Airport Security vs. The Constitution

Government critics deserve their day in court.

You wouldn't think Aaron Tobey and Donald Rumsfeld have much in common. Tobey is the guy who stripped down to his shorts at the Richmond, Virginia airport last December. Rumsfeld is the former Defense Secretary under George W. Bush. Tobey, who was protesting the invasive airport screening practices that have outraged a good portion of the traveling public, is a stickler for constitutional rights. Rumsfeld? Not so much.

The two of them, however, are united by a common case: Bivens v. Six Unknown Named Agents. The other day a federal appeals court said two Americans who claimed to have been tortured by U.S. armed forces in Iraq can sue Rumsfeld for violating their constitutional rights. The court relied on the Bivens precedent. Bivens just happens to be the hook Tobey is hanging his hat on in his lawsuit against Homeland Security Secretary Janet Napolitano and Transportation Security Administration chief John Pistole.

Basically, the 1971 Supreme Court ruling in Bivens says you can seek monetary damages for the violation of your constitutional rights. That's what Tobey is doing, with the help of the Charlottesville-based Rutherford Institute.
To paraphrase Kevin Bacon in A Few Good Men: These are the facts of the case, and they are almost entirely undisputed:

On Dec. 30 last year, Tobey was in pre-flight screening when he was directed toward one of those special imaging machines that can see through clothing. Tobey paused to strip off his T-shirt and sweatpants. On his torso he had written: "Amendment 4: The right of the people to be secure against unreasonable searches and seizures shall not be violated."

A Transportation Security Officer told Tobey he did not need to disrobe. Tobey said he wanted to in order to express his views. At that point, the TSO radioed for assistance. Two Richmond police officers arrived, cuffed Tobey, and hauled him away. Tobey isn't the only person who has gone through screening in his underclothes—but he is the only one who did it quoting the Constitution, and he is the only one who has been arrested for it.

He spent the next 90 minutes in handcuffs while police officers and FBI terrorism task-force agents questioned him, berated him, and threatened to tell on him by calling administrators at his university. They threw some of his personal belongings in the trash—his toothbrush and highlighter would be considered contraband in jail, they explained. Finally they issued him a summons for disorderly conduct before releasing him to catch his flight.

In court a few days later, prosecutors dropped the charge, recognizing that Tobey's peacefully taking off his T-shirt and sweats did not rise to the level of disorderly conduct. (Virginia law says such conduct must have a tendency to cause violence.) Now Tobey is suing over violation of his First, Fourth, Fifth, and 14th Amendment rights. Along the way he has picked up some notable supporters: the Thomas Jefferson Center for the Protection of Free Expression, former Georgia Rep. Bob Barr, and civil-liberties champion Nat Hentoff.

Tobey claims his arrest was unjustified and unconstitutional, and the blame for it falls in part on Napolitano and Pistole, who put in place the policies that permitted it. The federal government naturally says otherwise. First, it says Tobey "disobeyed a command" to proceed through the scanner. That is questionable; Tobey claims he did as he was told.

The feds also say three other things: (a) The extent to which the Fourth Amendment requires probable cause to detain someone in Tobey's situation is a "novel question." Nevertheless, (b) nobody violated Tobey's rights, and (c) even if they did, Napolitano and Pistole are immune anyway.

For all those reasons, say the feds, U.S. District Judge Henry Hudson should dismiss Tobey's lawsuit.

If the name sounds familiar, that's because it is. Hudson is the first judge to have ruled against ObamaCare's individual mandate—the provision that says Washington not only can tax your income but tell you how to spend what's left by forcing you to enter into a contract with a private insurance company. Hudson struck down the mandate Dec. 13, 2010—just two weeks and change before Tobey made his shirtless statement at RIC.

Hudson said he would rule on whether Tobey's suit can proceed within two weeks. That was last week. So the decision in the Rumsfeld case could not come at a better time. The 7th U.S. Circuit Court of Appeals ruled Rumsfeld enjoys no immunity: "Plaintiffs [Donald Vance and Nathan Ertel] have alleged sufficient facts to show that Secretary Rumsfeld personally established the relevant policies that caused the alleged violations of their constitutional rights during detention."

