Constitutional strict scrutiny standard demands effective screening procedures

By Seth Richardson

With the advent of intrusive TSA body searches this holiday season, the inevitable claim that Americans have a right to travel freely and without being searched is often heard. Problem is, that’s not what the Constitution says. As much as I dislike TSA’s procedures, I also acknowledge that some level of search is both reasonable and necessary. But where is that line drawn?

Analysis of the constitutionality of the TSA’s procedures requires an understanding of constitutional law. First, the right we enjoy under the 4th Amendment is against “unreasonable” searches, not “any” searches, and second, the right to travel is a right associated with the First Amendment right to freedom of assembly, and like all other rights, it’s not absolute.

Infringement of the right to be secure in one’s person and papers against unreasonable search depends on a number of things, including how reasonable the search is when compared to the particular governmental object to be achieved. The test established by the Supreme Court is one of “strict scrutiny.”

Because there is no inherent, unalienable right to fly on a commercial aircraft, the right to travel is not necessarily violated by conditioning that travel upon a consent to search. So long as you are free to travel by another mode of travel (right down to shank’s mares) your travel may be (and I emphasize “may”) be conditioned upon obedience to the reasonable need for transportation security of others.

The rationale is that while you may desire to travel without constraint, if a legitimate security issue exists that makes that travel unreasonably hazardous to others, your rights may be reasonably regulated in the public interest, as is true of all rights. This is why, for example, your right to drive a car on a public highway can be regulated by requiring you to obtain a driver’s license and vehicle registration, and why your driving can be regulated by traffic laws.

It’s no different for airline travel. If a valid threat exists, the public interest demands that measures be taken to ensure the safety of all persons on an aircraft, which takes precedence over the individual right to unfettered travel.

What makes the current system of searches unconstitutional is not that they are being performed, but that they are being required, and that they are ineffective.

To keep drugs and weapons out of prisons, visitors may be compelled to submit to extremely thorough searches, up to and including body cavity checks for contact visits. This is seen as objectively reasonable based on the legitimate need to keep contraband out of prison, and because visits are voluntary, anyone may decline a search, though they will not be permitted entry if they do.

The situation is analogous with TSA searches. You are not required to fly, thus you consent to search when you seek to board the aircraft.

As TSA head John Pistole alluded, it’s the TSA’s opinion that it’s illegal to decline a search that satisfies the TSA once you have entered the security area. This construction of the notion of irrevocable consent clearly violates the 4th Amendment. One must always be allowed to decline a search if one finds it too intrusive. But the quid pro quo is that by declining the search, one may not be permitted to board an aircraft. That’s a choice that Americans clearly have a right to make.

But there is another part of the legal equation that’s not often considered, and that is the TSA’s compliance with the “strict scrutiny” standard of review by the government in formulating its TSA policies.

The strict scrutiny test requires that the government have a “compelling need” to regulate, AND that the regulation be “narrowly tailored” to achieve the “legitimate governmental purpose” without being so over-broad as to encompass things not contemplated by the law. No one can rationally argue that there is not a compelling need to detect and prevent terrorists from blowing up aircraft.

But in the case of enhanced body searches and the scanners, they are unconstitutional because they violate the “legitimate governmental purpose” prong of the strict scrutiny test.

This is the case because the “legitimate governmental purpose” involved is to prevent suicide bombers from getting onto aircraft and detonating their devices, and the current TSA procedures simply cannot actually achieve this legitimate purpose.

This is because neither the scanners nor the gropes can detect a colon-bomb inserted in the rectum.

Such scans do detect underwear bombs and other contraband items that might escape the metal detector, which means that despite their uselessness as a primary protection against plastic explosives on aircraft, they still have a legitimate purpose, even though they are invasive and offensive.

So the question, insofar as the strict scrutiny test is concerned, is whether or not there is a better way to detect not only crotch-bombs and box-cutters but also to effectively detect colon-bombs that is less intrusive than the present procedures?

And the answer is “yes, there is.” It’s an El Al based model that uses layered security, bomb-sniffing dogs, psychological pressure, profiling and interrogation to identify suspicious individuals for further screening using scanners, pat-downs or, if necessary, orifice checks.

And that is what renders both the scanners and the gropes as used now to be unconstitutional. Because there is a better, more effective, less intrusive method of actually detecting suicide bombers or hijackers, what the government is doing now is not “narrowly tailored” to achieve only the “legitimate” government objective.

Therefore, the policies are unconstitutionally over-broad and should be replaced.

