According to a memo received by The New York Times, in February the Transportation Security Administration created a new “secret watch list.” This list is for people who don’t necessarily qualify for the big “no fly” list, but for those whom TSA agents consider “offensive” or likely “challenges to the safe and effective completion of screening.”
So if you don’t like where the agent’s hands are roaming, or you question a TSA agent’s authority, motives or honesty, you get to be on this new list.
According to the memo and anonymous TSA agents interviewed by The Times, being on this list allows TSA agents to identify you as a “problem.” The TSA claims the list cannot impel “extra screening” at checkpoints, but those of us who fly often know how ridiculous it can become when you are “randomly chosen” to for extra screening.
The feds already have multiple “watch lists,” and being on this new list won’t put you on the “no fly” list, so why does the TSA need a new super-secret one?
Kelly Wheaton, TSA deputy chief counsel, said the TSA needs a list for passengers who have been demonstrably unruly at or near checkpoints.
Matthew F. Leas, a TSA spokesman, wrote in an email to The Times that the agency “wants to ensure there are safeguards in place to protect Transportation Security Officers (TSOs) and others from any individual who has exhibited disruptive or assaultive behavior at a screening checkpoint and is scheduled to fly.”
According to The Times, federal security directors, top TSA security officials at airports and top Air Marshals supervisors can nominate individuals to be put on the watch list. Only the TSA administrator, his deputy and the top two officials at the agency’s Office of Intelligence and Analysis may add or remove people from the database.
The interesting thing, from a constitutional standpoint, is that there is no notice given that you are being put on a list, and no apparent way for you request to be removed from this list. If the government can secretly put an American on a list that could lead agents to identify that American and impose regulations or even lead to some kind of discriminatory activity, this is a violation of every American’s right to due process — rights that are expressly enumerated in the Fourth, Fifth, Sixth, Seventh and Eighth Amendments.
Another serious constitutional problem is that there is absolutely no oversight. Congress is not privy to this list; Congress is not establishing the policies that get someone on the list; Congress has not established that people are notified of their presence on the list or a procedure to petition to be removed from it. This is truly pure arbitrary power resting in the hands of individual agents.
This not a new dynamic, however, for the TSA and Congress; it is actually a designed one.
Most Americans do not know that the very congressional act that created the TSA also established that airports could replace federal TSA agents with private security two years after the law was enacted. However, in January 2011 when over 16 airports “tried” to opt out, TSA refused to leave these airports and the director of the TSA put a “freeze” on the airports’ option to opt out, violating the very act that created the TSA.
When the TSA violated this act through its policies and actions, Congress didn’t step up and remind them of the existing law. Instead, Congress passed a new law, HR 658, re-asserting the “right” of the airports to opt out of TSA screeners and requiring the TSA to notify all airports of this “right.”
Yet, in a questionable move by Congress, within HR 658, Congress gave the secretary of homeland security, the directing agency over the TSA, the authority to approve or deny an airport’s “request” to transfer to private security screening. In summary, Congress told the airports they had a “right” to opt out of federal screening and then put the TSA in charge of approving or denying this “right.”
If the TSA has the authority to approve or deny their own employment, then the airports do not possess a right to transfer to private screening; they possess a mere privilege granted by those they wish to remove. Would that not mean that by all form and function, our airports are now occupied through force by the federal government?
That, by definition, is despotism.
Unfortunately, this point is proven by the fact that in 2011 Texas lawmakers attempted to pass a law outlawing TSA pat downs. The FAA responded immediately by threatening to turn Texas into a de facto “no fly zone” if the law were signed. Of course, Texas backed down.
If the federal government denies a state’s right to govern itself internally, it is a violation of the delegation of powers expressly enumerated and a violation of the reserved powers of the states expressly identified in the 10th Amendment.
Rep. Bonnie Watson Coleman, D-N.J., said during a House Homeland Security Subcommittee hearing: “What I don’t want — what I think no American would want — is an excuse for unfair, secret profiling that doesn’t even offer a chance for people to contest their name appearing on such a list … I am concerned about the civil liberty implications of such a list.”
Hugh Handeyside, an attorney for the American Civil Liberties Union, told The Washington Post that the policy gives the agency wide latitude to “blacklist people arbitrarily and essentially punish them for asserting their rights.”
All Americans should be concerned about the implications of a single agent within a federal agency possessing unlimited and unchecked power. Those who fought for the foundation of America lived through a nearly identical exercise of federal power. Those living under British rule in 1761 called these laws, “the worst instrument of arbitrary power, the most destructive of English liberty and the fundamental principles of law, that ever was found in an English law-book.”
There is no constitutional authority for the TSA to exist, much less wield unchecked power within the states. This unconstitutional agency was created by Congress through the pretense of “national security,” but more than that, it is failing miserably.
According to the Los Angeles Times and James Bovard of USA Today, “the Department of Homeland Security concluded last year that TSA officers and equipment had failed to detect mock threats roughly 80% of the time. In Minneapolis, an undercover team succeeded in smuggling weapons and mock bombs past airport screeners 95% of the time. An earlier DHS investigation found the TSA utterly unable to detect weapons, fake explosives and other contraband, regardless of how extensive its pat-downs were.”
Americans have been deceived into trading essential liberties for completely non-existent security. We have a private or state option that would likely be more effective and one that could more closely overseen through the states.
Congress has created this monster. They have made TSA above check and balance, above the law and Congress, and above the Constitution itself: not only the Fourth Amendment, but also the First, Sixth, Seventh, Eighth and 10th Amendments. It is time for the American people to stand up to Congress, the DHS and the TSA and assert our right to keep ourselves secure.
It is time Americans replace this ineffective, intrusive and secretive unchecked system with one that follows the law and the Constitution and where the States protect the internal security of the people and the feds are limited to the specifically enumerated powers.
KrisAnne Hall is a national speaker and consultant on the Constitution, founder of Liberty First University, former Russian linguist for the U.S. Army, and former prosecutor for the State of Florida. She also practiced First Amendment law for a prominent national non-profit law firm. KrisAnne now travels the country teaching the foundational principles of liberty and our constitutional republic. KrisAnne Hall is the author of six books on the Constitution and Bill of Rights and has an internationally popular radio presence. Her books and classes have been featured on C-SPAN TV. KrisAnne Hall can be found at www.KrisAnneHall.com.
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