TSA ‘enhanced pat-down’

A public interest legal team at the Rutherford Institute is taking to the next level a district court judge’s decision to dismiss several claims against the federal Transportation Security Administration based on a “secret order” from the agency.

The fight over TSA procedures has been raging for nearly 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.

The cases were brought on behalf of Adrienne Durso, D. Chris Daniels, Michelle Nemphos and a minor, C.N. and Michael S. Roberts and Ann Poe. Both cases were against Department of Homeland Security Secretary Janet Napolitano and John Pistole, the chief of the TSA.

They argue that since Americans do not lose their constitutional rights if they want to travel, the invasive procedures are out of line.

The institute said today it has appealed to the D.C. Court of Appeals on behalf of the plaintiff airline passengers and pilots “who refused to submit to virtual strip searches involving advanced imaging technology, which exposes intimate details of a person’s body to government agents, or submit to highly invasive pat-down searches during which TSA agents may go so far as to reach inside a traveler’s pants.”

“The appeal comes in response to a federal district court ruling that dismissed the cases on the grounds that the court has no jurisdiction in TSA matters. In justifying the dismissal, U.S. District Court Judge Henry H. Kennedy, Jr. cited a secret order issued by the TSA as the basis for ruling that the D.C. Court of Appeals hear any reviews of TSA procedures. Insisting that the order contains ‘sensitive security information,’ the government has yet to make public the document embodying the TSA enhanced screening procedures,” the organization reported.

John W. Whitehead, president of the organization, said, “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.

“To do so violates human dignity and the U.S. Constitution, and goes against every good and decent principle this country was founded upon,” he said.

The plaintiffs included Durso, a breast cancer survivor who repeatedly and aggressively was groped by TSA agents in the area where she had undergone a mastectomy, even after informing agents of her condition, the lawsuit explains.

And 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, the documents confirm.

“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 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.

Rep. Ron Paul, R-Texas, earlier proposed a change in the law that would specify that screeners “are not immune” from laws that limit physical contact with other people.

“I am introducing the American Traveler Dignity Act, which establishes that airport security 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,” he wrote in a website announcement at the time.

“It means they are not above the laws the rest of us must obey,” he wrote.

Also, officials with the Libertarian Party of Florida formally 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,” a message to the 67 sheriffs from the party, signed by chairman Adrian Wyllie, said.

“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.”

Paul’s comments recall some of the recent situations that have developed because of TSA “procedures.”

“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 10 years after the creation of the Transportation Security Administration,” Paul wrote.

He said the government’s policies reveal “much about how the federal government feels about our liberties.”

But he said those who say they are giving up freedoms for security will end up with neither.

“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!” the congressman wrote.

Texas recently 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.

In fact, U.S. Attorney John E. Murphy suggested that federal agents must be allowed to touch people, including their sex organs, as they want.

“The proposed 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 is 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.”

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