© 2010 Altnews

The TSA’s genital search program is intended to be offensive.

By Seth Richardson

John Tyner had the unmitigated gall to object to having his “junk” groped by TSA security screeners in San Diego, and has become the populist champion of personal privacy and objection to Transportation Security Administration airport grope-fests, thanks to the internet.

What’s more sinister is that San Deigo TSA chief Michael J. Aguilar is now investigating Tyner for leaving an airport security area without permission. Tyner potentially faces a fine of more than $12,000.

Problem is, Tyner didn’t leave without permission, he was denied permission to pass through the checkpoint and was escorted from the area by police after telling a TSA agent, “If you touch my junk, I’m gonna have you arrested.”

Aguilar claims that you are legally obligated to submit to, evidently, whatever sort of intrusive search the TSA decides to give you once you enter the security area, and you cannot refuse and leave instead. Where Aguilar, or his boss, TSA head John Pistole, or his boss Homeland Security Janet Napolitano got this idea is something of a legal mystery, given the Fourth Amendment.

Why don’t they just make us strip naked, give us a paper jump suit and slippers, and then sedate us into unconsciousness before loading us into “transport tubes” they then stack with a forklift? Airlines could save a lot of money on in-flight movies and honey-roasted nuts that way, and pack a lot more customers into the available space.

The actual reason for the TSA’s grope-a-dope program is transparently obvious; TSA wants to make objecting to the full-body scanner as unpleasant, sexually intrusive and frightening as possible, in order to dissuade protest. When they get done “upgrading” their hand-search procedures, you’ll fear the TSA more than you fear your proctologist and colonoscopy…which may be on the TSA’s agenda as well, since neither the body-scanner nor a hand search can detect explosives secreted in body cavities, like one’s colon, which is the latest terrorist tactic.

But it’s all a massive charade, and the TSA has to preserve it’s facade of power, control and officious pseudo-competence. TSA knows full well that by unmercifully abusing anyone who objects to being photographed in the nude or physically assaulted by a TSA screener, they can instill fear and unquestioning obedience in the traveling public, thereby gaining “voluntary compliance” with the image scanner program.

It may be reaching the point where people would rather face the chance of a terrorist blowing up their airplane than face the physical assaults of the TSA. And you know what, it’s our right to make that choice. The TSA works for us, and we have every right to demand that Congress rein them in. Especially when there is a better way to detect people who are a threat to air travel.

El Al airlines, the Israeli airline, is widely considered the world’s most secure airline, and their passenger screening and interviewing techniques have thwarted dozens of attempted attacks. Using a layered system that focuses on interrogation and observation of passenger behavior by highly trained security agents to detect “microexpressions” and other signs of nervousness that might indicate a suicide bomber, El Al is able to protect the flying public without taking naked pictures or groping everyone. They only grope suspicious people who appear nervous and can’t satisfactorily explain themselves. Suicide bombers are not known for their James Bond-like ability to tell convincing lies under interrogation, and El Al knows it. El Al requires passengers to report three hours before a flight, and that time is spent repeatedly interviewing and observing passengers to single out those who show the sorts of nervous behavior of suicidal zealots. And it works.

Add to that the use of bomb-sniffing dogs at checkpoints, and we could have a system that is effective that also respects the modesty and privacy of passengers.

So why don’t we use this model? Likely because former Homeland Security Secretary Michael Chertoff and his cronies are making money selling body scanners to the TSA. Chertoff’s company, Chertoff Group, is a security consulting firm that represents the companies that manufacture the body scanners. We shouldn’t be surprised though, it’s standard government policy to substitute expensive, complex technology that financially benefits Washington insiders for cheap, effective simple technology that doesn’t.

Further investigation of the link between Chertoff and the decision to purchase body scanners and not use psychological profiling and bomb-detecting dogs must occur, and if corruption is found, people need to be prosecuted.

And we should all demand that Congress mandate the El Al model of airline security, which is far more effective and less intrusive than body scanners and can prevent colon-bombers from blowing up aircraft, something expensive body scanners and minimum-wage grope artists can’t do.

© 2010 Altnews

Sharia “law” has no place in our system of government or law, it’s just a personal religious practice

By Seth Richardson

Oklahoma has attempted an honorable, necessary and rational thing; to prevent Sharia “law” from gaining a foothold in American jurisprudence, but it went about it in the wrong way.

