Airport security measures and policies post-9/11

Airport Security Post-9/11: Striking a Balance

Although airports around the world have all stepped up their security measures following the terrorist attacks of September 11, 2001, airports in the United States have become the focus of an increasing amount of attention in recent years because of the extremes that are being experienced by the flying public. Indeed, media reports of abusive practices by Transportation Security Administration (TSA) security personnel are commonplace, and critics of the recent addition of physical "pat-downs" and the use of full-body digital scanning technologies have argued that Americans who just want to fly are being turned into so many herded cattle stripped, apparently, of their fundamental constitutional rights when they set foot on airport grounds. Proponents of these enhanced security measures maintain that the unique qualities of flight in the post-9/11 world demand a reinterpretation of the Fourth Amendment right to privacy. To identify the facts in this debate, this paper provides an analysis of the relevant literature to determine whether an alternative approach to these draconian TSA measures is possible, and if so, to provide a recommendation to the Department of Homeland Security concerning an optimal approach to airport security. A summary of the research and important findings are presented in the conclusion.

Review and Analysis

Anyone who has flown in recent years can readily testify that navigating the security protocols at many major American airports involves a lengthy process that can become highly intrusive and even appear violative of 4th Amendment expectations of privacy, but many authorities and the general public alike believe that the need for these enhanced security measures became painful evident following the terrorist attacks of September 11, 2001. The U.S. government's multifaceted and integrated response to need, though, has been the focus of a growing debate concerning just how much is enough, even in a scary post-9/11 world. In this regard, cultural anthropologists such as Lippert and O'Connor (2003) report that, "Security has become a more intense focus of public debate and concern following the events of September 11, 2001. In North America, especially, much media and political discourse has centered on the security workforce charged with the provision of airport security services and, specifically, the quality of service it provides" (p. 332). To place the debate in context, Black's Law Dictionary's definition states that the Fourth Amendment "guarantees people the right to be secure in their homes and property against unreasonable searches and seizures and providing that no warrants shall issue except upon probable cause and then only as to specific places to be searched and persons and things to be seized" (p. 657).

Therefore, the fundamental issue involved in the debate over airport security measures relates to whether this right to privacy, the law of the land, somehow changes or becomes diminished in certain settings. In fact, the Supreme Court has held that although the Bill of Rights does not end at the schoolhouse door, educational administrators have an overriding need to maintain a secure and safe learning environment and certain exceptions to the Fourth Amendment are appropriate in some cases. Likewise, airports appear to have been particularly singled out for such exceptional treatment for similar reasons. For example, the same types of security measures that are being used at the nation's airports are not being used elsewhere, indicating that airports have been singled out as the transportation mode of choice for aspiring terrorists. Suggesting that the need for enhanced security in airports was obvious "even to children," Supreme Court Justice Souter emphasized in his opinion in United States v. Drayton that: "Anyone who travels by air today submits to searches of the person and luggage as a condition of boarding the aircraft. . . . The commonplace precautions of air travel have not, thus far, been justified for ground transportation . . . And no such conditions have been placed on passengers getting on trains or buses" (p. 1632). This view, of course, was reinforced by the fact that the 19 terrorists on September 11, 2001 used airplanes as their weapons to such horrific effect.

Given the unique context in which airports operate, then, the debate turns to whether the security measures that are being used are justifiable. Most authorities agree that improved safety in flight operations beings with airport security. For example, according to Wallis (2003), "In-flight security must begin on the ground" (p. 119). The level of security that is required to assure an acceptable level of safe operations remains the source of heated debate. Nevertheless, the security measures that are currently taken in the airport preparatory to flight have thwarted more than one terrorist attempt, and it is clear that there have been no recurrences of a September 11, 2001-type attack on the United States in the intervening years. These are certainly powerful arguments in support of the security measures being used in the nation's airports. Despite these achievements, there are a number of issues involved in the deployment and administration of innovative security procedures that transcend traditional methods that raise concerns about privacy invasion and the inordinate delays these procedures cause in busy airport terminals (Wallis, 2003).

