TSA Attempt to Fine Naked Man at Scanner Shows Problems with Administrative Law

You saw at Reason 24/7 last week that John Brennan, who went viral with his video of stripping naked in protest at a Portland airport TSA station, is facing a $1,000 fine from the agency and intends to appeal.

This TSA fine was after an actual county court acquited him on charges related to the naked protest.

WOW... Miss \Photo credit: char1iej / Foter.com / CC BY

Lawblogger Jonathan Turley points out some of what's rotten about that state of affairs:

I have previously written about how the Transportation Security Agency (TSA) set out to create a crime never approved by Congress: the crime of making a joke in an airport about security issues. The TSA has long appeared to chafe at the notion of an agency dependent on Congress or the public for its authority. That appears the message being sent to John E. Brennan. You may recall Brennan from a story last year when he stripped in the Portland International Airport in protest of increasing invasive TSA security measures. He was cleared by a judge who found his stripping was a form of protest. However, the TSA was clearly miffed by decision of the judge, so Brennan was pulled into the administrative abyss by TSA with an agency charge. It appears that, if the law will not punish a citizen, TSA will.

Agency fines and charges place citizens into a system that is heavily weighted in favor of the agency and denies basic due process protections found in courts. After the judge threw out the charge against Brennan, 50, the TSA got one of its administrative judges to fine him $1,000 for violating a federal rule stating passengers may not “interfere with, assault, threaten, or intimidate” TSA screeners. You may ask how stripping is an act of interference or assault or threat or intimidation. It does not matter. Once in the administrative process, the agency gets a huge degree of deference in determining violations with judges who are dependent on the agency for the very jurisdiction of their “court.”

What is equally troubling is the news blackout imposed by TSA over the case. Administrative judge George Jordan was asked to make an exception and allow cameras into the courtroom but he denied the request. The message seemed to be that Brennan’s move was in the hands of TSA and neither a court nor public opinion would save him now. TSA has refused to even answer questions on the case.

....The TSA is taking an act found by a court to be an act of protest and re-defining it as an act of intimidation or threat to the TSA. The case should also focus attention at the ever-expanding system of administrative courts that are pulling citizens into a bureaucratic vortex where they face unfair procedures and treatment.

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  • Tulpa (LAOL-VA)||

    Is Brennan suing the agency over the administrative fine out in the real justice system?

  • DEATFBIRSECIA||

    There's a real justice system? Where?

  • jasno||

    Somalia?

  • Hugh Akston||

    I'm sure what Tulpa meant to say was legal system. Even he can't be dense enough to think that what US courts dole out is anything approaching justice.

  • Dweebston||

    Who cares about the naked man? I'd like to know who's the skeletal vixen in the photo. Surely John won't mind, or so I hear.

  • ||

    Warty

  • ||

    Good on the county court for finding him not guilty for the protest. I'd opine it was a decision where the protest value of the speech outweighed the nekkid aspect, but iirc Oregon actually has no law against public nudity. As long as it's not done with prurient behavior etc. my understanding is nekkid is ok in Oregon. There was a case where neighbors complained about a lady who mowed her lawn every week completely nude and the cops told them there was nothing they could do. Totally legal. The point of the article, about Admin law is totally valid. They had their day in court. They LOST. Should be end of story. It's bad enough we double jeopardy cops all the time (see: Rodney King). This is also bad. Granted, I realize it's not double jeopardy when it's "admin" (fines only... since there is no jeopardy) but it's still bullshit. I hope he fights and wins this.

  • Cdr Lytton||

    That's supposedly how it works in theory. In practice, the police charge the nude person with some other generic public order offense to circumvent the law.

  • ||

    But not lawn mowing nekkid wimmins!

  • Cdr Lytton||

    No dunphy, not the nekkid wimmin. Just the naked men. Like this guy (bonus justice points for criminal conviction by a petit jury!)

    http://www.gazettetimes.com/ne.....002e0.html

    Or this one

    http://www.kgw.com/news/Man-wa.....21756.html

  • Almanian!||

    This couldn't happen in America. Yeah - in whatever fucked up Stasi this poor bastard got caught up in.