As in Tobey's case, the federal government has argued that Rumsfeld enjoys immunity. The 7th Circuit says: No, he doesn't. That doesn't mean it has ruled in the plaintiffs' favor or found Rumsfeld personally culpable for the torture they claim to have endured. It merely means the case can go forward—just as it ought to.

Americans have cheered when foreign dictators in Romania, Egypt, and elsewhere have been made to answer for grinding citizens under their boots. It would be curious indeed if American officials were harder to hold accountable. Vance and Ertel will get their day in court. So should Aaron Tobey.

A. Barton Hinkle is a columnist at the Richmond Times-Dispatch. This article originally appeared at the Richmond Times-Dispatch.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  • Tim||

    "The peasants are revolting"

  • In Time of War||

    You said it! They stink on ice!

  • Mainer||

    They stink on ice.

  • kinnath||

    The chickens are revolting!

  • ||

    They're always revolting. Now, they're rebelling.

  • Fist of Etiquette||

    "You need me on your balls!"

  • ||

    Fucking uppity serfs.

  • CS||

    Come on how can we be expected to govern our peasants and still be answerable to them. Thats just silly.

  • ||

    Taking off your clothes before entering a rapescanner takes all the fun out of it.

  • Rich||

    They threw some of his personal belongings in the trash—his toothbrush and highlighter would be considered contraband in jail, they explained.

    "Oh, using the same logic we'll also have to confiscate your cash and destroy your cellphone and camera."

  • ||

    I vaguely remember congress discussing how much immunity the TSA should have back when it was being created.

  • Rich||

    Another thing.

    The next time Tobey pulls this stunt he should write the text of the Fourth Amendment in *Arabic*.

  • Jim||

    ^^Winner

  • Bigger Brother||

    "Bill of Rights". They are so antiquated. We have a LIVING and BREATHING constitution that can be interpreted for the benefit of these dangerous modern times. I interpret that you dont need these "rights". Only terrorists would feel the need to exercise these "rights". Are you people terrorists?? HMM??

  • ||

  • CatoTheElder||

    "To those who scare peace-loving people with phantoms of lost liberty, my message is this: Your tactics only aid terrorists, for they erode our national unity and diminish our resolve. They give ammunition to America's enemies, and pause to America's friends."
    -- John Ashcroft (2001), pretty much defining Tobey's protest as treason, which is punishable by death.

    In yet another expression of true bipartisanship, the Obama Administration agrees with John Ashcroft.

  • GroundTruth||

    Ashcroft: a fool then, now and forever.

  • ||

    1. No animal shall sleep in a bed with sheets.
    2. No animal shall drink alcohol to excess.
    3. No animal shall kill any other animal without cause.

  • Paul||

    and threatened to tell on him by calling administrators at his university.

    Tell on him. Tell on him? Seriously? Did they stick their tongues out at him and call him mean names, too?

    FBI terrorism task-force agents questioned him

    Serious question: Why do "terrorism task-force agents" question someone who acts mildly unruly at an airport security checkpoint.

    Is the default position of the U.S. Government now, "If you don't comply to the letter and spirit of the security procedures, you're a terrorist"?

    Why not a drug dealer, or car thief, or unhinged crazy person? Why "terrorist"?

  • Cheeseburger||

    Tattling is one of the low level Fed thug's favorite past times. The Border Patrol loves doing it if you don't want to kiss their asses at checkpoints.

  • Greer||

    they proabably put it on his permanent record too.

  • fyngyrz||

    "probably"? lol

  • BakedPenguin||

  • Mr. FIFY||

    It'd be easier to just say "if you're not a liberal, you're a terrorist".

  • Rachel Maddow||

    Pretty succinct. Mind if I steal that line?

  • Ed Schultz||

    I need to find a way to clip it so it makes Mr. FIFY sound like a racist, just like I did with Rick Perry the other day.

  • George Bush||

    If you ARE a liberal, you're a terrorist.

    Easy mistake - FIFY, Mr. FIFY.

  • ||

    Because the thought of losing control over the citizenry strikes terror into the hearts of the governing.

  • Paul||

    Anyone notice that the one group of people who are most offended and annoyed by having the constitution shown or read to them, are the very people sworn to uphold it?

