Privacy, Protest, and Male Nudes

by Eileen | 3:20 am, January 27, 2013 | Comments Off

Barack Obama’s government is accelerating its crackdown on civil liberties.  A lot of people who were strongly against surveillance and fear-mongering when George Bush was doing it to stop foreigners with weapons are much quieter when Barack Obama does it to take weapons away from Americans.  For one thing, Bush supported at least one Amendment.  Whereas Obama renewed the PATRIOT Act and wants your guns.  These are dangerous times for all our rights.

Watching the mood of the nation of late, I am struck by two thoughts – the selective support for free speech depending on what’s being said (or by whom) and the risk that protesters will get so emotional they won’t make a point readily apparent to observers.  I worry over the last one precisely because I am seeing people so angry and so scared of losing their rights that I understand their concern far more than I get a specific message.

Aaron Tobey managed to send a clear message and, today, he won his case.  (yay)  Sort of.  The initial event happened in December of 2010.  He’s just now won his case to bring his case…it took this long to get a decision that he can proceed to trial.  Still, even that much is a huge embarrassment to the government and a victory in itself.

Oh, before I get really lost in ideas, Aaron Tobey is the guy who shared his thoughts on the TSA porno-scanners by stripping off to reveal cornflower blue running shorts and the 4th Amendment written on his chest. That happened two months after the scanner were introduced and around the time then-TSA Administrator John Pistole told Congress he wouldn’t rule out adding cavity searches to airport security.

Naturally, Tobey was cuffed and held for more than an hour, during which time our ace national security staff reportedly asked him what his intentions were and whether or not he was working for terrorists.  It’s a special type of despair when you insult someone to his face and he asks you what you intended to do.  As for a government agency that reflexively thinks the only people drawing public attention to the Bill of Rights are terrorists…no…I don’t even have anything.  Anyway, ‘Are you a terrorist?’ is not the first thing I demand of a cuffed and nearly naked man. 

Nonetheless, the TSA finally decided Aaron Tobey was not, in fact, the insidious face of terror and let him go to his grandmother’s funeral in Wisconsin.  Not, though, before bringing misdemeanor disorderly conduct charges.

Those were rapidly dismissed, having really only been pressed to avoid directly admitting how severely the TSA overreacted.  In time-honored American fashion, Tobey then sued the TSA for First and Fourth Amendment violations.  Only this was a valid suit.  And now it will go to trial. (At least on the First Amendment grounds.  The entire mess is more complicated then can be explained here but the Fourth Amendment charges were stripped from the case and adding them back is a separate appeal.)

Writing for the majority, Judge Roger Gregory described Tobey’s actions as a, “…silent, peaceful protest using the text of our Constitution…well within the ambit of First Amendment protections.”

Honestly, I suspect this guy is a bit of an anti-TSA wag.  In his opinion, he writes:

Mr. Tobey attempted to submit to the enhanced screening procedures. He never violated an express instruction of the Appellants. In a sense, Mr. Tobey aided in Appellants’ search for contraband by removing his t-shirt and sweatpants—at this point there were very few places he could have been hiding anything. Mr. Tobey was simply showing Appellants what they sought to see by using the AIT scanning machine. There is nothing before the Court at the 12(b)(6) phase that indicates Mr. Tobey removing his sweatpants and t-shirt caused any interference, disruption, or delay, in violation of any TSA regulation.

Not being a lawyer, it’s sometimes difficult for me to tell when legal people are being funny on purpose.  But I like the guy’s logic.

Dissenting, Judge Harvie J. Wilkinson gave us his feeble best: “[his]…antics diverted defendants from their passenger-screening duties for a period, a diversion that nefarious actors could have exploited to dangerous effect.”

Well, there you go.  Had a terrorist, perfectly prepared to blow up a plane, only lacking a wingman to detract the TSA, just been standing around, Aaron Tobey would have given him the perfect opportunity.

That anyone drawing a public paycheck thinks real terrorists are just hovering about airports hoping for a random distraction tells me the U.S. Government does not understand how terror works.

Let be glad, though, that Harvie Wilkinson was in the minority.  Otherwise, we’d have some precedent that citizens may be punished for what a hysterical judge imagines hypothetical third parties could have done.

That nightmare, averted for now but by no means defeated, is actually rather close to what Tobey claims the TSA did to him.  In short, he stripped, the TSO told him he didn’t need to, he said he wanted to protest the TSA’s actions, the TSO radioed for backup, the backup TSOs talked to police stationed at the airport, and Aaron Tobey was cuffed without a word from those policeofficers.

Now, the TSA lacks arrest powers (thank heaven for small favors) and thus must ask cops to make arrests for them.  Often, the police are intelligent enough to tell the TSA to grow up.  Not, it seems in Richmond.  That the police arrested Aaron Tobey on the TSA’s say-so when all Tobey had done was make an act of non-violent protest is at issue here.  That is, the TSA had an American arrested just because he reminded them that he had rights.  The TSA didn’t really dispute this; they just rolled out the ‘qualified immunity’ trope and added that Aaron Tobey’s behavior was ‘bizarre’.

That is itself a contradictory, and really, really lame, argument.  Either you have the dubious privilege of stripping Americans of their Constitutional rights at airports or Aaron Tobey’s behavior was so weird that he legitimately spooked TSOs and was arrested on those grounds and not as retaliation for mocking a government worker.  It can’t, though, be both.

(Worry not, there is case law protecting bizarre behavior from government retaliation (Spence v. Washington, 1974) and at least one sitting judge who knows that.)

Sticking to the idiotic claim that Aaron Tobey’s behavior was so ‘bizarre’ as to require arresting him, the TSA argued they had no idea why he would take off his clothes and reveal a law limiting the state’s search and seizure powers written on his torso.  Yes, really.  To make its case, the TSA has to pretend they can’t understand what Aaron Tobey was getting at.

