The Transportation Security Administration (TSA) has become increasingly aggressive in expanding its responsibility from simply searching passengers to ensure no weapons or explosives are brought on board commercial aircraft. The agency, housed in the federal Department of Homeland Security, has moved in recent years to assume for itself the role of “behavioral cops,” by training and allowing its employees to spot “suspicious behavior” on the part of passengers and then subjecting those so tagged to additional scrutiny and questioning.
In some instances of such “behavioral searches,” in which the government then finds contraband on the persons thus singled out for searches, or outstanding warrants for matters completely unrelated to aircraft or airport security, people are arrested and prosecuted.
Now, as such cases are working their way through the court system, the TSA is running into difficulty in sustaining its self-appointed power to search people for anything it finds that is “suspicious.” In fact, the TSA should be having problems in continuing what it has been doing. Allowing TSA monitors to search people based on nothing more than the fact that one or more of its employees finds someone to be acting “suspicious,” clearly contravenes the Fourth Amendment’s guarantee against “unreasonable searches and seizures.” At least one federal judge in Ohio agrees. The district court judge, Algenon Marbley, found that TSA agents who had seized three fake passports from a traveller, based on a TSA agent’s mere suspicion of something they felt inside an envelope, violated the person’s constitutional rights. The government, ever eager to grab and hold as much power as it can get away with, has of course appealed the judge’s ruling. Hopefully, the judge will be upheld.
In another case, Rep. Ron Paul (R-TX) staffer, Steven Bierfeldt, earlier this year was searched, detained, and questioned extensively by the TSA at a St. Louis airport, for no reason other than he had a few thousand dollars in cash in his carry-on bag. Bierfeldt has now sued TSA for its obvious infringement of his rights. No decisions have been made in that case yet.
It is hoped the courts will rein in the TSA and forces the agency to stick to its true mission — to prevent weapons and explosives from being brought on board commercial aircraft. If TSA is in fact permitted by the courts to engage in wide-ranging searches of people based on the subjective views of its employees, then other agencies of the government will consider that a green light to do likewise; and the Fourth Amendment’s guarantees will have been rendered largely meaningless.
Of course, the Congress could step in and do its job by reining in TSA legislatively to force it to limit its actions to what it was intended when the agency was established after the 9-11 attacks. However, given that body’s usual hesitancy to ever limit power once given to a federal agency, such a move is unlikely.