Wish in One Hand....

Poor John Pistole. He so desperately wants to create a system of airport security that's more focused on actual threats and less on security theater, but for some reason hasn't found a way.

John Pistole, the T.S.A. chief and 26-year veteran of the F.B.I., said he called Tom Sawyer, a 61-year-old bladder cancer survivor who had his urostomy bag dislodged, and urine spilled on him, after a rough T.S.A. search in Detroit last November.

“I asked him to come in and provide some personal perspective that could be used in training to give greater sensitivity,” said Pistole, who flew Sawyer from Lansing, Mich., to Washington.

Great. And after the phone call and obtaining the passenger's perspective TSA changed what policies?

He said they are trying to move past a “one-size-fits-all” program and implement a “risk-based, intelligence-driven process” by the end of the year that would have more refined targeting. If passengers are willing to share the same information they give to airline frequent-flier programs, he said, maybe some day they will be able to “keep their jacket on and their laptop in their briefcase and hang on to that unfinished bottle of water.

“I’d like to get to the point,” he said wistfully, “where most people could leave their shoes on.”

Up until the U.S. insisted that Canada adopt U.S. screening standards, you could wear your shoes through security on a flight into the U.S. For that matter, most of the world does not obsess over whether your laptop computer is in a bag vs. a TSA-approved pouch, or is removed from a non-approved bag or pouch before you go through security. They're not big on requiring medical equipment to be removed from cases and placed directly in the not-so-clean screening bins used at security checkpoints. Heck, sometimes you can even wear a jacket or sweater through a metal detector.

Now I'm sure that this is well-justified by a technocrat with a spreadsheet... "We've found zero devices and prevented zero terrorist incidents through our heightened security, versus the zero incidents that have occurred in other countries as a result of their more relaxed approaches to security and... let's see... zero divided by zero... that means our system is infinitely better!"

Funny thing, I recall giving TSA every piece of ID and every bit of information it has ever asked from me. And it turns out that all it needs to end this security theater and to start focusing on actual threats is my frequent flier number? No problem. All you had to do was ask. Um... John, you are asking, aren't you? This is a plan, right?

Cancel the Backscatter Order

Due to a "calculation error" (i.e., incompetence), the radiation levels produced by backscatter X-ray body scanners was underestimated by a factor of ten. Back when the lower radiation level was being touted, we were being assured that the backscatter machine was no less safe than the millimeter-wave technology machines. Now we know that's false. So let's stick with millimeter-wave. Not only safer for passengers, but as millimeter-wave produces even better virtual strip search images it should provide for more accurate screening. And, of course, there's the issue of how well the backscatter machines will be maintained.

If we're going to pretend that the backscatter order is about anything other than handing billions of dollars to a well-connected company, it's time to cancel the order for new backscatter machines. But then....

I guess it's worth asking, have we confirmed that these machines actually would catch an "underwear bomber"? Because if they would not, what's their point again? (And yes, those questions are rhetorical, as if the machines actually would catch an "underwear bomber" their manufacturers and the TSA would be bragging up a storm rather than making nebulous statements about things being "unclear".)

Don't You Go Peeking At My Dirty Underwear....

This cartoon by Clay Bennett of the Chattanooga Times Free Press hits on something - how our government will happily ignore the rights and privacy of ordinary citizens, despite having a complete absence of evidence that its new privacy-invasive policies will do anything to improve security, but pretty much blows a gasket when it's our political leaders who might be embarrassed.

I find it interesting that, despite the furor over the Wikileaks disclosures relating to the military's activity in Iraq, the U.S. government did not come down on him full bore, nor did they assign a team of government lawyers to scour the statute books looking for a way to criminally charge Assange, until it was the State Department and, by extension, the political leadership of the nation that was being embarrassed. From a legal perspective, why are leaks of low-level State Department memoranda worse than leaks of military documents and video?

The people making these choices on our behalf are the same individuals who, of course, don't have to go through regular airport security - and whose wealthy supporters don't go through anything approaching a frisk or body scan even when they go to events where the President is present.

How does it feel to be one of the little people?

Partisanship and the TSA Controversy

Let me start by largely agreeing with Roger Cohen, who notes that the implementation of full body scanners at airports is irrational, and may be driven largely by the efforts of former government officials turned lobbyist (such as Michael Chertoff). Cohen doesn't fall into the trap of calling for profiling or for "Israeli-style" security, something that is completely unworkable in the U.S. system of air travel - and to many, far more objectionable - in favor of using actual intelligence to determine which passengers should be screened.

Let's be honest for a moment. Airport security screening as we know it was designed to stop hijackings in the classic sense - the opportunistic diversion of an aircraft to a different destination, or an attempt to hold hostage the passengers on an airplane. It was largely focused on obvious weapons, principally guns. That meant made it possible to screen passengers relatively quickly and painlessly. Most notably after the Lockerbie bombing, security was tightened in order to try to prevent bombs from being brought on to aircraft. Post-9/11, the effort to keep bombs off of airplanes has become increasingly zealous, to the point of the full body scanners backed up with frisks. Old style security isn't adequate for the types of bombs and weapons that the TSA is now seeking, because those bombs and weapons are non-metallic and may be prepared, sealed or carried in a manner that makes them very difficult to detect. There's a particular concern about PETN.

At the same time, the odds of a passenger actually carrying such a device are vanishingly small. In the ten years since 9/11, there have been a couple of attempts to get explosive devices disguised as clothing items onto airplanes - hence no shoes and scans of our underparts - and additional attempts to sneak explosives into air cargo - but not one such device has been intercepted by the TSA. And for 95+% of passengers, we have sufficient intelligence to know that they're not going to voluntarily hide such an explosive device in their clothing. That leaves the well-considered possibility that an explosive device may be slipped into their baggage, justifying better quality scanning of both checked and carry-on bags. And yes, there's the "action movie" scenario to consider - due to some sort of threat against your family, a terrorist coerces you into trying to smuggle a bomb onto a plane.

While Eugene Robinson suggests, quite correctly, that the principal reason for popular objection to the new security measures is that "I (or my grandmother) might get scanned", he suggests that's acceptable because terrorists are smart enough to identify people who won't fit a profile, and also that profiling is a greater threat to civil liberties than is the potential virtual strip search of anybody who wants to ride on an airplane. But when Robinson alludes to the 9/11 hijackers "not fitting" a profile because they were Saudi nationals, he's missing the point that we had ample intelligence to be concerned about those people. And it's been conceded that Umar Farouk Abdulmutallab (the "underwear bomber") should never have been allowed to board the aircraft he attempted to bomb - he got on due to an intelligence failure, got through security (albeit outside of the United States), and was foiled by his fellow passengers. So far there is no reason to believe that body scanners or enhanced pat downs would have detected his explosive device. So tell me again, how does scanning grandma make us safer? In what parallel universe is Bob Herbert's grandmother going to try to smuggle a bomb into an airplane? (And in that universe, why wouldn't she pick an airport or security line that doesn't have a body scanner?)