Even I don’t think front line TSA workers are that stupid.

That Tobey told the first TSO he dealt with precisely what he was doing weakens an already inane defense, but if the TSA admits it knew Aaron Tobey was protesting, they will have admitted to knowingly violating his First Amendment rights.  In the case, it helps if you stop trying to see sense in the TSA position and just understand they’re really committed to their lie.

The TSA and the DHS really, really, really, really don’t want to go to trial on how far they can take their qualified immunity.  They’d vastly prefer to divert this case into a discussion of how weird is too weird.  They want to beg off answering the real question, arguing they use ‘discretion’ but not sticking around to defend how much discretion they should have.

Speaking of discretion and judgment, though, there is one point where the dissenting Judge, stupid old Harvie, has a point.  It’s something I’ve written about before.  Low level TSA workers are people who, by the very nature of the job and the applicants it attracts, lack the education and judgment to do what they’re asked to do.  It’s paradoxical but it’s also easy to get so wrapped up in snickering at hopelessly dumb and viciously petty TSOs that we ignore the systemic problem.

Make no mistake, higher-ups at TSA and DHS are not idiots and their support for intrusive screening goes far beyond wanting to see co-eds naked.  I suspect, though I certainly can’t prove it, that the TSA/DHS finds it very useful to see so much criticism of them centered on the minimum-wage and minimally qualified front line workers most of us interact with.

Harvie writes:

The most unsettling aspect of this decision is that of scapegoating low-level officials without ever apprising them of the legal standards governing their conduct. In denying the immunity, we are blindsiding others in a way we would never countenance for ourselves. Judges, after all, should appreciate the difficulty of judgment.

Well, yeah, but then he goes in the wrong direction altogether.  That the people making choices about what does and does not qualify as a real security threat have a tough job goes without saying.  That bit about not “apprising them of the legal standards” is, however, pure farce.  Is he admitting the TSA doesn’t inform its recruits of basic American law and then arguing all parties should be exempt from answering for that?  That’s not even the worst part.  Harvie is arguing for an extremely broad qualified immunity, neatly ignoring that travelers have a valid grievance against the TSA and choosing to not even address whether the problems lies with a national security apparatus that has set up a contradiction.

To buy that the TSA’s modus operandi is needed is to accept that a terrorist good enough to evade the scrutiny of every law enforcement and security agency all the way until boarding the plane he intends to attack will be caught by a TSO.  Not only is that a laughable fantasy, what the TSA does at airports wouldn’t catch anyone, anyway.

Here, the Judge disagrees with me:

Yet the most unpopular persons may not be treated unfairly under law, and that is especially the case when law itself has tasked them with the unpopular function that nonetheless is necessary to the achievement of a larger social good. The good of safe air travel seems too obvious to mention.

He’s absolutely right on the first part – the Constitution still applies to unpopular people.  Heck, really popular people don’t need laws to make others treat them well.  Rule of Law is all about the unpopular people.  But Harvie’s reasoning leads to the question of why these people are so unpopular.  The law has “tasked them with [an] unpopular function.”  However, the ‘they’ abuses that ‘function’ every way possible.  Where his logic goes off the rails is in blithely averring that the TSA’s behavior is “necessary”  In his next sentence, he conflates a worthy end (safe travel) with a very debatable idea of how to get there.  That’s old evil when it comes to sophistry.  He’s avoiding debating if the TSA crosses a line by appealing to the value of the end the TSA claims to seek.

To be fair, weighing in on the merit of the TSA’s existence is a larger question that considering the First Amendment implications of a single case.  But, Harvie (I can’t even recall his last name at this point) bases his dissent on the assumption that anything the TSA does is and must be permissible.  He explicitly argues that TSOs must be immune for the means they use because they pursue a worthy end; thus, he’s invited the challenge.

Were we to adopt his position on letting the TSA ignore the First Amendment on qualified immunity grounds, we’d still have the question of how we propose to prevent airports from descending into capricious nightmares.

If you propose to offer qualified immunity to people who already have the discretion to inflict humiliation on others and do things that would be deemed unConstitutional if done anywhere else, haven’t you then accepted an obligation to ensure the people enjoying all that power and all the immunity from liability have discretion, intelligence, and…um…character?

And that takes us right back to one of the single greatest problems with those frontline TSA workers – they’ve got no damn judgment and they’re so free from consequences that they’ll never learn.  Not if the TSA and Judge Harvie get their way.

Pain is educative. This, if course, presumes the TSA and Harvie would agree that TSOs exceed permissible behavior and must be made to answer.  The frightening reality is that the TSA and DHS have never given any indication of believing privacy concerns and civil liberties should be any part of the mad rush for a fictitious perfect security.

It’s one thing to have a conversation about how the trade-off should be made when it’s a matter of two sides agreeing there must be a tradeoff and then quibbling over where to set it.  Civil liberty advocates against the TSA is a different beast, because one party refuses to concede anything should ever stand in the way of chasing a single aim.

If the TSA refuses to take privacy concerns seriously and won’t hear criticism, they’ll get more protesters.

If government employees at airports are making boneheaded and intentionally cruel, retaliatory choices (which they are), and are then overwhelmingly exempt from any liability whatsoever, I guarantee we will see the situation at airports worsen.  The state cannot tell citizens they aren’t allowed to question the necessity or role of the TSA, aren’t allowed to criticize specific policies, aren’t allowed to protest, and have no remedy when a TSO does something unjustifiable.

In fact, the more the state tries to justify TSA excess with appeals to the need for security, the more activists and scholars will rightly focus on how real the threat really is.  Just don’t get too screwy or abstract, kids.  The rest of us need to know what you’re aiming for.

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