As a frequent flyer, I have seen vast changes in
air travel since “9-11". From the few months after “9-11" when
you could encounter “passenger security screening” that was
manned by airline employees, including pilots, we have now
“progressed” to the point where we have a federal agency, the
TSA, performing this function with metal detectors. But in
the last year, the American public has been informed by its
media that “body scanners” are to be installed to replace the
Since the OKC
bombing, there has been “screening” for entry into public
buildings, state and federal. That trend was followed by the TSA
as it has slowly over the last number of years divided American
airports into “secured” and “unsecured” areas, requiring
“passenger screening” for those entering the “secured” areas.
But finding fault with simple metal detectors, TSA now proposes
possibly the “ultimate” in “passenger screening”: body scanners.
If this trend is not reversed and stopped, “passenger screening
areas” will emit more radiation than the Nevada desert did
during nuclear testing. Those manning these body scanner
stations will be greatly harmed as will those who only spend a
few minutes passing through them. Some proof of this harm is
found in this
letter from some University of California professors. The
FDA, in 21 C.F.R., part 892, has established standards for
radiology devices "intended for human use". Would these body
scanner meet FDA standards?
vaccine programs as a method of purposely harming the health of
the American people. So too will our health be harmed by the use
of body scanners in airports. If microwave ovens can cause
cataracts, can we expect frequent flyers to get cataracts too?
If radiation fries flesh, what will happen in a few years to
those who work in “passenger screening areas” and to those who
merely pass through them? I leave to the experts the answers to
these questions. As for me, I do not look forward to the day
when I will be required to be radiated just to travel by air.
When that happens, my flying days will be over.
these predictable future events, concerned Americans need to at
least learn the legal basis for these activities of the TSA, and
the purpose of this page is to provide the interested reader
with at least access to that legal information. The relevant
federal laws regarding TSA airport “passenger screening” are
codified in 49 U.S.C., subtitle VII, that relates to “aviation
programs.” The TSA was created via 49 U.S.C.
§ 114, and it, via an undersecretary, is “responsible for
day-to-day Federal security screening operations for passenger
air transportation and intrastate air transportation under
sections 44901 and 44935".
sections of 49 U.S.C. that relate to these “security screening
operations” are the following sections:
Of course, from these links, you can easily
scroll, via the "next" link at the bottom of each page, through
other sections of this part of 49 U.S.C. Did you read
anything in these sections that authorizes the use of X-ray
“body scanners” to assist with “passenger screening”? Did you
notice certain sections mentioning private company contractors?
since there is no statutory authority to put body scanners in
American airports, this activity must apparently be based on TSA
regulations. These TSA
regulations linked here are PDF images of the TSA regs
(these are also word searchable). After study of these regs, I
have not found anything that addresses the installation of
“body scanners” in American airports.
To reach any definitive conclusion regarding the
installation of body scanners requires more facts and
investigation. However, from the statutory and regulatory scheme
that we can all read, certain conclusions may be reached.
First, if TSA and its employees are actually operating the body
scanners and the “passenger screening” process, to subject the
American public to this very radiating and harmful process would
obviously require adopting regulations to this effect. This
would require the TSA to first propose regulations via the
Administrative Procedures Act, 5 U.S.C. §552, et seq., which would allow
Americans to object to them. Briefly, these TSA regulations
would state something to the effect that: “Starting July 1,
2010, body scanners shall be installed at all American
‘international’ airports and such installations shall be
completed on or before July 1, 2011. Such scanners will be of a
certain manufacture and be capable of doing certain things”
further listed in the regulations. But, there are no such
If the first scenario has not happened, it is most likely that
the second has. When reading the above linked TSA regulations,
it is obvious that TSA has lots of contractual agreements with
airport authorities and air carriers. Most likely, the TSA
screeners that are seen today in airports are merely private
employees working for private contractors. Since TSA is a
federal agency subject to constitutional restrictions like the
4th Amendment, it cannot search an American without probable
cause. However, it has imposed on airport operators a duty to
screen passengers. Do you not think that it is these airport
operators, responding to pressure from TSA, who are buying these
body scanners from Michael Chertoff, former Secretary of
Homeland Security? Chertoff now works for the company that makes
these body scanners!
Who are these “TSA employees”: are they public or private? If
they actually are official TSA employees, they are exposing the
public to bodily harm without authority. Would a Bivens action
be appropriate? But if they are private, we need to learn for
whom these people work and everybody else who is involved in the
manufacture and use of these harmful devices. We need this
information for the inevitable lawsuits that will arise.
A few relevant cases:
United States v. Lee,
106 U.S. 196, 1 S.Ct. 240 (1882): Arlington, Lee's estate,
subject of litigation, the United States claiming ownership via
tax sale some years earlier. In holding for Lee's heirs, the
"No man in this country is so high that he is
above the law. No officer of the law may set that law at
defiance with impunity. All the officers of the government,
from the highest to the lowest, are creatures of the law and
are bound to obey it. It is the only supreme power in our
system of government, and every man who by accepting office
participates in its functions is only the more strongly bound
to submit to that supremacy, and to observe the limitations
which it imposes upon the exercise of the authority which it
gives," 106 U.S., at 220.
"Shall it be
said... that the courts cannot give remedy when the citizen
has been deprived of his property by force, his estate seized
and converted to the use of the government without any lawful
authority, without any process of law, and without any
compensation, because the president has ordered it and his
officers are in possession? If such be the law of this
country, it sanctions a tyranny which has no existence in the
monarchies of Europe, nor in any other government which has a
just claim to well-regulated liberty and the protection of
personal rights," Id, at 220-21.
See also Regents of University System of
Georgia v. Carroll, 338 U.S. 586, 597, 598, 70
S.Ct. 370 (1950)("As an administrative body, the Commission must
find its powers within the compass of the authority given it by
v. National Lead Co., 352 U.S. 419, 428, 77 S.Ct.
502 (1957)("the Commission may exercise only the powers granted
it by the Act"); Civil Aeronautics Board v. Delta
Air Lines, Inc., 367 U.S. 316, 322, 81 S.Ct. 1611
(1961)("the fact is that the Board is entirely a creature of
Congress and the determinative question is not what the Board
thinks it should do but what Congress has said it can
do."); Ramirez de Arellano v.
Weinberger, 745 F.2d 1500, 1523 (D.C. Cir.
1984)("[W]hen an officer acts wholly outside the scope of the
powers granted to him by statute or constitutional provision,
the official's actions have been considered to be
unauthorized."); and Outboard Marine Corp. v. Thomas,
610 F.Supp. 1234, 1242 (N.D. Ill. 1985)("Acting without
statutory power at all, or misapplying one's statutory power,
will result in a finding that such action was ultra vires.").