TSA Is Terrible
There is no reason to treat everybody like a terrorist.


Andrew C. McCarthy

More years ago than I care to remember, I prosecuted some violent drug dealers. During the trial, we got some reliable information that their associates were transferring contraband to them in prison, and they were smuggling some of it into the courtroom. Federal marshals were rightly concerned that some items could be used as weapons.

We tailored a response to the circumstances. As any reasonable person would appreciate, that meant weighing the danger involved, the adequacy of various protective steps to counter the danger, the rights of people who would be affected, and the fact that our main concern was security — not collecting evidence in anticipation of bringing charges.

I agreed that the indicted defendants should be subjected to daily strip searches upon leaving and returning to prison — including cavity searches, since body cavities are notorious repositories of makeshift weapons and narcotics. This was appropriate not only because of the threat involved but because of that threat coupled with significant facts about the people involved. The indicted defendants had violent histories that included threats to kill witnesses and an attempt to murder an undercover police officer. They were in custody despite not yet having been convicted, because a judge had denied bail based on evidence that they posed a danger to the community. We had now caught them with items they were not supposed to have in the courtroom.

People in prison are subject to highly intrusive searches; they have no expectation of privacy. To be sure, the government is given more latitude — relieved of the need to show probable cause for the search — because it is promoting safety, not trying to develop a prosecutable case. But what makes the search appropriate is the record of the people involved, not the abstract possibility of violence. A savage act is always possible. If that is all it took to justify gross infringements of liberty, such infringements would always and everywhere be justified. An intrusive search is reasonable, or not, based on what the people involved have done to prompt it, not simply because life is fraught with peril.

The remaining people coming to the courtroom each day presented circumstances very different from the defendants. There were the defendants’ family members and associates, other trial participants (jurors, court reporters, the judge, and the lawyers for each side), some members of the press, and spectators (ordinary people who would come by to watch trials).

The family members and associates were neither charged nor in custody, though some were suspected of collusion in the drug dealers’ activities. Like all members of the public, they had had to pass through cursory courthouse screening upon entering the building. This included the presentation of identification and passing through a magnetometer — which, while far from perfect in ferreting out weapons, does detect guns, knives, and other metal objects. So we opted against any further physical searches absent some new indication that one of these folks possessed an item that could be used as a weapon. Still, the marshals were instructed to watch them carefully in the courtroom and keep them physically separated from the defendants — if contact was sought for some reason, defense lawyers could ask the judge for permission and the judge could then work with the marshals to set the ground rules.

As for the remaining trial attendees, all of whom had also gone through the screening process, there was no reason for added concern. Of course the threat situation dictated that the marshals remain on their toes. But a pro can easily do that without hassling everyone in sight. And that’s exactly how these pros handled it: smoothly, realistically balancing the risk of something terrible being attempted against the huge unlikelihood of its being attempted by the vast majority of the people in the courtroom.


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