But the action movie scenario is exceptionally far-fetched, and creates multiple points of potential failure that don't exist when you find a Richard Reid, Jose Padilla or Abdulmutallab who is willing to actually carry the device onto the plane. First you have to get the device and a sufficient cohort of terrorists into the United States, then you have to find a mark who is traveling on the correct plane at the correct time, then you have to find a way to coerce your mark into trying to smuggle the bomb onto the plane, then you have to maintain that level of coercion for a long enough period that he attempts to board the plane, then you have to hope he doesn't call the police, tip off security, or act so nervous at the airport that security figures out something is wrong, then (assuming your plan is sufficient to get past security) you have to hope the device isn't detected by happenstance, then you have to hope he doesn't choose not to activate the device or deactivate it during the flight... Terrorists may sometimes appear to be stupid or inept, and luck has been involved in our avoiding catastrophe with the post-9/11 bombing plots, but there's a reason that none of these attempts have involved trying to coerce innocent, outside parties into carrying bombs onto planes - it would make the scheme more complicated, necessitate involving more people and in its implementation would all but doom the plan to failure.

A few days ago Ross Douthat wrote an editorial suggesting that the controversy over the new screening methods reflects partisanship and hypocrisy. At the surface level that seems reasonable, as our nation (like every other nation) suffers no shortage of either commodity. But Dan Larison provides an apt rebuttal:

On the whole, people on the left who are not troubled by the obnoxious TSA scans and pat-downs have not been terribly troubled about most of the other infringements on constitutional protections carried out over the past nine years, and most of the people on the right who have discovered “libertarian impulses” in this case have shown no signs of such impulses until the last year and a half. These impulses were not suppressed during the Bush years. They did not exist. Instead, they have materialized out of nowhere.

Larison also notes,

Even when some conservative hard-liners have objected to the TSA procedures, it is usually not because they have rediscovered their inherent distrust of the national security state’s power (which they never had!), but because these procedures have simply underscored for them how silly it is to screen all passengers at airports. The uproar over obnoxious TSA methods has presented them with a new opportunity to revisit their calls for profiling. At best, most of these protests are complaints against inconvenience rather than objections against intrusive government, and many of them do not reject authoritarian practices, but simply want to change the form of authoritarian practices. To that end, rhetoric about preserving American liberty is useful, but these are often the same people who have tended to justify every government encroachment on liberty and every expansion of the warfare and national security state in the name of “defending freedom.” This is all fitted into the larger Republican attack that Obama refuses to “name” the enemy, and that he has erred by no longer referring to the “war on terror.”

Larison notes that the alleged "partisan mindset" was absent from the recent vote to renew the PATRIOT Act.

But there's something else to consider, much to the consternation of the Glenn Greenwalds of the nation: Issue fatigue. Something becomes a hot issue for a while, is played out in the press, nothing changes, and time passes. While people may not forget the issue, it loses its urgency. And, as Larison notes, most people are happy to acquiesce to the subversion of the civil rights of others, so there's little price to be paid for an elected official who happily shreds the Constitution in the name of "the war on terror". When you couple that with the fear, which seems particularly high on the part of Democrats, of being held accountable if anything bad happens - of having to confront a "why didn't you order all air passengers to be strip searched and fluoroscoped before boarding"-type argument following a successful terrorist attack - that they would rather waste billions of taxpayer dollars chasing shadows (hey - it's not their money) than have an adult conversation about risks and costs.

Airport Security (G)Randtanding

Paul Rand usually tries to portray himself as a different sort of politician - one who truly believes in individual responsibility, effective government, and who could cure much of what ails our system of government. But his position on TSA airport screening seems like run-of-the-mill politics - shifting responsibility for something that's unpopular from those who could actually do something, that is, people like Rand, to people who are trying to do their jobs as ordered.

My legislation is simple. It establishes that airport security screeners are not immune from any US law regarding physical contact with another person, making images of another person, or causing physical harm through the use of radiation-emitting machinery on another person. It means they are subject to the same laws as the rest of us.

No, really, it means that rather than addressing the TSA as an organization, or working through Congress to hold accountable those who created and implemented the policy, Rand is choosing an easy target and blasting away, knowing full well that his bill has no chance of being passed.

Rand does make some valid points although, as made, this one shares some of the same flaws as his legislation:

Imagine if the political elites in our country were forced to endure the same conditions at the airport as business travelers, families, senior citizens, and the rest of us. Perhaps this problem could be quickly resolved if every cabinet secretary, every member of Congress, and every department head in the Obama administration were forced to submit to the same degrading screening process as the people who pay their salaries.

I share Paul's sense that, if the nation's wealthiest and most politically powerful figures had to go through standard airport security, they would be insisting upon change. Does this mean that Rand will be including in his proposed legislation the requirement that "the political elites in our country" go through standard security screenings? Hm. He seems to have left that part out of his bill....

Rand's better point is this:

The incident of the so-called “underwear bomber” last Christmas is given as justification for the billions of dollars the federal government is spending on the new full-body imaging machines, but a Government Accountability Office study earlier this year concluded that had these scanners been in use they may not have detected the explosive material that was allegedly brought onto the airplane. Additionally, there have been recent press reports calling into question the accuracy and adequacy of these potentially dangerous machines.

Yes, there should be a demand that security measures be cost-effective, that we figure out if new technologies are safe and effective before spending $billions on implementation, and that those who made the decision to roll out the machines should be held accountable if the money proves to have been wasted. But alas, apparently there was insufficient space in Rand's proposed legislation to investigate the decisions involved or to hold the decision-makers responsible if their haste turns out to have produced massive waste.

Rand closes with dogma no less irresponsible than "security at any cost":

The solution to the need for security at US airports is not a government bureaucracy. The solution is to allow the private sector, preferably the airlines themselves, to provide for the security of their property.

So we are to disregard the history of private security at airports, and the massive holes it created that were supposed to be closed by the creation of the TSA, the professionalization of airport security and standardization of security screenings, and drink the Kool-Aid that "the private sector always does it better"? Paul and those who rolled out these new measures with no evidence to support their position represent two sides of the same coin.

Anger at Junk Touching

There are three reasons for objecting to the new TSA security measures, one of which I consider to have substantial merit, one of which I don't believe has been adequately addressed, and the last of which, at least to me, isn't particularly compelling.

