Published: December 6, 2010

Publication: National Review Online

Understandably, many Americans feel that the new procedures lack common decency or even threaten basic civil liberties.

Shortly before dawn on the morning of November 13, John Tyner, a resident of Oceanside, Calif. — and one of my constituents — entered the Transportation Security Administration checkpoint at San Diego’s Lindbergh Field. Upon approaching the checkpoint, Tyner provided a valid identification, willingly removed his shoes, placed his baggage on the conveyer, and queued through a metal detector the same way that nearly 2 million other domestic-airline passengers do every day. What happened next went viral.

An agent informed Tyner that he was required to pass through an Advanced Imaging Technology scanner, which he declined. With his handheld camera phone, Tyner recorded the agent explaining the “standard patdown” procedure to which he would be subjected. Included in the patdown was a “groin check” that involved the agent placing his hand on Tyner’s “inner thigh” and “slowly going up#…#two times in the front and two times in the back.”

A supervisor explained that the procedure was an “administrative search” that agents are “authorized” to perform. In the end, both Tyner and his camera were sent home. The video was posted on YouTube, where nearly 1 million viewers have heard firsthand what happened.

The events of 9/11 doubtlessly raised the stakes for the safety of air travel. Every American should have the confidence that procedures designed to detect terrorists and prevent their boarding commercial airlines are narrowly tailored and effective. Meanwhile, the challenges of heightened security must not infringe on our constitutional liberty.

Since 1973, an administrative search at airport checkpoints has been deemed constitutional so long as the search is “limited in its intrusiveness as is consistent with satisfaction of the administrative need that justifies it.” The court’s decision, of course, did not address the use of a federal agent’s hands to inspect a passenger’s most intimate body parts. Neither did it foresee the use of sophisticated technology to image a passenger’s body.

It bears repeating that the constitutional right of the people “to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures” is an inviolable precept of our democracy. If the enhanced-patdown procedures rolled out by TSA a few weeks ago do not constitute an “unreasonable” search without “probable cause” — which the Bill of Rights forbids — then at best, the public outcry against these procedures reflects the deepening distrust that the American people have in their government. The people are steadily losing confidence that the government in general, and federal regulators specifically, are capable of preserving our rights and protecting our lives at the same time.

Of course, there’s good reason to be doubtful. It was luck, rather than effective screening, that stopped the 2009 Christmas Day bomber, whose own father had warned U.S. officials of his terrorist sympathies. And if not for the watchful eye of a Times Square street vendor who pointed out a plume of smoke under a parked car months later, the plot of a Pakistani-born militant could have resulted in the deaths of hundreds. And despite numerous red flags and intercepted e-mail correspondence with an extremist cleric in Yemen, federal authorities were unable to stop Army major Nidal Hasan from murdering 13 military and civilian employees at Fort Hood, Texas, in November 2009.

At every point — from requiring us to remove our belts and shoes, to forcing us to discard our shaving cream and hand lotions, to putting all our toiletries in little plastic bags and placing our laptop computers in separate plastic bins — we have willingly submitted to new travel regulations on the promise that TSA procedures were necessary to keep us safe. Yet it seems that we have been giving up more and more of our privacy and liberty every day without any increase in our security. In fact, the new screening procedures appear to be in conflict with our basic constitutional protections, in the end taking a step back for liberty without a step forward for security.

It is true: 9/11 changed our lives. But if the TSA is going to be taken seriously — and not as a defunct regulatory agency conducting “security theater,” as Washington Post columnist George Will recently characterized their security screenings — then the American people need greater assurances that the TSA takes seriously our concerns about liberty, privacy, and indeed our modesty.

Moreover, there will need to be stronger evidence that TSA, as currently organized and administered, is competent to provide that security.

— Rep. Darrell Issa (R., Calif.) is the ranking member of the House Committee on Oversight and Government Reform.