The Trouble with Airport Body Scans & Pat Downs by John L. Petersen, Arlington Institute
Monday, November 22, 2010
One might have thought that yesterday's New York court conviction of Guantanamo detainee Ahmed Ghailani for the crime of conspiracy to damage a government building, in connection with the 1998 bombings of the US embassies in Nairobi and Dar-es-Salaam, would have given rise to almost universal satisfaction in the United States. After all, under America's habitually draconian sentencing guidelines, the crime for which Mr. Ghailani, whom the US government clearly considers a "bad guy," has been convicted guarantees him a minimum sentence of 20 years in prison--and potentially a sentence of life imprisonment without possibility of parole--and the acquittal of Mr. Ghailani on 285 of the 286 charges against him can be interpreted (and presented to the world) as evidence that the United States is not yet a totally totalitarian state where the courts always rubber-stamp whatever convictions the government seeks in a trial with "political" or "national security" connotations--not yet the sort of state where, to quote US
Attorney General Eric Holder, "failure is not an option" when the government really needs a conviction or where, to cite former US Deputy National Security Adviser Juan Zarate, everyone knows that people whom the government really dislikes (or does not dare permit to speak their minds for public consumption) would never be released even if they were found not guilty of all charges asserted against them in court proceedings. However, to judge from the New York Times news report and other media coverage which I have seen or read, satisfaction is far from universal. The totalitarian mindset has become so prevalent in the United States over the past decade that prominent people are comfortable arguing publicly against applying the rule of law to persons suspected of involvement in "terrorism" (and, very theoretically, presumed innocent until proven guilty) precisely BECAUSE applying the rule of law cannot guarantee 100% certainty of conviction--a risk presumably not present in the kangaroo "commissions" performed at the law-free zone of the Guantanamo Bay Naval Station.
The legal systems of China and Russia used to provide the degree of certainty of a 'right result' aspired to by people like Representative Peter King, the incoming chairman of the House Homeland Security Committee. While the US government has the extraordinary chutzpah to continue to lecture China and Russia (and many others) on "human rights," these countries are, even if slowly and haltingly, taking steps away from totalitarianism while the United States itself is taking giant strides in the opposite direction. Democracy and the rule of law used to be widely viewed, at least by Americans, as hallmarks of the United States of America and as its most deeply held values. However, true democracy must risk producing the "wrong result," as, in most American eyes, in the case of the most democratic elections ever held in the Arab world, the Palestinian legislative elections of 2006. A true rule of law also must risk producing the "wrong result," as, in many American eyes (even in the absence of any knowledge of the case or the evidence), in the case of the 285 acquittals accorded to Mr. Ghailani--or even if, astonishingly, the jury had dared to acquit him on all charges. If people only support democracy or the rule of law when the results are to their liking, then they do not really believe in democracy or the rule of law. What then are the deeply held values of most Americans today?
The fourth amendment to the US Constitution states: "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." That seems pretty straightforward. You cannot be searched in this country without probable cause and without a warrant issued. Having just come through security in an airport this morning, I'm wondering how it is that this Constitutional amendment is finessed by the government in the case of flying in commercial aircraft. The fact is, they are not finessing it. Former TSA Director of Security Operations, Mo McGowan said on Fox News: "Nobody likes to have their 4th Amendment violated going through a security line, but truth of the matter is, we're gonna have to do it." In every one of the states of this country, sexual molestation is a crime. Different states craft their laws variously, but in all cases the descriptions are quite specific and graphic. Here is how Utah's law is written: "A person is guilty of sexual battery if the person under circumstances not amounting to rape, rape of a child, object rape, object rape of a child, forcible sodomy, sodomy upon a child, forcible sexual abuse, sexual abuse of a child, aggravated sexual abuse of a child, aggravated sexual assault, or an attempt to commit any of these offenses intentionally touches, whether or not through clothing, the anus, buttocks, or any part of the genitals of another person, or the breast of a female, and the actor's conduct is under circumstances the actor knows or should know will likely cause affront or alarm to the person touched."
One could quickly go to prison, branded as a sexual criminal if they did any of these things to a stranger. This is significant, because what is described above is exactly what the US government, through the Transportation Security Administration, is doing to randomly selected individuals in our country's airports. In the interest of "security" they are groping and feeling the genitals of travelers if the individual chooses not to go through the backscatter x-ray system that explicitly shows the details of their anatomy to the screener. Many people are choosing not to go through the x-ray system because of published warnings by healthcare professionals questioning the safety of the machines. How is it that it is acceptable for government officials to sexually grope common travelers in a way that is illegal in every state in the country? What are the conditions that make it acceptable for our government to justify this kind of otherwise unacceptable activity? Criminals and prisoners and suspects are searched in this intrusive way, but we're not talking here about criminals or terrorists. We're talking about ordinary citizens who are just trying to get on an airplane.