First, there's the question of whether the screening enhancements actually do anything to improve airline security and, if so, whether they can be justified on the basis of a cost-benefit analysis. As of yet the TSA has proved wholly unprepared to substantiate any material benefit from the new screening methods, let alone a benefit that would justify the cost. (For that matter, the TSA hasn't presented much evidence on the cost-benefit front for existing technology, and its placement of air passengers into long lines as they wait for security creates a glaring vulnerability.) When you challenge scanners and frisks on a cost-benefit basis,

It's not about doing something "instead" of the current system—it's about not doing things that are wasting money and time and not making us safer. It's quite possible that we're already as safe as we're going to get—and every subsequent airport security "improvement" is just reducing our freedom without improving security.

There is absolutely nothing wrong with expecting that the government will provide a rational justification for either an expenditure of billions of dollars or an intrusion on the privacy of its citizens. Put both together, and people have every right to object when the government is unprepared to demonstrate a meaningful security benefit.

The second issue is whether the new body scanners are safe. With due respect to their exposing passengers to no more radiation than the additional exposure they might experience on a typical air flight, I believe people have a right to be concerned about additional exposure, particularly if they are prone to skin cancer or if they're concerned about their (or their children's) lifetime exposure. "The FDA says it's okay" isn't very comforting - the FDA was asked in general terms about radiation levels, not body scanners. Let's see the science, and some scientific reassurance of how we can have certainty now, given that we don't have a lot of experience with exposure to this type of radiation.

Even if we assume that the machines are safe when they come out of the box, how well will the machines be maintained, tested and operated to ensure that radiation levels remain at factory levels? After all, problems of radiation overexposure can happen in a clinical setting. Finally, in the unlikely event that the TSA actually requests that it evaluate the scanners, why should I believe the FDA wouldn't succumb to political pressure, particularly in light of its recent decision-making?

The third argument is, in essence, "This makes me uncomfortable." I'll grant, some people have more cause than others to feel uncomfortable. Some people cannot go through the scanner, or have prosthetics or medical devices such as insulin pumps that will result in a frisk even if they go through the scanner. But if the cost-benefit case is made, the scanners are safe, the TSA continues with its belated plan to minimize what is displayed to the technician in the scanning booth, and concerns over the alleged selection of "cuties" for more intensive screening are adequately addressed, it's difficult to see how this level of intrusion isn't reasonable. Not at all in the immature "shut up and take it" sense espoused by the L.A. Times, but in the sense that the case will truly have been made that this makes air travel materially safer. It's to TSA's continuing discredit that it is unprepared to make its case, apparently on the assumption that the L.A. Times sentiment would carry the day.

There's a variant of the discomfort argument, "No one should have to suffer this type of indignity." Except as many have pointed out, people do suffer this type of indignity quite regularly, most notably minority males in "high crime" areas who may be stopped, frisked and released with some regularity - and with a very low rate of detection of weapons or other contraband.

The authoritarians who argue "shut up and take it" bother me because, as usual, they are happy to surrender the rights of others in the name of security without even asking that the state provide evidence that security will be improved. The latest example I've found is from Richard Adams who is willing to include himself among those whose junk gets touched, but on the basis of terrible reasoning:

Personally, I'd like to take a flight knowing that the plane is less likely to be blown up or hijacked and rammed into a building full of people. Alternatively, I'd like to be able to work in a tall building in New York City, Washington DC or even London without having a 747 flown into it.

Don't want to be scanned in an airport security line? Really? Easy: don't fly. Nobody is holding a gun to your head forcing you to take that flight to Aruba. Although if security is relaxed because of the idiotic uproar of recent days, then you might get a gun held to your head on-board the flight instead.

Everybody would like to know that "the plane is less likely to be blown up or hijacked", but that doesn't mean that every security measure taken will in fact make that possibility less likely. And with due respect to arguing from fear, if a gun could get onto a plane despite existing security measures, these new measures aren't at all likely to improve the situation.

It's bizarre that a nation that has largely rolled over and acquiesced in allowing its government to tap its phones and internet traffic – the Patriot act, a far graver assault on civil liberties – should get so exercised about this instead.

First, many people have objected to the "security state" developments in the U.K. and U.S., but "shut up and take it" arguments from people like Adams have drowned them out. Second, the use of excessive security measures in one context does not justify the use of excessive security measures in a second context. Third, as I've previously indicated, a lot of the acquiescence toward security excesses in other contexts is that it's invisible - it's either happening to other people, or it's happening in such a manner that you don't even know your privacy has been encroached. It may well be hypocritical to acquiesce to intrusions in other contexts while objecting this time, but being a hypocrite doesn't make you wrong.

Further, if the contexts are analogous and Adams truly believes that the Patriot Act represents government overreach that's being replicated in this context, he should be arguing against the overreach. If he doesn't believe the situations are analogous, he's reaching for an example he knows is irrelevant merely so he can sneer that those who disagree with him are hypocrites.

While Adams makes a valid point about the inadequacies of racial profiling, he continues in relation to Charles Krauthammer's recent column,

The scariest part of Krauthammer's piece is this: "This has nothing to do with safety - 95% of these inspections, searches, shoe removals and pat-downs are ridiculously unnecessary." Which means that five per cent are necessary, according to Krauthammer. One in 20? In that case, security isn't anywhere near tight enough. More to the point, deterrence is a major purpose of airport security. How many people it catches is immaterial.

Adams' first mistake is his treatment of Krauthammer's only the fly statistics as being somehow scientifically determined. His second mistake is an interpretation of what Krauthammer is stating in relation to the 5% of passengers he sees as needing more intensive screening. Krauthammer's argument is that TSA could easily exclude 95% of passengers from the category of "even slightly probable to engage in an act of violence, terrorism or hijacking on an airplane," and that the TSA should thus focus its efforts at identifying and intensely screening the remaining 5%. He's not arguing that 5% of airline passengers are dangerous - not even close.

Let's say you're looking for a needle in a haystack. You propose using a metal detector to try to identify the haystacks that might contain a metal object, and searching those haystacks first. Somebody else howls, "No - we need to put all of the hay from all of the stacks into one giant stack before we even can even begin to look." You may not find the needle the first way, assuming there even is one, but the second way creates an enormous inefficiency. Krauthammer's point, in essence, is that we're better off trying to identify the 5% of the "haystack" that is at all likely to pose a threat rather than putting everybody into that "haystack" - an approach that creates a great deal of inefficiency, generates an astronomical number of "false positives" (bins and bins full of 3.2 oz tubes of gel, nail files, etc.) and may not do much to actually improve security. Yes, it's possible to dispute whether Krauthammer has the right approach to identifying the people who pose a threat - racial profiling won't do it - but is it not in fact the case that the vast majority of air travelers pose no risk to the air flight, and that we can reasonably screen 95% of passengers into a "very low risk" category for purposes of pre-flight security screenings?

