{"id":1574,"date":"2010-12-03T22:33:20","date_gmt":"2010-12-04T03:33:20","guid":{"rendered":"https:\/\/thebigpictureandthecloseup.com\/?p=1574"},"modified":"2010-12-31T23:07:43","modified_gmt":"2011-01-01T04:07:43","slug":"time-to-talk-mr-pistole","status":"publish","type":"post","link":"https:\/\/thebigpictureandthecloseup.com\/?p=1574","title":{"rendered":"Time to Talk, Mr. Pistole"},"content":{"rendered":"

The Big Picture Home Page<\/a>\u00a0| Previous Big Picture Column<\/a>\u00a0| Next Big Picture Column<\/a><\/p>\n

Time to Talk, Mr. Pistole<\/h2>\n

\u00a0Published in the Maryland Daily Record December 6, 2010<\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Software engineer John Tyner\u2019s encounter with airport passenger screening agents<\/a> at San Diego Airport, in which he warned screeners not to \u201ctouch my junk,\u201d captured by Tyner\u2019s cellphone, has gone viral.\u00a0 The ACLU has announced a national program<\/a> of challenging \u201cvirtual strip searches of passengers.\u201d\u00a0 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<\/a>.\u00a0 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.\u00a0 He has told CNN: \u201cNo, we\u2019re not changing the policies.\u201d<\/a>\u00a0 He may have no choice in the matter, though.\u00a0 Both Democratic and Republic leaders are planning Congressional hearings.<\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 But we should never have reached this point to begin with.\u00a0 A consistent thread in the TSA creation of this program has been a failure to consult the citizenry or to listen to objections \u2013 even in the teeth of legal mandates to do so.\u00a0<\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Since 1994,[1] Congress had directed<\/a> the promulgation of regulations \u201cto protect passengers and property on an aircraft … against an act of criminal violence or aircraft piracy.\u201d\u00a0 These regulations were to \u201crequire a uniform procedure for searching and detaining passengers and property to ensure their safety and<\/em> courteous and efficient treatment by .. Government … law enforcement personnel.\u201d\u00a0 Kinda sounds like a mandate to establish regs for this very program, right?<\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 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.<\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Why would regs matter?\u00a0 Under the APA, the issuance of regulations must be preceded or, in emergencies, succeeded, by public notice and comment, most often accompanied by hearings.\u00a0 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.\u00a0 Draft regulations may well change as a result \u2013 and the final regs are thus seen by the regulated public as more legitimate.<\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 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\u00a0they felt about government officials using radiation<\/a> to take revealing pictures of them, and, as an alternative, literally groping their \u201cprivates.\u201d (The slang term expresses how many of us feel about genital modesty.)\u00a0 TSA would be expected to respond with arguments about the recent attempted \u201cunderwear bomber,\u201d<\/a> and how these searches would make us all safer.\u00a0 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.<\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Whatever choice would have been made would have been a compromise.\u00a0 You cannot maximize modesty and security at the same time.[2]\u00a0 But a choice favoring modesty would have been completely legitimate, and well within public competence.\u00a0 Each of us compromises security several times a day, to further other interests.\u00a0 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.\u00a0 Before skiing down a mountain, we take account that we could break bones or worse.\u00a0 We know how to balance benefits and risks.\u00a0<\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 And this holds with collective risks as well.\u00a0 It\u2019s 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 \u2013 and of the people on the ground potentially beneath a falling or exploding airliner.\u00a0 But this too is the kind of choice we make all the time.\u00a0 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.\u00a0 These may be bad choices, but they are not of an unfamiliar type.\u00a0 And within the norms of our polity, they are legitimate choices.<\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 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.<\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 TSA and Mr. Pistole have to this point been acting as if none of this applied to them.\u00a0 Not only were there no regs (the single one that seems to refer to passenger screening<\/a> was passed in 1986), but no consultation.\u00a0 So far as I can tell, TSA never made much mention of the scanners until they were already being deployed.\u00a0 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]\u00a0 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.\u00a0\u00a0\u00a0<\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Here\u2019s a representative bit of dialogue, from Pistole\u2019s recent interview with NPR\u2019s Margaret Warner<\/a>:<\/p>\n

MW: Did you here at TSA underestimate the estimate of blowback, of anger from passengers over these more intrusive screening procedures?<\/p>\n