  • GroundTruth||

    And the people they seem to waste so much time on are the ones who are the least threat of all.

  • Paul||

    Because Terrorists don't go through security lines loudly refusing to be searched, demanding their 4th amendment rights be observed and stripping all their outer garments off. Innocent people do that.

    Terrorists always comply.

  • ||

    Why "terrorist"?

    Any refusal to accept their assertion of unlimited power terrifies them.

  • Paul||

    Good point.

  • Devil's Advocate||

    Dear Aaron: If I were 20 years younger you would totally get laid. Good job.

  • GroundTruth||

    I doubt that any of this will get any traction, but, what the heck, it's worth a try.

  •  ||

    Why doesn't anyone take libertarians seriously?

  • Coeus||

    Because to do so would mean that they would be confronted with their own hypocrisy?

  • ||

    Because we don't have an army of thugs to detain, arrest, and do violence upon the people who refuse to bow to our will. It's a bitch.

  • Dave||

    We have ways.

    Ask my personal army at /b/ about it.

  • Question Awthoritay!||

    Awthoritay sucks!

  • Corporate Authoritah Luvvs!||

    I signed a CONTRACT as a VOLUNTARY SLAVE and I'm so happy with my diabetes.

  • Wilford Brimley||

    That's "diabeetus," doof.

  • govco||

    Terrorism has been redefined. Just as "make no law" means "shall make a plethora of laws," terrorist means non government personnel.

  • gov-CO!||

    Dat'd da way it gotta go!

    "Agriculture creates government." ~Richard Manning, Against the Grain, p. 73.

  • ||

    Malthusian loser is a Malthusian loser...

  • ||

    WI?

  • Greer||

    Bivens v. Six Unknown Named Agents

    Shouldn't it be Unnamed Known Agents? If they are unknown they can't be named.

  • chrispy||

    Named by whom though? Presumably their parents did name them, and therefore they can't be "Unnamed." Either way the phrasing is pretty awkward, and they probably should've called it Bivens v. Six Uknown Agents.

  • ||

    Or Bivens vs. six government assholes.

  • db||

    The intent is clearer if you hyphenate "unknown-named."

  • ||

    Often, the TSA staff does not use their real name. This way when you file a report against Mr. Smith, they can accurately say we have no Mr. Smith. During discovery, the real names are revealed. Everything is inverted they know all about you, but you know nothing about them.

  • Daedelus||

    We wear our real names on our ID badges, dude. We're required to keep our names and our badge numbers displayed at all times. I hope this case goes to court and TSA's authority is defined. The powers given to our organization are too vague; they prevent anyone from being able to mount a proper legal challenge. It also makes the (limited) authority we have too easy to abuse.

  • ||

    First, it says Tobey "disobeyed a command" to proceed through the scanner.

    ..and since Tobey was an enlisted soldier, and had a duty to obey government commands...

    Oh, wait! He's not a soldier, he's a citizen, and he outranks the government.

    -jcr

  • Greer||

    thoght the same thing. Disobeyed a command is going to be the new disturbing the peace or resisting arrest. A catch-all for anyone who doesn't do what they want.

  • db||

    By entering into a transaction in interstate commerce one implicitly agrees to abide by Federal regulatioms of that commerce. These regulations just so happen to include language whereby one must agree to obey commands...or some BS like that. Commerce clause, necessary and proper, yadda yadda.

  • ola||

    This is what is wrong with the whole premise of the TSA. When I voluntarily buy a ticket to fly on a private company's airline, I don't commit to doing anything for the TSA. Maybe the airline allows the TSA to perform duties that they are required to perform, but the TSA is not a party to the transaction. So they can just fuck off. And while we are at it, I don't remember agreeing to abide by any constitution written hundreds of years ago by now dead dudes, ala Lysander the man.

  • fyngyrz||

    The constitution is a document the feds are to comply with, not you. It is there to constrain the behavior of the government -- not to constrain the behavior of the people.

    Many of the feds update their [cough] compliance by swearing an oath of office (executive, judicial, congressional, military) to comply with it, protect it, a few other variations. Not that they *do*, mind you, but that's how it's supposed to work.

