Nov 192010
 November 19, 2010  Posted by  Court, Featured News, Surveillance

Susan Stellin reports on complaints over the more invasive pat-downs air travellers are being subjected to:

In the three weeks since the Transportation Security Administration began more aggressive pat-downs of passengers at airport security checkpoints, traveler complaints have poured in.

Some offer graphic accounts of genital contact, others tell of agents gawking or making inappropriate comments, and many express a general sense of powerlessness and humiliation. In general passengers are saying they are surprised by the intimacy of a physical search usually reserved for police encounters.

Stellin also includes quotes from two Fourth Amendment lawyers that I’ve frequently cited on this blog: Orin Kerr and John Wesley Hall, Jr. Not surprisingly, they don’t agree.  And not surprisingly, I’m hoping that the courts see it the way Hall does:

“For Fourth Amendment purposes, you can’t touch somebody like this unless you’re checking them into a jail or you’ve got reasonable suspicion that they’ve got a gun,” said John Wesley Hall, a criminal defense lawyer who specializes in search and seizure law.

“Here there is no reasonable suspicion,” he said. “It’s the pure act of getting on a plane.”

But Orin S. Kerr, a law professor at George Washington University, said the courts had generally supported the government’s claims in cases involving airport screening, although new cases would have to balance the more invasive nature of current search procedures with the government’s security needs.

“Reasonableness is a murky standard, so there’s room for a new legal challenge,” Professor Kerr said. “But the tenor of earlier cases is pretty deferential to the government.”

Read more on the New York Times.

It’s time for the courts to stop deferring to the government.  They deferred to the government on warrantless wiretapping and our civil liberties were trampled.   They deferred to the government on the treatment and rights and detainees and human rights were trampled.  The security theatre and erosion of rights needs to stop unless we want to replace the lyric “The land of the free” with “The land of the subjugated.”  Somehow, that’s neither musical nor satisfactory.

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