Adams' argument that airport security is about deterrence, not about how many suspected terrorists are actually intercepted, begs the question. He's in essence arguing that we can justify the expenditure of billions of dollars and the intrusion of privacy of people who pose no threat simply to put on a good show. Let's not even consider whether the new measures have a greater deterrent effect than the status quo. Let's not bring up the question of whether focusing intensive screening on the small subset of passengers who might actually pose a threat to an air flight would have equal or greater deterrence. Think of the body scans and frisks as a glorious form of performance art.

Nobody Wants to Touch Charles Krauthammer's Junk

Charles Krauthammer, predicable as always, doesn't think it's fair that the TSA might waste its time touching his junk, should he fly the friendly skies:

That riff [about Asians in security lines from the film "Up in the Air"] is a crowd-pleaser because everyone knows that the entire apparatus of the security line is a national homage to political correctness. Nowhere do more people meekly acquiesce to more useless inconvenience and needless indignity for less purpose. Wizened seniors strain to untie their shoes; beltless salesmen struggle comically to hold up their pants; 3-year-olds scream while being searched insanely for explosives - when everyone, everyone, knows that none of these people is a threat to anyone

There is, of course, some truth to this. When you read about TSA putting a small child through an intensive search every time he flies because his name matches that of somebody associated with a terrorist group, you know something is wrong with the system. But Krauthammer misses the point of searching a three-year-old - it's not because the three-year-old may be smuggling something dangerous, but because a three-year-old could be exploited by an adult. Krauthammer's indignance arises from his presupposition that all we really need to do is screen Arabs and people with Muslim names and let everybody else walk through - instant safety. Except that wouldn't catch a Richard Reid. Or a Jose Padilla. Or a John Walker Lindh.

Nor, for that matter, are Muslims the only terrorists in the world - far from it. Nor, for that matter, is terrorism the only reason to hijack a plane. We didn't roll out airport security due to fear that somebody would try to blow up a plane or use it as a weapon. Early hijackings involved diverting a plane from its intended destination to a new location picked by the hijacker or holding the passengers for ransom. Krauthammer's old enough that he should easily remember, back in the day, how many planes were hijacked to Cuba. And he should be able to recall that the hijackers weren't Muslim.

The idea that racial profiling would be effective is absurd. As the examples previously given indicate, the terrorists already know who gets additional attention and, when possible, try to put somebody on a plane who is as far as possible outside of the profile. If it weren't for the fact that human beings tend to become more stubborn and less interested in dying for a cause as they get older, al-Qaeda and similar outfits probably would be trying to recruit grandmothers into the fold, preferably those with nice, European sounding names. The type of profiling Krauthammer favors is overinclusive - most Arabs and Muslims pose no threat on an aircraft - and underinclusive - many people who do pose a threat, including some known terrorists and al-Qaeda sympathizers, would not fall into the profile, and when available they're the ones most likely to be used by al-Qaeda in a plot against an airplane. And let's not buy into a delusion that just because our present focus is on al-Qaeda, we couldn't be targeted by a different group with a different profile. The Tamil Tigers weren't Muslim, aren't Arab, and used female suicide bombers - and fortunately they didn't target the U.S., but they should serve as a reminder that you shouldn't pretend either that no non-Muslim threat exists or that the status quo will never change.

Am I overanalyzing? Adam Serwer is more succinct:

Conservatives like Krauthammer aren't angry that the TSA is infringing on individual liberty, just that it's infringing on their individual liberty.

In fairness to Krauthammer, though, travelers with physical limitations such as his - people who cannot stand unassisted in the scanner - can apparently look forward to having their junk touched every time they travel.

Stupid Arguments In Favor of the Security State

The Washington Post and L.A. Times have both provided stupid arguments on the question of "full body scans" and the frisking of passengers at airports. First up, the L.A. Times:

Shut up and be scanned

Really, that's their headline and its the gist of their argument - shut up and do as you're told. They attempt to dress it up a bit:

The new scans might not be foolproof, but they'll spot more dangerous materials than the old detectors and keep passengers safer.

Everybody agrees that the scans and pat-downs are not foolproof - not even close. Everybody in fact knows how to fool them. The issue then, is whether they make us appreciably safer and... despite the whopping 130 items taken from passengers as a result of the new machines, there is actually no evidence that the machines would make us safer. There's no evidence that body scanning would have identified the "underwear bomber".

Yes, I recognize that there are people who claim that Abdulmutallab would probably have been identified by a body scan, but here's the thing: We have his underwear bomb. We can dress somebody up in a facsimile, put them through the scanner, and find out for sure. So why hasn't that been done as a demonstration of the need for scans and their effectiveness at detecting threats that might otherwise be missed? Either we have to accept what we've been told so far - the DHS rushed into the purchase of these machines without actually trying to assess whether they improved security - or we can choose to be cynical and assume that "underwear bombs" were tested and the scans failed. Seriously, it would be a cheap and easy demonstration. If you were advocating for scanners, why wouldn't you be all over the news with scans proving that they would have stopped Abdulmutallab? Unless, that is, you know they wouldn't.

In short arguing that people should, in essence, shut up and take on the assumption that the machines make us "safer" is an irresponsible argument, contemptuous both of individual rights and freedoms and of what is involved in actually improving security. Which brings us to the Washington Post which, after reminding us that al-Qaeda remains interested in "targeting commercial flights",

No technology is foolproof; intelligence, traditional law enforcement and tips will continue to play leading roles in disrupting attacks. But the government would be irresponsible not to employ all reasonable means - and all available technology - to protect the lives of innocent people.

The Post assumes that body scanners are a "reasonable means" of detecting threats on the basis of... what? Just like the L.A. Times, they apparently don't need any evidence that the scanners add to security. You can argue that the assumption is not unreasonable, but even if we weren't talking about billions of dollars we should be looking at how much difference the scanners make and performing a cost-benefit analysis as compared to other security measures.

I believe TSA Director John Pistole when he states that a frisk (he still prefers the term pat-down, but let's be more accurate) would have detected Abdulmutallab's underwear bomb - and let's further assume that it would have been sufficient to distinguish the bomb from an adult diaper. As I previously noted he provides no comparable assurance that a body scan would have detected the bomb. The reasonable inference is that we're spending $billions on technology that, in specific relation to the threat that inspired the quick roll-out of body scanners, is probably inferior to a frisk. So maybe everybody should be frisked? Or scanned and frisked?

