Will Courts Rein In TSA?

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.

16 comments Add your comment


July 8th, 2009
8:35 am

TSA = “thousands standing around”


July 8th, 2009
10:00 am

Outstanding warrants: fine, arrest and detain. No problem there.
Detaining and questioning passengers based on how much cash they are carrying: depends on the situation. If you are traveling internationally and don’t declare cash on the Customs form when you’re supposed to and they find it…oops, should have declared it. Detaining based on carrying cash on a domestic flight constitutes infringement, IMO.
Multiple passports…were they multiple passports, multiple names with the same photo? If so, they had the right to question. If carrying someone else’s passport to them because they forgot to bring it, etc. may be infringement.

[...] completely unrelated to aircraft or airport security, people are arrested and prosecuted. Linkage to the rest __________________ I can has ur upgrade? Will trade for [...]

Redneck Convert

July 8th, 2009
11:07 am

Well, I say strip these airline travelers buck-nekkid and run them thru a machine to boot. Put blindfolds on the TSA people to keep them from throwing up. And if the TSA arrests travelers for something they must be guilty, otherwise they wouldn’t of been arrested.

This Barr is exactly what’s wrong with this country today. We can’t have Law and Order if you’re going to use peoples Rights as a excuse not to search them. Me, I think this Barr is a Commie.


July 8th, 2009
12:07 pm

Actually, Barr is the opposite of a communist. The “commies” are the people who are so willing to let the government treat their citizens however they want in the name of “Law and Order”. And THAT’S what is wrong with this country today.


July 8th, 2009
12:24 pm

Ahh, that explains why Mr. Barr was so adamantly opposed to the extension of police and spying powers, the PATRIOT Act, the warrantless wiretapping, the illegal and indefinite detention programs, the confiscation of library records, the infiltration of political activist groups, the torture of detainees, the “unitary executive” theory, and all that other bunk from the past eight years.

No, wait–I’m thinking of someone else.


July 8th, 2009
12:46 pm

Bob, sometimes I agree with you. Sometimes I don’t. This time I do, and this is the way many small town law enforcement run “their” towns. Freedom scares the stuffed shirts.

Nothing is better than a good cop, nothing worse than a bad one.

Chris Broe

July 8th, 2009
2:12 pm

If over-aggressive, constitution-trampling strip-searches will prevent another 911, then the TSA finger goes up the wazoo, and the TSA hand feels up the ding-a-ling.

Safer than sorrier.


July 8th, 2009
2:48 pm

Great, Chris. Are you volunteering to have a finger up your wazoo every time you fly hence forth?

I don’t believe we’ll be any safer, yet we Will be sorrier

TSA Under the Microscope «

July 8th, 2009
4:45 pm

[...] Barr in his blog at the Atlanta Journal Constitution gives us some thoughts on the judicial review of the  Transportation Security [...]


July 8th, 2009
5:20 pm

Redneck Convert
The term redneck was a derogatory term derived from an incident in which a group oF West Virginia coal miners were ambushed by Mine agents who used machine guns in an effort to keep them from unionizing. The miners wore red kerchiefs around their necks as a sign of their beliefs in the right to organize for fair compensation. It was a very sad day in American history.

Averill Hecht

July 8th, 2009
10:05 pm

How about ending ticketed passengers only so meeters and greeters can again see loved ones and friends to the gate. Everyone has to go through security anyway! changeairportsecurity.org


July 9th, 2009
7:43 am

I Think it was tom the tax cheat Daschale that said ” you can’t professionalize unless you federalize “. I gthink that statement was made before he chose to evade taxes.

The REAL GodHatesTrash, Superstar

July 9th, 2009
11:04 am

Ticketed passengers only!

Hartsfield-Jackson is enough of a mess without allowing the homeless to lie around down by the gates, crowds of fat suburbanites to clog the trains, and Young Republicans to hang out all day in the men’s rooms.

Chris Broe

July 9th, 2009
11:44 am

Funny, funny stuff, lundubh.


July 9th, 2009
7:52 pm

The Fourth Amendment has been raped for the past 8+ years. No reason to think it will stop now. Americans are so terrified that someone will be killed in a terrorist attack that they willingly give up their liberties.

People that really guard their 2nd Amendment rights could care less about the 4th Amendment. Those who jealously guard the 1st Amendment pay no attention to the 4th.

In my opinion Bin Laden has won the first battle.