I have a degree in law enforcement, and am fairly well versed in law when it comes to searches and seizures. I’m not however, a lawyer, though I’ve faced them many times as a witness for the State of Maine in criminal proceedings. In my current professional field, I’m trained to resist the urge to let media coverage determine what’s important. It’s called a “shiny object”. That is, it glitters in the media spot light, so many assume that the story is in fact a new or important story. In reality, this situation has been addressed decades ago in courts of law. And no one really cared until this was caught on video, and the entertainment media began its usual drum beat, harkening the long awaited cataclysm so many on both the Right and the Left believe so imminent. Plus, people think it’s funny that Tyner used the word “junk” to denote his genitals. To me, he just displayed a severe lack of class.
Let’s look at this issue, first, from a legal perspective. Many are saying that this is a violation of peoples’ rights of privacy. I’m not sure if they mean that the courts have improperly allowed the 4th Amendment to be trampled on, or if TSA is ignoring the law. But they would only be correct in asserting the former, because the courts decided decades ago that people being searched at airports and at customs checkpoints in fact are submitting to consent searches. There are signs that tell people that they will be searched before they pass through the detectors and into the screening area. We need only look at the 4th Amendment to see that it places no more emphasis on a body than it does a bag that a person carries:
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
There is no special protection for the human body. The person, house, papers and effects are offered equal protection under the law. But it’s this pat down that has people up in arms. Yet, as long as there have been x-ray machines in airports, people have been placing their bags into the machines to be what? Searched. With X-rays.
Here’s a case decided in the 9th circuit court of appeals that explains why Tyner did not have the option after passing the the screening area, to simply say that he now did not want to be searched and didn’t want fly:
United States v. Aukai
“The constitutionality of an airport screening search, however, does not depend on consent, see Biswell, 406 U.S. at 315, and requiring that a potential passenger be allowed to revoke consent to an ongoing airport security search makes little sense in a post-9/11 world. Such a rule would afford terrorists multiple opportunities to attempt to penetrate airport security by “electing not to fly” on the cusp of detection until a vulnerable portal is found. This rule would also allow terrorists a low-cost method of detecting systematic vulnerabilities in airport security, knowledge that could be extremely valuable in planning future attacks. Likewise, given that consent is not required, it makes little sense to predicate the reasonableness of an administrative airport screening search on an irrevocable implied consent theory. Rather, where an airport screening search is otherwise reasonable and conducted pursuant to statutory authority, 49 U.S.C. § 44901, all that is required is the passenger’s election to attempt entry into the secured area of an airport. See Biswell, 406 U.S. at 315; 49 C.F.R. § 1540.107. Under current TSA regulations and procedures, that election occurs when a prospective passenger walks through the magnetometer or places items on the conveyor belt of the x-ray machine. The record establishes that Aukai elected to attempt entry into the posted secured area of Honolulu International Airport when he walked through the magnetometer, thereby subjecting himself to the airport screening process.
Although the constitutionality of airport screening searches is not dependent on consent, the scope of such searches is not limitless. A particular airport security screening search is constitutionally reasonable provided that it “is no more extensive nor intensive than necessary, in the light of current technology, to detect the presence of weapons or explosives  [and] that it is confined in good faith to that purpose.” Davis, 482 F.2d at 913. We conclude that the airport screening search of Aukai satisfied these requirements.”
The law serves us, we do not serve the law. There is a real reason for not letting people just walk away when they see the will be searched. It’s the same thing at police traffic checkpoints. I was a cop for almost a decade, so I have a lot of familiarity with search and seizure law. If a car is seen to turn around and drive the other way as they approach a police checkpoint, the police have the right to pull the car over. This too, is a decades old rule, so let’s not get pulled into conspiratorial arguments about new justices being activists.
The case that upheld the constitutionality of sobriety check points
is US Supreme Court, Michigan Dept of State Police vs. Sitz, 496 US 444 (1990). Also checkpoints have been upheld in US vs. Martinez-Fuerte.