And that "all available technology" argument - how about making passengers walk through a giant fluoroscope - a virtual cavity search? Sure, it's more radiation than a backscatter device, but why should that matter? All this talk about balancing cost and effectiveness, considering whether other approaches might be better, wondering if we're wasting billions of dollars - talk, talk, talk. We're against a determined enemy so "shut up and be scanned", right?

Balancing Security Against the Threat

As the air traveling public recoils at the choice between being scanned by a TSA strip search machine or having an enhanced pat-down (a/k/a a frisk), the TSA has attempted to defend its latest measures:

TSA Administrator John Pistole defended the system today, saying that all passengers want to know that their fellow fliers have been properly screened for weapons like box cutters, liquid explosives or a shoe or underwear bomb.

"Everybody wants the best possible security," Pistole said on NBC's "Today" show. "The question is, What's that blend or balance, if you will, between security, safety and privacy? While we remain sensitive to people with those concerns, the system we have set up addresses those concerns and provides the best possible security."

Except, as we know, neither a frisk nor a strip search scan will stop a determined terrorist. Neither will detect contraband stored inside the body, and there's no reason to believe that terrorists haven't figured that out.

If public reaction so far is a measure, TSA should infer that it has gone past the tipping point - people are willing to take off their shoes, take medical equipment and computers out of their luggage for the x-ray machine, be patted down, wanded, and otherwise inconvenienced to eliminate most contraband from flights, but don't like the idea of being electronically strip searched or frisked. They would apparently accept the 1:10,000,000 or so chance of being hijacked without this "enhancement" over the 1:10,100,000 chance that they enjoy with this added security. And I may be overstating the statistical difference.

Thomas Friedman wrote a while ago that we have been lucky not to have been hit by another terrorist attack - and he's correct.

Meanwhile, we need to focus on the things we can control. For starters, we’re going to have to learn to live with more insecurity. Terrorism is awful, but it is not yet an existential threat. And we can’t let our response to it be to shut down our open society or tear ourselves apart with recriminations. Like the Israelis and Brits, we need to keep up our guard, learn from our mistakes, but also learn to bury our dead and move on.

President Obama recently made a statement that should have been treated as an opportunity to have an adult conversation about the risks of terrorism and how we might respond.

I said very early on, as a Senator and continue to believe, as a presidential candidate and now as president, that we can absorb a terrorist attack. We will do everything we can to prevent it. but even a 9/11, even the biggest attack ever, that ever took place on our soil, we absorbed it, and we are stronger. This is a strong, powerful country that we live in, and our people are incredibly resilient.

Instead, Republican hacks started to shriek about how the President wasn't committed to protecting us from terrorism. With no offense intended, I don't believe for a second that Pistole is trying to achieve balance. He's working in an environment in which it is presumed that no mistakes are acceptable, and thus that it's reasonable to invest $billions in technology that most people find objectionable in order to provide a very small overall improvement in security.

Pistole, who said Wednesday that the scanners and new pat-downs already had found "dozens and dozens of artfully concealed items" noted that Muslim women and members of other religions that dictate the kind of clothing they must wear can request to receive a pat-down in private or have a witness present, among other procedures.

I wish we had a better sense of what type of contraband we're talking about or how it posed a threat. Instead we hear about "dozens and dozens" of items - which could mean 48 - with no indication that any of them posed an actual threat to air security.

We are now in an era in which you can shut down an airport by accidentally going through the wrong door, or when a security guard accidentally leaves a door unattended. Jeffrey Goldberg's nightmare scenario - somebody setting off a bomb in a line for airport security - would, as he indicates, immediately shut down air travel across the nation. Meanwhile, with present policies for responding to an in-the-air incident, it's not clear why a hijacker would choose to try to get on an airplane over taking Goldberg's approach, at least if they're already in the U.S.

Something that might have helped in this debate, if you want to call it that, would be evidence that the TSA has rigorously tested and compared various methods of screening to demonstrate that a determined passenger is less likely to be able to smuggle contraband on board if scanned or frisked. As with every prior "enhancement", the TSA measure seems to be largely reactive - "somebody almost got away with X, so let's implement security measure Y to prevent it from happening again" - without any real thought to actual risk, cost, or efficacy. If TSA could say, "We challenged 1,000 FBI agents to get through security lines with dangerous contraband, and caught 99% of them using scanners versus 90% with frisks and 66% with existing technology", the case for the scanners would be far more compelling than claiming, after-the-fact, that the $billions spent have resulted in the interception of "dozens and dozens" of forbidden items with no claim that any of those items in fact posed a danger to a flight or other passengers.

Update: Adam Serwer reports the lack of testing and due diligence exercised by the TSA before making this multi-$billion investment:

The current scanners were being evaluated at a time when, according to a 2009 Government Accountability Office report, the TSA had neither implemented a cost-benefit analysis of its passenger-screening technologies nor established "performance measures that assess how deployed technologies have reduced or mitigated risk." As of today, the GAO says the TSA still hasn't done either, despite having deployed the scanners nationwide. A TSA spokesman defended the machines by saying it had done an analysis concluding that the machines offered an ability to detect nonmetallic threats that could "only otherwise be obtained by increasing manpower to conduct physical pat-down searches." However, a March GAO report found that it "remains unclear" whether the body scanners would have been able to detect the type of explosive that underwear bomber Umar Abdulmutallab attempted to employ. Once again, we've traded liberty for security without even having a good idea of how much security we're really getting.

And yet we're to believe that this is part of an effort to balance safety against privacy?

(Serwer and, more bluntly, Mike at C&F, have pointed out that much of the reaction to airport scanners and frisks falls into the category of "This type of thing is only supposed to happen to other people".)

Update 2: Apparently "dozens and dozens" means "130", again with no indication that any items found posed a threat to an airplane or other passengers. The biggest problem at this point appears to be a very high rate of false positives, meaning passengers who are carrying nothing inappropriate can agree to the virtual strip search and still have to go through a frisk.

The Continuing Problem of Airport Security Theater

Jeffrey Goldberg chose to be frisked over going through a backscatter "strip search" machine principally as fodder for his column, but he makes valid points about this latest step in the multi-billion dollar security theater industry:

At BWI, I told the officer who directed me to the back-scatter that I preferred a pat-down. I did this in order to see how effective the manual search would be. When I made this request, a number of TSA officers, to my surprise, began laughing. I asked why. One of them -- the one who would eventually conduct my pat-down -- said that the rules were changing shortly, and that I would soon understand why the back-scatter was preferable to the manual search. I asked him if the new guidelines included a cavity search. "No way. You think Congress would allow that?"

I answered, "If you're a terrorist, you're going to hide your weapons in your anus or your vagina." He blushed when I said "vagina."

