First Amendment meets Fourth Amendment?

Last week I mentioned that I’d been the unlucky recipient of an intimate encounter with a TSA agent. As many more Americans have undergone the “how’s your father” with the agents, stories have been getting out about Americans wondering how much of this is security versus security theater. Here’s one mom’s story. Here’s Penn Jillette’s account.

When I had the agent touching my genitalia, I wondered how much of my discomfort was related to my religious views. I thought someone should interview various religious figures for their views. That still hasn’t happened but I did come across this Associated Press report that touches on what TSA’s response would be if someone had religious objections:

WASHINGTON — The Transportation Security Administration says airline passengers won’t get out of body imaging screening or pat-downs based on their religious beliefs.

TSA chief John Pistole told the Senate Homeland Security Committee on Tuesday that passengers who refuse to go through a full-body scanner machine and reject a pat-down won’t be allowed to board, even if they turned down the in-depth screening for religious reasons.

“That person is not going to get on an airplane,” Pistole said in response to a question from Sen. John Ensign, R-Nev., on whether the TSA would provide exemptions for passengers whose religious beliefs do not allow them to go through a physically revealing body scan or be touched by screeners.

Civil rights groups contend the more intensive screening violates civil liberties including freedom of religion, the right to privacy and the constitutional protection against unreasonable searches.

I’d love to know more about this. Specifically, how is freedom of religion violated with these invasive scans? I get the 4th amendment and privacy concerns. And I have been contemplating the religious implications. I just don’t know what various religions have to say about strangers touching your business.

Unfortunately the story doesn’t really get into that. We learn that the Electronic Privacy Information Center is one of several civil liberties groups suing TSA to stop the nudie pics. These groups argue that they’re not just violating civil rights but also unable to detect powdered explosives or explosives placed in the rectum. I didn’t even know anyone was. Other groups are worried that the machines haven’t been tested well enough to determine what health risks, if any, exist.

The director of EPIC says that civil rights groups, libertarians, airline passengers, pilots and religious organizations are joining together in opposition. But we don’t learn anything about who these religious groups are. It’s very hard to even know how to respond to the arguments presented by these religious groups when we don’t know who they are or what they’re saying.

CNS reports that the question about religious exemptions was raised in response to the Council on American Islamic Relations advocating that female Muslims resist full body pat downs.

Ed Stetzer, president of LifeWay Research has a blog post up advocating resistance. And he notes that other Christians are suggesting the same. I’d like to know more about other religions, too. What do Jews, Buddhists, Hindus, Pagans and other folks have to say about it? The news that there will be no religious exemptions for naked pictures or touching of the genitalia is a great hook to explore this topic.

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  • Julia

    There are countries that do strip searches and cavity searches.

    In the Madrid airport, there are guards with machine guns.

    I’m not sure the 4th Amendment applies when you are voluntarily purchasing a ticket to fly on a commercial airline. It’s not a secret what might happen if you want to get on the plane.

    When you voluntarily buy a ticket to enter a ballpark, you are assuming the risk that you might get hit in the head by a baseball. Why is it any different flying?

    I would assume that religion might play a part in the opposition due to a heightened sense of modesty encouraged by most religions.

  • Jerry

    I’m sure al Quaeda would object to a scan or pat down for religious reasons and they might even pretend to be, say, Christian in order to hide their identities. So those who object to screening on religious grounds should propose effective alternatives.

    One is the Israeli model which profiling and detailed questioning of passengers. One news story asks which people would prefer: http://www.smartertravel.com/blogs/today-in-travel/is-the-israeli-model-of-airport-screening-ahead.html?id=4583430 Another mentions that Israel keeps some of it’s procedures and methods secret http://www.vosizneias.com/67561/2010/11/02/jerusalem-israeli-airport-gives-rare-glimpse-into-security/

    So rather than a typical “we must” versus “no you must not” debate, it would be more fruitful to have everyone sit down and discuss what alternatives there are that would have the same level of assurance.

    And, as the recent toner cartridge incident showed, there is a question of how important it is to have a strong front door or even a strong building if there is a “back door”. See this version of the Three Little Pigs story. Perhaps adults should re-read children’s stories since the lessons have apparently not been learned.

    Of course it’s too idealistic to hope that people would be reasonable and open minded in an attempt to avoid any constitutional issues while still ensuring security, but I can hope and wish.

  • Kyle

    So rather than a typical “we must” versus “no you must not” debate, it would be more fruitful to have everyone sit down and discuss what alternatives there are that would have the same level of assurance.

    The hidden premise of that way of framing it is that finding alternatives with the same level of assurance is the first priority and respecting the dignity of the human persons subject to these kinds of violations is secondary to it. Not everyone in the discussion would accept that premise. It’s a kind of consequentialism. It’s much like the response to people who oppose torturing prisoners and get the reply, “What’s your alternative? How are you going to get the information?” For some of us, the answer to that question is: “Maybe you can’t. It’s wrong to torture regardless.”

