It was the Wednesday before Thanksgiving, and I was racing toward Baltimore’s BWI airport, full of foreboding. I’d seen a week of stories on Fox News and the Drudge Report about TSA workers’ groping innocent passengers — spilling their urostomy bags, touching their junk, stripping the shirts off twelve-year-olds, and reducing women to tears.
To express outrage at these excesses, privacy campaigners on the left and the right had designated Wednesday National Opt-Out Day. Americans sick of government intrusions would refuse to be scanned by the new body imagers, opting instead for the even more intrusive new pat-downs. On one of the busiest travel days of the year, ordinary people would face massive delays as passenger after passenger insisted on being groped in public. It would be a debacle for the TSA, and the outcry would put an end to body scans and enhanced pat-downs. Or so the campaigners hoped.
Arriving two-and-a-half hours early, I rushed to the security checkpoint. The line was all of five minutes long. No one was opting out. I don’t know who was more polite, the TSA officers or the passengers.
With all that time to kill, I decided to take the enhanced pat-down myself. A bearded officer with the trademark green polymer gloves explained the process: He would check inside my collar, around my arms and chest, inside my belt, and then up my legs “to the point where they join,” as he delicately put it. And that’s exactly what he did. He ran his hand, flat and rigid, up each leg until it met resistance.
“That’s it?” I thought. I’ve had experiences that were about as intimate getting a pair of pants fitted. As a symbol of National Opt-Out Day, it was perfect. There hadn’t been a bigger bust since Michael Jordan turned to baseball. After all the hype from Fox and Drudge and the libertarian blogosphere, the American public shrugged its shoulders and went about its business.
I think there’s a lesson there for conservatives. Two, actually.
The first is pretty simple: While sincere and consistent civil libertarians exist, politicians are always most tempted to play the civil-liberties card when their party doesn’t hold the White House. We saw that in the late 1990s, when the Clinton administration’s centrist support for law enforcement drove congressional conservatives into the arms of civil libertarians (think Bill Barr, or Dick Armey). Congressional Democrats used the same weapon to attack the Bush administration after 2004. The guys who are out of power always have a keen appreciation for the ways in which power can be abused.
After one’s party is elected, things look different, and neither party has followed through on its civil-liberties rhetoric after taking office. Even President Obama, who probably believed the civil-liberties critique more deeply than any past presidential candidate, has ended up embracing most of the security measures he ran against.
You can see the appeal of the civil-liberties market niche to the Right. A civil-liberties stance is consistent with small-government conservatism. And it can get conservative groups great publicity, perhaps even a strange new respect from media outlets on the left. It embarrasses the current administration.
#page#What’s not to like? Almost everything else, I’m afraid. That’s the second lesson that National Opt-Out Day offers conservatives. A strident civil-liberties attack on antiterrorism measures is a dead end. It’s just not serious. And Americans know it.
It’s not that the measures are popular. Nobody likes going through the new scanners or the new pat-downs. But attacking them without offering a plausible alternative is foolish, especially after Dec. 25, 2009, when al-Qaeda nearly succeeded in bringing down a plane with an underwear bomb.
The U.S. has long had an air-security system that puts far more effort into looking for weapons than into looking for terrorists. It is also committed to giving all passengers more or less the same screening. With such a system, there’s only one way to find weapons hidden in underwear, and that is to check all the passengers’ underwear. The privacy campaigners tried to blame the TSA for these facts of life. The rest of us may have disliked the procedures, but instead of the TSA, we blamed, well, the terrorists.
That said, I don’t think conservatives should simply cheer the TSA as it implements this system. But we’ve got to offer something better if we want to be taken seriously. Luckily, that’s quite possible. Here are two ideas.
The TSA’s focus on finding weapons rather than terrorists is its biggest flaw. Unlike its sister agency, Customs and Border Protection (CBP), the TSA doesn’t use intelligence to identify risky travelers and scrutinize them more closely. Its no-fly and selectee lists are exceptions to this rule, but they cover only about 5 percent of the people about whom we have worrisome intelligence.
When people cross our border, the CBP knows a lot about their travel plans and uses a database ten or twenty times larger than the selectee list to decide who will be screened closely. And yet for 99 travelers out of 100, border screening is far less hassle — and far less of a privacy invasion — than air security. The difference between the two approaches was dramatically illustrated by the Christmas Day bomber. Umar Farouk Abdulmutallab walked through several TSA-style checkpoints in an Amsterdam airport without triggering special scrutiny, but CBP’s intelligence-based screening system flagged him for secondary inspection hours before he arrived at the border.
Ironically, the TSA was forced into its weapons-not-terrorists stance by the very same privacy campaigners who are now attacking the scanners and pat-downs. In 2003, when it wanted to build a system based on information — such as the travel-reservation data that the CBP uses — groups such as the ACLU and the NRA objected loudly on privacy grounds. The government should not assemble a database on innocent travelers, they argued. It was the wingers against the middle, and the middle lost: The proposal was killed.
Now conservatives need to reconsider their objections — partly because it never made sense to treat nuns and grandmothers the same way we treat young men returning from six months in Waziristan, and partly because, even to defenders of the TSA’s current approach, it’s obvious that the agency has reached the outer edge of what Americans can or should tolerate. Someday, al-Qaeda will manage to stuff an entire bomb into a body cavity, at which point the 2003 privacy debate will become obsolete. Given a choice between letting the government look at our travel records and letting the government look in our body cavities, most of us would go with the records.
#page#But let’s not kid ourselves about how easy it will be to change the TSA’s focus. Privacy advocates will claim that it is “snooping on innocent travelers.” A multitude of grievance groups will cry discrimination. Every question TSA officers ask in secondary screening will be scrutinized for improper motives. To prevent terrorists from assuming new identities, the federal government will have to mandate that state DMVs end their race to the bottom on driver’s-license security — and governors will defend states’ rights from this assault.
My second proposal for TSA reform is good both for the dignity of travelers and for security: We should stop the impending unionization of the TSA’s work force.
You may have noticed, as I have, how remarkably professional and patient TSA workers have become, despite their frequent encounters with grumpy passengers. That’s not exactly typical of government work forces, and it didn’t happen by accident. It required a commitment to disciplining and culling workers who aren’t temperamentally suited to the job.
Such culling is precisely what government unions are in business to prevent. They bargain for work rules that reduce managers’ flexibility, and for endless grievance procedures that make disciplining the work force almost impossible.
New limits on management flexibility will make flying more dangerous. In 2006, when I worked at the Department of Homeland Security, we rewrote the TSA’s rules and procedures more or less overnight when we discovered the liquids plot to blow up several transatlantic flights. We could not have done that if we’d had to bargain over the changes first.
The prospect for passengers is equally troubling. The Federal Labor Relations Authority has just scheduled an election in which two unions would vie for the right to represent TSA workers. And the unions are already competing to see which one can guarantee more rights to employees accused of misconduct. (The American Federation of Government Employees, for example, promises that it will win for TSA workers the right to “a neutral third party to resolve grievances, not leaving every decision to management.”) Due process, in other words, for the workers, but not for the passengers.
The concerns over the TSA’s new procedures are overblown, but they’ve opened a valuable debate about how airport security should work. We need to start looking for terrorists and not just weapons, and we need a TSA work force that never for a minute forgets whom it is working for.
– Mr. Baker was the first assistant secretary for policy at the Department of Homeland Security under Pres. George W. Bush. He practices law at Steptoe & Johnson in Washington, D.C., and is the author of Skating on Stilts: Why We Aren’t Stopping Tomorrow’s Terrorism.