  • ola||

    In the sense that I am compelled by force to follow law passed by congress that is "empowered" by the constitution, I am having my behavior costrained. I guess also since the swearing of an oath of office by the executive, judicial, congressional and military branches of government to comply etc, it stands to reason that john q public has no obligation to comply, protect and defend it. In fact only if you vow to support and defend it, would you even need to read it.

  • ||

    More of the old "Search everyone else but not me" attitude. Everyone demanded more security 10 years ago and now that's it coming back to bite them in the ass they're getting pissed.

  • ||

    Uh, not "everyone" demanded "more secutiry" 10 yrs ago. Right after 9/11 lot of us here and elsewhere were cautioning that freedoms would get lost in the panic that followed, what with the demands of government to "trust us" and let them pass the Patriot Act, form TSA, etc with no deliberation and no debate. Because after all it was an emergency! No time to dilly dally and do stuff like read proposed laws, read the Constitution, debate proposed laws, and other pussy stuff like that.

    I don't give a shit about more security. We already had plenty of that before 9/11. All that would have stopped that from happening were hardened cockpits and passengers prepared to attack back at the first sign of violence. We have both those now, and not due to TSA.

  • ||

    AMEN Pablo.

  • GroundTruth||

    Bravo Pablo. But the hardened cockpit doors are superfluous. There will NEVER be another successful hijacking of a US plane while the memory of 9/11 lives. (So, btw, can I have my jackknife back, since I may need it to help protect my country?)

  • Constitution Drum Circle||

    con·sti·tu·tion
    con·sti·tu·tion
    save from three-fifths
    prostitution

    Constitution Ghost Dance,
    Conjuring the golden past,
    But that stuff doesn't last,
    City-State's deadly blast.

    con·sti·tu·tion

    con·sti·tu·tion
    
save from banksters'

    prostate·oww!·tion

    banksters wrote it

    not liber-elves

    see how wells
    
it serves themselves

    __________
    If you don't like may art NIN does better, more accurately, within REASON LOL

    White Man's Ghost Dance|8.18.11 @ 12:23PM|#

    the hopes and prays
    the better days
    the far aways
    forget it

    it didn't turn out the way you wanted it to
    it didn't turn out the way you wanted it, did it?
    it didn't turn out the way you wanted it to
    it didn't turn out the way you wanted it, did it?

    now you know
    this is what it feels like
    now you know
    this is what it feels like

    ~lyrics from Nine Inch Nail's "The Wretched" http://www.youtube.com/watch?v=fNI12hvKsxI

  • gothic sea lion ||

    You listen to NIN. You must be a free spirit.

  • Mr. FIFY||

    If I were Trent Reznor, I'd hire someone to kill you, CDC.

    Because it just wouldn't be worth dirtying my own hands.

  • gov-CO!||

    Agriculture is to Land what Diabetes is to First Families on the Land.

    We call it all "development." It's a cool word that bullshits the ignorant sukkaz.

  • Diabetes Development||

    Agriculture is to Land what Diabetes is to First Families on the Land.

    We call it all "development." It's a cool word that bullshits the ignorant sukkaz.

  • Albino First Person||

    More like SMALLPOX LOL!

  • Obama Administration||

    Well, in theory we *could* do something about this, but... you never know if a Ron Paul or FairTax supporter might try to get on a plane, and those bastards are fuckin' crazy, yo.

    Oh, and we'll pretend we need to watch out for Earth Liberation Front members, too. Kinda.

  • MSNBC||

    O our Lord, we your worthless minions hear and obey Your Gospel, and remind our worthless viewers every moment that the only terrorists exist right-of-center.

    Amen.

  • Female embodiment of Obama||

    i iz WUN FAT UGLEH BIATCH

  • ||

    The courts will likely say it is not "unreasonable"

  • GroundTruth||

    "The courts have been wrong before" ... Dred Scott

  • STEVE SMITH||

    ME WISH I COULD RAPE TSA AND EAT IT LIKE CHESSEBURGER. THANK YOU.

  • TSA||

    See you on your next flight steve... We'll see who rapes who. Fly the friendly skies and even you will be our bitch

  • Grammar Police||

    That's who rapes whom! Stop resisting!

