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Three years after spending some $2 billion for full-body scanners “designed to examine the contours of an air traveler stripped naked,” the U.S. government still hasn’t given the public the opportunity to comment on the invasive machines, a privacy organization says.

So it’s now time for the government to step up and adopt a rule regarding the use of the machines so that travelers may challenge it if they choose, a filing from officials with the Electronic Privacy Information Center told a federal court in Washington.

The organization is in court to try to force the Transportation Security Administration into the formal rule-making process for federal agencies, since without a final rule, most of TSA’s actions remain out of judicial review.

The delays “shield” agency actions from such review, EPIC has explained.

In a recent filing in the U.S. Court of Appeals for the District of Columbia Circuit, EPIC argued  that the government has stalled long enough, and the court should order that the formal procedures be launched within 60 days – or the use of the scanners should be halted.

“EPIC respectfully asks the court to require the secretary to begin the rule-making within 60 days or vacate the rule on which the agency relies,” the document said. “The government has barely committed to stage three of what the Office of Management and Budget describes as a nine-stage process to final agency action subject to judicial review.”

The court filing points out that when new government actions are taken, there often is a rule-making procedure that formalizes the action, and it is only a “final” rule that opponents can challenge.

The usual steps include the original agency action, a decision on whether a rule is needed, preparation of a proposed rule, review by the OMB, publication of the rule, a public comment period, adjustments and preparation of a final rule, further review by the OMB and the publication of a final rule.

The government has denied any delay, saying it expects to have the rule-making process operating sometime next year.

“Even if the [proposed rule] were to be published by that time, almost 21 months after the court’s order, months, perhaps years, would pass before the agency rule would be final and subject to judicial review,” EPIC argued.

Further, the agency so far has not addressed health concerns from intense exposure to X-rays, and the filing explained that the European Union already has limited use of such machines for that reason.

And there’s the well-publicized privacy concern.

“Airline passengers who go through the backscatter X-ray devices are still subject to observation, as if they were naked, by TSA officials. Questions about the recording and storage of the unfiltered images … remain unanswered,” the filing said about the TSA program launched in 2010 to install the invasive scanners.

U.S. Justice Department attorneys Mark Stern and John Koppel have argued in the case brought by EPIC and others that the agency has had difficulties to overcome in complying with a court order from a year ago to act promptly.

“TSA has been keenly aware of the importance of implementing the court’s directive, and has given high priority to the … rulemaking,” the attorneys said recently. They blamed “personnel losses” in the agency for the time frame and said “almost all of the staff available to conduct the required economic analysis” had been assigned to the project.

“There has been no unreasonable delay in complying with the court’s mandate, much less the type of egregious delay that would warrant exercise of the court’s mandamus powers,” they wrote.

EPIC is arguing for the agency to meet the requirements of the Administrative Procedures Act. The group said the time had come for the “court to end the agency’s unreasonable delay, and to set a date certain for the agency to issue a proposed rule or, in the alternative, to vacate the rule on which the agency relies.”

Once a rule is final, there are various challenges that are possible, including “judicial review under the APA … which provides that a court may set aside agency action … found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” EPIC argued.

EPIC noted the administration decided in April 2009 to use the body scanners and set the decision in motion “without explicit statutory authority and without publishing a proper rule as required.”

The court decision in July 2011 said “the TSA has advanced no justification for having failed to conduct a notice-and-comment rule-making.”

EPIC said the court right now should “remove the [scanner] program from this ‘administrative limbo.’”

“In the three years since EPIC’s original petition to the agency for a rule-making so that independent experts might express their views on the agency program, scientific evidence strongly suggests that WBI (Whole Body Imaging) machines pose health risks to travelers,” EPIC has said.

Earlier this summer, the director of information policy studies at the libertarian Cato Institute launched a petition drive to force action.

The petition, which later was taken down by the White House, had sought to “require the Transportation Security Administration to follow the law.”

The security procedures being ramped up by the TSA have made headlines. An agent groped a member of Congress and another patted 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 also 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 since the program was launched. 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.

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.”

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