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Time to Talk, Mr. Pistole

 Published in the Maryland Daily Record December 6, 2010

            Software engineer John Tyner’s encounter with airport passenger screening agents at San Diego Airport, in which he warned screeners not to “touch my junk,” captured by Tyner’s cellphone, has gone viral.  The ACLU has announced a national program of challenging “virtual strip searches of passengers.”  The new regime of full-body scans for selected members of the traveling public, with highly invasive body patdowns for those who demur, has drawn criticism from Barack Obama and Hillary Clinton.  In the face of the huge unpopularity of this screening program, the responsible bureaucrat, John Pistole, Administrator of the Transportation Security Administration, has stood firm.  He has told CNN: “No, we’re not changing the policies.”  He may have no choice in the matter, though.  Both Democratic and Republic leaders are planning Congressional hearings.

            But we should never have reached this point to begin with.  A consistent thread in the TSA creation of this program has been a failure to consult the citizenry or to listen to objections – even in the teeth of legal mandates to do so. 

            Since 1994,[1] Congress had directed the promulgation of regulations “to protect passengers and property on an aircraft … against an act of criminal violence or aircraft piracy.”  These regulations were to “require a uniform procedure for searching and detaining passengers and property to ensure their safety and courteous and efficient treatment by .. Government … law enforcement personnel.”  Kinda sounds like a mandate to establish regs for this very program, right?

            If that were not enough, there is a mandate in the Administrative Procedure Act (it governs the workings of federal agencies, including TSA) which most likely would be held to require the promulgation of regulations governing this program even absent specific Congressional directive.

            Why would regs matter?  Under the APA, the issuance of regulations must be preceded or, in emergencies, succeeded, by public notice and comment, most often accompanied by hearings.  These incidents of rulemaking do not greatly constrain the discretion of the agency, but do provide a critical opportunity for the public to have dialogue with agency decision-makers and critique the programs and protocols the agency proposes to put in place.  Draft regulations may well change as a result – and the final regs are thus seen by the regulated public as more legitimate.

            It is easy to imagine now, if TSA had leveled with us about what it proposed to do, what members of the public would have said they felt about government officials using radiation to take revealing pictures of them, and, as an alternative, literally groping their “privates.” (The slang term expresses how many of us feel about genital modesty.)  TSA would be expected to respond with arguments about the recent attempted “underwear bomber,” and how these searches would make us all safer.  And then a policy calculation in which the public was involved and invested could have been made, by an agency better advised about how the public felt.

            Whatever choice would have been made would have been a compromise.  You cannot maximize modesty and security at the same time.[2]  But a choice favoring modesty would have been completely legitimate, and well within public competence.  Each of us compromises security several times a day, to further other interests.  If we have an interest in being on the opposite side of the street, for example, we face a slight risk of a car running us down as we cross.  Before skiing down a mountain, we take account that we could break bones or worse.  We know how to balance benefits and risks. 

            And this holds with collective risks as well.  It’s true that if TSA chose not to scan or grope it would not only compromise somewhat the safety of the travelers with a strong sense of modesty, but that of other travelers – and of the people on the ground potentially beneath a falling or exploding airliner.  But this too is the kind of choice we make all the time.  We cut taxes to gratify individual financial aspirations while we arguably endanger the fiscal solvency of the entire country; we delay tough public policy choices about the environment even in the face of likely collective disaster in order to enable wealth production and individual consumer lifestyle choices.  These may be bad choices, but they are not of an unfamiliar type.  And within the norms of our polity, they are legitimate choices.

            In fact, were our government to start rescinding tax cuts or imposing drastic pollution caps by fiat, without the political give-and-take of legislation and regulation, no one would recognize its policy choices as legitimate.

            TSA and Mr. Pistole have to this point been acting as if none of this applied to them.  Not only were there no regs (the single one that seems to refer to passenger screening was passed in 1986), but no consultation.  So far as I can tell, TSA never made much mention of the scanners until they were already being deployed.  There was a big publicity roll-out in April of this year, after pilot programs and a big buy of the Advanced Imaging Technique technology.[3]  And TSA has consistently talked as if its only mandate was to maximize public safety, and as if everything else, like modesty, that conflicted with safety would just have to take a back seat.   

            Here’s a representative bit of dialogue, from Pistole’s recent interview with NPR’s Margaret Warner:

MW: Did you here at TSA underestimate the estimate of blowback, of anger from passengers over these more intrusive screening procedures?

JP: …I think there — reasonable people can disagree as to the balance between the privacy that some people have raised as issues. And I’m sympathetic to those concerns. But the job is really security in terms of, how can we provide the best security?

            This remark was preceded by patronizing comments about not keeping the public fully informed if it meant getting too much information to the bombers.  He said much the same thing to CNN.  He simply does not get it that there are things (like advanced consultation and privacy) that people may prefer to maximum possible security.  Nor does he get that the people who may prefer these things are his boss.

            Someone else at TSA may get it.  On the TSA website, at least as of November 21, you’ll still find, prominently featured, a link for a USA Today poll that says the majority support the body scanners.  This was a poll conducted less than a month after the underwear bomber and after the aforementioned pilot program conducted in only 19 locations.  It is highly unlikely that the public is so supportive today.  And citation to inapplicable polls only underscores TSA’s contempt for us.

            We are not children.  And there are things we may care more about than minor increments in safety.  Time to talk, Mr. Pistole.  We understand that you’re new to the job, you inherited this program, you come from an agency, the FBI, not known for being conciliatory with the public, and that bureaucrats like you are trained to circle the wagons.  Treating the rest of us as your peers will not come naturally to you.  But you need to do it. 

[2].  There is not a universal consensus that the scan/grope regime is even all that effective at preserving our security.  See the commentary of K.T. McFarland, Fox News commentator, on this point, and the recent discussion among experts in the New York Times.  It seems as if neither on the right nor the left is there much sense of confidence the new protocols make us safer.

[3].  See, e.g., here and here and here.

Copyright (c) Jack L. B. Gohn

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