[Infowarrior] - TSA screening gets slammed by federal judge

[Richard Forno]

JULY 7, 2009, 11:14 P.M. ET

Is Tougher Airport Screening Going Too Far?

By SCOTT MCCARTNEY

http://online.wsj.com/article/SB10001424052970204556804574261940842372518.html
The Transportation Security Administration has moved beyond just  
checking for weapons and explosives. It’s now training airport  
screeners to spot anything suspicious, and then honoring them when  
searches lead to arrests for crimes like drug possession and credit- 
card fraud.

But two court cases in the past month question whether TSA searches— 
which the agency says have broadened to allow screeners to use more  
judgment—have been going too far.

A federal judge in June threw out seizure of three fake passports from  
a traveler, saying that TSA screeners violated his Fourth Amendment  
rights against unreasonable search and seizure. Congress authorizes  
TSA to search travelers for weapons and explosives; beyond that, the  
agency is overstepping its bounds, U.S. District Court Judge Algenon  
L. Marbley said.

Two recent court cases question whether TSA searches have been going  
too far.

“The extent of the search went beyond the permissible purpose of  
detecting weapons and explosives and was instead motivated by a desire  
to uncover contraband evidencing ordinary criminal wrongdoing,” Judge  
Marbley wrote.
In the second case, Steven Bierfeldt, treasurer for the Campaign for  
Liberty, a political organization launched from Ron Paul’s  
presidential run, was detained at the St. Louis airport because he was  
carrying $4,700 in a lock box from the sale of tickets, T-shirts,  
bumper stickers and campaign paraphernalia. TSA screeners quizzed him  
about the cash, his employment and the purpose of his trip to St.  
Louis, then summoned local police and threatened him with arrest  
because he responded to their questions with a question of his own:  
What were his rights and could TSA legally require him to answer?

Mr. Bierfeldt recorded the encounter on his iPhone and the American  
Civil Liberties Union filed suit in June against Homeland Security  
Secretary Janet Napolitano, claiming in part that Mr. Bierfeldt’s  
experience at the airport was not an anomaly.

“Whether as a matter of formal policy or widespread practice, TSA now  
operates on the belief that airport security screening provides a  
convenient opportunity to fish for evidence of criminal conduct far  
removed from the agency’s mandate of ensuring flight safety,” the ACLU  
said in its suit.

‘Mission Creep’?
TSA said in a statement on the Bierfeldt incident that travelers are  
required to cooperate with screeners, and while it is legal to carry  
any amount of money when flying domestically, the agency believes  
cooperation includes answering questions about property. As a result  
of the recording, however, TSA determined that “the tone and language  
used by the TSA employee was inappropriate and proper disciplinary  
action was taken.”

The cases will likely inflame TSA critics and frequent travelers who  
believe screeners take a heavy-handed approach and worsen the hassle  
of getting through airports with layers of rules and sometimes  
inconsistent policies between different cities.

“TSA agents don’t get to play cops,” says Ben Wizner, an attorney who  
filed Mr. Bierfeldt’s suit. The ACLU has heard an increasing number of  
reports of TSA agents involved in what he called “mission creep,” he  
says.

TSA spokesman Greg Soule says airport screeners are trained to “look  
for threats to aviation security” and discrepancies in a passenger’s  
identity. TSA says verifying someone’s identity, or exposing false  
identity, is a security issue so that names can be checked against  
terrorism watch lists. Large amounts of cash can be evidence of  
criminal activity, Mr. Soule says, and so screeners look at the  
“quantity, packaging, circumstances of discovery or method by which  
the cash is carried.”

Questioning travelers is part of TSA’s standard procedures, and the  
agency gives its employees discretion. “TSA security officers are  
trained to ask questions and assess passenger reactions,” Mr. Soule  
says. “TSA security officers may use their professional judgment and  
experience to determine what questions to ask passengers during  
screening.”

No one questions arrests made after TSA runs into evidence of drugs or  
other crimes during weapons searches. A bulge in baggy pants can be  
investigated, for example, because it might be an explosive. If it  
turns out to be cocaine, TSA is expected to report it to police or  
Drug Enforcement Agency officials.

But once TSA has determined that someone doesn’t have weapons or  
explosives, agents sometimes keep searching—leading some legal experts  
to wonder whether questioning people about how much cash they’re  
carrying, the number of credit cards they have and even prescription  
drugs in their bags stretches the intent of airport security law.

Congress charged TSA with protecting passengers and property on an  
aircraft “against an act of criminal violence or aircraft piracy” and  
prohibited individuals from carrying a “weapon, explosive or  
incendiary” onto an airplane. Without search warrants, courts have  
held that airport security checks are considered reasonable if the  
search is “no more extensive or intensive than necessary” to detect  
weapons or explosives.

In testimony to Congress last month, Gale D. Rossides, acting TSA  
administrator, said the agency had moved past simply trying to  
intercept guns, knives and razor blades to “physical and behavioral  
screening to counter constantly changing threats.”

Every screener has completed a 16-hour retraining that “provides the  
latest information on intelligence, explosives detection and human  
factors affecting security,” she said. “We have revised our checkpoint  
Standard Operating Procedures to enable officers to use their judgment  
appropriately in achieving sensible security results.”

In the fake passport case, a man named Fode Amadou Fofana used a valid  
driver’s license with his real name at a Columbus, Ohio, TSA  
checkpoint. Because he had purchased his ticket for a flight at the  
airport just before departure, he was flagged for secondary screening.  
He didn’t set off metal detectors and TSA’s X-ray equipment didn’t see  
anything suspicious, according to court testimony. The bags were  
swabbed for explosive residue and did not trigger any alarms. TSA  
agents opened the bags and searched inside because he was selected for  
extra screening.

According to the judge’s ruling, the TSA agent involved testified that  
she had been instructed to search for suspicious items beyond weapons  
and explosives and to “be alert for anything that might be unlawful  
for him to possess, such as credit cards belonging to other people,  
illegal drugs or counterfeit money.”

The agent found envelopes with cash, which she considered suspicious.  
Three other envelopes had something more rigid than dollar bills. She  
testified she didn’t believe there were weapons inside, but opened  
them looking for “contraband” and found three fake passports.

Limiting Searches
Judge Marbley said the TSA had no authority to open the envelopes. In  
his ruling, he said prior cases clearly established that airport  
security searches should be aimed only at detecting weapons or  
explosives.

“A checkpoint search tainted by ‘general law enforcement objectives’  
such as uncovering contraband evidencing general criminal activity is  
improper,” the judge wrote.The U.S. Attorney’s Office in Columbus has  
filed notice that it will appeal the judge’s order.

Mr. Bierfeldt’s suit, filed in U.S. District Court in the District of  
Columbia, seeks to bar TSA from “conducting suspicion-less pre-flight  
searches of passengers or their belongings for items other than  
weapons or explosives.”

Mr. Bierfeldt, who was released by TSA after an official in plain  
clothes saw political materials in his bag and asked if the cash was  
campaign contributions, said he just wants to save others from  
harassment by TSA. “It’s the principle of the matter,” he said. “I  
didn’t break any laws and was no threat.”

Write to Scott McCartney at middleseat at wsj.com