"Yes, but starting tomorrow, we're going to start searching your crotchal area" -- this is the word he used, "crotchal" -- and you're not going to like it."...

I asked him if he was looking forward to conducting the full-on pat-downs. "Nobody's going to do it," he said, "once they find out that we're going to do."

In other words, people, when faced with a choice, will inevitably choose the Dick-Measuring Device over molestation? "That's what we're hoping for. We're trying to get everyone into the machine." He called over a colleague. "Tell him what you call the back-scatter," he said. "The Dick-Measuring Device," I said. "That's the truth," the other officer responded.

Goldberg argues (in part for the reasons suggested above) that embarrassing frisks and backscatter machines aren't going to work.

By the time terrorist plotters make it to the airport, it is, generally speaking, too late to stop them. Plots must be broken up long before the plotters reach the target. If they are smart enough to make it to the airport without arrest, it is almost axiomatically true that they will be smart enough to figure out a way to bring weapons aboard a plane.

His colleague, James Fallows, is similarly skeptical of airport security theater.

Meanwhile, the latest and greatest threat to air travel isn't coming from passengers - it's coming from unscreened and poorly screened air cargo. There has been some progress and, as of a cpuole of months ago,

Asked about the cargo shipped on passenger jets, Nicholas Kimball, a spokesman for the Transportation Security Administration, drew our attention to the fact that 100 percent of the cargo loaded into the holds of passenger jets alongside luggage in the United States is now screened at some stage. In January that figure was said to be “at least 50 percent.”

But in a statement earlier this month announcing that accomplishment, the agency acknowledged that one part of the loophole had yet to be closed: cargo loaded onto jets flying passengers into the country from abroad does not have to be screened.

But let's not pretend there was no advance notice of this issue or that nobody saw this coming.

Why do we invest billions to inconvenience and embarrass travelers, the vast majority of whom could easily be ruled out as terrorist suspects by far less intrusive measures, while procrastinating on closing serious security holes? (Focus on passenger security left ‘door open’ for cargo attacks: pilots’ union.)

A Byproduct of Security Theater

Josh Marshall asks the question,

I tend to agree that if a young person gets on an international flight, not only with no checked luggage but no carry ons that suggest he plans on ever getting off the plane, that is sort of a tip off. But in these cases, I always wonder: Isn't it or why isn't it part of terrorist best practices to just bring some phony luggage? With all the trouble and subterfuge terrorists have to go to get stuff on planes, this seems fairly straightforward. This isn't a criticism of the policies. And obviously Abdulmutallab didn't do this. But in cases like this, I always do wonder: why?

I hate to say it, but... probably because it makes it easier to get through security. Nobody's going to be measuring your contraband shampoo as being 3.8 ounces, complaining that your computer has to be in a separate bin apart from its case, or finding a nail clipper with an unacceptably dangerous nail file attached.

Further, when you create a context that leads a significant number of travelers to check all of their luggage, you make it less suspicious when somebody goes through security empty-handed.

Connecting the Dots

Kathleen Parker instructs us,

If Bush could be blamed for the dot-connecting inadequacies that helped enable the terrorist attacks of Sept. 11, eight months into his administration, then Obama can fairly be held responsible for the incompetence that allowed a disaffected jihadist to get explosive powder onto a plane.

Except somebody, oh... who was it again... Oh yes, Kathleen Parker doesn't actually believe it's fair to blame Bush or his administration for failing to connect those dots. Is she applying a different standard to President Obama - a new standard that, by implication of her own words, is unfair - or has she somehow forgotten the amount of slack she repeatedly extended to Bush? One of the biggest unconnected dots leading up to 9/11, "Bin Ladin Determined to Strike in US", was given to Bush while he was on vacation. Yet it appears that no words of criticism have ever crossed Parker's lips.

Similarly, Parker offers no criticism of Jim DeMint for blocking confirmation of the new head of the TSA, DeMint apparently finding it more important that TSA workers be blocked from unionizing than that the TSA itself be effectively managed. No dots to connect there.

Parker also whines that President Obama is on vacation, didn't make a public statement about the incident for two days, and... well, responded in much the same manner as Parker, focusing on institutional failures instead of the incident itself. Parker dismisses the attempt itself as banal, and is full of 'wit' in her description of the terrorist, "Was this fellow computer-generated by a cartoon character", and incident, "If it weren't all so bloody horrifying, the incident would be ridiculous" - yet one can imagine what her reaction would have been had President Obama made similar comments. She probably would blast him for displaying a demeanor that in these circumstances borders on inappropriate - no, wait, she did that anyway.

Many have pointed out that Bush took six days to make a public statement over "shoe bomber" Richard Reid's December 22, 2001 attempt to take down an airliner - an incident that seems remarkably analogous to what Parker describes as "the underwear bomber" of December 25, 2009. Obama, with three days more experience when the incident occurred, and with one day less experience when he made the statement, should have... um... well, I'm sure "it's different". In fairness, Bush had other issues on his mind at the time that he may have deemed more important.

Parker is also horrified that President Obama was on vacation with his family over Christmas. Unthinkable. G.W., the most vacationed President in U.S. history was... well, on a "holiday retreat" when Richard Reid attempted to take down a plane, sure, but surely that's also "completely different".

Parker's largest substantive criticism of Obama, if you can call it that, is, "The cool detachment that was so attractive when political opponents were trying to rile Obama is suddenly becoming annoying." She doesn't "need bombast and flared nostrils" and notes that "Calm in the face of potential disaster is laudable," but... shouldn't he be declaring a war, or something? Seriously. So let's take a look at an appropriate reaction - none of that calm detachment stuff - from GW's statement on Richard Reid:

First of all, I wish everybody a Happy New Year; 2002 is going to be a great year for America. And we will continue to pursue our mission in fighting terror. We'll work hard to make sure our economy rebounds. But most of all, the Nation will continue to embrace the culture of compassion, which really, really flourished right after September the 11th.

I'm looking forward to an early evening tonight. I guess at the age of 55, it's expected that--or it's okay for a guy to go to bed at about 9 p.m., maybe 10 p.m. So I don't plan anything glamorous for New Year's Eve.

I've got to tell you, there's nothing more relaxing than being in Crawford, Texas. I'm spending as much time outdoors as I can. I spent-- after my briefing this morning with National Security Council, I was able to spend about 3 hours in the canyons, cleaning underbrush. And I feel refreshed and fortunate that we've got such a beautiful piece of land to live on.

Hm. Well maybe he is less detached, with appropriate level of nostril flare, when he speaks directly about Richard Reid?

The FBI, the whole culture of the FBI has changed, for the better. The FBI's main task now is to protect Americans from further attack. The country is on alert. And a classic case was the person who tried to put the bomb in his shoe, and a flight attendant on the American flight alertly notified people, and they got it. And he's now--we're now giving him a chance to tell us what he knows about terror and about Al Qaida.

