My objections to the TSA and the invasive search techniques they employ have been well documented in these pages. I believe their tactics are violative of our rights and would be deemed unconstitutional in any America where courts placed justice ahead of fear. I believe a government that authorizes these searches has lost its legitimacy to rule. I believe citizens who support these procedures do not deserve the liberty they so eagerly toss aside.
And I believed all of that before I was actually molested by the TSA just yesterday.
Having now been through that awful experience, and so close to the ten-year anniversary of 9/11, I can only conclude that not only did the terrorists win, but they keep winning. Right now, the terrorists are winning so hard that they’ve gotten us to do their work for them. In my opinion, the TSA is nothing more than a domestic terror organization that operates above the law.
Just two minutes alone with these people has made me realize that their power now far exceeds the normal constraints of law and order. It might well take active civil disobedience to stop them.
Of course, this is all just my opinion. That’s a disclaimer I feel I need to make very clearly, since the TSA apparently believes that I should be wary of even criticizing it, for fear of being slapped with a lawsuit….
Prior to my attempt to fly from Jacksonville to New York yesterday, on my way back from the Legal Technology Leadership Summit, I believed that while the TSA was a problematic organization, most people who actually flip out at the full-body pat-downs were themselves unstable — prudes who get spooked if somebody accidentally touches their ass on the subway, or closeted homophobes who think that the mere presence of their junk makes everybody horny. I allowed for the particularly poorly done search, but I figured that while the concept was abhorrent, the actual procedure was not that big of a deal.
Theoretically, I was right. The entire procedure that happened to me lasted five minutes, from being pulled out of the line through putting my shoes back on. Nothing happened to me that’s going to cause lasting psychological damage. I’ll live; I don’t need therapy. If I had freaked out, people would be right to think that I overreacted.
Practically, I was very, very wrong. By the end of my two minutes in the private room with the TSA, I was essentially standing in a pool of my own sweat. I’m not sure what you are supposed to call being groped against your will, but somehow I found myself remembering my Crim Law professor lecturing on sexual battery. The thought of my wife going through the same thing made me violently angry, yet I was terrified of even appearing concerned about what was happening, lest they determine that I’m resisting and cast me down with the sodomites.
And I had what I think was a pretty standard TSA experience. Consider what happened:
After going through the full-body scanner (note: this is my only reference to the essentially naked pictures the TSA is allowed to take of anybody with the impudence to travel by air), I’m told to wait while the TSA lady looks for a TSA man to fondle me. Apparently this is because of “low resolution” on my scan. This is minute one of embarrassment, as all the other passengers scuttle by me with the “thank God I’m not that guy” look.
Two men appear, and I’m told to accompany them to the private screening room. I’m already waddling around with no belt and no shoes, so this has all the dignity of a perp walk. Which is exactly what it is — you’re being accused of something, and don’t have a chance to defend yourself. I ask them to just re-scan me. The men ignore my request, and beckon me to follow them. “Stay calm,” I think.
The private screening room looks about as safe as the back of a van of a pedophile. I’m in this box with two dudes, thinking about how my mother has warned me about getting trapped in this situation since I was five. In the first ten seconds, I think all of the following thoughts: “Can anybody hear me scream?” “Is there anything inappropriate in my suitcase?” “Are they going to give me a safe word?” “If this gets out of hand, is there anything I can do?” “Ooh, I should get their badge numbers, without looking like I’m getting their badge numbers.” “Why does this dude sound like Zed from Pulp Fiction?”
My racing thoughts are interrupted by the talking of the main TSA guy — TSA guy “Zed” had just been cracking jokes on the way to the room. Main TSA guy is explaining exactly what he’s going to do to my crotch when the time comes. You can almost read the government report that told the TSA that victims prefer it when they are told what’s about to happen. I’m sure some do. For me, it was like that torture that happens when somebody tells you how they are going to hurt you before they hurt you. First, they tell you how they’re going to touch your crotch, then they mimic what’s going to happen to your crotch. Then, you have like a minute to sit and contemplate everything related to your crotch.