Let's leave aside for a moment whether these kinds of probes are effective and serve the presumed purpose that the government claims. Security experts from Israel and within our country suggest that the present process leaves clear options available for smuggling explosives on an airplane that could easily down it in flight. What I want to talk about here are the underlying principles and motivations that are in play in this situation. I was in New York's Penn Station yesterday and heard an announcement that I had never heard before in a train station. The public message was that roaming security teams could randomly select individuals for searching of their body and their belongings. The operative term here is "random." There need be no probable cause--all you needed to be doing is walking through Penn Station.
About a year ago TSA had made an announcement that they were going to start these roving patrols with dogs in train stations and start their random searches. Congressional representatives and personal rights advocates asked about whether there were any identified threats in train stations. The response was that there weren't yet, but the initiative would keep the terrorists off balance. At that time, they were convinced that absent a specific threat they weren't to hassle train passengers. Apparently a threat is not required anymore. If all of the above examples were truly thoughtful responses to pressing threats, it might be another issue, but they're not. The literal threat of terrorism is so much less than the danger of electrocuting yourself in your bathroom that it is impossible to justify the extraordinary costs and measures that have been put in place to seemingly defend against it.
In a very real sense the terrorists have won--we have become so terrorized by a single event that we have expended billions and billions of dollars in processes and measures supposedly designed to eliminate all possibilities of threat. And many of those measures--particularly those used in our airports--are discounted by the Israeli security people, who are the best in that business in the world. Keep in mind that this piece of our government spent years searching travelers for manicure scissors, considering them as potential weapons that could be used to hijack an aircraft. I remember one poor soul thoughtfully considering whether he would allow me to take fingernail clippers on a airplane "because they have sharp edges." There are a number of things that could be said about this situation. One could reasonably suggest that in this case the government generally sees its citizens as threats. Think about it: Why, out of everyone else in an airport, would only the TSA folks all wear latex inspection gloves, even when checking identification? The cues are all wrong--they clearly believe that interfacing with travelers presents a threat to their well-being. It's as though they needed to protect themselves from us.
Others have also argued that this agency (that now has 65,000 employees) has too much funding and is a prime example of "Parkinson's second law"--expenditures rise to meet income. If they had less funding, it certainly would cramp their style, I suppose. But, what's more interesting to me is to contemplate the environment that allows all of this aberrant behavior to transpire in the first place. What changed that allowed the leaders of our country to think that all of the above and, for example, torturing prisoners of war--even though is against common decency and international law--is acceptable? What's going on here? It's fear. Simply fear. When people are fearful, things become acceptable that otherwise are not. They do things that are inhuman and demeaning. They revert to responses that are common to lesser developed societies. They move down the development ladder or spiral and operate from far more basic perspectives. They become less civilized.
Like love, fear is contagious. If you drive apprehension into a social system it will breed upon itself. If you keep telling people that the situation is dangerous, the presumed threats will become "real," and you'll become acutely aware of all of the things that "could" go badly or turn against you. In a sense, all of the possibilities are out there and certainly can be activated: All we need to do is think about them and give feelings and energy to them. If you believe, as I do, that your consciousness plays a causal role in shaping and manifesting the reality that shows up around you, then I can guarantee that if you get a lot of people seriously worrying about bad things that might happen. There is good reason to also believe that the larger systems of this planet--weather, earthquakes, etc.--mimic the energetics of the general human population. The worse we feel and act, the worse everything else becomes. Conversely, the better we feel about ourselves and the general situation, the better things will be. So, it seems counterproductive, don't you think, to advocate fear? Nevertheless, that seems to be the only approach that government is able to contemplate. Get very fearful and defensive. Keep the threat level at orange, where it's been for years. Tell people to worry. This general approach needs to change as things tend to get better or worse, not stay the same.
We fuel the system, no matter how we feel. Since fear just generates bad things, maybe we need a law that forbids the government (or other institutions) from promoting fear. Now, that would be interesting! So, whether we're talking about ourselves as individuals, our families, workplaces or society, the key to a new future that we can all look forward to is to learn to live without fear. The only way to do that, by the way, is to live in the present. As Benjamin Franklin is reported to have said: "Any society that would give up a little liberty to gain a little security will deserve neither and lose both."