That's so much better than "A systemic failure has occurred, and I consider that totally unacceptable". After all, if you make a "low key response" to an incident like this you're "trying to pretend" that the nation is not at war, right?

All in all, the editorial is typical of Parker's work: Late to the story, parroting the standard Republican Party talking points even after most of the points have been discredited, regurgitating her usual personality-based criticisms of President Obama, ignoring all facts that contradict her assertions.... Pretty much everything it would take for Fred Hiatt to deem her "highly qualified".

The Missing Element

Josh Marshal ponders why people are willing to

ethnically profile, do all sorts extra-judicial surveillance, maintain massive databases of hundreds of thousands of people who have some vague relationship to extremism, torture captives, condemn people to hours unable to go the bathroom on planes, even launch various foreign military adventures

while we hesitate to implement backscatter body scans

that might show a vague outline of boobs or penises (almost certainly no more than is exposed in most bathing suits)

and concludes,

It just tells me that at some level we're not really serious about this.

Really, though, the difference is obvious. With stuff that happens behind the scenes, we're comfortable assuming that it only happens to other people. Proponents of torture don't anticipate that they will ever be tortured. Proponents of racial profiling anticipate that it will only happen to other races - consider the recent spate of calls for the profiling of any person with an Islamic-sounding name, even though most made no similar demand for people with names like "José Padilla" and none that I know of made any such demand for people with names like "Richard Reid". The rule forbidding going to the bathroom on an airplane during the last hour of a flight - an idea that is unworkable (or potentially really messy) for people with certain medical conditions or for small children? It's already out the door. Now the decision is up to the discretion of the airlines.

It's simply another form of the anti-civil liberties retort, "If you're not breaking the law, you've got nothing to worry about" - which roughly translates to "If it's not happening to me, I don't care."

It should also be noted that the privacy technology for backscatter has improved, and will continue to improve, to the point that "nudity" is becoming a non-issue. Several years back, when I first heard about the use of this technology by the federal government, and the privacy issues it was raising, I asked, "Why not adjust the software to erase as much of the human body as possible - after all, you don't care about the body - just what's on it"? It took some time for others to hop on the clue bus, but that's the way the technology is heading. Note that the technology is anything but perfect - it won't see through fat folds, nor will it look inside body cavities - it's just another tool in passenger screening.

Making Airport Security See Reason

Probably not the best way, but this cartoon does highlight the absurdity of the arbitrary, appearance-oriented security rules imposed on air travelers. (I've previously commented on the issue.)

"Tampering With Your Agonizer Is A Federal Offense"

The promotional video makes it appear that the manufacturer has been pitching this product for more than five years, and TSA finally appears receptive:

A senior government official with the U.S. Department of Homeland Security (DHS) has expressed great interest in a so-called safety bracelet that would serve as a stun device, similar to that of a police Taser®.

Wow. They really haven't run out of ways to make air travel less pleasant.

Query: What if the terrorist has the temerity to stick a credit card between the electrodes on the agonizer safety bracelet and his skin? Or, can you imagine, what if the terrorist takes the bracelet off?

If in 2000 I told you to take all the stupid in the world, distill it, and pour it into government agencies, would you have imagined that you could achieve a bureaucracy as short-sighted and incompetent as that created by G.W. Bush?

Airport Security, Revisited

The New York Times finally publishes something sensible on this subject, courtesy of an airline pilot.

Six years after the terrorist attacks of 2001, airport security remains a theater of the absurd. The changes put in place following the September 11th catastrophe have been drastic, and largely of two kinds: those practical and effective, and those irrational, wasteful and pointless.

The first variety have taken place almost entirely behind the scenes. Explosives scanning for checked luggage, for instance, was long overdue and is perhaps the most welcome addition. Unfortunately, at concourse checkpoints all across America, the madness of passenger screening continues in plain view. It began with pat-downs and the senseless confiscation of pointy objects. Then came the mandatory shoe removal, followed in the summer of 2006 by the prohibition of liquids and gels. We can only imagine what is next.

(I can't argue too much with that.)

But of all the contradictions and self-defeating measures T.S.A. has come up with, possibly none is more blatantly ludicrous than the policy decreeing that pilots and flight attendants undergo the same x-ray and metal detector screening as passengers. What makes it ludicrous is that tens of thousands of other airport workers, from baggage loaders and fuelers to cabin cleaners and maintenance personnel, are subject only to occasional random screenings when they come to work.

Makes sense to me....

And rather than rethink our policies, the best we’ve come up with is a way to skirt them — for a fee, naturally — via schemes like Registered Traveler. Americans can now pay to have their personal information put on file just to avoid the hassle of airport security. As cynical as George Orwell ever was, I doubt he imagined the idea of citizens offering up money for their own subjugation.

Or, as Paul Krugman notes, if you're rich enough....

Airport Security, Revisited

U.S. airport security astounds me. It represents a combination of excessively intrusive investigation of all passengers, without regard to risk, the chasing of yesterday's perceived dangers, and ineffectual measures apparently meant to convince passengers that we're safe (such as the stultified "three ounce bottle" limit on the (multiple) liquids and gels you can take aboard, or having everybody remove their shoes). Add to that the fact that my tax dollars pay for "express" security lines for first class passengers, and....

Is this sensible or not? For many years, laptop computers were treated as a special security risk requiring removal from your carry-on bags. This was obviously underinclusive in today's era, given the proliferation of portable electronic goods. The TSA has apparently woken up to that fact and, as of a couple of weeks ago, requires separate screening for laptops, full-size video game consoles, full-size DVD players (not the portable ones, which can easily be as big as a laptop computer), video cameras that use video cassettes, and CPAP breathing machines (that's medical equipment - because everybody wants to take their medical equipment out of its carrying case for inspection in a grubby TSA screening area). Apparently they didn't feel it necessary to inform the airlines of these changes, so they in turn could inform their passengers.

So it appears that the response to intercepting zero (0) dangerous devices hidden in portable computers over a period of decades is to expand the list to include other items in which zero (0) dangerous hidden devices have been detected, while continuing to ignore similar devices - this, like the gels and liquids policy, is an ineffectual half-measure. Either all such items pose an enhanced risk requiring special screening, or none do. Does any particular TSA bureaucrat want to lay claim to this brain child?

Here's a nebulous explanation,

The policy recommendation came from a front line security officer who screens passengers every day who observed that game consoles and DVD players are complex devices much like laptop computers. This change brings more uniformity to their policy.

