A federal appeals court has rejected claims by passengers and pilots that the TSA invaded their privacy and violated their rights by demanding pat-down inspections or full-body scans.
The decision affirms a district court ruling from Judge Henry H. Kennedy Jr., who cited a “secret” order from the TSA as the reason he rejected the cases.
The government, insisting that the “secret” order contains “sensitive security information,” has refused to make public the document outlining the procedures, according to John Whitehead, president of the Rutherford Institute.
Institute attorneys had argued 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.”
Whitehead said today the ruling is a dark cloud.
“This ruling does not bode well for attempts to ensure transparency in government or efforts to safeguard Americans against virtual strip searches and other excessive groping of our bodies by government agents, especially when there’s no suspicion of wrongdoing,” he said.
“When civil liberties are tossed out the window – by government agents or by the courts – we all lose. No American should be forced to undergo a virtual strip search or be 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.
He noted it was the D.C. Court of Appeals that rejected an appeal on behalf of airline pilots and passengers who refused to submit to virtual strip searches – or highly invasive pat-down searches.
Institute attorneys wanted to reverse district court judgments in Fourth Amendment lawsuits filed in 2010 against Janet Napolitano, secretary of the Department of Homeland Security, and John Pistole, administrator of the Transportation Security Administration, challenging the constitutionality of the TSA’s airport security screening policy.
The cases were brought in 2010 on behalf of Adrienne Durso, a recent breast cancer survivor. She repeatedly and aggressively was groped by TSA agents in the area where she had undergone a mastectomy, even after informing agents of her condition.
Another plaintiff was Chris Daniels, a frequent business traveler, was aggressively and repeatedly touched in his genital area after initial screening showed an abnormality in his genitals that was the result of a childhood injury. Whitehead reported when Daniels asked to leave the security area and forgo 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 whole-body scanning or be subjected to a full pat-down frisk of their persons. Upon refusing, both pilots were prevented from passing through security, and unable to report to work on the days in question,” the Rutherford report said.
The case cited the Constitution’s Fourth Amendment protections against unreasonable searches and seizures.
The fight over the invasive TSA procedures has been raging for several years, after the government agency started implementing “enhanced” security screenings that present 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 fell narrowly short of moving forward with a bill 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 asserted 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 ensuring she was not a terrorist.
Castillo produced a viral video describing her experience at the Dallas-Fort Worth Airport.
“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.”
In a commentary at the Tenth Amendment Center by Connor Boyack with Brian Roberts and Michael Boldin, the organization supported 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.”