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Pilots take strip search objections to appeals court

TSA ‘enhanced pat-down’

A challenge to the federal government’s decision to impose either physical pat-downs or electronic strip searches on airline workers and passengers is being elevated to the U.S. Court of Appeals for the District of Columbia, because the requirements violate “human dignity and the U.S. Constitution,” according to an attorney handling the case.

The comment comes from John W. Whitehead, president of The Rutherford Institute, which is representing several clients in their fight over the Transportation Security Administration’s invasive procedures.

“No American should be forced to undergo a virtual strip search or subjected to such excessive groping of the body as a matter of course in reporting to work or boarding an airplane when there is no suspicion of wrongdoing,” he said. “To do so violates human dignity and the U.S. Constitution, and goes against every good and decent principle this country was founded upon.”

The brief asks the appeals court to reinstate the case and return it to the district court for hearings and adjudication.

The case cites the Constitution’s Fourth Amendment protections against unreasonable searches and seizures. The lower court dismissed the cases on the grounds that the court has no jurisdiction in TSA matters.

In that ruling, Judge Henry H. Kennedy Jr. cited a “secret” order from the TSA as the basis for deciding that that the D.C. Court of Appeals would have to hear any challenge to TSA procedures.

The government, insisting that the “secret” order contains “sensitive security information, has refused to make public the document outlining the procedures, according to Whitehead.

Rutherford attorneys now are arguing that since the TSA “order” has remained “secret,” there has been no opportunity for the public to comment on it, and “passengers and pilots are not only being deprived of their Fourth Amendment rights, but also their due process right to a fair hearing on their challenge to the secret TSA policy.”

The brief argues that Americans do not shed their constitutional privacy rights when they go into an airport or want to board a plane.

The lawsuits originally were brought in 2010 against Homeland Security Secretary Janet Napolitano and TSA chief John Pistole on behalf of airline pilots and passengers subjected to invasive body searches.

Among the cases: Adrienne Durso, a recent breast cancer survivor, repeatedly and aggressively was groped by TSA agents in the area of her mastectomy scar, even after she told agents of her condition.

Another case: Chris Daniels, a frequent business traveler, aggressively and repeatedly was touched in his genital area after initial screening showed an abnormality in his genitals that was the result of a childhood injury. When Daniels asked to leave the security area and forego flying rather than submit to the intimate groping, he was told that he was not free to leave and would have to submit to the enhanced pat-down.

The pilots: Michael Roberts and Ann Poe, in two separate incidents taking place in 2010, were on their way to work when told by TSA screeners they must submit to AIT (Advanced Imaging Technology) scanning or be subjected to full pat-down frisks. Upon refusing, both pilots were prevented from passing through security, and unable to report to work.

The fight over TSA procedures has been raging for more than two years, after the government agency started implementing “enhanced” security screenings that involve essentially two options: an X-ray that is a virtual strip search of a passenger and a pat-down that critics have likened to sexual assaults in public.

Rep. Ron Paul, R-Texas, earlier proposed a change in the law that would specify that screeners are “not immune from any U.S. 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 the laws the rest of us must obey,” he wrote at the time.

Also, officials with the Libertarian Party of Florida formally have asked sheriffs across the state to start arresting TSA agents in the 67 counties for sexual battery.

“As sheriff, you have the absolute duty to enforce the law uniformly and without prejudice. You are, at best, engaged in selective enforcement by choosing to further ignore these flagrant violations of federal and state law. At worst, you are complicit,” said a message to the 67 sheriffs from the party signed by chairman Adrian Wyllie.

“If you have TSA agents within your county that are violating the law, then you must act. Warn the TSA agents that they are subject to arrest if they continue to violate the law. Should they continue, then you must begin making arrests,” the letter said. “We urge you to remember the oath you took to support, protect and defend the Constitution of both the state of Florida and the United States of America. On behalf of all Floridians, the Libertarian Party of Florida calls on you to do exactly that.”

On the state level, Texas last year fell narrowly short of moving forward with a plan that would have required “probable cause” for agents to act against a passenger. While the plan was under consideration, the federal government threatened to close down air traffic to and from the state.

U.S. Attorney John E. Murphy suggested that federal agents must be allowed to touch people when and how they want.

“The proposed [Texas] legislation would make it unlawful for a federal agent such as a TSO to perform certain specified searches for the purpose of granting access to a publicly accessible building or form of transportation,” he told Texans at the time. “That provision would thus criminalize searches that are required under federal regulations in order to ensure the safety of the American public.”

Perhaps among the most dramatic expressions of concern came from Miss USA Susie Castillo, who was reduced to tears by federal agents assuring themselves that she was not a terrorist bent on homicide.

In a commentary at the Tenth Amendment Center by Connor Boyack with Brian Roberts and Michael Boldin, the organization said, “It was … at the Dallas, Texas, airport where former Miss USA Susie Castillo tearfully produced a viral video describing the molestation she had just endured at the hands of a TSA agent.

“I mean, she actually… touched my vagina,” Castillo said through her tears. “They’re making me … choose to either get molested … or go through this machine that’s completely unhealthy and dangerous. I don’t want to go through it, and here I am crying.”

Continued the commentary, which was in support of Texas’ plans to address the traveling public’s concerns, “Castillo isn’t the only person who would be protected under this Texas legislation. All other innocent travelers would likewise be shielded. That includes the six year old girl who made the headlines last month for being groped by a TSA agent (an action which the TSA defended as being alright since it ‘followed the current standard operating procedures’), as well as the eight-month-old infant subjected to a pat down while cradled in the arms of her mother.”