November 21, 2010

The TSA and the Fourth Amendment

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
~Fourth Amendment to the Constitution

I haven't commented on the latest TSA versus the Fourth Amendment illegal search and seizure issue that has been raging since the invasive airport scanning machines and invasive groping searches that involve agents touching people's "junk" has hit the headlines. There's a reason for that - it's a complex issue and I've been reserving judgement on it.  While liberty and safety are at odds in this case, I'd prefer to see the government err on the side of liberty.  Better still, I'd prefer to see the government come up with a different solution than the one they have.  I'm still not sure what the best solution might be, but there are some interesting observations to be made.

“They that can give up essential liberty to purchase a little temporary safety, deserve neither liberty nor safety.”

~Benjamin Franklin

(1) Some of those who thought President Bush was the epitome of evil for the big brother aspects of Patriot Act don't see the same issue here.  President Obama himself had serious misgivings about the powers granted in the Patriot Act, which his administration is now using to promote the TSA searches [HT Wired];
But soon after the PATRIOT Act passed, a few years before I ever arrived in the Senate, I began hearing concerns from people of every background and political leaning that this law didn’t just provide law enforcement the powers it needed to keep us safe, but powers it didn’t need to invade our privacy without cause or suspicion...

This compromise does modestly improve the PATRIOT Act by strengthening civil liberties protections without sacrificing the tools that law enforcement needs to keep us safe...

So, I will be supporting the PATRIOT Act compromise. But I urge my colleagues to continue working on ways to improve the civil liberties protections in the PATRIOT Act after it is reauthorized.
(2) Some of those who backed the Patriot Act see an issue here that they would apparently have overlooked under President Bush.  Charles Krauthammer, who is often an insightful political commentator was the opposite of Obama.  He's rallying around "Don't touch my junk", but in an article in 2008 discussing the lack of Presidential prospects of John Edwards, he argued that one point against Edwards was his opposition to the Patriot Act, implying that it was only logical to support it.

(3) On a more fundamental level though, national security is an issue that needs to be addressed.  Letting a shoe bomber get on a plane is not an option.  So security as it was, can no longer be security as it will be.  Something better had to be done.  Obviously this is the outcome of that line of of thinking.  Body scans and groping pat downs are the result of rushing down a path towards greater security without thinking about unintended consequences.

(4) Freedom from illegal search and seizure and freedom from invasive and emotionally uncomfortable groping or scanning is something that should go without saying in a free society.  The United States is supposed to be a free society.  It would therefore seem logical that not only constitutionally, but morally, the government should not be able to perform these sorts of searches.

There's the real quandary.  Forget the hypocrisy evident in the first two points, the real issue is how to balance protecting Americans from danger with protecting their rights under the Constitution. Does freedom trump safety and security?  Both liberals and conservatives have positions that would argue that it does - abortion for liberals, and gun rights for conservatives are prime examples.  There's an obvious consideration that should factor into that question.  As an individual you are able to make decisions that affect your own security.  You can choose not to fly, or even travel.  That will reduce your risk.  The government acting as an additional layer of security at some level can enhance your security and simplify your travel decisions.  On the other hand you cannot make decisions yourself on your own level of freedom.  To the largest extent you are at the mercy of the law of the land, and indeed the government.  The laws, rules and regulations passed by the government do indeed govern what you can and cannot do.  So while it is a simple matter to make decisions for your own security, it is not the case for your own liberty (short of revolution against an oppressive regime or flight to another country).  Therefore it would seem, that the right position would be to limit the power of those who can limit your freedom.  That's what the framers of the Constitution had in mind when they drafted it, and it's what should guide legislators today in our application of governance of the nation.

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