So You Want To Federalize Airport Security?

On Saturday night, Subash Gurung was a ticketed passenger on a United Airlines flight from Chicago to Omaha who had two folding knives confiscated from his pocket at a security checkpoint at O'Hare. Naturally, he was allowed to proceed to the boarding area, without the two knives. (That was close!) Just before boarding the plane, his carry-on baggage – which had passed through the baggage screening X-ray machine at the same checkpoint where the two knives were confiscated – was, happily, randomly searched at the gate. Therein, five more knives, a Taser stun gun and a can of mace were found. Airline employees barred him from the flight, and he was subsequently arrested.

Gurung was charged with three misdemeanors, unlawful use of a weapon, attempting to board an aircraft with a weapon and carrying a dangerous weapon. They then released him from custody, you'll be happy to know if you're a civil libertarian, partly because he couldn't be charged with a federal crime, having not actually boarded the plane. Gurung was questioned by the FBI, but was released by the local police on bond Sunday morning. Later, he was detained for an immigration violation, which is exceedingly good news if you're on board with the war against terror, and all that. (Did I mention the address Gurung listed as his home address was also the home address of Ayub Ali Khan, who was taken into federal custody September 12 with box cutters in his possession on an Amtrak train, who had been airborne September 11 before the FAA grounded all the planes and diverted his flight to St. Louis, and who is still being held as a material witness in the September 11 investigation?)

Seven O'Hare security workers have been fired for letting Gurung get as far as he did. Even the most cynical critic of current airport security procedure doesn´t believe it´s a systemic problem when someone, a month and a half after September 11, is caught trying to carry two folding knives onto a plane, and isn´t detained, or at the very least searched more carefully thereafter before leaving the security checkpoint. Evidently, "human error" was at work.

Critics of industry-lobby-laden, corporate-welfare-loving Republicans in Congress and in the White House, most visibly Sen. Dick Durbin, D-Ill., see this incident as proof positive that we ought to make baggage screeners federal employees. "You can't do it on the cheap," Durbin said in the Chicago Sun-Times. We don't doubt that you can't, Senator, but that's another column.

The seven security workers, which include a supervisor, were employees of Atlanta-based Argenbright Security, Inc., which had a bad year in 2000, highlighted by a $1 million fine (plus costs and reimbursement to airlines) and three years' probation for falsifying records, doing inadequate background checks on applicants and hiring more than a dozen workers at Philadelphia International airport between 1995 and 1998 who had criminal convictions for burglary, aggravated assault, firearms possession and other crimes. The company provides security services in a number of major airports.

Argenbright, in kind with most airport security contractors, routinely pays its baggage screeners and other security personnel in the neighborhood of $6.00 an hour, and has a turnover rate of anywhere from 100-400%. We take it that's what Sen. Durbin was referring to. That part we get. What is unclear is how it follows that the federal government ought to sign their (increased, we assume) paychecks.

You can blame the Democrats for the current state of federal civil service, if you have a very long memory and are so inclined: it was President Jackson, Democrat from South Carolina, as we're all aware from high school social studies, who perfected the "spoils system" of political appointments. By the late 19th century, thanks to the spoils system, a vigorous movement to reform federal employment standards was afoot. It seems too many competent civil servants were being let go when the new boss came to town; to fix that, a competitive application and merit promotion/retention program evolved.

Three forces separately contributed to the evolution of the system into something a little less recognizable: the Kennedy administration issued an executive order recognizing federal employee unions, which accumulated power, bargaining and otherwise, apace; in the 1960s and 70s, the civil rights movement fixed scrutiny on the "disparate impact" of merit-based federal jobs and promotions, to wit, the lack of minority representation on the civil service rolls; the Whistleblower Act of 1989 was enacted to protect federal employees from retaliatory dismissal when they exposed corruption and wrongdoing in their corners of the world. More generally, the courts, loath as late as 1971 (Griggs v. Duke Power) to involve themselves in matters of civil service, developed, as courts have been wont to do since then, a "property rights" theory of a federal employee in his job, and have been keen on hearing lawsuits and appeals over examination results and promotion and compensation issues. When you want to keep something nice and simple, get the lawyers involved, and see what the Due Process Clause might have to say about it.

