There has been a vast over abundance of uninformed and generally ignorant opinion in newspapers and other outlets over the last few days about the naked scanners and aggressive pat downs. A lot of this represents a kind of eager triumphalism over the perceived “failure” of Opt Out Day. Now, at last, we are getting some well informed opinion from a professor of law at George Washington University in DC.

Jeffery Rosen asserts in Monday’s WashPost, (11.29.10) that the scanners and pat downs might be successfully challenged in court based on earlier rulings that searches of this nature must be both minimally intrusive to meet the need and be effective in finding bombs or other dangerous material. He says the naked scanners fail on both levels, most interestingly because they would not have likely found the low density powder bomb materials of last Christmas’ underwear bomber.

“Broadly, U.S. courts have held that "routine" searches of all travelers can be conducted at airports as long as they don't threaten serious invasions of privacy. By contrast, "non-routine" searches, such as strip-searches or body-cavity searches, require some individualized suspicion - that is, some cause to suspect a particular traveler of wrongdoing. Neither virtual strip-searches nor intrusive pat-downs should be considered "routine," and therefore courts should rule that neither can be used for primary screening.”

I have been fairly astounded over the last few days at the ignorance on display in the media, not only over the apparent Constitutional issues, but about the airport procedures themselves. During the week long build up to the planned Nov. 24th Opt Out, we learned a lot about the scanner machines that most reporters, editors and columnists apparently did not learn or bother to find out.

1. There are fewer than 400 machines in use, which means that any bomber would have a likely chance to getting through, particularly if multiple devices were used. The new system, then, is virtually useless.

2. Only those who set off the metal detector were being “offered” the choice of an X-ray or aggressive, between the legs pat down. Who says a bomber would necessarily set off the metal detector?

3. ABC News reported last Friday evening that “some women might be asked to remove their skirts” in a private setting. No other media, and virtually none of the public, seem to be aware of this fact.

4. The TSA maintains it can force a person to complete screening, even if the person says they want to discontinue screening and not fly.

5. The TSA maintains it can fine a person up to 11,000 dollars for refusing to complete the screening process. (John Tyner was threatened with both item 4 and 5 in San Deigo).

6. The TSA plans to have 1,000 machines installed by this time next year, so it can be expected that they likely drop the requirement of setting off the metal detector and then force everyone to make a choice between x-rays or between the legs rubbing.

7. Children over 12 can be subjected to the same procedures as adults, causing great fear and potential harm from the radiation.

8. Two pilot’s unions said their members should never undergo either procedure and called the x-ray machines something that could cause significant harm to them (the pilot’s unions are apparently unconcerned about the dangers to the public).

9. A female pilot for Continental Airlines quit flying about three weeks ago, calling the pat downs sexual assault. She filed a law suit against the government.

10. There is generally no information about what harm might be caused to a developing baby inside a mother and also no information about harm that might be caused to a fetus of a woman who has just become pregnant and is unaware.

Should the Supreme Court rule against x-ray scanners and pat downs on those who have offered no evidence of intending harm, there will certainly be protest about court ‘interference� in matters best left to others. Yet, the courts are where we turn to resolve things can not be worked out politically or peacefully among ourselves.

Rosen concludes his piece in the WashPost with words that should stir citizens and demonstrate the galloping ignorance of many commentators who don’t understand this whole issue:

If the justices take the case, they should strike down the use of "naked" machines and intrusive pat-downs as an unreasonable search and a violation of what Justice Louis Brandeis called "the most comprehensive of rights" - namely, "the right to be let alone."

Here is what I say: if we surrender our basic rights over every vague threat that comes along, what will we have to give up in a true national emergency? There will be nothing left to give and nothing left to take back when it is over.

Doug Terry, 11.29.10

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LINK TO ABC NEWSCAST WITH REPORT ON “SKIRTS”

http://tinyurl.com/22o9o6w

THE LINK to the WashPost op ed:

http://tinyurl.com/2a6c99j