OF THE TSA
by Larry Becraft
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.
the last year, the American public has been informed by its media that
“body scanners” are to be installed to replace the metal detectors.
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 9 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?
I consider 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.
To change 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".
The relevant sections of 49 U.S.C. that
relate to these “security screening operations” are the following
sections (these links go to FindLaw):
course, from these links to FindLaw 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?
Obviously 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.
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
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
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 Court stated:
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 Congress."); F.T.C. 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.").