by: David Harris-Gershon on June 10th, 2013 | 7 Comments »
The family in front of me at Newark’s TSA security check was discombobulated.
An elderly Indian woman, wrapped in a stunning sari, blinked blindly at the looming metal detectors. Her husband, with an airport attendant behind him, sat still in his wheelchair. Their middle-aged daughter, struggling to simultaneously close a stroller, take her toddler’s shoes off, and explain to her parents what was occurring by shooing them forward, was in dire need of assistance.
I placed her stroller on the conveyer belt and fished out a bin for her laptop. She smiled weakly as if to say, Thank you for trying.
For a moment, it seemed as though I and my fellow travelers had lucked our way into the slowest moving security line in the history of security lines. For twenty minutes, little headway had been made. But at least nobody before us was being pulled aside for random checks.
Then, it happened. A TSA employee directed her face towards the line and said, ostensibly to the sari-clad woman before her, “You have been randomly selected for a check.”
The elderly woman, without English and confused, glanced back to her daughter, who explained in Hindi what was about to transpire. She then shuffled forward, embarrassingly had her sari checked (by partially unwrapping it) and her body prodded before being cleared. Her cheeks flushed.
When her husband was rolled forward, the TSA employee again faced all of us, the waiting travelers, and said, “You have been randomly selected for a check.” It took me a split second to realize she wasn’t directing this at me, having looked into my eyes while speaking.
Another TSA employee came forward and asked if the man, wheelchair bound, had anything in his pockets. After having this explained to him by his daughter, he comically began fishing tissues out of all his pockets, as though performing a magic handkerchief trick. He giggled as he did so, realizing how ridiculous was the amount of tissues he was carrying. His family giggled. We all began giggling.
And then he was wheeled through and inspected thoroughly, forced to stand on shaking legs, moaning in pain, it seemed. We no longer giggled.
Again, the TSA directed her stare at us and made her pronouncement, this time asking for the boy. He cried as they led him through. His mother cried as they led him through. They both cried as his body was searched by adult hands. By strange hands.
When the fourth pronouncement of “You have been randomly selected for a check” was directed at us, and the boy’s mother was called forward, somebody in the back yelled, “Why are you talking to us?”
“They want to make sure we hear the word ‘random.’ We’re witnesses,” said another.
“To abuse,” the first replied.
“There’s nothing random about this,” I said aloud.
And there wasn’t. This was profiling as obvious as the NYPD’s stop-and-frisk procedures, now in danger of being ruled unconstitutional. This was what appeared to be a Fourth Amendment abuse, an abuse we have come to accept, have come to treat as normative.
Jeffrey Goldberg today asked an interesting question: has the TSA’s groping softened us up for the NSA’s snooping?
There is much to this question. More than he intended.
The courts have determined, to this point, that TSA searches are constitutional because they are “administrative” in nature. They are done to protect the public, as opposed to determine whether or not someone has committed a crime, and thus do not qualify as unreasonable searches.
However, such profiling by TSA agents may – in the future – come under closer scrutiny by the courts.
In the meantime, these searches and, sometimes, seizures performed routinely at airports across this country have done something more than potentially violate our Fourth Amendment rights: they have conditioned us to accept the invasion of our privacy and person for the sake of security.
They have conditioned us, experientially, to accept that such searches are not only permissible, but necessary in keeping us safe.
They have conditioned us to treat such searches – and the inherent trade of safety for privacy – as inevitable.
Which brings us back to the NSA and, simultaneously, to the Indian family who collected themselves, shaken but whole, upon the benches past the body scanners and wands.
How far will we let this country go until we, as a public, say that this is enough? That we will no longer allow strange hands to grope our children for the sake of security? That we will no longer allow strange minds to illegally probe our phone records and emails for the sake of security?
The answer will determine, perhaps, the fate of America.
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