In the weeks and months after 9/11 it felt like air travel was less safe than it used to be. But nearly a decade and a half later experience suggests otherwise.
- There aren’t actually that many people out to blow up airplanes, or at least that are willing to give up their lives to do it.
- Pulling that off is actually hard, even though the TSA couldn’t catch a terrorist if one tried to surrender themselves at a checkpoint.
What’s changed since 9/11 is that a terrorist can no longer get control of a passenger aircraft the way they once could.
Decades of experience up to that point led practice to be that a hijacker could direct a pilot to fly somewhere, there would be negotiations, and most passengers would eventually be safe. Post-9/11, hijackers do not get access to the cockpit (in fact, cockpit doors have been reinforced) and passengers do not sit idly by assuming that if they play it cool they’ll be safe. Anyone posing a risk to an aircraft is immediately the target of everyone on board.
We have full body scanners, which TSA agents manipulate so they can fondle attractive passengers. Current technology is millimeter wave machines, they’ve ditched the backscatter radiation devices after making huge investments there.
It turns out that TSA use of body scanners has been illegal, and it was ruled that way back in 2011. EPIC v. DHS, 653 F.3d 1, 6 (D.C. Cir. July 15, 2011)
- TSA’s decision to use body imaging is subject to the Administrative Procedures Act
- In other words, since passengers are ‘substantially affected’ by the decision the TSA must hear and consider comment on it (“substantively affects the public to a degree sufficient to implicate the policy interests animating notice‐and‐comment rulemaking.”)
- TSA, then, was in violation of federal statute from the time it began rolling out these machines in 2007.
- The TSA was ordered to go through the rule-making process.
After 18 months of the TSA ignoring this federal court order, the court instructed that they had to comply and publish a rulemaking by March 2013. However two and a half years after they published their rulemaking, they never actually published a regulation.
Eight years since the introduction of body scanners, and four years since a court ruled that TSA was in violation of the Administrative Procedures Act over those scanners, the Competitive Enterprise Institute and the National Center for Transgender Equality sued — and the US Court of Appeals for the DC Circuit ruled, essentially, that TSA is simply ignoring the law and court rulings in its failure to publish a rule as required by the Act.
The U.S. Court of Appeals for the District of Columbia Circuit ruled in favor of the plaintiffs on Friday in the lawsuit, which was filed by the Competitive Enterprise Institute (CEI).
The group said Friday that the ruling in its favor “brings an end to the lawlessness that has plagued the [TSA’s] approach to body scanners for more than four years since the court ordered the TSA to conduct this rulemaking.
“Today’s victory will rein in TSA’s illegal body scanner policy,” CEI Research Fellow Marc Scribner said in a statement about the court ruling.
According to the ruling (.pdf):
Assuming the TSA complies with the order, they will publish a rule authorizing themselves to do what they are already doing. So they’ve been sued to force them to give themselves permission to do what they wish.
It’s not as if the Court was asked to forbid the use of body scanners until such time as TSA follows proper legal procedures to authorize them. Instead, once the TSA finally publishes a rule authorizing the use of body scanners that have been in use since 2007, we’ll get more lawsuits most likely — contending that they impermissibly failed to consider public comments in their rulemaking process, such as those demonstrating that whole body imaging:
- Fails to improve security
- Is easy to foil
- Is expensive
- While place a substantial burden on fundamental rights (privacy, right to travel, the right to be free from search based on a general warrant)
And at the end of those lawsuits, the Courts will presumably defer to the ‘experts’ at TSA and Homeland Security who are supposed to know what’s best for our security.