    But not in America. Cause we're better than this.

    Also, fried fucking naked chicken for the lulz.

    Fuck the TSA, California, the Poe Lease, and Casey Anthony. The last one's for me.

  • Fluffy||

    Can someone explain to me how the entire system of administrative courts doesn't violate at least one of the 5th, 6th or 7th amendments?

  • Tonio||

    IANAL. Administrative courts, to use your term, don't decide cases of general law. IE, if SSA denies your claim for benefits you appeal to an SSA administrative law judge who has a hearing (not a trial) to determine your eligibility. The ALJ can only rule on your SSA claim. They don't enforce general laws, can't jail people, etc. It would be better if they were called something other than judges.

  • Fluffy||

    They're either imposing a criminal fine or a civil judgment, either of which should require a jury trial.

  • Tonio||

    Also, it's noteworthy that TSA tried this case (the one they lost) in state court. The feds generally prosecute in federal courts. IOW, they couldn't find any actual violations of federal criminal law.

  • John C. Randolph||

    You don't even have to refer to the amendments. It violates the separation of powers.

    -jcr

  • WomSom||

    The TSA is such a joke. WOw.

    www.Secure-Web.tk

  • Jerryskids||

    The case should also focus attention at the ever-expanding system of administrative courts that are pulling citizens into a bureaucratic vortex where they face unfair procedures and treatment.

    And the agencies are claiming that they and not the Supreme Court are the final word on their decisions. Interference by the courts with their insistence on 'due process' - as the courts interpret the term 'due process' - interferes with the agencies' ability to efficiently and effectively execute their policies and procedures. Unfortunately, for every time the Court slaps one down, as in Sackett v. EPA, they prop one up, as in Decker v. NEDC.

    (And this is what the whole case of the 'Plan B-being-sold-OTC' is about. It's not about whether or not the pills should be sold OTC, it's over who gets to ultimately decide. The court says the rules have to be fair and reasonable and based on science, the FDA says it can make whatever rules it wants and it's none of the Court's business. It shouldn't surprise anybody that the President sees the courts as illegitimately interfering with his royal prerogative.)

  • AlmightyJB||

    So what happens if he tells the administrative court to go fuck themselves?

  • Robert||

    Basically the same as with parking tickets.

  • Jayce||

    They'll demand he "voluntarily" spread his cheeks for the investigation that will be thrust upon him. What else?

  • GroundTruth||

    How bout we get the local cops to do an "administrative search" of the images being observed by the TSA goons? Then when they show nakid children (i.e. under the age of 14) they can arrest the goons based on the concept of "administrative law" and require every one involved from the janitor at TSA central right up to the big BO himself to register as a sexual criminal since they all knew exactly what what being done. How's that for blind "administrative punishment"?

    F*ck the TSA and f*ck anyone who thinks "they're keeping us safe".

  • Coeus||

    And fuck Rick Perry for backing down. He had a chance to make a difference and he pussied out.

  • ||

    I'm going to say it.

    What? No alt-text?

  • AlmightyJB||

    So that's where my ring went.

  • JW||

    What's the penalty for stripping in court and shitting on the floor?

  • 0x90||

    They should've taxed him for affecting interstate commerce.

  • Paul.||

    Wait, what? Are we just now discovering this isn't a democracy, not a Republican Democracy, not a country of laws passed by a representative body, but an oligarchy of unelected bureaucrats?

    HOw is what the TSA doing any different than the EPA, the FEC or the FCC? Seriously?

  • Coeus||

    This is why there's one TSA agent on the rail cars and buses in Houston. Two cops search your bags, and if you know your 4th amendment rights, you tell them to go pound sand. But then that TSA agent points to the 7 pt font on the back of your ticket and you get whammied with a fine that's anywhere from $1000 to $10,000.

    4th amendment? That shit was written by old white dudes like a hundred years ago. Who cares, right?

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