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?<\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 This remark was preceded by patronizing comments about not keeping the public fully informed if it meant getting too much information to the bombers.\u00a0 He said much the same thing to CNN.\u00a0 He simply does not get it that there are things (like advanced consultation and privacy) that people may prefer to maximum possible security.\u00a0 Nor does he get that the people who may prefer these things are his boss.<\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Someone else at TSA may get it.\u00a0 On the TSA website, at least as of November 21, you\u2019ll still find, prominently featured, a link<\/a> for a USA Today poll<\/a> that says the majority support the body scanners.\u00a0 This was a poll conducted less than a month after the underwear bomber and after the aforementioned pilot program conducted in only 19 locations.\u00a0 It is highly unlikely that the public is so supportive today.\u00a0 And citation to inapplicable polls only underscores TSA\u2019s contempt for us.<\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 We are not children.\u00a0 And there are things we may care more about than minor increments in safety.\u00a0 Time to talk, Mr. Pistole.\u00a0 We understand that you\u2019re new to the job<\/a>, 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.\u00a0 Treating the rest of us as your peers will not come naturally to you.\u00a0 But you need to do it.\u00a0<\/p>\n

[1].\u00a0 The requirement was part of Public Law 103-272<\/a>, at 560.<\/p>\n

[2].\u00a0\u00a0There is not a universal consensus that the scan\/grope regime is even all that effective at preserving our security.\u00a0 See the commentary of K.T. McFarland<\/a>, Fox News commentator, on this point, and the recent discussion among experts<\/a> in the New York Times.\u00a0 It seems as if neither on the right nor the left is there much sense of confidence the new protocols make us safer.<\/p>\n

[3].\u00a0\u00a0See, e.g., here<\/a> and here<\/a> and here<\/a>.<\/p>\n

Copyright (c) Jack L. B. Gohn<\/p>\n

The Big Picture Home Page<\/a>\u00a0| Previous Big Picture Column<\/a>\u00a0| Next Big Picture Column<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"

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 what they felt about government official using radiation to take revealing pictures of them, and, as an alternative, literally groping their \u201cprivates.\u201d TSA would be expected to respond with arguments about the recent attempted \u201cunderwear bomber,\u201d 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.<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[3],"tags":[731,1860,1867,1857,84,545,1866,1855,1873,1851,785,1845,1846,1872,1868,1862,1870,780,1869,1852,1858,1856,1861,1859,1865,1847,1850,1848,1853,1854,1864,1863,1871],"class_list":["post-1574","post","type-post","status-publish","format-standard","hentry","category-bigpicture","tag-aclu","tag-administrative-procedure-act","tag-advanced-imaging-technique","tag-aircraft-piracy","tag-barack-obama","tag-cnn","tag-collective-risk","tag-congressional-hearings","tag-fox-news","tag-full-body-scan","tag-hillary-clinton","tag-john-pistole","tag-john-tyner","tag-k-t-mcfarland","tag-margaret-warner","tag-modesty","tag-national-public-radio","tag-new-york-times","tag-npr","tag-patdown","tag-proceduring-for-searching-passengers","tag-protection-of-passengers","tag-radiation","tag-regulations","tag-risk","tag-san-diego-airport","tag-strip-searches","tag-touch-my-junk","tag-transportation-security-administration","tag-tsa","tag-umar-farouk-abdulmutallab","tag-underwear-bomber","tag-usa-today"],"_links":{"self":[{"href":"https:\/\/thebigpictureandthecloseup.com\/index.php?rest_route=\/wp\/v2\/posts\/1574","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/thebigpictureandthecloseup.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/thebigpictureandthecloseup.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/thebigpictureandthecloseup.com\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/thebigpictureandthecloseup.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=1574"}],"version-history":[{"count":11,"href":"https:\/\/thebigpictureandthecloseup.com\/index.php?rest_route=\/wp\/v2\/posts\/1574\/revisions"}],"predecessor-version":[{"id":1742,"href":"https:\/\/thebigpictureandthecloseup.com\/index.php?rest_route=\/wp\/v2\/posts\/1574\/revisions\/1742"}],"wp:attachment":[{"href":"https:\/\/thebigpictureandthecloseup.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=1574"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/thebigpictureandthecloseup.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=1574"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/thebigpictureandthecloseup.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=1574"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}