In post-9/11 America, though, people who complain about these increasingly invasive security measures may even be viewed as unpatriotic at best and terrorist-sympathizers or even terrorists themselves at worst. The Fourth Amendment, however, does not specifically preclude the types of security measures that are currently being used in airports, nor does it specifically preclude even more drastic measures if the situation calls for them. For instance, according to one legal authority, "The language of the Fourth Amendment to the Constitution is inherently ambiguous. While the Amendment specifically forbids 'unreasonable searches and seizures;' it outlines parameters for proper search warrants but does not specifically describe when such warrants are required. As a result, some authorities have argued that a warrant-preference standard is not required by the Fourth Amendment and that only a general reasonableness standard is required to determine the constitutionality of searches and seizure" (Minert, 2006, p. 1632). This view is congruent with another legal authority, Lee (2010) who cites the need for law enforcement authorities in other real-world settings in the United States to take whatever steps are necessary in specific situations, steps that may even include pat-down searches and the seizure of any illicit material found as a result. In this regard, Lee (2010) points out that, "On the street, an officer with very little justification -- the Court calls it reasonable suspicion -- can briefly detain an individual and perform a patdown frisk of the person's outer clothing in a search for weapons" (p. 1404).

With respect to Fourth Amendment protections against warrantless seizures, extraordinary circumstances call for extraordinary law enforcement measures that this point is also made by Lee who emphasizes, "If the officer comes across a container on the suspect during the frisk, he may open that container without a warrant and it is likely that a court will uphold his warrantless search" (2010, p. 1404). The cost-benefit analyses that have been used by the courts to measure the impact of airport security measures in light of Fourth Amendment protections have consistently come down on the side of the government. For instance, Lee advises that, "The courts have consistently held airport security measures constitutionally justified as a limited and relatively insignificant intrusion of privacy balanced against the need to protect aircraft and its passengers" (p. 1404). A similar point is made by Minert who concludes, "If hijacking is assumed to be an extremely large risk to the public and if airport security searches (such as those provided by metal detectors) are considered to be minimally intrusive, then a preflight passenger search could be justified even if there is no individualized suspicion" (2006, p. 1632).

Taken together, the unique status of airports in post 9/11 America and the need for enhanced security measures to protect the flying public has created a situation that demands a different approach to communicating the objectives of these security initiatives to the American public.

In this regard, Minert (2006) suggests that, "A new Fourth Amendment approach is necessary to justify warrantless preflight searches of passengers boarding airliners because the prevailing approach is based on the misapplication of a set of exceptions in the Fourth Amendment" (p. 1632).

Indeed, the Transportation Security Administration should stop being defensive in its public relations approach to justifying these enhanced security measures. Indeed, the TSA should proudly advertise these security measures aggressively using social media networks and the mainstream media to get the message across that flying in post-9/11 America involves heightened security measures that are intended for people's own good. By confronting these enhanced security needs head-on rather than ducking behind a media smokescreen, the TSA could turn the tide of public opinion in ways that mirror the acceptance of such security measures by the citizens of Israel who realize that they are under attack and it is not paranoid to take such measures when in fact everyone is out to get them. It is the harsh reality of life in post-9/11 America that the global terror continues to exact a high toll on American lives and interests at home and abroad, and the terrorist agenda continues to include attacks in the future that may involve weapons of mass destruction.

Furthermore, these types of diminutions of basic constitutional rights are not unique in American history, and President Lincoln suspended the writ of habeas corpus in response to the threat to national security during the Civil War and President Roosevelt interred over a hundred thousand Japanese-American citizens following the attack on Pearl Harbor. As the level of threats to the national security have ebbed and flowed, then, so too has the level of civil liberties that are afforded the citizens of the United States. In the current environment, it is reasonable to suggest that the need for continuing high levels of airport security remains and that such security measures will be able to pass constitutional muster based on the precedential cases involving these security measures and American airports to date. Unfortunately, even the most rigorous security systems may fail to prevent recurrences of a September 11, 2001-level terrorist attack, but it is clear that the effort to prevent such recurrences must begin in the airports rather than once a flight has begun, and many Americans recognize and accept this need today.