I haven’t been in the room 30 seconds, but I’m consumed with how not free I am. I can’t leave; I can’t even roll my eyes. The guy explains to me why he “has to” touch my crotch. In any other American situation, this is where the bargaining would happen. “No officer, please don’t do that, I’ll flip instead.” You’re supposed to have choices in America. But in this situation, there’s nothing you can do to stop this from happening. You could be sitting on information about an active terror plot to destroy the whole airport; they’re still going to touch your crotch.
(If I seem fascinated with my crotch, it’s because they are fascinated with my crotch. It’s the only thing they talk about before they start touching you.)
The other touches are perfunctory. Once under your arms, once down your arms. Your chest and belly are rolled over like they spilled something on you and are trying to help you dry. They slap you on the ass like you just hit a double (more on that later). But when they get to your inner thigh and crotch, they act like they’ve found the only place on the human body that has ever been used to smuggle anything. I could have smuggled a moob-sized bomb under my shirt, but the TSA guys know whether or not I shave my balls.
The strangest thing was the testicle search. During the explanation phase, the dude said he would place his hand on my inner thigh and run it up into my crotch and “lift and separate” my testicles, three times on each leg. Now, I couldn’t hide a third testicle between my other two without it being really obvious. What weapon could I possible wedge up in there that would require six touches to detect?
At the 1:30 mark in the private room, I make my only mistake. During the third and final vertical pass across my shaft, TSA guy “Zed” says: “You can relax, sir.” That was probably in response to the fact that I was sweating so profusely I probably needed an IV. But I did not appreciate it. I wanted to say, “The next time I use an epic tragedy as a trumped up excuse to molest you, we’ll see how relaxed you are.” Of course, I didn’t say that, but I did flash him my “if you were any other man, I’d kill you where you stand” look. In fairness to him, it must be difficult making new blood enemies every single day.
The main guy finishes me off by tapping the top of my left foot. I notice this because he didn’t tap the bottom of my left foot, or address my right foot at all. So, for those playing along at home, I couldn’t have nestled a marijuana leaf in my pants, but I’d have gotten away with a pack of joints in my right sock.
That’s when the lawyer part of my brain comes back online with about ten Fourth Amendment questions. How is this a “reasonable” search under any level of scrutiny? I haven’t spent a day in lockup, but even I know that your butt cheeks are where you store stabbing weapons. Yet, they did not search up there. The TSA is so reactionary that they probably won’t do that until there’s a rectal bomber, but once there is, every airport trip will double as a prostate exam.
They didn’t even touch my hair. I was sporting a full ‘fro; I knew a guy who would walk around with a hamster in his hair when it got to my length. There’s a movie where Pam Grier stuffs razor blades into her ‘fro. Yet the TSA didn’t even pat me on the top of my head.
Surely, the ineffectiveness and arbitrariness of these searches has to go to the Fourth Amendment issue.
As I walk out of the screening room — not much more than two minutes after I entered — I’m trying to re-tuck in my shirt and grab my clothes (note: my bags were not searched, at all; maybe the TSA thinks that crotches are themselves weapons of mass destruction). Rage builds inside me. Not at the TSA (I was still too worried about pissing them off), but at Article III judges. How many of them, do you think, have been handled by the TSA in this way? Less than 1 percent, I imagine.
In fact, these judges are used to a world where extremely educated people use honorifics and kiss their asses every single day. What would one of them think if they were dressed down, taken to a secret place, molested, and then kicked back out into the garish light of a major airport, still trying to pull their underwear out of their ass cracks? Do you think they’d still all be so damn eager to allow the TSA to do whatever it wants?
Do you think a TSA administrator would want his wife to go through that? Do you think the Secret Service would allow the President to be touched in that manner by any person other than his doctor or the First Lady?
I think we need a new rule. I think that everybody should have to go through a TSA private screening every time they fly. Why should most of us regular people, and nearly all the decision makers, be relatively oblivious to this new form of big government? If it’s so damn important, why not let everybody get in on the fun? We’d be safe! At least from any crotch-based airline attacks.
Either we’d all get used to it, or judges and governmental officials would remember that we have rules that we put into our Constitution specifically designed to stop this kind of gross excess of government power.
If the federal bench is going to allow American citizens to be molested, it should at least have some skin in the game.