb hidden in a passenger’s clothes.
Would that it were true. The “authorities” didn’t do it; airline passengers did and were the first line of defense. Still, let it not be said that the TSA failed to do everything possible short of profiling and consistent with “CYA” to prevent a similar future occurrence.
Many consider the current TSA procedures necessary for our safety because we, as a society, are not prepared to engage in the cardinal sin of “profiling.” The TSA therefore insists on treating everyone the same — even those with significant medical conditions making it grossly improper to treat them that way. Here is a video of an interview with a bladder cancer survivor whose ostomy bag was messily and in humiliating fashion detached during a grope, even though he had several times cautioned the TSA agent who did it. Was it reasonable to treat him “just like everybody else”? Might a competently trained groper paid and deserving more than a near minimum wage have avoided the problem? That sort of thing, while bad, is merely one symptom of “treat everybody the same except when it is politically correct to do otherwise.”
There is an unfortunate tendency to think in terms of bumper stickers; when they are too complex, labels — racism, sexism, and profiling — are used. There are three basic steps in the labeling process:
Give something bad a label;
Apply the same label to other things;
Treat them as though they were all the same.
Here is one definition of profiling:
Profiling refers to the law enforcement practice of the detention, interdiction, or other disparate treatment of an individual on the basis of the racial or ethnic status of such individual.
Terrorists are not distinguishable from non-terrorists on the basis of race or ethnicity because they are of different races and come from different countries; there have been black and non-black, Arab and non-Arab, terrorists from the United States and elsewhere.
Sensible people profile daily, and not only for law enforcement purposes. A guy walking into a convenience store with a bag over his head and carrying something which appears to be a pistol may intend to rob the store; he may just be en route to a Halloween party, but inherent situational awareness certainly makes us legitimately concerned. “Profiling” is commonly used by the police: if a young Latina (female) is seen robbing a gasoline station, the police presumably concentrate their investigations on young Latinas rather than on elderly males appearing to be Swedish — not because all young Latinas are considered more likely to rob gasoline stations but because the robber of that gasoline station was a young Latina.
Medical professionals often use profiling in diagnosing medical conditions. Members of various racial and ethnic groups show marked statistical susceptibility to various diseases. These factors should be and are considered. So, obviously, do males and females. Males are not generally screened for ovarian cancer nor are women normally screened for testicular or prostate cancer.
The government requires some profiling based on race, ethnicity, and sex. One aspect of this is called affirmative action, which mandates benefits for people in racial, ethnic, and gender groups deemed historically disadvantaged, without regard to whether the beneficiaries, as individuals, have ever been disadvantaged personally because of their race, ethnicity, or sex. Conversely, affirmative action mandates disadvantages for people not in those groups, regardless of their personal situations; it’s pretty much a zero sum game.
Affirmative action and medical screening based on group classifications are, it is assumed, intended to be benign, but profiling to detect people likely to be more dangerous than others is not thought specifically to increase their happiness or well being; it can easily subject them to enhanced inconvenience and worse. However, it can also enhance the safety of all, even those subjected to it. The reason is that
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.
Islamic terrorism during this century has been quite dangerous to airline travelers, and far more Islamic clerics preach jihad or the equivalent than do other clerics. This is not to suggest that everyone in an airport (and possibly eventually everyone on a subway or train) who appears to be a Muslim should on that basis alone be subjected automatically to significantly more intense scrutiny. Suspiciously abnormal behavior is the key factor. There are others. Modern database technology can be useful, and to the extent that records of contributions to and associations with organizations supportive of terrorist activity — the Islamic Society of North America (ISNA), the North American Islamic Trust (NAIT), and the Council on American-Islamic Relations (CAIR) for example — are available they should be used to flag travelers for enhanced scrutiny. Ditto those receiving support from such organizations. People who recently traveled in lands known to be terrorist training grounds should also be flagged. Passport information on this should be disseminated to the TSA for later use for their domestic travel. “Guilt by association”? No, just reasonable suspicion based on association with groups supportive of terrorism. Their purposes for air travel may be totally innocent, but may well not be and such matters should be considered. Human intelligence is likely to provide answers more reliably than the new and indiscriminately applied TSA “strip and grope” procedures, which are the antithesis of intelligence. Human intelligence is a way to look for potentially dangerous people rather than focusing reactively, exclusively, and in institutionally anal retentive ways on potentially dangerous things — nail clippers and bottles of shampoo, Cranberry sauce, gravy, jams, jelly, perfume, wine, liquor, beer and other neat stuff.
