By Kelly Kraiss

Since the infamous “don’t touch my junk” situation from a few weeks back, it seems that the whole country is up in arms about the TSA.  Or at least talking about it.

I’ve never been one to complain about airport security measures.  If it means I’m not on an airplane with a terrorist, I’m generally OK with it.  Unfortunately, it seems like these days, the procedures that are being implemented by the TSA in the name of “security” are really just actions the TSA has to go through as a façade of sorts so that, to the rest of the country, it looks like they are protecting us.

I’ve been kind of sitting back and watching this whole issue unfold before I said anything.  But, in my opinion, it continues to get more and more ridiculous.  Every day I hear yet another story about yet another absurd TSA security check. 

Here are some examples:

          A woman missed her flight because the TSA “agents” did not know their own rules and wouldn’t let her through with her breast milk:  Click here.

        A young kid was searched by the agents — and had to take his shirt off in the middle of the airport: Click here.

        An older gentleman was soaked in his own urine after the TSA refused to listen to his medical issues: Click here.

 …And these are only a very few of the examples of absolutely unreasonable searches that are being carried out by a government agency on a daily basis in airports around the country.

In law school, among those of us who had an interest in criminal law, there were two distinct groups: prosecution-minded students and defense-minded students.  (I know this seems way off-topic but stay with me.)  It became obvious who was who, and the focuses (foci?) of the two groups were vastly different.

I was a prosecutor type.  (Imagine that!)  Defense attorney types were always talking about the Fourth Amendment (prohibiting unreasonable searches and seizures), the Sixth Amendment (ensuring a speedy trial and a defendant’s right to counsel), and the representation of indigent defendants.  Prosecutor types are more likely to say things like, “How about they just don’t commit crimes? What’s so hard about that?” (The individual who said that shall remain nameles!) 

Anyway, like I said, a huge focus of defense attorneys, both in law school and in the real world, is the Fourth Amendment.  This Amendment states that:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

So basically, we have the right to be free from any unreasonable searches and seizures of our homes, persons, and personal items.  If we are to be searched or seized, there has to be a warrant based on probable cause.  Seems simple enough (with the exception of case law that has, of course, complicated it a bit).

Now, the defense attorney types of the world are also typically very supportive of organizations like the American Civil Liberties Union (ACLU).  Prosecution types – not so much.  ACLU and defense attorney types are highly vocal about the protection of our civil liberties — including, and especially, the right to be free from unreasonable searches and seizures.  Hmm.

From the ACLU webpage:

The ACLU is our nation’s guardian of liberty, working daily . . . to defend and preserve the individual rights and liberties that the Constitution and laws of the United States guarantee everyone in this country. 

(emphasis added)

In all of my experience with the legal community, the ACLU would be the very first group that I would expect to have something to say about this TSA nonsense.  Unreasonable searches?  Seizures without probable cause?  Right up their alley!  But, I haven’t heard them say much of anything — and I’m still waiting.  In fact, the President of the ACLU is currently a professor at the law school from which I graduated.  I would imagine that her skin would just be crawling at seeing all of the absurd searches that have been taking place in the name of “security” at airports across the country.  For some reason, however, that is not the case.   This professor was recently quoted in the Christian Science Monitor:

“Some of these technological responses to terrorism really start to seem like placebos,” says Susan Herman, President of the American Civil Liberties Union (ACLU) and law professor at Brooklyn Law School. “To the extent that people understand what the benefits are, and the invasion of privacies are, they can make more informed decisions about giving up their privacy for machines that make them feel better, but don’t do the job of preventing any terrorist device from getting on an airplane.”

Wait a minute….that’s it?  Nothing more?  Seems to me like she is trying not to come to a position on the issue either way.  When in fact – I would hope that she, of all people in the country, would be the most outraged by this insanity!

So….what gives?  Where is the ACLU?  Why aren’t they speaking out and/or doing anything about this craziness?   I started to wonder this, so, I thought I’d do some intense research….aka — a Google search.  The results were better than I expected — although they are not doing what I would generally expect, they are at least acknowledging and reporting complaints that they receive that are related to the TSA.  To date, they have had over 900 individual complaints.  Additionally, they have a petition set up that is to be directed to the Department of Homeland Security and Janet Napolitano (Tell DHS: Respect Passengers’ Privacy Rights)

Where are the defense attorney types in all of this, too?  I’ve even seen some liberals declaring that the TSA story has been “manufactured” by Matt Drudge and that it has no merit whatsoever.  I have no idea how one could come to that conclusion after seeing the videos of the searches and hearing individuals who had been affected.  It just doesn’t make any sense to me how someone who is so incredibly passionate about ensuring that an illegal search of a violent defendant’s home does not make it in as evidence in a murder trial would not be equally as passionate about ensuring that a person who has never committed any sort of crime would not be subjected to a grope-fest by a TSA agent. 

In June of 2009, the ACLU did, in fact, file a lawsuit against the TSA, asserting that the TSA was violating the Constitution by conducting unreasonable searches (of course, the suit was more specific than that, but that seems to be a decent summary).  As much as I am not a fan of the ACLU, it seems to me that, in light of the recent revelations about the state of TSA searches, it may be time for them to take a stand on the issue.  Maybe they should follow their own mantra, and really be “our nation’s guardian of liberty.”  Perhaps the liberal defense attorneys should try to provide representation for individuals whose liberties have been obviously violated by the TSA’s actions.

And, most importantly, perhaps the rest of the country should wake up and recognize that intrusive searches by government officials that reap no real benefit and present no greater security are not OK.  Stop letting the government walk all over you, and be the guardian of your own liberty.

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