Fixing Airport Security

It’s been months since the Transportation Security Administration has had a permanent director. If, during the job interview (no, I didn’t get one), President Obama asked me how I’d fix airport security in one sentence, I would reply: “Get rid of the photo ID check, and return passenger screening to pre-9/11 levels.”

Okay, that’s a joke. While showing ID, taking your shoes off and throwing away your water bottles isn’t making us much safer, I don’t expect the Obama administration to roll back those security measures anytime soon. Airport security is more about CYA than anything else: defending against what the terrorists did last time.

But the administration can’t risk appearing as if it facilitated a terrorist attack, no matter how remote the possibility, so those annoyances are probably here to stay.

This would be my real answer: “Establish accountability and transparency for airport screening.” And if I had another sentence: “Airports are one of the places where Americans, and visitors to America, are most likely to interact with a law enforcement officer – and yet no one knows what rights travelers have or how to exercise those rights.”

Obama has repeatedly talked about increasing openness and transparency in government, and it’s time to bring transparency to the Transportation Security Administration (TSA).

Let’s start with the no-fly and watch lists. Right now, everything about them is secret: You can’t find out if you’re on one, or who put you there and why, and you can’t clear your name if you’re innocent. This Kafkaesque scenario is so un-American it’s embarrassing. Obama should make the no-fly list subject to judicial review.

Then, move on to the checkpoints themselves. What are our rights? What powers do the TSA officers have? If we’re asked “friendly” questions by behavioral detection officers, are we allowed not to answer? If we object to the rough handling of ourselves or our belongings, can the TSA official retaliate against us by putting us on a watch list? Obama should make the rules clear and explicit, and allow people to bring legal action against the TSA for violating those rules; otherwise, airport checkpoints will remain a Constitution-free zone in our country.

Next, Obama should refuse to use unfunded mandates to sneak expensive security measures past Congress. The Secure Flight program is the worst offender. Airlines are being forced to spend billions of dollars redesigning their reservations systems to accommodate the TSA’s demands to preapprove every passenger before he or she is allowed to board an airplane. These costs are borne by us, in the form of higher ticket prices, even though we never see them explicitly listed.

Maybe Secure Flight is a good use of our money; maybe it isn’t. But let’s have debates like that in the open, as part of the budget process, where it belongs.

And finally, Obama should mandate that airport security be solely about terrorism, and not a general-purpose security checkpoint to catch everyone from pot smokers to deadbeat dads.

The Constitution provides us, both Americans and visitors to America, with strong protections against invasive police searches. Two exceptions come into play at airport security checkpoints. The first is “implied consent,” which means that you cannot refuse to be searched; your consent is implied when you purchased your ticket. And the second is “plain view,” which means that if the TSA officer happens to see something unrelated to airport security while screening you, he is allowed to act on that.

Both of these principles are well established and make sense, but it’s their combination that turns airport security checkpoints into police-state-like checkpoints.

The TSA should limit its searches to bombs and weapons and leave general policing to the police – where we know courts and the Constitution still apply.

None of these changes will make airports any less safe, but they will go a long way to de-ratcheting the culture of fear, restoring the presumption of innocence and reassuring Americans, and the rest of the world, that – as Obama said in his inauguration speech – “we reject as false the choice between our safety and our ideals.”

This essay originally appeared, without hyperlinks, in the New York Daily News.

Posted on June 24, 2009 at 6:40 AM • 68 Comments