The Wall Street Journal article on June 2, 2009, “Is Tougher Airport Screening Going Too Far?” highlights two recent court cases calling into question the TSA’s authority to conduct searches of airline passengers. In one case the article discusses U.S. v. Fofana, 2009 WL 1529815 (S.D.Ohio), where a transportation security officer discovered a passenger carrying three fake passports. The passenger was arrested and indicted for making or forging passports.

The judge reviewing the case decided that TSA search authority only extended to looking for explosives or weapons, declared the search violated the passenger’s Fourth Amendment rights and dismissed the case. The court concluded that once TSA is done looking for weapons or explosives it can’t look for evidence of ‘ordinary criminal wrongdoing’. With all due respect to the judge and his interpretation of the Fourth Amendment, the policy implications of compartmentalizing security like this ignores the dynamic threat we are facing.

The court’s analysis is troubling for many reasons including: it relies too heavily on the accuracy of technology, it overlooks the need to verify passenger’s identities, and it concludes TSOs are only looking for weapons and explosives. (Also, the court narrows TSA’s authority to screen passengers citing several statutory provisions but neglects to consider a provision that allows TSA to take a comprehensive approach to screening and the flexibility to implement procedures to adapt to emerging threat patterns (49 C.F.R. 1540.105)).

After fighting for years to change the culture at TSA, with Congress applauding the change, former Assistant Secretary Kip Hawley implemented a layered security system that inspects many aspects of a passenger boarding an aircraft, including behavior. This system tries to move TSOs away from following a checklist of prohibited items to looking at the total circumstances of an event or a screening. TSA is in the business of looking for terrorists not simply the tools of their trade.

The 9/11 highjackers used deceit, anticipation of pilot reaction, and knowledge of a predictable checkpoint screening process to accomplish their mission. Box cutters – their only conventional ‘weapon’ – were an almost inconsequential part of their plot. This is the reason for Secure Flight and watch list checking. In Fofana, the fact that the passenger was carrying three fake passports and a driver’s license raises a huge red flag that this person may be trying to evade that part of the screening process.

I wonder what would have happened on September 11, 2001 if a checkpoint screener discovered that one or two of the highjackers had fake passports but refused to stop the highjacker because he or she lacked legal authority? Or if checkpoint technology failed to discover liquid bombs disguised in sports drink bottles but a TSO disregarded other suspicious evidence because it wasn’t a weapon or explosive. Following an attack, I doubt the American public would sympathize with TSA’s explanation of the legal intricacies of the court’s interpretation of the Fourth Amendment when attempting to justify why a fake ID or suspicious evidence didn’t lead to follow-up questions and additional probing that may have prevented the attack.

Plain and simple the federal government, working together with state and local law enforcement, is charged with keeping us safe from harm. Stovepiping their duties in a manner that doesn’t permit them to pursue suspicions based on their experience screening passengers will have a chilling effect on the broader mission – preventing a terrorist act.

The Wall Street Journal article itself fails to highlight other court cases upholding TSA’s authority under similar fact patterns or real-life examples where TSA searches thwarted potential threats to the aviation system. It should be difficult to characterize TSA’s role in protecting our airways and airports as ‘mission creep’ as long as TSA is looking for passengers who want to do us harm and not only for weapons and explosives.

Jeff Sural serves as counsel in the Legislative & Public Policy Group at Alston & Bird, LLP. He will focus his practice on homeland security and transportation matters on Capitol Hill and in federal government agencies. Read More