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January 27, 2013 3:59 PM When liberty beat security at the airport

By Samuel Knight

A potentially important story was reported by Wired’s David Kravets on Friday, though it resulted in nary a peep from the national media.

A Virginia man named Aaron Tobey, detained for 90 minutes by the Transport Security Administration in 2010 for revealing an abridged version of the fourth amendment scrawled on his chest, was awarded $250,000 in a civil suit against the TSA.

TSA officials could have just rolled their eyes at Tobey, told him to put on his shirt and move along, dismissing the act as harmless civil disobedience.

Instead, they proved why his grievances are legitimate:

According to the suit, while under interrogation, the authorities wanted to know “about his affiliation with, or knowledge of, any terrorist organizations, if he had been asked to do what he did by any third party, and what his intentions and goals were.”

But another branch of the U.S. government was decidedly more sympathetic. The Fourth U.S. Circuit Court of Appeals ruled 2-1 in Tobey’s favor, citing Benjamin Franklin’s proclamation about the need for liberty to trump that for security.

The reason this case is important, however, isn’t just the mere symbolism. In recent years, activists affiliated with WikiLeaks have been detained by federal officials at airports for doing what mainstream journalists do all the time.

One such detention occurred two years ago, when:

Jacob Appelbaum, an American citizen in his late 20s, was questioned and searched for 30 minutes at Seattle Tacoma International Airport on Monday evening after returning from Iceland. The inventor of the Tor Project, security software that allows computer users to surf the web anonymously, Appelbaum has lent his computer security expertise to WikiLeaks founder Julian Assange. He was previously detained and searched by federal agents at Newark airport last July, and is one of five WikiLeaks volunteers whose Twitter accounts were subpoenaed by the U.S. government in December.

Moreover, haphazard additions to the no-fly list amount to human rights abuses. Imagine being stuck abroad after finding out that your name was mistakenly added to the list. A Malaysian woman — a former legal resident — alleges that it happened to her. And earlier this month, the Justice Department asked a federal judge to secretly dismiss her lawsuit about her no-fly list status. The judge refused.

I’m no legal expert (an admission that I’m sure will elicit strong agreement in the comments section). But the ruling in Tobey’s case could set a precedent that affects airline travelers who sue the government for harassment and other forms of undue inconvenience. If nothing else, the ruling shows that at least some judges refuse to buy the need for the national security doctrine to outweigh civil libertarian concerns at the airport. And that’s crucial if the Constitution is to mean anything, considering how normalized airline travel has become.

Samuel Knight is a freelance journalist living in DC and a former intern at the Washington Monthly.

Comments

  • c u n d gulag on January 27, 2013 5:57 PM:

    Uhm, at this point in our countries history, I'm not sure the 1st, 4th, or 5th, wouldn't draw uncalled for interest.

    And, I'm not so sure about the 2nd, either, come to think of it.

    It's just that so many more people working in "security" would be likely to know it, as opposed to any of the others.

  • boatboy_srq on January 27, 2013 6:52 PM:

    Before we begin celebrating this as some moment when sanity returned to the security state, two gentle reminders:

    1) DHS is the kind of political theatre that, like the DoD, will rack up uncounted billions in GOTea spending, and lard budgets with contractor pork, well past its shelf life. IF we want an end to Shrub's "Freedom To Fear," then we need to keep up the pressure.

    2) Read the dissent in the 4th Circuit decision. Justice Wilkinsonhas has just effectively given cover for all those investigations of Quakers, antinuclear groups and other "peaceniks" - because all sorts of nefarious shenanigans could be carried out when the authorities are distracted by groups holding hands and singing "Kumbaya". Peace really is war, in his book. Welcome to Oceania.

  • Snarki, child of Loki on January 27, 2013 8:46 PM:

    They asked him if he was associated with "a terrorist group".

    An appropriate answer would have been:

    "Why, yes, I am! I send money to them EVERY MONTH. They go by the name of THE UNITED STATES GOVERNMENT. You got a problem with that? Asshole."

  • mfw13 on January 27, 2013 9:59 PM:

    I'm curious, has anybody filed suit against the TSA arguing that airport security searches are unconstitutional because they lack probable cause?

    And if, what was the outcome of the case....

  • PTate in MN on January 27, 2013 11:44 PM:

    It's easy to find reasons to complain about airport security. The lowest point for me was when my 87-year old mother--widow of a WW2 vet, native-born American, deaf--was stopped and frisked because her hip replacement set off the alarms. They wouldn't even let me stay near her to explain to her what was going on. They weren't even polite; they treated her like she was a threat until proven innocent. That was just appalling.

    Still, that said, I have to admit that once I am past the security line, I feel a sense of safety in airports that I don't feel anywhere else in the world. It is the one place that I am sure no joker has a gun. I find that I like that feeling.

  • boatboy_srq on January 28, 2013 8:57 AM:

    @PTate in MN: they don't call it "security theatre" for nothing. There's nothing more dangerous than an octogenarian carrying something metal, be it a hip replacement or a pair of pinking shears.

  • rea on January 28, 2013 10:31 AM:

    has anybody filed suit against the TSA arguing that airport security searches are unconstitutional because they lack probable cause

    They're consensual--you can avoid them by not trying to get on a plane. And if you disagree with that, well,I understand what you are saying, but that's the conclusion compelled by current case law.

  • Mark on January 28, 2013 4:19 PM:

    What pisses me off the most about this whole deal is when they have a separate line for the first class passengers to zip through. This whole enterprise is being paid for by taxes and treatment should be equal regardless how much you spent on your ticket. The rest is just a bunch of show. I would protest but i don't want to miss my flight!

  • Richard W. Crews on January 28, 2013 6:50 PM:

    I think there are some good uses for the "no-fly" list. We should put every captain of industry and their boards and their families on the list if they off-shore what should be US taxable funds. Same with all of corporations that are "American" but have most of their employeees overseas. If they want to build a washing machine in China, sell it here, keep the corporation funds overseas yet have American protections, while getting themselves a tax break - well, let's have them sit naked in a holding room for questioning about 24 hours, EVERY time they fly anywhere.

  • Lady Irish on February 04, 2013 2:28 PM:

    Dear Mr. Crews,

    Your idea as been thought of by many Federal Officials for years. But when you actually list all that have off-shore accounts for ducking out on paying their far share, three fourth of Congress and our President would be on that no-fly list...
    Think about it. The Director of the TSA is an owner of the X-ray machines we all go through every time at these check points. I could numerate other Fed. corruption but you get the idea. What ever President has served, or Senator or Representative are all corrupt by the system that is running rampant in Washington, D.C.
    This will not change unless WE make change IT! We need to force the Federal Government to follow the PEOPLE not the other way around. You sit back and wait and they will do for them 1st before thinking of the Country they swore to protect. We see this daily. But they will not be reading these "posts", their too busy justifying their own existence.

  • Occasional Flyer on February 16, 2013 2:23 PM:

    It's all just Security Theater. A grad student in aeronautics at the University of North Dakota did a master's thesis on the topic about ten years ago that laid out how foolish it all is.

    The cargo containers in the hold of all these airliners are chock full of stuff that has never been inspected or even opened. Meanwhile, we have black-suited TSA people being paid minimum wage to stroll through the airport terminals carrying M-16s, trying to look ferocious.