  • ||

    When I can carry my sidearm with me on an airline that agrees to allow it (as a private entity, it's its decision), I'll take my hat off and politely perform a bow in gratitude to the federal government for fucking off. Until that day, however, the TSA can, as always, eat shit and die in coal fire.

  • Disappoint||

    Your petulant rant would have been much improved if you had mentioned sand and vaginas.

  • ||

    Would you care to eat shit and die in a fire? I'd more than happy to drench you in gasoline! I've got plenty to spare!

  • ||

    Wow, who would have misgivings about letting a cool-headed gentleman like you carry a loaded weapon on plane?

  • ||

    Nice one. Internet flaming = usurpation of natural rights. Are you a progressive?

  • GroundTruth||

    Res Publica Americana: I've got spare matches in case your get lost or wet. Should be a nice ol' fire!

  • O2||

    obviously libertarian esp can ID all the hyjackers in the parking lots. until then, embarrassing fat is no reason to stop screenings.

  • ||

    Magnets, how do they work?

  • ||

    By having the magnetic essence.

  • jtuf||

    I agree with Miss Australia 2010 Jesinta Campbell. We have the freedom to wear what we want.

  • reparar disco duro externo||

    Come on how can we be expected to govern our peasants and still be answerable to them. Thats just silly.

  • North Carolina Tar Heels||

    nice

  • ||

    "It would be curious indeed if American officials were harder to hold accountable."

    Why?

  • Jeff||

    Mr. Tobey Hit it out of the park:
    1st = Chest placard for 4th
    4th = Obvious search issue
    5th = Lost liberty and property
    7th = trial by Jury
    8th = Crule & unusual punishment (x-ray radiation)
    9-10th= TSA on state land lacks jurisdiction.
    14th = equal protection, TSA and others are exempt from scanners.
    Did I forget one from the Bill or Rights?

  • Ronnie Schreiber||

    I traveled to New York and New Jersey this weekend for my niece's wedding. Before I left Teaneck, I grabbed a hospitality bag with some snacks that my sister, the bride's mother, had left for her out of town guests. I figured that I'd nosh on the snacks while wasting the hour or two that they now make you waste when you fly. When I got to the TSA screening the agent gleefully grabbed the still sealed bottle of water and happily tossed it into the trash. I'm not exaggerating, that was his affect: glee that he was able to trash my property.

    After all, we know that the bottled water and beverages on sale beyond the security screening all undergo rigorous screening of each and every bottle, right?

    Okay, so they threw out a bottle of water I got for free, big deal, right? Maybe so, but what they didn't say anything about was else was in my bag. I take photos and video in 3D for my web site, Cars In Depth. Since I have the gear, I've also shot some family weddings. My 3D photo rig has a has a powered trigger switch that I constructed out of a USB hub, a switch and a battery pack. That passed the screening just fine.

    It was a traditional Jewish wedding and the ceremony ended, as usual, with the groom breaking a glass, wrapped in a napkin. When I'm at a wedding I'll often retrieve the broken glass and give it to the couple later on. So I also had a bunch of very sharp glass shards in my carry on bag.

    Now I got to the airports early specifically because I expected some hassles over that switch and the broken glass. I had my business cards and an explanation ready. That wasn't necessary, though, because the diligent screeners were more concerned with throwing away water.

  • ||

    A person consents to be searched when they present thier documents to the TSA checkpoint. No one comes to your house and drags you kicking and screaming into the checkpoint.Everyone knows if you enter the checkpoint you will be subject to searches. Don't want to be searched, take a bus. Maybe if more people would do that the rules might change.

  • ||

    This line of reasoning is stupid, and wholly irrelevant.

    Everybody knew that runaway slaves should be returned to their masters.

    Everybody knew that women shouldn't vote.

    Everybody knew that freed slaves couldn't vote.

    Thank goodness people like Dave Thomas were ignored back then. They need to be ignored now.

  • neat||

    Worse than that. If everyone takes a bus they'll start searching bus passengers.

  • neat||

    Worse than that. If everyone takes a bus they'll start searching bus passengers.

  • nhl jerseys cheap||

    so wonderful

  • ||

    The TSA spread to the bus lines last year, down in Tampa.

    The Global War On Terror is a fraud of epic proportions.

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