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.