A Collaboration with the University of Pittsburgh

New air travel security measures strain foundations of the liberal state

William W. Keller [Professor, University of Pittsburgh]: "International travelers are being subjected to higher levels of security screening in the wake of last week's attempt to blow up Northwest Airlines Flight 253. Uniformed guards carrying automatic weapons could be seen inside the main terminals at Charles de Gaulle Airport in Paris. Security personnel set up two checkpoints, one before the concourse leading to the gates and another at the gate leading to the plane. At the first checkpoint travelers were required to place shoes, coats, computers, toiletries, luggage, and other objects in bins for screening. Hand searches of carry-on bags and electronic wand searches were performed for many, but not all travelers. At the gate, all carry-on items were opened and inspected by security personnel and all travelers were meticulously patted down, sometimes more than once. This set of procedures undoubtedly would have detected the explosive device that Umar Farouk Abdulmutallab attempted to detonate onboard the Northwest Airlines flight as it approached the airport in Detroit. Most travelers appeared to approve these procedures or at least to be tolerant of them and associated delays.

But the ramped up security, which assumes there is a technical solution to air terror, raises issues related both to civil liberties and to the character of the government that institutes them. With regard to civil liberties, we have not yet confronted either the limit of the searches or the profiling that may cause a search to occur. It is now possible, for example, to construct a high-explosive device that can be concealed in a human body cavity. Should the airline and/or the government then conduct body cavity searches to make sure that no such device is present? If so, what criteria would be used - race, ethnicity, gender, nationality, "watch lists," informant information - as grounds to conduct such a search? We can assume that persons would have a right to refuse such searches, at least in a modern liberal state, even if they were evicted from the airport and placed on a "no fly" list. Or can we? What if security and intelligence personnel are certain that the traveler is carrying such an explosive device? Perhaps they have video surveillance evidence or the report of a reliable informant. Would they not demand to conduct a search in this scenario? Should the traveler have the right to refuse such a search? Should intimate personal privacy be sacrificed to enhance public security?

If the answer is yes, we can begin to see a subtle transformation in the character of the liberal state. It can be detected in the fusion of the air travel sector and police powers. The state has combined with private industry where airline security personnel and government officers work closely to control the behavior of travelers. In the United States it is illegal to interfere with government officers and punishable by fines and imprisonment. The multibillion dollar airline security industry also attaches to the state, not only through the provision of security technology, but also through its lobbying apparatus, effecting the law and airline security regulations. Security procedures apply to all air travelers and impose a burden on all taxpayers, even though fewer than 1 in 100 million air travelers attempts to commit an act of terrorism. So heinous is the crime that no instance of it can be tolerated. And so the coercive powers of the state are inflated, and even if unintended, militate against the rights and/or privileges of travel, association, privacy and so on. The government and the airlines have imposed a process of acculturation so that most people accept reasonable and sometimes unreasonable conditions of travel.

Terrorism is not, of course or even mainly, confined to air transportation. Internal security measures are just more pervasive and visible in that sector. In the name of security we see the coercive powers of the state applied increasingly to one area after another. Banking transactions are monitored to cull out possible terrorist financing. We have become accustomed to ubiquitous surveillance technology. Government agents engage in extraordinary rendition of suspected terrorists and criminals to third party governments for interrogation or imprisonment. The FBI has issued tens of thousands of "national security letters" which are warrantless demands for information, that must be supplied and kept secret by law. The CIA has conducted a program of "enhanced interrogation techniques" torturing suspected terrorists at undisclosed locations. What these and many other measures have in common is that they contribute to what might be called the surveillance security state. It is a state that is inconsistent with the basic tenets of the modern liberal polity, certainly as it was understood by the framers of the US Constitution as well as the Declaration of the Rights of Man.

We will, of course, have to maintain air transportation security. But as the same time, in the name of liberty, it will be necessary to monitor closely the guardians of the internal security, to limit and regulate their activities and numbers, and to abolish their power in all instances where it infringes unnecessarily on the character of liberal governance. At the conclusion of the Constitutional Convention in 1787 a lady enquired of Benjamin Franklin, "Well, Doctor, what have we got - a Republic or a Monarchy?" He is reported to have replied, "A Republic, if you can keep it." As we calibrate our responses to terrorism, we would do well to keep these words in mind."

Opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.

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