The Legality of The TSA’s ‘Enhanced Pat Down’ Authority

Author: flyingfish

Since the Transportation Security Administration’s (TSA) implemented its  ‘enhanced pat down’ screening procedures in late 2010 the legality of the agency’s authority to execute enhanced pat downs has been consistently called into question.

While the TSA has the legal authority to carry out administrative searches without probable cause, as I wrote about in November 2010 here, How The TSA Legally Circumvents The Fourth Amendment, the question of whether or not the TSA can legally perform physically invasive pat downs without probable cause has remained.

In May 2011 I began requesting that the TSA provide legal statues, laws or rulings that definitively laid out the agency’s legal standing to perform ‘enhanced pat downs.’  After nearly two dozen correspondences with the TSA’s Office of Strategic Communications, Deputy Assistant Administrator Sterling Payne,  Administrator John Pistole (who holds a law degree from the Indiana University School of Law) and the agency’s Chief Counsel Francine Kerner, no one has been able to provide any legal evidence of the agency’s authority to carry out the current physically invasive administrative searches without probable cause.

Over the course of my correspondence with the TSA regarding the legality enhanced pat downs, spanning more than thee months, I was repeatedly sent links to Public Law 107-71, the Aviation Transportation and Security Act (ATSA).  The TSA frequently uses ATSA to justify its actions, however while ATSA authorizes the creation of the TSA, and details many aspects of agency’s scope, duties and implementation, it in no way addresses the policies or procedures for the TSA to physically carry out individual passenger screening.

The basics of the TSA’s responsibility for passenger screening can be interpreted under Title I – Aviation Security, ‘§ 114. Transportation Security Administration, Section (e) SCREENING OPERATIONS.—The Under Secretary shall—
‘‘(6) on a day-to-day basis, manage and provide operational guidance to the field security resources of the Administration, including Federal Security Managers as provided by section 44933;
‘‘(7) enforce security-related regulations and requirements;
‘‘(8) identify and undertake research and development activities necessary to enhance transportation security;
‘‘(9) inspect, maintain, and test security facilities, equipment, and systems;
‘‘(15) carry out such other duties, and exercise such other powers, relating to transportation security as the Under Secretary considers appropriate, to the extent authorized by law.

One correspondence with the TSA cited this section of ATSA:SEC. 110. SCREENING.
 (b) PASSENGERS AND PROPERTY.—Section 44901 of title 49, United States Code, is amended— (1) by redesignating subsection (c) as subsection (h); and (2) by striking subsections (a) and (b) and inserting the following:

‘‘(a) IN GENERAL.—The Under Secretary of Transportation for Security shall provide for the screening of all passengers and property, including United States mail, cargo, carry-on and checked baggage, and other articles, that will be carried aboard a passenger aircraft operated by an air carrier or foreign air carrier in air transportation or intrastate air transportation. In the case of flights and flight segments originating in the United States, the screening shall take place before boarding and shall be carried out by a Federal Government employee (as defined in section 2105 of title 5, United States Code), except as otherwise provided in section 44919 or 44920 and except for identifying passengers and baggage for screening under the CAPPS and known shipper programs and conducting positive bag-match programs.

‘‘(b) SUPERVISION OF SCREENING.—All screening of passengers and property at airports in the United States where screening is required under this section shall be supervised by uniformed Federal personnel of the Transportation Security Administration

This section of ATSA, found on Page 19 of the 51 page law, in no way addresses the agency’s legal authority to carry out enhanced pat downs.   The TSA has more than once referenced the 9th Circuit Court’s 1973 ruling of U.S. vs Davis, 482 F.2d 893, 908. The 9th Circuit Court’s U.S. vs Davis ruling states

“noting that airport screenings are considered to be administrative searches because they are conducted as part of a general regulatory scheme, where the essential administrative purpose is to prevent the carrying of weapons or explosives aboard aircraft.” and  “[an administrative search is allowed if] no more intrusive or intensive than necessary, in light of current technology, to detect weapons or explosives, confined in good faith to that purpose, and passengers may avoid the search by electing not to fly.”

While the TSA may interpret U.S. vs Davis to grant the agency unlimited powers to execute enhanced pat downs, the law is lacking the legal wording that addresses the scope of what is acceptable under “the essential administrative purpose.”  The agency is also unable to provide significant documentation that enhanced pat downs, above and beyond less invasive pat downs, serve “the essential administrative purpose.”

To date, the TSA’s Chief Counsel has been unable to respond to my enquiries citing any laws, statutes or rulings that address the scope of the agency’s powers in physically executing administrative searches.  As the agency’s senior most attorney, it is troubling that Ms. Kerner is unable to provide the legal ground her agency needs to carry out the policy and procedure it executes daily across the United States.

The TSA plays an important in role in the national security of the United States, carrying out not only passenger screening but also overseeing numerous other essential security aspects not seen by the traveling public, however the agency’s current security procedures leave the agency in legal jeopardy.

How long can the elected leaders in the U.S. House and Senate allow the Transportation Security Administration to operate in a manner outside the current laws in the in the United States?   Every government agency needs to know its limits, some agencies are allowed mission creep, as the TSA has demonstrated numerous times, but operating outside the current legal power of the agency goes beyond mission creep.

Everyone answers to someone … yet somehow the TSA continually answers to no one.