Challenging to the TSA Glow or Grope Policy On Returning to the USA

Matt Kernan was entering the USA, at Cincinnati/Northern Kentucky International Airport. He didn't have a connecting flight — he was heading home. The TSA wanted to subject him, as it apparently does all incoming passengers, to its glow or grope policy.

The problem, from the TSA's point of view, is that the arguably exigent circumstances that may exist for subjecting passengers to an intrusive suspicionless search when they are about to board an airplane — the fear of terrorist attack on a plane — do not exist when people are trying to leave the airport.

Mr. Kerman had four things many passengers do not have:

  • He had time.
  • He had, it appears, the iron self-control needed to remain polite at all times.
  • He had a recording device (voice only).
  • He had a good understanding of his rights.

Read all about it at the misnamed You Don't Need to See His Identification — misnamed, because in practice they do need to see your ID to establish that you are a citizen with a right to reenter the country. (Yes, there are rare cases of people establishing their right to re-enter by witness testimony when they have lost their passports, but that's not something you want to get into.)

To the lawyer's eye there are a few critical points here. The first is that, once you have successfully identified yourself as a US citizen and undergone the ordinary customs process to demonstrate an absence of contraband, you have an absolute legal right to re-enter the US. Court decisions are very clear about this.

The second point is that Mr. Kernan was very careful at all times to say he would comply with any order, but would not accede to invasive searches unless he was told he was being required to submit to it. This is the thing that no one wanted to go on the record as saying, most probably because the TSA's legal position on this is much, much shakier than for passengers attempting to board aircraft. Mr. Kernan also understood that asking a police officer if he was being detained or was free to go is the magic phrase which invokes your Constitutional rights.

I can't emphasize enough that anyone trying to do this better have a lot of time — it took Mr. Kernan 2.5 hours to get through the checkpoint — and especially the iron self-control to remain polite while dealing with officious and occasionally intimidating officialdom. There is a real chance of arrest; if your behavior was perfect it would, I think, be a false arrest, but absent a tape the chances of proving you were not causing a disturbance, or interference with an officer's pursuit of his duty, would not be good enough to make me happy. Mr. Kernan had the good fortune to engage with well-trained and and sensible local police officers and TSA officials who were not in the end vindictive. Your mileage may vary.

And there's the rub: the constitutional right to enter the country freely is made so risky and difficult to exercise as to be rendered almost meaningless.

(Spotted via boingboing's Traveller re-enters USA without passing through a pornoscanner or having his genitals touched.)

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5 Responses to Challenging to the TSA Glow or Grope Policy On Returning to the USA

  1. Robert Kuntz says:

    What used to interest me in these discussions was a consideration of the SOURCE of over-reaching by agencies such as the TSA. (Besides the case you cite, for the TSA alone examples abound. One well documented one was the matter of a campaign worker being detained because he wouldn’t answer questions about the nature of several (but less than ten) thousand dollars in cash he was carrying. If the TSA mandate is aircraft security, a determination that the cash didn’t conceal a bomb should have ended the inquiry.)

    So considering “officials” who groped grandmothers, strip-searched children, seized prosthetic breasts, evacuated ostomy bags, threatened arrests, shared nude photos, robbed human dignity and vitiated all manner of rights, I would — in the normal course — have dismissed notions of any grand and evil plan. Instead, I would have leaned toward two 19th Century French political philosophers from opposite ends of the spectrum: Napoleon (who warned not to attribute to malice what can be accounted for by incompetence) and Bastiat (who wrote extensively on the nature of the State — most relevant here, the characteristic that it will always seeks to expand its powers).

    I am, of late, coming to see that it really doesn’t matter. Our energies need to be expended on resistance, not analysis. Put in terms those my age will recognize, I think we are past the time where it useful to wonder WHY the boot is pressing down ever more firmly our throats.

    If you live in the company of other human beings, you are either a citizen or a subject. The difference between them is that the former are governed through a consensual grant of their own authority to the government, while the latter are ruled by the exercise of the ruler’s own authority. Since 9-11 — whether by intent or simple statist inclination — the question of which we in America shall be has become a live one. Any hope that question was limited to the prior administration is gone. We will answer it — or it will be answered for us.

  2. Just me says:

    I previously posted this on another thread, but given Robert’s comment above, it belongs here in stead:

    Don’t think the TSA are overreaching? Check this out from wired.com:

    “An airline passenger outfitted with a urine bag for medical reasons had to sit through his flight soaked in urine after a TSA agent dislodged his bag during an aggressive security pat-down. Nearly a month later, he finally received an apology from TSA chief John Pistole.”

    http://www.wired.com/threatlevel/2010/11/sawyer/

  3. Robert Kuntz says:

    A good example, @justme, and plenty more where that came from.

    Long predating the current attention finally being paid: http://www.youtube.com/watch?v=i-jdDE6bFow&feature=related

    More from me on this topic at http://tinyurl.com/Occam-meet-Bastiat

  4. Just me says:

    A little dated, and unfortunately cuts some great stuff at the end, but timely and worth watching (George Carlin on Airport Security):

    http://www.youtube.com/watch?v=Hq8pd0fDNaA

    He also seems to describe Congressman-elect West (and lots of other Tea Party types) at about 5:48 into the video.

  5. Robert Kuntz says:

    Why “timely and worth watching”?

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