Saturday, March 5, 2011

New Hampshire's Don't Touch My Junk Bill

When entering land borders from Canada and Mexico we are not asked to choose between naked scan or genital frisk – likely unconstitutional without at least reasonable cause. Why does the TSA put us through an underwear search getting off intercontinental flights? Are they afraid we are going to blow up American taxicabs?

And (perhaps most unreasonable of all – with so much unreasonable it is difficult to know where to start) why must we be subjected to all over, private area gropes when a scanner spots one thing in one pocket? Why may we not merely remove one thing from one pocket and at most go back through the scanner? (Note pubescent female at end of video posing for her naked rendition to be remotely viewed by male agent shown at beginning.)

Suppose scanners were in use in lockups only – and a story came out that males guards viewed females – maybe even a “backroom story” of males gathering around to make comparisons? Suppose the same stories came out about a juvenile (under 18) lockup?

Privacy? Our courts will release a serial killer – to kill again and again -- because of one illegal intrusion by police way back at the beginning of the investigation. I don’t agree with the exclusionary rule but our courts certainly don’t put whether we live (safety) way out front of how we live (privacy) … unless you mention airliners. (Larry Eyler lived one block north of my 1633 Chase, Chicago apartment.)

Danger? 90,000,000 to 0 – the odds of getting on a domestically originating flight with a suicide bomber since 9/11/01. If you are on the soil of the “Great Satan” why try to sneak a few ounces of explosive on a plane when you can get a couple of thousand pounds of fertilizer together on land? But, what about the guy who planned to take down a dozen foreign originating 747s in one day? When he was here he actually carried out the same scale attack -- on the ground: his bomb in the WTC garage was intended to make one tower fall against the other bringing both down.

What protects us from suicide bombers is living in the USA not in Iraq – and our security services stopping them before they start.
Lots of experts tell us that any capable terrorist would circumvent what they call today’s “security theatre” (I’m not even going to get into that). The real and present danger? A Cornell study added 1,200 traffic fatalities to Bid Laden’s 9/11 score due Americans driving to avoid flying. How many hundreds or thousands of traffic deaths a year may airport security's new, enhanced sexual intrusiveness add to his score?

What is most (there’s that word again) ironic about the enhanced TSA groping technique is that it undermines -- in practice -- what the court said justified irrevocable consent to be searched (once you enter the screening area) in the first place. The court permitted preventing passengers to leave mid-search because that could allow terrorists to sample screening areas to see which they could get past undetected. But, the new groping is so obnoxious that the TSA – in practice -- seems not to have the heart to insist we may not change our mind and leave unmolested.

Bottom line, if a federal agency imposes rules that are in clear (or arguable if you will) violation of constitutional guarantees of our free way of life – that means the newly imposed rules have no legal existence -- which means any state or locality may legitimately criminalize such offenses . Privacy versus danger: let the federal Constitution decide whether state laws protecting privacy strike the more legitimate balance.

(Odd – if not useful – legal puzzlement of mine: Should TSA administrative regulations -- composed with delegated Congressional legislative power – be able to overwrite the explicit will of Congress prohibiting naked child imaging: a legislative house divided against itself? Said Congressional prohibition of such image making or distribution passed First Amendment muster precisely due to the serious harm done the child. Making and viewing of (especially opposite-sex) naked child images by either TSA or any security personnel anywhere inflict precisely the same substantive damage. Doesn't overriding the explicit intent of the body that delegated the power to you in the first place seem as incongruous as allowing pre-1789 common law to take priority over new legislation -- just a quirky puzzlement. ???)

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