Terrorist watch list follies, and my time in the TSA’s Constitution-free zone

Wired News has an update on the latest TSA follies, focusing mainly in the fact that even government employees from the nation's national security apparatus are being routinely selected for extra scrutiny at airports because their names are somehow on the TSA's terrorist watch list. A look at newly released logs from a TSA call center reveals that among those who called in to complain about the presence of their names on the watch list are an anti-terrorism specialist for the U.S. Army, a State Department diplomat, and all sorts of folks with varying levels of security clearance.

The problem is poised to grow, because the TSA's list is merely a subset of a larger government watch list that's seeing increasing use by everyone from border patrol to local law enforcement.

So what are your rights if your name is unjustly on the watch-list, and you'd like to be able to move about the country without being singled out by airport screeners and possibly even traffic cops for extra attention? The answer is, unfortunately, that some of your basic Constitutional rights are effectively non-existent if you happen to get caught somewhere in America's growing terrorist dragnet.

As of right now, there aren't many rules to which you can appeal for redress—no laws aimed at protecting the accused, no binding judicial decisions, and few formal departmental protocols for addressing grievances. The kinds of rules and precedents that govern most of the other citizen-facing aspects of the federal bureaucracy just aren't there when it comes to anything terrorism and/or TSA-related. Believe me, because I know from first-hand experience.

My time in the TSA's Constitution-free zone

Last year, I got stopped at airport security due to the contents of my carry-on bag. I won't give details here, but totally unbeknownst to me there was something deep down in one of the hard-to-reach crevices of my Brenthaven backpack that would've gotten me in plenty of trouble with baggage screeners even before 9/11. My heart stopped when the screener pulled this item out of my bag, and I knew I was probably in big trouble. However, I had absolutely no firm idea how big the trouble could potentially be, and therein lies the problem.

Let's pause the story here for a moment and consider what happens if you're pulled over by the police for speeding. You know roughly what the penalties are based on how fast you were going, what kind of behavior to expect from the officer on the scene, and where to go if you want to dispute the charges. Most importantly, even if you have no idea what to expect the system protects you in your ignorance by stipulating that if the officer decides you may be guilty of a crime and he initates an arrest, he cannot just begin interrogating you without first informing you of your Miranda rights (the right to remain silent, the right to an attorney). Your Miranda rights are there to keep you from being intimidated by law enforcement into giving what amounts to a confession that might later be used against you in court.

When the item was discovered in my backpack, I was, of course, completely surprised, shaken, uncertain, and intimidated by the circumstances. In that state I was interrogated by both the TSA and the Chicago Police Department, and forced to give multiple recorded statements—in other words I was allowed freely to incriminate myself—without once being informed of my rights, if any. And then, after confiscating the item, they let me on the airplane!

After flying a few more times—apparently running squarely afoul of the TSA's airline security measures doesn't actually mean that you're a security threat who should have their flying privileges supsended for the safety of the skies—I eventually got a letter from the TSA informing me that my case would be looked over by an "administrative court" and that I'd be assessed a fine that could range from as little as US$100 up to $10,000.

At this point, I called Bill Scannell, an old acquaintance of mine and a prominent anti-TSA activist, to see if he or someone he knew could help me out. I also contacted my lawyer, who's a partner in a major national law firm, and tried to get a referral.

Bill got hold of some folks from the EFF, including legal counsel, and he reported back to me with basically what I've laid out above: the security checkpoint at an American airport is effectively a "Constitution-free zone" (Bill's term), where you have no Miranda rights, no protection from any probable cause requirements for searches, and you're completely at the mercy of the individuals in the system. With respect to case law, this is also uncharted territory for the courts, and there are no binding precedents that cover these types of situations, because it's all simply too new to have been litigated enough. As for my lawyer, he had no luck in hooking me up with someone who specialized in "federal administrative procedures," which is the kind of law that would govern any dispute I had with the TSA.

Furthermore, the administrative court to which my case was referred is just a guy behind a desk who looks over the evidence (reports from the scene and my own recorded statements) and sort of randomly assesses a fine. As this MSNBC article attests, there's no iron-clad procedure for sorting out who gets hit with what, so you're entirely at the mercy of some random bureaucrat. After this person assesses a fine, you have a few appeals options that place you at the mercy of other random bureaucrats.

To sum up, if you run afoul of the nation's "national security" apparatus, you're completely on your own. There are no firm rules, no case law, no real appeals processes, no normal array of Constitutional rights, no lawyers to help, and generally none of the other things that we as American citizens expect to be able to fall back on when we've been (justly or unjustly) identified by the government as wrong-doers.

So what, then, can the accused rely on? The kindness of strangers, actually.

Epilogue: the kindness of strangers

Believe it or not, the actual people that I encountered at all levels of the national security bureaucracy, from the airport baggage screening personnel to the Chicago PD to the TSA higher-ups that were on-site at the airport to the administrative court "judge" who assessed my fine, were all fantastic. If it weren't for their common sense, basic goodwill, and genuine committment to national security then I might've ended up with much, much worse than the ~US$150 fine that I ended up paying.

It was immediately apparent to the screener who found the item in my bag that this was all a big mistake, and that I was clearly not a threat to airport security. After some questioning and a background check that came up clean, this fact was also clear to the cops and to the TSA supervisor. Even the TSA administrative judge, with whom I had some telephone contact, was on my side. Everyone, from the folks on the scene to the guy looking over the reports weeks later, called the situation correctly and did what they could to see that the impact on me was minimal. I'm grateful for all of this, but it shouldn't have had to be that way.

We're supposed to have a government of laws, not of men. No American should ever have to face the prospect of being deprived of property or liberty armed with only the knowledge that their fate is in the hands of people who're essentially playing it all by ear. Even in places where corruption and bias are problems, and the laws are enforced irregularly, at least there are formal rules and binding precedents in place for the protection of the accused. But to be in a situation where you're entirely at the mercy of the instincts of a group of federal employees who haven't even taken an oath of office isn't just un-American, but uncivilized. Let's all hope and pray that our national security system becomes more regular, more rational, more accused-friendly, more transparent, and more American before there's another attack and it grows even more tentacles.