Space and the author's expertise limit the above discussion of causes, but suffice it to say that what started out in the days of the Pendleton Act as an effort to recruit, hire, retain and reward the best and brightest in federal civil service has become a means by which to entrench even the most unaccountably bad employees. Aggrieved federal workers, that is to say, ones which don't do their job and receive negative appraisals, may take their case to the Merit Systems Protection Board (MPSB), file a grievance with their union, file an Equal Employment Opportunity complaint, or even bring their case to the Office of the Special Counsel, if they can manage to allege that they're being harassed for being whistle-blowers. Doing any of these things routinely buys you a year or more before the axe falls, if it ever does (i.e., on the off chance you lose). Failing all that, they can simply sue their manager.

Blue-ribbon commissions, Washington Post investigative reports and even the Office of Personnel Management itself have concluded that public managers, faced with literally year-long or more crusades to rid themselves of the indolent and incompetent, simply don't try. The attention which would need to be paid to eliminating one bad apple would take away from the actual doing of their jobs. Instead, they often seek to "quarantine" the no-accounts, isolating them from their coworkers' projects and personal space. They place non-performers in make-work or low-responsibility projects called "turkey farms," and try and think of ways to explain to their best worker that the no-account just got the same raise she did, or may someday be her boss.

This is the culture and procedure a unanimous Senate and a healthy chunk of the House would like to bring to airport security. With proper federal oversight -- and oversight is proper, this being a matter of public safety -- security firms which falsify records, hire felons and allow passengers with a carry-on arsenal past baggage screening would lose their contracts, and have no recourse, real or contrived, to the EEOC. Should we instead brace ourselves for a future where you can´t fire the people who do these things, and thereby incent their employers to police themselves, without interminable hearings and investigations?

All concerned will see an object lesson in Subash Gurung's case that more needs to be done to tighten airport security. That does not mean, ipso facto, that the federal government ought to take over. In fact, it may, to the surprise of almost no one, make it far worse. A year from now, when the O´Hare Seven are federal civil servants, they´ll be on the job the very next day, screening you and your fellow passengers on the next flight to Omaha.

Here's hoping the Senate doesn't see Subash Gurung as proof they've got it right on this issue, like Dick Durbin does, but instead, sees a reason to believe they've got it wrong.

Checking for weapons or explosives at an airport concourse is not considered to be unreasonable search and thus not protected under the 4th.

It IS unreasonable on multiple counts:

1. "Unreasonable" in the 4th Amendment referred to performing the search with no apparent reason to believe something would be found, and no indication that a crime was being committed. In practically all cases, there is absolutely no indication whatsoever that anyone entering the "sterile area" of an airport is associated with any past, present or future flight-related crime - it is, therefore, legally unreasonable to search them.

2. Considering the 2nd Amendment right to keep and bear arms ("...shall not be infringed", end of declaration), arbitrarily searching someone for something they have a right to is inherently unreasonable. See the latest "Emerson" and "DeCSS" court rulings for supporting legal views.

3. By your reasoning, random or pervasive searches anywhere else in society would be "reasonable" - but courts regularly deem far more "reasonable" searches unConstitutional. A guy wearing gang colors and obviously carrying a small heavy item in his pocket in a drug-dealing area cannot be searched for guns/drugs by police (despite obvious high probability of serious crimes past/present/future involved) and such a search, without corroborating evidence, would be ruled "unreasonable" - but an average person just stepping onto an airplane can be searched for just being there...this is "unreasonable" by any reasoning.

4. An otherwise baseless search performed to find items deemed "weapons" arbitrarily by an agency and not by explicit legislation is unreasonable. My right to be secure in my person & effects cannot reasonably be suspended/violated just because a faceless unelected burrowcrap, unaware of my existence, arbitrarily decided that I can't be trusted with a nail file.

5. The 4th Amendment REQUIRES that any search be predicated by probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. Translation: a search may only be done upon a SPECIFIC person, with a SPECIFIC reason to believe crime-related items are possessed, with SWORN testimony to a judge, with SPECIFIC declaration of where the search will occur and what is expected to be found. Arbitrarily searching billions of passengers, especially when questionable items are RARELY found (and most of those otherwise legal without clear criminal intent), is almost as pure an example of "unreasonable search" as can be given.

Did you read my post before you hit the 'reply' button?

I am not in favor of federalizing airport security in the sense most are thinking. I do believe that it should be a military operation. Those folks are accountable and certainly not overpaid. If we have confidence in what these people are doing to keep our a$$es free "over there", why can they not be trusted to protect those free a$$es from these knife-wielding kooks who are still getting past our privately-owned "security" folks.