In this past election, voters in Oklahoma approved a constitutional amendment that explicitly barred Oklahoma courts from applying “… the legal precepts of other nations or cultures. Specifically, the courts shall not consider international or Sharia Law.” The purpose of this amendment is reasonable, prudent and necessary; to ensure that only Oklahoma and United States laws are imposed on persons in Oklahoma, and that the legal customs of other nations, such as Iran or Saudi Arabia, who operate under Sharia religious law, will not infect our judicial system. Unfortunately, the implementation was ham-handed and ignorant of the requirements of the First Amendment, which will almost certainly doom it to being overturned in federal court.

Before the vote on the measure had even been certified by the state, one Muneer Awad, a Muslim resident of Oklahoma City, filed a complaint with the federal District Court alleging that the measure is facially unconstitutional and asking for a restraining order to prevent certification of the vote and implementation of the measure. This request was granted by federal judge Vicki Miles-LeGrange, postponing the measure until after a court hearing in late November. Judge LeGrange was correct in granting the restraining order, because the language of the measure clearly violates the Establishment Clause.

But that doesn’t mean that the intent of the law is unconstitutional. It’s not.

The salient point here is that what is being addressed purports to be “law,” when in reality it’s nothing more than religious belief, tradition, practice and observance.  This is an important distinction because “law” is generally recognized as a set of rules that are binding on all persons, regardless of their religious faith. This happens to be the case where Sharia “law” is recognized as civil law as well as religious law in places like Iran, where it may be enforced (oft times with barbaric brutality) on everyone, not just Muslims. Thus, in “Sharia Law” nations, religious law and civil law are the same thing.

But that’s not how our system of government and laws operates, nor should it. While every civil law on earth has some roots in the predominant religion of the jurisdiction, it cannot be said that therefore every nation is at its core a theocracy.

Our system of jurisprudence explicitly prohibits government from enforcing religious doctrines. It recognizes only the duly enacted civil laws of this nation. We maintain a careful separation between religious practice and civil law that, while it is primarily intended to protect churches against state oppression, also works to keep the more blatant aspects of religious practice away from non-church members.

The key to preventing the insidious infiltration of Sharia (or any other) religious practice into our system of laws is to address the issue without reference to religion at all. We can separate the religious practice of Sharia from the legal obligations of Sharia by prohibiting the latter from being acknowledged by our legal system. We can do so not by referencing religion, but by making it explicit that the only “laws” that are enforceable in the United States are laws passed by our elected representatives.

Awad, and his terrorist-supporting mouthpiece organ, the Council on American-Islamic Relations (CAIR), argue that Sharia as a religious practice and Sharia as a legal code are inseparable, and that to ban one is to ban the other, and that the First Amendment prohibits the banning of religious practices or beliefs, so our courts must therefore enforce Sharia “law” or be accused of discriminating against religion.

This bit of sophistry is easily penetrated and debunked. The key to understanding the distinction between freedom of religious practice and law is the component of compulsion. In religious practice in this country, no person may be compelled to do anything against their will. Churches have no power to force members to do anything that they do not freely choose to do, and members are free to change their minds and reject any church doctrine or practice at will.

In such cases, at worst, the church is empowered to expel the member from the physical church premises, but may take no other punitive action against that former member.

Civil law, however, axiomatically includes the power on the part of government to compel obedience.This is the distinguishing feature of government.

In this country, the law is comprised solely and only of those rules of conduct that are properly enacted by authorized representatives of the people. That is the civil contract we have with our government, not to coerce or compel our obedience to anything other that what we, as a people, have assented to be governed by, and particularly that we cannot be compelled by the government, or anyone else, to obedience to religious authority or foreign powers.

Thus, while Sharia may be “law” in Iraq, that absolutely does not, and must not apply here in the United States.

Awad complains that if Sharia is not binding in the U.S., that this denigrates his religious rights and his religion. He complains that in his will, he directs that specific Sharia practices take place upon his death, including explicit directions regarding his burial and estate, and that banning Sharia “law” would prevent him from practicing his religion. This argument is vacuous pettifoggery and utter nonsense.

It’s a simple thing for a court to distinguish between religious practice that does not conflict with civil law and that which does. Adherents of Santeria have a court-approved right to sacrifice animals in their religious practices, but they do not have a right to sacrifice human beings. Muslims have a right to wear head scarves and pray towards Mecca five times a day. They do not have a right to stone anyone to death for adultery. One is a personal exercise of faith, the other is harming another human being or society.

