The director of information policy studies at the Cato Institute, a think tank dedicated “to the principles of individual liberty, limited government, free markets and peace,” has launched a petition drive to force the Transportation Security Administration to follow the law.
The campaign by Jim Harper is halfway to its goal within just days of its launch.
The U.S. Court of Appeals for the D.C. Circuit has ordered the TSA to publish its policy regarding its use at airports of controversial Advanced Imaging Technology machines, known by critics as “strip-search machines.”
But the “notice-and-comment rulemaking” order to “publish its policy in the ‘Federal Register,’ take comments from the public, and issue a final rule that responds to public input” was issued a year ago, and Harper reports that the TSA “hasn’t done any of those things.”
The federal agency, through spokesman James Clarkson, has argued in a lawsuit brought by the Electronic Privacy Information Center on the dispute that it has been working on the issue.
“The agency has committed significant resources to comply with this court’s opinion. Given the important of this issue, the agency has dedicated several economists, attorneys, and subject matter experts to provide the necessary background information, research, analysis, and general support required to engage in the rulemaking mandated by the court,” Clarkson wrote.
He suggested it should take some three years, with longer timelines for more complex rules, for the agency to comply.
But Harper noted that research from Ryan Radia at the Competitive Enterprise Institute revealed that the TSA continues to devote “substantial resources” to the expansion of its program, “rolling it out to additional airports.”
“How can an agency pour resources into its latest greatest project yet claim poverty when it comes to complying with the law?” he wondered.
So he started a petition on WhiteHouse.gov, telling the president to “require the Transportation Security Administration to follow the law.”
“Getting 25,000 signatures requires the administration to supply a response, according to the White House’s petition rules,” he said.
Launched a week ago, the petition had collected more than 13,500 signatures.
In July 2011, a federal appeals court ruled that the Transportation Security Administration had to conduct a notice-and-comment rulemaking on its policy of using ‘Advanced Imaging Technology’ for primary screening at airports. TSA was supposed to publish the policy in the Federal Register, take comments from the public, and justify its policy based on public input. The court told TSA to do all this ‘promptly.’ A year later, TSA has not even started that public process. Defying the court, the TSA has not satisfied public concerns about privacy, and costs and delays, security weaknesses, and the potential health effects of these machines. If the government is going to ‘body-scan’ Americans at U.S. airports, President Obama should force the TSA to begin the public process the court ordered.
Harper reported a year ago, when the ruling came out, that the court’s rejection of a challenge to the electronic strip-searches gave reason to hope for eventual victory in the dispute because of the rule-making demand.
“When the TSA does a rulemaking, it will have to lay out its strip-search machine policies and – crucially – justify them,” he wrote then. “Notice-and-Comment rules are subject to court review, and reversal if they are ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.’
“The response we want is legal compliance,” Harper wrote about the new effort. “The public deserves to know where the administration stands on freedom to travel, and the rule of law. While TSA agents bark orders at American travelers, should the agency itself be allowed to flout one of the highest courts in the land? If the petition gets enough signatures, we’ll find out.”
The security procedures being ramped up by the TSA have made headlines over recent months for allowing an agent to grope a member of Congress and pat down a hysterical 4-year-old. Several passengers staged protests by stripping nude for their TSA security check.
A separate challenge to the use of the enhanced procedures has been beaten back by a federal appeals court, based on a “secret” order from the TSA. It was Judge Henry H. Kennedy Jr. who cited the undisclosed document in rejecting a complaint from passengers and pilots that the TSA invaded their privacy and violated their rights by demanding pat-down inspections or full-body scans.
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 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.
The fight over the invasive TSA procedures has been raging for several years. The government agency has implemented “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 assault 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.”