Oh, and please don't give me the liberal babble about how these poor screeners are soooooo underpaid. Police officers are underpaid. Firefighters are underpaid. Military soldiers are underpaid. They're gettin' it done. The people running these lowest-bidder security operations -- and the airlines who engage them -- are not gettin' it done.

Hope that desert sun ain't too much for you, my friend.

I have a cost effective,efficient and compassionate solution,given all the givens. Abolish the Fed.Dept of Ed, which does no more than augment our "great candle factory" or in other words the public school system. At this time the whole system is hell bent on melting all children into an amorphous blob and pouring them into one of several different molds so that every one will be perfectly formed to accomplish the objectives of the "candle masters".

Abolishing this department will correct this and put the responsibility back to the local levels where it belongs. Since its institution in the 70's drop out rates have gone up and SAT scores have gone down,to say nothing of the escalating costs of education.

The measure is cost effective because the monies used to fund the DOE can be budgeted to fund the new Dept of Int. Sec..Employees would go from one federal payroll to another at no extra cost to the taxpayers.

It is efficient because all of the employees can be offered transfers to the airport of their choice and the monies usually spent on massive recruiting efforts will be saved,additionally the time spent vetting candidates has already been spent.

It is compassionate because all of those many employees of that overstaffed,useless bureauracy will not be out of work unless they choose to be. Therefore no huge expenditures for unemployment comp etc..

I think this may be an oppurtunity to reorder our priorities and and get a grip. Surely it is almost beyond belief to look at the economy and not recognize a huge crisis looming. Now is the time to get a few birds with one stone. As a safety measure the individual operations will need to be headed up by several military personnel. I think this should fly unless it has too much common sense.

In summary:Abolish the Department of Education and establish the Department of Airport Security.

Signs posted in the airport state that baggage will be checked and you will be asked to step through a metal-detector as part of airline safety procedures. Legally, by going to the airport, you are consenting to be subjected to these searches. Searches of everyone who enters an airport are not required, only those who seek to enter a concourse. Therefore the search is not random and arbitrary, therefore it is not unreasonable.

Yet the court has upheld (almost since the 2nd amendment was minted) the rights of cities and states to declare "Weapons Free" zones. Schools, airports, and other public areas are included under local statute.

No, As seen in paragraph 1, airport security is not arbitrary or non-consenual. Only people entering a concourse are searched, and even then in a non-invasive way. The rest of your argument is just "slippery-slope" claptrap. There is a compelling reason to have tight security at airports just as there is a compelling reason to have tight security at the White House.

Rants against bureaucrats aside, the safety of all of the passengers on a given flight overrides your personal right to carry a handgun, rpg, knife, toothpick, fork, or salami sandwitch. I am a good citizen who has never been convicted of a crime, does this mean that I should be allowed to bring a pound of semtex into the Hoover Dam? No, and I would rightfully be arrested for criminal conduct if I tried to do so.

The need to ensure the smooth running and safety of airline travel provides the P.C. that the security officers require to scan each traveler comming onto a plane. I think that if there were a real legal leg to stand on the Supreme Court would've ruled against airport metal detectors and airline weapons bans a long time ago.

You don't have to agree with me, DL... this IS 'merica. I'm not sure I understand what you're whining about. Sounds like you're more in favor of the status quo: no security. You'd rather have your luggage a) not checked at all; or, b) checked by some $6/hour grunt who doesn't speak english and welcomes the opportunity to steal something from your luggage.

In this household, we have to fly frequently. I don't really like it, but, I would much rather be inconvenienced and subjected to scrutiny than to have myself or a member of my family turned to ash because some nut case decides to take over the plane and fly it into a building. And I would much rather that search was conducted by law enforcement or the military than some goof trying to pretend they have some sort of authority and expertise.

Because this country is free (and its borders are much more free and open than they should be), we have no choice than to make concessions to keep these kooks from killing thousands of people with such ease. If that steps on your toes, I guess there's Greyhound.

When searches are done as part of local jurisdiction, I'll grudgingly agree. Privately hired private security firms performing limited uniform checks on city/county-owned property on behalf of (and paid for by) private carriers is acceptable, comparable to me having the right to search anyone entering my house.