The laptop computer rule was enacted in response to the Lockerbie bombing in 1998. It took almost twenty years for somebody to notice that the policy didn't make sense? And the response was to enact a new policy that doesn't make sense because, even if not actually uniform, it is "more uniform"?

When the TSA was introduced, it was supposed to bring about uniformity in the security screening process. Having recently flown out of Detroit, Minneapolis and Chicago, there were some very significant discrepancies in how security was handled at the three locations. But then, it may be that in addition to forgetting to inform some or all airlines of the new rules, the TSA forgot to uniformly inform its own agents.

I have to say, it was nice to fly back from Canada where another passenger asked security, "Do we have to take our shoes off?" The answer, "Not unless you have steel toes."

Backscatter Machines and Privacy

Over at TalkLeft, there is some discussion of the TSA's planned installation of a body scanner with "backscatter" technology in the Sky Harbor International Airport in Phoenix. The post addresses the technology from a privacy standpoint, but I have a common sense objection to the TSA's stated policy on the use of this machine.

It was interesting to read that the TSA has developed protocols relating to the storage of images from the machine - no images will be stored, and nothing can be printed. Reportedly they have also implemented a "privacy algorithm [which] would eliminate much of the detail shown in the images of the individual while still being effective from a security standpoint" - I guess they digitally put your underwear back on before displaying the image (or perhaps it's more like pasties and a G-string?) I had this discussion with somebody in the federal government quite some time ago, in the context of the use of this technology in federal buildings, and discussed at that time how it should be possible to find a way to process the image to reduce or eliminate the "nudity" without affecting its efficacy. That discussion had nothing to do with the TSA, and has nothing to do with the TSA's recognition of the technological tweaking I had thought obvious. I mention it only because it seems to have taken a long time for the proponents of this technology to implement even modest [no pun intended] changes to the image processing software which would remove a lot of the privacy concerns.

But do we need to be concerned about these machines as an invasion of privacy? Or are they primarily a waste of money.

The security agency's website indicates that the technology will be used initially as a secondary screening measure, meaning that only those passengers who first fail the standard screening process will be directed to the X-ray area.

Even then, passengers will have the option of choosing the backscatter or a traditional pat-down search.

Has any type of cost analysis or efficiency analysis been done to see whether the cost of purchasing and maintaining these machines, and staffing them with technicians, would exceed the cost of, say, adding another agent or two and a few additional curtained areas where pat-downs could be conducted? If a pat-down is a sufficient substitute for the machine, it seems like a huge investment in unnecessary technology. If not, then passengers who wish to smuggle contraband will request a pat-down.

If the plan is to march so many people through the machine that the TSA can't realistically pat them all down, the privacy concern becomes a bit different, as that would make it appear that the criteria for subjecting somebody to this more intensive screening are too lax. One would hope that the plan isn't to loosen screening standards such that a sufficient number of passengers can be marched through the machine so as to justify its cost.

I've Been Traveling, So I Must Have Missed It....

What's the official explanation for the frequent announcement at Detroit Metro Airport that the terrorism alert has been raised to orange? You would think there would be useful information here, but... no.

The United States government threat level remains at Code Orange, or High for all domestic and international flights. The ban on liquids and gels in carry on baggage remains in full effect. Nationally, in other sectors, the threat level remains at Code Yellow, or Elevated.

I will give TSA credit for this - they are diligent about rounding up those rogue tubes of toothpaste and cosmetics.

Perhaps I don't read enough celebrity news....

After prior discussions of wacky searches by the TSA, I came across an interesting case - where a wacky search of a celebrity (of sorts) produced evidence of possession of illicit drugs:

They claimed to have discovered this contraband in the bottom of a bottle of Ibuprofen, still three quarters full of its original contents. This bottle had been discovered in the depths of my bag by an employee of Covenant Security, a subcontractor of the TSA, while she was searching it for explosives. They had opened my bag after detecting wires in one of its external pockets. The wires in question were part of my laser gloves, a bit of Burning Man finery, and were far removed from the Ibufrofen bottle in question. What they found in the bottom of that bottle was not an incidental discovery during the course of a mandated search for something else. They had dug deep and purposefully. This was no joint in the ashtray casually spotted by the officer while writing a speeding ticket. A closer analogy would be the joint discovered on the floorboards of your car after the officer removed its carpeting while writing a speeding ticket.

Let's start by conceding that in this day and age, taking contraband through security at a public airport is probably not wise. Perhaps particularly if you have a publicly known association with, say, the Grateful Dead. Perhaps, also, if you are catching a flight home from "Burning Man". But the issue should not be the wisdom of John Barlow's actions, but the legality of the TSA's actions. And, as Seth David Schoen outlines, the Federal Government and TSA are doing their best to avoid having that issue properly reviewed by a court - in the name, of course, of "national security".

The Federal government lawyer sat right behind the People's lawyer and objected every single time that the defense asked anything about screeners' training or procedures, or about statistics, history, trends, equipment, techniques, or anything substantive about the roles of different law enforcement agencies. And the judge essentially always granted the objections on "relevance" even when they were made on "privilege". For example, the defense asked things like whether x-ray machines beep and whether they have two-dimensional displays, and the United States objected. The United States does not want you to know whether x-ray machines beep, or whether they have two-dimensional displays.

Intermittently, I found this hilarious, because much of the alleged "SSI" could be discovered immediately by a passenger or a journalist. (I am still working on a piece that will describe vulnerabilities in vastly more detail than almost all of the information the United States objected to at the People v. Barlow hearing. I intend to describe not only the security procedures used by specific airports and airlines, but a good deal of detail about how they can be circumvented, in the hope of showing that many of these measures cause privacy harm for no benefit. All of those descriptions derive solely from my experiences as a passenger on a single recent commercial aviation trip. That does not prove that the government is legally wrong to say that people within the system are forbidden to talk about equivalent things, but it suggests that there's not much true security benefit at stake in forbidding them.)

Mr. Schoen recounts testimony by an expert describing that the TSA agent's search "shake, open and sniff" techniques which led to the discovery of the drugs, ostensibly on the basis that they might be an explosive, would have been both absurd and dangerous had she actually believed the pill bottle to contain an explosive. He also suggests that the judge was surprised that the defense was even bothering with such trivial issues as the constitutionality of the search:

The judge mentioned that the penalty Barlow would face, if convicted, would not be particularly severe, and seemed to express slightly obliquely the view that it would be in Barlow's best interest to plead guilty -- and that it was surprising that he hadn't done so, or would be surprising if he didn't do so. (I think there's also a class issue at work here. Most defendants can't afford to fight for principle and can at the very best afford to look out for themselves, not for the abstract rules by which the fourth amendment is brought to bear on a class of cases.)

The judge ultimately denied the suppression motion.