All the court needs to do is to distinguish between those aspects of Sharia that comprise personal religious preference affecting only that person, and aspects of Sharia that purport to impose obligations or sanctions upon others against their will. Nobody cares whether or not Awad’s grave faces Mecca or whether his body is prepared in accordance with Muslim religious practice. But we care deeply that his religious practices not be forced upon others, like by stoning women or forcing them against their will to wear big black bags. Coercion is the key to making such distinctions. Law may coerce, religion may not.

Like any personal religious practice, those preferences or directives Awad has regarding his burial are fully protected under the Free Exercise Clause, and the government may not, without compelling need, interfere with them. In the case that some provision of his will contravenes civil law, the conflict between Awad’s personal religious practices and the civil and criminal laws of the United States  must always be resolved in favor of our civil and criminal laws.

Mr. Awad may live his life according to Sharia religious tradition, just as any orthodox Jew may live his life according to Jewish religious tradition, but he may not impose those traditions on anyone else, except by lawful contract.

If, in his opinion, Mr. Awad believes that aspects of his estate must be dictated by Sharia religious practice, he can place contractual conditions on his estate in his will that will constrain how his estate is devised, so long as those conditions do not conflict with existing civil law.

In this country, “Sharia Law” can only be properly thought of as “Muslim religious tradition, practice, beliefs and doctrine referred to as ‘Sharia’,” and nothing more, and it’s effects on the civil law are precisely the same as the effects of Catholic or Jewish doctrines of faith; they are meaningless where they conflict with the civil law. “Sharia Law” is not law, not in this country. It’s never been law, and it never will be law, because in this nation, it’s unenforceable against anyone who chooses not to abide by it.

That being said, I think it’s important for every state to place on their books a statement to the effect that our courts, at all levels, shall only enforce the provisions of the duly enacted civil and criminal laws of this nation and not any form of religious practice or belief. One would think that this principle is manifest in the Establishment Clause, but evidently not.

The mistake in the initiative was mentioning Sharia specifically. In doing so, it does in fact single out one religion, Islam, and disfavors it, while ignoring, for example, Judaism or Catholicism. That’s a real constitutional problem.

There is a legitimate secular legislative purpose for preventing religious “laws” from infecting civil law, one which applies to all religions, but that purpose was not well expressed by the Oklahoma legislature, and the devil’s in the details of the legislative language.

The measure therefore must be tossed on constitutional grounds, but can be easily resurrected by replacing it with one that simply says, “Only the civil and criminal laws of this state, or of the United States, shall be considered by the courts of this State in all cases or controversies.”

This adequately covers the specious CAIR claim that “Another example of state courts being constitutionally bound by international law is federal common law. Federal common law is the common law adopted at the federal level, instead of by various states. Through the decision of Sosa v. Alvarez (2004) it determined that international custom is federal common law.”

First, Sosa v. Alvarez says absolutely nothing of the kind, and in fact says the precise opposite, specifically acknowledging that there is no general “federal common law.” Certainly there is no “federal common law” that would compel the U.S. to acknowledge “international custom” like Sharia religious practice as binding law in the United States.

Sosa v. Alvarez addressed whether a Mexican national (Alvarez-Machain), seized in Mexico by other Mexican nationals at the behest of the DEA for the murder and torture of a DEA agent and transported to the U.S. for trial could sue the federal government for false arrest after he was acquitted at trial. The most-reversed Ninth Circuit Court of Appeals held that Alvarez was entitled to damages, but the Supreme Court reversed that judgment, ruling that Alvarez could not recover damages either against Sosa (one of his captors) or the United States.

Second, the notion that “international custom” is “federal common law” is specious nonsense of the highest order. If true, this would make all U.S. law subject to the peculiar customs of every foreign nation on earth, which would render our sovereignty and entire legal system irrelevant. Such blatant stupidity is not to be countenanced, and can be soundly rejected as hyperbolic idiocy from a terrorist-supporting special-interest group.

But this allegation does reveal, perhaps inadvertently, CAIR’s ultimate objective, which is to impose Sharia law on U.S. courts through the misuse and abuse of international law. This makes it imperative that the States, and indeed the federal government, act quickly to repudiate the attempt to infuse our laws with “international custom” in the form of barbaric and ignorant religious dogmas.

Thus, as we can see by CAIR’s mendacious quibbling and pettifoggery, the Oklahoma statute actually does address a very real and present danger to our system of laws that must be addressed. Establishing Sharia religious tradition as enforceable law in the United States would be a grave, grave mistake.

It’s just that this particular iteration is ham-handed, not nuanced, and not particularly cognizant of the law, which makes it, unfortunately, entirely unconstitutional.

But it’s a good starting point for the debate, which must take place, and soon.

© 2010 Altnews