HOWEVER, this changes drastically when the guards are replaced by federal agents, at which point the voluntary business nature of searches is replaced by a plain Constitutional violation: NOTHING in the Constitution provides for such searches by federal agents (even when motivated by your vague fear of terrorists with nail files); to the contrary, the 4th Amendment plainly restricts such warrantless (in both senses of the word) searches.

Compare recent comparable decisions on the 1st and 2nd Amendments:

Re: limitations on 1st Amendment
Prior restraints on pure speech are highly disfavored and presumptively unconstitutional. (Hurvitz v. Hoefflin (2000) 84 Cal.App.4th 1232, 1241.) "In the case of a prior restraint on pure speech, the hurdle is substantially higher [than for an ordinary preliminary injunction]: publication must threaten an interest more fundamental than the First Amendment itself. Indeed, the Supreme Court has never upheld a prior restraint, even faced with the competing interest of national security or the Sixth Amendment right to a fair trial."

Re: limitations on 2nd Amendment
In essence, Emerson, and the district court, concede that had the order contained an express finding, on the basis of adequate evidence, that Emerson actually posed a credible threat to the physical safety of his wife, and had that been a genuinely contested matter at the hearing, with the parties and the court aware of section 922(g)(8), then Emerson could, consistent with the Second Amendment, be precluded from possessing a firearm while he remained subject to the order.

These, and supporting texts, make it clear that sections of the Bill Of Rights may ONLY be suspended in very deliberate, targeted, individual cases where specific evidence is approved by a judge in a federal court - IF they may be suspended at all. Broad suspensions based on nebulous fear, as you suggest for the 4th Amendment, are not Constitutionally acceptable. Bare baseless fear that someone might carry a weapon onto an airplane with the specific intent to commit a heinous crime does NOT warrant federal agents suspending the 4th and 2nd Amendment rights of passengers.

If you still disagree and hold to having federal agents check everyone's luggage, PLEASE demonstrate a clearly Constitutional basis for suspending one of your Constitutional Rights.

Actually, I'd like to see the feds take over airline security screening - specifically so the issue can be taken to court and such warrantless searches struck down once and for all.

Again I disagree, there are several instances in which citizens entering what are considered public institutions have been legally searched because of security concerns. Those entering the Pentagon, for example, are subject to the same search procedure as one finds at an airport. Even those taking the White House tour are subjected to a metal detector screening.

Actually, I'd like to see the feds take over airline security screening - specifically so the issue can be taken to court and such warrantless searches struck down once and for all.

I don't think that the security would be struck down. It is still illegal to carry any sort of weapon onboard an airplane. Since there are still those who attempt to carry weapons regardless, it is necessary to keep up some kind of security force.

You expect "do it right" from the same people who can't get income tax straight?

I'm repeatedly amazed that the same people who contend the federal government is incompetent equally contend that the federal government is the only group that can do something right.

You folks are missing the key point. Again, I'm not in favor of the bureaucrats taking over airport security. In fact, I'd prefer to see the FAA less-involved. I also know that simply paying the current screeners more money is not the answer.

I'd like to see the military be responsible. Doing this would de-politicize the issue, not cost us a fortune, create security people that are accountable and with excellent training.

In my opinon, this is the most cost effective and safest solution. Again, don't expect it to happen because this whole issue has become a huge political football.

You folks are missing the key point.

Oh, we get it much more than you expect.

Again, I'm not in favor of the bureaucrats taking over airport security.

SOMEONE has to define what's not allowed - and it's not our duly-elected representatives.

I'd like to see the military be responsible.

The job of the military is to kill people and break things. That does not mix well with Jane Sixpack forgetting to take the nail file out of her makeup kit. It also constitutes a flat-out violation of the 4th Amendment.

Doing this would de-politicize the issue,

Oh, politics WILL get involved wherever tens of thousands of soldiers forced their will upon the public.

not cost us a fortune,

Oh? Where pray tell WILL the money for this come from? Soldiers aren't free, and they've all got assignments already!

create security people that are accountable

"Just following orders, m'am."

and with excellent training.

Do they teach (en masse) baggage screening in the military? Didn't think so.

In my opinon, this is the most cost effective and safest solution.

In my opinion, this is the most efficent route to a military/police state and will result in a lot of imprisoned or dead people.

Again, don't expect it to happen because this whole issue has become a huge political football.

Gee, I thought you said this wouldn't be politicized.

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