    Same here. Suppose you can’t ensure the same level of security by means other than violating someone’s personal dignity. That – at least in the eyes of some people and some religions – will not amount to a justification for violating someone’s human dignity.

  • Jerry

    Kyle, clearly I did not make myself clear :-( You are arguing my point in part. But further my point is that I believe there is an good alternative. Maybe there is not, but I believe there is. And beyond that, my point is that we need to also consider cargo a lot more than we do today otherwise the “wolf” will again use the “chimney” to attack the brick-house “pig”.

  • Judy Harrow

    Is there a right to travel by flight, as opposed to land transport, etc?

    Mollie, thanks for the respect (usual for you, but still much appreciated) of asking what Pagans would think about the screening. As with Christians, there are different opinions among different Pagan groups. Dianic women might feel as strongly as Muslim womens about body modesty. Heathens tend to be libertarian, and might object on those grounds. Personally, I have no problem with it.

    I just did a round trip from Newark to San Antonio, which would have been entirely possible by bus, but would have taken lots longer. When I bought my ticket, I knew that screening would be required, so I could have chosen other means. To me, going through screening was by far a lesser inconvenience. I’m willing to put up with the small hassle just to give my fellow passengers a bit more peace of mind.

  • dalea

    One solution that I have seen presented is to use bomb sniffing dogs. This solves all of the problems. And dogs are much more effective at locating bombs, even when in body cavities. The drawback is that dogs require training, which is expensive. And highly skilled handlers who command a high salary. The issue is cost not efficiancy. The reports were on either Rachel Maddow or Keith Olberman, maybe both.

  • Kyle

    Jerry, thanks for clarifying. I certainly agree that it’s likely there are good alternatives and if so we should take them, and that it’s an obviously worthwhile thing to look for.

  • Jeffrey

    The news that there will be no religious exemptions for naked pictures or touching of the genitalia is a great hook to explore this topic.

    Is it? Or is it just a way to bootstrap religion into the media frenzy of the moment? I’m not sure the effort to encourage good journalism is really helped by suggesting a “religious people are upset” angle to a story that is overly hysterical and overdone to begin with. Actually, it seems irresponsible.

  • Jon in the Nati

    Despite what a lot of people are saying, the Fourth Amendment is not really implicated here all that much.

    Firstly, most of our Fourth Amendment protections are applied against searches by law enforcement. TSA is not considered to be a law enforcement agency; rather they are an administrative agency, and administrative searches do not carry many of the restrictions that are placed upon law enforcement searches.

    Secondly, certain exceptions to the Fourth Amendment exist when searches occur at border crossings (either incoming or outgoing). An airport with a departing international flight is considered to be a border crossing, even if it is located in Kansas.

    Thirdly, the key word in the Fourth Amendment with regard to searches is “unreasonable.” Reasonable searches are admitted, and one of the ways that a search can become reasonable is for consent to be given. Generally, by entering the security checkpoint, one is seen as giving one’s legal consent to be searched, and often there will be signage to that effect.

    None of that is to say that any of this is a terribly good idea. I’m just kind of tired of hearing the Fourth Amendment thrown around like some kind of talisman. Just because something is a bad policy does not make it unconstitutional.

  • Jeffrey

    Let me add that the testimony by TSA provides a hook for a story, but I’m not sure a “let’s talk to upset religious people” is really the right tact. As Stetzer’s rant shows, this is an ideological and political kerfuffle more than a religious one. With no religious exemption to the Fourth Amendment, any “my faith was threatened by the TSA” story is just going to seem like jumping on the hysteria bandwagon instead of being good journalism.

  • Julia

    Jon in the Nati:

    My thoughts exactly, but better expressed.

  • Debbie

    “Anyone who trades liberty for security deserves neither liberty? nor security” ~Benjamin Franklin

  • Jon in the Nati

    Thanks Debbie; only heard that one a couple times since 9-11.

  • James

    I have complete understanding of the need for security in the transportation that you choose to get you from one place to another. We have Highway Patrol that assists in making your driving safe. The TSA is the arm of DHS that was created out of paranoia to make everyone feel safe again about flying.
    These searches are another example of how the government is slowly taking away our 4th Amendment rights due to the paranoia they have created after the terrorist attacks of 9/11. Please tell me one terrorist that the TSA has caught or one scheme they have stopped. I will wait.
    People are claiming that they agree with the advanced searches because of 4 acts of violence committed 9 years ago. If that is the case I want to allow your local police to be able to stop anyone at will and search you and your vehicle because people have been shot and drugs have been transported every day for at least 50 years. How far will you allow this to go?
    Also despite what a person said earlier, TSA officers are Federal Law Enforcement. They have arrest powers.


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