Two articles examining the legality of the airport screening regime so many have come to take for granted appear in the online supplement to The Northwestern University Law Review: Revisiting “Special Needs” Theory Via Airport Searches by Professor Alexander Reinert of Cardozo and The Bin Laden Exception, by Professor Erik Luna of Washington and Lee.
The Reinert article treats the judicial acceptance of the airport screening regime as a foregone conclusion, and labors to limit the fallout:
[T]he TSA’s new search regime is more difficult to square with fundamental Fourth Amendment principles than the FAA’s initial airport screening procedures. Therefore, precisely because of the pressure on courts to adjust Fourth Amendment doctrine to meet the perceived needs of the TSA and the traveling public, it is all the more important that new doctrinal limitations accompany any judicial acceptance of the TSA’s new search regime. Specifically, I argue here that if courts are to give the TSA’s new search regime constitutional approval, it must be limited to its justifying purpose—safe air travel—and it must be grounded in the special needs exception to warrantless and suspicionless searches. Making explicit what has been implicitly required by most of the Supreme Court’s special needs jurisprudence, I propose a special exclusionary rule for searches like those conducted by the TSA that will best limit the ex post utility of such searches to their ex ante justifications. Under my proposal, the use of evidence discovered as a result of mass suspicionless searches like the TSA’s screenings should be limited to prosecutions for offenses that relate to the asserted justifications for the search regime. This link between justification and permissible use is one novel way to limit the reach of a special needs justification for these airport searches. In a way, then, the TSA’s new search regime offers an opportunity to revise and revisit special needs jurisprudence to minimize the risk that the exception will ultimately swallow the Fourth Amendment’s traditional preference for searches based on warrants and individualized suspicion.
The Luna response is even more pessimistic about the vitality of the incredible shrinking 4th Amendment:
In effect, TSA agents may now search any and all items in one’s baggage, given the sweeping claim that explosives “may be disguised as a simple piece of paper or cardboard, and may be hidden in just about anything, including a laptop, book, magazine, deck of cards, or packet of photographs.” Moreover, evidence of an agent’s impermissible motive—for instance, searching a bag for contraband wholly unrelated to terrorist threats—will be ignored so long as the TSA’s “programmatic motive” is airline safety. …
In the end, I just wish everyone would be a bit more honest. What is at play here is not a previously recognized exception to the Fourth Amendment—consent, good faith, special needs, and so on—but instead an entirely new exemption from otherwise applicable requirements, driven by an abiding fear of al Qaeda and its now-deceased kingpin rather than a reasoned assessment of terrorism-related risks. Let’s call it what it is: The Bin Laden Exception to the Constitution. If nothing else, putting a name to the systematic evasion of the nation’s most hallowed legal text might force some to face their own irrationality and question the wisdom of bending the Constitution, as well as spilling vast amounts of blood and treasure, all for the sake of one evil man and his outlaw organization.
Spotted via Pogo Was Right, On the Colloquy: The Fourth Amendment and Airport Screening Issues.
Eugene Volokh (and his commentators) discuss Effective Self-Promotion in Cover Letters.
“You have not truly lived unless you have heard Hogan’s Heroes dubbed into German…”
– from a private mailing list that is not about bad TV shows in history.
The mind sort of boggles. And not in a nice way.
The 11th Circuit just decided In re Grand Jury Subpoena Duces Tecum March 25, 2011, USA v. John Doe.
Doe was ordered to decrypt his hard drive, and given limited immunity (use immunity) regarding the act of production of the unencrypted contents. He refused, claiming that the immunity was insufficient, and also that he was not in fact able to decrypt the hard drives.
We turn now to the merits of Doe’s appeal. In compelling Doe to produce the unencrypted contents of the hard drives and then in holding him in contempt for failing to do so, the district court concluded that the Government’s use of the unencrypted contents in a prosecution against Doe would not constitute the derivative use of compelled testimony protected by the Fifth Amendment privilege against self-incrimination. This is so, the court thought,because Doe’s decryption and production of the hard drives would not constitute “testimony.” And although that was the Government’s view as well, the Government nonetheless requested act-of-production immunity.13 The district court granted this request.
For the reasons that follow, we hold that Doe’s decryption and production of the hard drives’ contents would trigger Fifth Amendment protection because it would be testimonial, and that such protection would extend to the Government’s use of the drives’ contents. The district court therefore erred in two respects. First, it erred in concluding that Doe’s act of decryption and production would not constitute testimony. Second, in granting Doe immunity, it erred in limiting his immunity, under 18 U.S.C. §§ 6002 and 6003, to the Government’s use of his act of decryption and production, but allowing the Government derivative use of the evidence such act disclosed.
It’s a well-argued opinion and could be influential.
Without, I think, meaning to, Crooks and Liars makes the case that Mario Rubio really would be the perfect Veep for Mitt Romney:
Marco Rubio is an ever-shifting creature, changing to fit his circumstances in that time for that group without ever internalizing a belief structure he actually believes.
That sounds exactly like Romney! They are perfect for each other. Yes, there is a small religious problem that Crooks and Liars is ostensibly posting about, Marco Rubio is Sort of Mormon (yes, really) (really, really, honest). But we’re past that sort of thing today aren’t we?
Whether we are past expecting our candidates to look and act like the stand for something, anything, remains to be seen.
THE WHITE HOUSE
Office of the Press Secretary
EMBARGOED UNTIL DELIVERY
February 23, 2012
Remarks of President Barack Obama – As Prepared for Delivery
University of Miami
Thursday, February 23, 2012
As Prepared for Delivery –
Hello, Miami! Thank you, Erica, for that introduction. I also want to thank your president, and this country’s former Secretary of Health and Human Services, Donna Shalala. I want to thank Senator Bill Nelson for being here. And I want to thank your Congresswoman, my friend Debbie Wasserman Schultz for joining us today.
It is great to be back in sunny Florida. I still don’t know how you all make it to class every day down here. In another life, I’d stay in Orlando for the NBA All-Star weekend, but these days I have a few other things on my plate.
15. Florida is big on wind power, an example of renewable energy that need support.
16. “I will not walk away from the promise of clean energy.” [this after praising shale!]
17. Must develop all sources of energy, so US isn’t hostage to “events on the other side of the world.”
….this is clearly a gas tax rise inoculation speech ….
18. Make energy out of aalge. You’ve got lots of that.
19. But remember there’s no silver bullet and anyone who promises a quick fix is wrong.
20. We have great imagination and human resources to replace
21. “Easiest thing in the world to make phony election year promises” about energy. Harder to have a sustained plan to solve the problem that will take more than a decade.
22. The moon project. Great past. Teaches us we have the power to solve big problems. “This is going to be one of the great challenges for your generation.”
23. The greatest country in the world
…and wows the crowd on departure by making a “U”!