The TSA Is Not Above The Law!

Posted: April 10, 2012 in Politics

by: Ron Paul

The requirement that we Americans be forced to undergo appalling treatment simply for the “privilege” of traveling in our own country reveals much about how the federal government feels about our liberties. The unfortunate fact that we put up with this does not speak well for our willingness to stand up to an abusive government.

The press reports are horrifying: 95 year-old women humiliated; children molested; disabled people abused; men and women subjected to unwarranted groping and touching of their most private areas; involuntary radiation exposure. If the perpetrators were a gang of criminals, their headquarters would be raided by SWAT teams and armed federal agents. Unfortunately, in this case the perpetrators are armed federal agents. This is the sorry situation ten years after the creation of the Transportation Security Administration.

Many Americans continue to fool themselves into accepting TSA abuse by saying “I don’t mind giving up my freedoms for security.” In fact, they are giving up their liberties and not receiving security in return. Last week, for example, just days after an elderly cancer victim was forced to submit to a cruel and pointless TSA search, including removal of an adult diaper, a Nigerian immigrant somehow managed stroll through TSA security checks and board a flight from New York to LA — with a stolen, expired boarding pass and an out-of-date student ID as his sole identification! He was detained and questioned, only to be released to do it again 5 days later! We should not be surprised to find government ineptitude and indifference at the TSA.

At the time the TSA was being created I strongly opposed federalization of airline security. As I wrote in an article back in 2001:

“Congress should be privatizing rather than nationalizing airport security. The free market can and does produce excellent security in many industries. Many security-intensive industries do an outstanding job of maintaining safety without depending on federal agencies. Nuclear power plants, chemical plants, oil refineries, and armored money transport companies all employ private security forces that operate very effectively. No government agency will ever care about the bottom-line security and profitability of the airlines more than the airlines themselves. Airlines cannot make money if travelers and flight crews are afraid to fly, and in a free market they would drastically change security measures to prevent future tragedies. In the current regulatory environment, however, the airlines prefer to relinquish all responsibility for security to the government, so that they cannot be held accountable for lapses in the future.”

What we need is real privatization of security, but not phony privatization with the same TSA screeners in private security firm uniforms still operating under the “guidance” of the federal government. Real security will be achieved when the airlines are once again in charge of protecting their property and their passengers.

In the meantime, this week I am introducing the American Traveler Dignity Act, which establishes that airport security screeners are not immune from any US law regarding physical contact with another person, making images of another person, or causing physical harm through the use of radiation-emitting machinery on another person. It means they are not above laws the rest of us must obey. As we continue to see more and more outrageous stories of TSA abuses and failures, I hope that my colleagues in the House will listen to their constituents and join with me to support this legislation.


The Legality Of The TSA’s ‘Enhanced Pat Down’ Authority


Since the Transportation Security Administration’s (TSA) implemented its  ‘enhanced pat down’ screening procedures in late 2010 the legality of the agency’s authority to execute enhanced pat downs has been consistently called into question.

While the TSA has the legal authority to carry out administrative searches without probable cause, as I wrote about in November 2010 here, How The TSA Legally Circumvents The Fourth Amendment, the question of whether or not the TSA can legally perform physically invasive pat downs without probable cause has remained.

In May 2011 I began requesting that the TSA provide legal statues, laws or rulings that definitively laid out the agency’s legal standing to perform ‘enhanced pat downs.’  After nearly two dozen correspondences with the TSA’s Office of Strategic Communications, Deputy Assistant Administrator Sterling PayneAdministrator John Pistole (who holds a law degree from the Indiana University School of Law) and the agency’s Chief Counsel Francine Kerner, no one has been able to provide any legal evidence of the agency’s authority to carry out the current physically invasive administrative searches without probable cause.

Over the course of my correspondence with the TSA regarding the legality enhanced pat downs, spanning more than thee months, I was repeatedly sent links to Public Law 107-71, the Aviation Transportation and Security Act (ATSA).  The TSA frequently uses ATSA to justify its actions, however while ATSA authorizes the creation of the TSA, and details many aspects of agency’s scope, duties and implementation, it in no way addresses the policies or procedures for the TSA to physically carry out individual passenger screening.

The basics of the TSA’s responsibility for passenger screening can be interpreted under Title I – Aviation Security, ‘§ 114. Transportation Security Administration, Section (e) SCREENING OPERATIONS.—The Under Secretary shall—

‘‘(6) on a day-to-day basis, manage and provide operational guidance to the field security resources of the Administration, including Federal Security Managers as provided by section 44933;

‘‘(7) enforce security-related regulations and requirements;

‘‘(8) identify and undertake research and development activities necessary to enhance transportation security;

‘‘(9) inspect, maintain, and test security facilities, equipment, and systems;

‘‘(15) carry out such other duties, and exercise such other powers, relating to transportation security as the Under Secretary considers appropriate, to the extent authorized by law.

 One correspondence with the TSA cited this section of ATSA:


 (b) PASSENGERS AND PROPERTY.—Section 44901 of title 49, United States Code, is amended— (1) by re-designating subsection (c) as subsection (h); and (2) by striking subsections (a) and (b) and inserting the


‘‘(a) IN GENERAL.—The Under Secretary of Transportation for Security shall provide for the screening of all passengers and property, 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.

‘‘(b) SUPERVISION OF SCREENING.—All screening of passengers and property at airports in the United States where screening is required under this section shall be supervised by uniformed Federal personnel of the Transportation Security Administration

 This section of ATSA, found on Page 19 of the 51 page law, in no way addresses the agency’s legal authority to carry out enhanced pat downs.   The TSA has more than once referenced the 9th Circuit Court’s 1973 ruling of U.S. vs Davis, 482 F.2d 893, 908. The 9th Circuit Court’s U.S. vs Davis ruling states

“noting that airport screenings are considered to be administrative searches because they are conducted as part of a general regulatory scheme, where the essential administrative purpose is to prevent the carrying of weapons or explosives aboard aircraft.” and  “[an administrative search is allowed if] no more intrusive or intensive than necessary, in light of current technology, to detect weapons or explosives, confined in good faith to that purpose, and passengers may avoid the search by electing not to fly.”

 While the TSA may interpret U.S. vs Davis to grant the agency unlimited powers to execute enhanced pat downs, the law is lacking the legal wording that addresses the scope of what is acceptable under “the essential administrative purpose.”  The agency is also unable to provide significant documentation that enhanced pat downs, above and beyond less invasive pat downs, serve “the essential administrative purpose.”

 To date, the TSA’s Chief Counsel has been unable to respond to my inquiries citing any laws, statutes or rulings that address the scope of the agency’s powers in physically executing administrative searches.  As the agency’s senior most attorney, it is troubling that Ms. Kerner is unable to provide the legal ground her agency needs to carry out the policy and procedure it executes daily across the United States.

The TSA plays an important in role in the national security of the United States, carrying out not only passenger screening but also overseeing numerous other essential security aspects not seen by the traveling public, however the agency’s current security procedures leave the agency in legal jeopardy.

How long can the elected leaders in the U.S. House and Senate allow the Transportation Security Administration to operate in a manner outside the current laws in the in the United States?   Every government agency needs to know its limits, some agencies are allowed mission creep, as the TSA has demonstrated numerous times, but operating outside the current legal power of the agency goes beyond mission creep.

Everyone answers to someone … yet somehow the TSA continually answers to no one …



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