Human intelligence as used in the present context means little more than sophisticated situational awareness similar to but more professionally refined and intensive than what most reasonably prudent people employ daily. There are areas where drug related violence and muggings are common. I prefer not to walk (or in some cases even drive) through them. My wife and I spent about seven years on our sailboat in the Caribbean. We avoided areas known for piracy and anchoring in isolated coves we had heard were unsafe. We had no problems. We also traveled inland. There was an area in Puerto Cabello, Venezuela, adjacent to the marina where we occasionally docked our boat and where muggings were common. We avoided it at night and during the day whenever we could. When there was sufficient reason to walk there we were very attentive. We were never mugged, but some friends who apparently ignored warning signs were. My wife is more situationally aware and less paranoid than many. A couple of times when walking down a sidewalk alone she sensed that she was being followed by people at a distance of about fifty meters. Her response was quite similar to that of the young lady in this article who feared that she was being followed for improper purposes. When my wife stopped, they stopped. When she crossed the street, they crossed the street. Finally, she turned around, glared directly at them, and pointed her finger indicating that she knew what they were up to. They went away. There was no ethnic or racial profiling involved. Nearly everyone there was Hispanic and of mixed “Native American,” African, and European ancestry. Profiling on the basis of race or ethnicity would have meant never going ashore.
It has been said that we all should “just get over” concerns about “strip and grope” procedures since they are for our own safety; we should just say “thank you” to the TSA for doing a great job — there is no price too high to pay for safety. Nevertheless, many (even some who are not right-wing nuts) are unwilling to pay that price, including Muslims. According to “Islamic scholars,” airport body scanners violate Islamic law:
The Fiqh Council of North America — a body of Islamic scholars — issued a fatwa this week that says going through the airport scanners would violate Islamic rules on modesty.
These Islamic scholars apparently don’t intend to “get over it.” The Council on American-Islamic Relations (CAIR) has asked that special procedures be used for female Muslim travelers leaving for or returning from Hajj because
CAIR offices have already received complaints, particularly from female travelers who wear hijab, about being subjected to the new pat-down procedure.
The enhanced pat-down involves a much more intrusive manual search of passengers’ bodies by TSA officers. Passengers who have undergone the new pat-down procedure have reported feeling humiliated by a search they describe as invasive and that has involved TSA officers touching the face and hair, the groin area and buttocks, and in between and underneath breasts.
According to the TSA administrator, there will be no religious exemptions from either scan or grope. Medical exemptions? Apparently, just to treat everyone as fungible and therefore fairly, there will be none of those either. Should there be any, they will be a result of recent and “unanticipated” public outrage rather than of any intelligence on the part of the TSA. To the extent that outrage is necessary to undo such foolishness, so be it.
There have been few (and I am unaware of any) governmental suggestions that Islamic airline travelers offended by enhanced scrutiny and due to their own sensitivities about profiling should “just get over it.” Terrorism is not the fault of most Muslims or, for that matter, Jews, Mormons, Baptists, or Roman Catholics. Since we all face the same in-flight dangers, those who belong to or support groups which engage in or promote Islamic jihad should “just get over it” as well; they should take the lead. Perhaps they might also consider taking the lead in condemning those who actually involve themselves in jihad. They have made very few steps toward either.
Members of some identifiable groups have been abnormally prone to blowing up airplanes. Gray haired old ladies, Episcopalian clergy, small children, and most members of other identifiable groups have not so far done that and seem unlikely to do so now. That is a reality and one which must be considered quite seriously. If it is not considered, airport security procedures will be far less effective and far more intrusive than they could and should be. As long as there is persistent and blind adherence to the dictates of political correctness they will not get better and may even get worse.