It's a beaut, isn't it?
You are right, of course, that
Aukai is only binding in the 9th Circuit. However, circuit cases are often cited as "persuasive authority" before courts outside that circuit. Also, the TSA has been relying on
Aukai in setting its policies.
The really bad news is that the jurisprudence surrounding the issue of whether various sorts of airport searches are "reasonable" under the 4th Amendment has been highly deferential to the TSA (and its various predecessors) in every circuit I'm aware of, as well as in the Supreme Court.
The Supreme Court has not, to my knowledge, reviewed the constitutionality of the more invasive TSA searches (though it has mentioned airport searches generally in dicta). However there are signs that the current Court won't be any less deferential to the TSA than are the lower courts. For example, in 2005, Sam Alito, then a judge on the 3rd Circuit, wrote an opinion in
United States v. Hartwell [PDF] which held a number of TSA procedures permissible under the "administrative search doctrine".
The facts of this case were slightly less outrageous than some others: Hartwell set off a metal detector, was asked to empty his pockets, and then went through again. He was then searched with a wand, which detected a "solid object" in his pocket. He was then escorted to a private screening room where the TSA officer demanded that he remove the object from his pocket. He refused, and, according to Hartwell, the TSA officer reached into his pocket and pulled out a package of drugs.
There are a number of points in Alito's reasoning that I find troubling. First, on page 9 while determining that there was a "special need" as required under the first step of the
Brown test for administrative searches, Alito makes the blanket statement that "there can be no doubt that preventing terrorist attacks on airplanes is of paramount importance." That suggests that little things like the privacy, liberty, and freedom of travel of American citizens are of secondary importance. Maybe they are, but I think those interests at least ought to be addressed before they are dismissed.
Next, Alito at page 11-12 places great weight on the fact that "air passengers are on notice that they will be searched". That is true, of course, but he neglects to explore exactly what sort of search passengers are on notice that they should expect. His reasoning almost seems to suggest that passengers are on notice of, and impliedly consent to, an unlimited spectrum of search procedures just by buying a ticket and getting in the security line. That's ridiculous. Yes, we expect to go through a metal detector, get our bags x-rayed, and maybe get wanded. We do NOT expect to be detained, patted down or strip-searched. We consent to LIMITED searches - we are not writing the TSA a blank check to grope us and probe our various orifices.
Also on page 11, Alito states that "the possibility for abuse is minimized by the public nature of the search." Quoting another case, he points out that "these searches are made under supervision and not far from the scrutiny of the travelling public." He neglects to mention that the air of intimidation actively cultivated by the TSA strongly discourages any objections by that travelling public - after all, who wants to speak up and risk landing themselves in the "happy booth", especially when there's a plane to catch?
Alito also makes the puzzling assertion that "the airlines themselves have a strong interest in protecting passengers from annoyance and harassment." This may have been relevant in the pre-9/11 era of private airport security. Today, however, it is a non-sequitur - the TSA does not in any way answer to the airlines.
Finally, in footnote 12, Alito, supported by a number of cases from other Circuits, makes the same conclusion as the 9th Circuit in
Aukai that one has no right to leave once the screening process starts. In this footnote (and, indeed, in the rest of the opinion) Alito cites cases from a number of other circuits which support his position. While
Aukai itself is the law only in the 9th Circuit, many, if not most, of the other circuits have taken the same position on airport searches.
This is something we need to be aware of as conservatives. There is a powerful, perhaps dominant, strain of conservative jurisprudence which favors an extremely powerful executive branch and few checks on its power in police and national security matters. When we support conservative judges, we need to be aware that conservative jurists can vary widely on these issues.
Finally, I think this highlights the fact that we cannot rely on the courts to protect us from the TSA's excesses. This is something that will have to be addressed through Congress, and that's going to be difficult, because no Congressman wants to be seen as "soft on fighting terrorism".
Thanks, I appreciate the pointers. I skimmed through US v. Hartwell, and see that there's some dispute among all the decisions. If I read it right, the 5th circuit (where I live) is one of those where consent can be revoked. But, maybe that's a US district court decision that wouldn't apply at my home airport.
I agree that judicial remedy is unlikely, and that this will have to be addressed by Congress. But, I'm less pessimistic that it will be successful: the outrage is palpable, and it's mushrooming.
And states are getting involved. I'm watching one video of NJ legislators that are calling for the TSA to back off. A DA in California (San Mateo, I think) has warned that he will prosecute TSA screeners for sexual assault if they cross the line.
The horrible decision in Dredd Scott was reached by a man as scrupulous and fierce in his legal reasoning as Alito. Both good Catholics too. Famous Taney ruling, (which has never been overrruled!): That the original intent of the Founders was that "persons of the negro race ... [are] an inferior order and altogether unfit to associate with the white race"