Review of the Big REAL ID Hearing
The Senate Homeland Security and Governmental Affairs Committee held a hearing yesterday on the REAL ID Act and the REAL ID revival bill, known as PASS ID. I attended and want to share with you some highlights.
Good News!
Little good came from the hearing, as it was primarily focused on how to get the states and people to accept a national ID. But there is some good news.
First, Department of Homeland Security Secretary Janet Napolitano declared REAL ID dead (much as I did in my testimony two-plus years ago). “DOA” is how she referred to it.
She also said that no state will be in compliance with REAL ID by the current December 31, 2009 deadline. This is important because a lot of people think that states doing anything about the security of drivers’ licenses and ID cards are complying with REAL ID.
Another highlight was the commentary of Senator Roland Burris (D-IL). He is a beleaguered outsider to the Senate and evidently wasn’t coached on the talking points around REAL ID and PASS ID. So he flat out asked why we shouldn’t just have “a national ID.”
Senator Susan Collins’ (R-ME) nervous smile was particularly noticeable when Burris asked why the emperor had no clothes. No one was supposed to talk about national IDs at this hearing! But that’s what PASS ID is.
REAL ID and PASS ID are two versions of the same national ID system, and nobody is denying it. That’s good news because the effort to rebrand REAL ID through PASS ID has failed.
Making Airline Travel as Unpleasant as Possible
The Transportation Safety Administration long has made air travel as unpleasant as possible without obvious regard to the impact on safety. Thankfully, the TSA recently dropped the inane procedure of asking to see your boarding pass as you passed through the checkpoint — a few feet away from where you entered the security line, at which point you had shown both your boarding pass and ID.
However, there are proposals afoot in Congress to set new carry-on luggage restrictions, to be enforced by the TSA, even though they would do nothing to enhance security. An inch either way on the heighth or width of a bag wouldn’t help any terrorists intent on taking over an airplane. But the proposed restrictions would inconvenience travelers and allow the airlines to fob off on government what should be their own responsibility for setting luggage standards.
TSA also has restarted ad hoc inspections of boarding passengers. At least flights as well as passengers are targeted randomly. After 9/11 the TSA conducted secondary inspections for every flight. The process suggested that the initial inspections were unreliable, delayed passengers, and led experienced flyers to game the process. It was critical to try to hit the front of the line while the inspectors were busy bothering someone else. There was no full-proof system, but I learned that being first or second in line was particularly dangerous.
Finally TSA dropped the practice. And, as far as I am aware, no planes were hijacked or terrorist acts committed as a result. But TSA recently restarted the inspections, though on a random basis.
I had to remember my old lessons last week, when I ran into the routine on my return home from a trip during which I addressed students about liberty. Luckily I was able to get on board, rather than get stuck as TSA personnel pawed through bags already screened at the security check point.
There’s no fool-proof way to ensure security for air travel. Unfortunately, it’s a lot easier to inconvenience passengers while only looking like one is ensuring airline security.
Schneier and Friends on Fixing Airport Security
Security guru Bruce Schneier comes down on the strictly pragmatic side in this essay called “Fixing Airport Security.” Because of terrorism fears, he says, TSA checkpoints are “here to stay.” The rules should be made more transparent. He also argues for an amendment to some constitutional doctrines:
The Constitution provides us, both Americans and visitors to America, with strong protections against invasive police searches. Two exceptions come into play at airport security checkpoints. The first is “implied consent,” which means that you cannot refuse to be searched; your consent is implied when you purchased your ticket. And the second is “plain view,” which means that if the TSA officer happens to see something unrelated to airport security while screening you, he is allowed to act on that. Both of these principles are well established and make sense, but it’s their combination that turns airport security checkpoints into police-state-like checkpoints.
The comments turn up an important recent Fourth Amendment decision circumscribing TSA searches. In a case called United States v. Fofana, the district court for the southern district of Ohio held that a search of passenger bags going beyond what was necessary to detect articles dangerous to air transportation violated the Fourth Amendment. “[T]he need for heightened security does not render every conceivable checkpoint search procedure constitutionally reasonable,” wrote the court.
Application of this rule throughout the country would not end the “police-state-like checkpoint,” but at least rummaging of our things for non-air-travel-security would be restrained.
I prefer principle over pragmatism and would get rid of TSA.
It Is a Checkpoint, After All
The Philadelphia Inquirer asks why the TSA didn’t catch Bonnie Sweeten absconding to Orlando at the airport after faking her own and her daughter’s abduction.
The TSA and FBI are right: it’s not airport security’s job to look for people like Bonnie Sweeten. But they will quickly agree to make it part of their mission when newspapers and Members of Congress start to say they should. This is how a nominal airline security program transmogrifies into a general law enforcement checkpoint, and the noose tightens on your right to travel.
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