Tyner, argues (rudely) during his interaction with TSA officials, that it is not an assault, only because the government is doing it (the search). Assuming his argument is true, he negated his assertion that he would have the TSA person arrested for assault if they touched his “junk”. What he is really saying is that he doesn’t feel it’s fair that the government has more power than he does. Does anyone anywhere believe that the government doesn’t in fact wield more power than the individual? Would we want it any other way? This fact was settled hundreds of years ago when Thomas Hobbes penned Leviathan. Most people, even Tyner most probably, agree that the state must have more power than the individual. For the state’s primary responsibility is security of the people. In order to provide security, the state must have a monopoly on violence; that is, it must be able to bring more guns to a fight than any gang that decides to pick up arms. If it cannot do so, the state, and all the benefits that come with it, will not last long.
Some will argue that the measures go beyond the actual threat. They also point out that the recent underwear bomber failed in his attempt. Is this the kind of security we want? There are only three pieces needed to make a bomb: Explosives, a switch and a power source. If one can get their hands on the materials, the rest is fairly easy. Do we want to hedge our security on the fact that the last terrorist didn’t correctly hook a wire to the 9 volt battery? How many planes would have to go down before the entire industry shut down? Before people no longer wanted to fly? All because a 20 second pat down–on principle supposedly–is a bad idea. If a bomb were found tomorrow in one of those 20 second pat downs, would people still argue that the searches aren’t a good thing? Is anyone really that offended that a pat down is occurring or are they being pulled into the media hype? I say the latter. Hope is not a plan of action, and not changing the way we screen passengers as terrorists adapt is legalistic insanity. It’s also fraudulent, as many people arguing this type of search really just don’t like the War on Terror. They see it as a Bush legacy.
We need only ask ourselves this question to know whether the pat down procedure will be effective:
If you were a nihilistic terrorist with a bomb, would you target an airport terminal that patted people down, or one that did not?
Effective? Go one month without a screening process at any major airport in America and see what happens. I’d bet my next 16oz. Heineken that a plane would blow up. The hallmark of the modern terrorist is the soft target. Not military targets. Politicians, markets, mosques, political and civilian structures. The terrorist cannot fight our military and win on any regular basis. To give him any more opportunity than he already has to attack the best prize of all is sheer political stubbornness. Why is a plane such a great target? Because even if a suicide bomber were to wade into a crowd of people and detonate, he would not be able to kill as many people as he can with a plane. In a plane, he’d kill a dozen people around him in the blast, and then hundreds more die when they hit the ground. Plus, airlines are a major part of the US and global economy. It’s a node, whose destruction would have a cascading effect. Almost any high school has a police officer assigned ot it. How many shootings are there at high schools? Should we not have a cop with a gun posted at high schools? If the cop makes $35,000 a year, and never has to pull the trigger, should we pull him out of the school because there’s been no violence? Are we that sure that security is only the result of people not trying or thinking about committing violent acts? Human nature cannot be changed. The only way to stop violence is to make it an unviable option.
Walk on to any military base, and you’re subject to search of all your bags and your person. You consented when you came through the gate. Just as people argue that military personnel consented to giving away some of their rights when they joined, so does the person who flies consent to a search when he or she flies. The signs tell him so beforehand.
What we cannot do is fall prey to hyperbolic rhetoric. “Beginning of the end” speak that’s so in vogue. As Ralph Peters said, it is America’s apparent duty to mind the brute children of failing cultures. It is not us that is failing. it is the culture that feels it necessary to place bombs amidst children and innocent civilians. We’re only trying to stop them from doing so.
1) Patting people down is minimally intrusive (less than a minute).
2) It likely deters people from wearing bombs under their clothes and bringing them on to planes; we know Islamic terrorists place bombs under their clothes and do so over and over around the world.
3) The procedure is legal since the 1970s, as supported by case law .
As such, John Tyner, though famous for 15 minutes, is just plain wrong.