Is Fourth Amendment jurisprudence really waving terrorists onto airplanes? Semeraro on Crovitz and Airline Security
posted by Kaimipono D. Wenger
Gordon Crovitz recently discussed airline security in the Wall Street Journal, asserting that “foreign terrorists have . . . been granted Fourth Amendment reasonableness rights” and that this decision led to attempted-bomber Umar Farouk Abdulmutallab being “waved through” without a search when he attempted to board a U.S.-bound plane. Of course, if this description is accurate, then airline security needs a major rethinking. It’s an important topic, but one where the law is sufficiently complex that as a non-expert I can’t be sure of the right answers. Fortunately, there’s a Fourth Amendment expert down the hall, my colleague Steve Semeraro, who is familiar with the relevant law. I checked with Steve, and here’s what he had to say:
Crovitz reasons that, because the Obama administration applies a reasonable suspicion standard to determine who goes on the no-fly list, airline security searches cannot be based on hunches. If only we could have relied on a hunch that Abdulmutallab was up to something, well then surely he would have been searched. To be sure, the processes and procedures put in place by the Bush Administration failed to stop this attempted bombing. But this failure had nothing to do with the reasonable suspicion standard.
First, that standard applies only to the no-fly list. Under American law, anyone may be searched at the border, or its functional equivalent such as the door to an international flight headed to the U.S. Law enforcement authorities do not even need a hunch; they may search anyone who, for example, pays cash for his ticket and checks no luggage. So, the reasonable suspicion standard is utterly irrelevant to the security officials’ failure to search Abdulmutallab.
Second, even if the reasonable suspicion standard had applied, it would not have prevented a search. As any second-year law student knows, the reasonable suspicion standard is virtually the lowest standard applied in the American legal system. To be sure, it requires articulable facts to suspect an individual is up to no good, but it permits the drawing of reasonable inferences in interpreting those facts. It prohibits only the exclusive reliance on “inarticulable hunches,” that is those based on nothing more than say the color of someone’s skin or some other wholly inexplicable factor. Surely, the information available about Abdulmutallab far exceeded this standard, and he thus should have been prohibited from flying. To say as Crovitz does that applying the reasonable suspicion standard allowed “domestic law enforcement [to] trump prevention” is irresponsible and serves only to mask the real failure to share and disseminate information about suspected terrorism across intelligence agencies.
My own understanding of the Fourth Amendment is certainly non-expert; but I did think that Steve’s analysis made sense. It is intuitively reasonable (and quite reassuring) that we already have rules in place which should have kept Abdulmutallab off of the plane. What Steve’s analysis suggests is that the problem lies not with overapplication of domestic search-and-seizure law standards, but rather with a phenomenon we all see regularly — basic failure at the level of the bureaucracy.
(Image credit: Wikicommons)
January 13, 2010 at 3:54 pm
Posted in: Constitutional Law, Criminal Procedure, Current Events, Privacy (National Security)
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Responses (4)
A.J. Sutter - January 13, 2010 at 6:46 pm
Forgive my ignorance, but under Corvitz’s hypothesis, who overseas would make sure that Fourth Amendment niceties are being observed in airports in Amsterdam, Lagos or wherever? Are there US officers conducting searches at, say, all international airports with direct flights to the US?
John Byrnes - January 14, 2010 at 9:13 am
We don’t need profiling to identify Individuals like the Christmas-Day Bomber!
Virtually all media outlets are discussing whether we should be profiling all Arab Muslims; I will in the one-page explain why we don’t need profiling. Over 15 years ago, we at the Center for Aggression Management developed an easily-applied, measurable and culturally-neutral body language and behavior indicators exhibited by people who intend to perpetrate a terrorist act. This unique methodology utilizes proven research from the fields of psychology, medicine and law enforcement which, when joined together, identify clear, easily-used physiologically-based characteristics of individuals who are about to engage in terrorist activities in time to prevent their Moment of Commitment.
The Problem
Since the foiled terrorist attack by Umar Farouk Abdulmutallab, the Nigerian national on Northwest Flight 253 to Detroit, the President has repeatedly stated that there has been a systemic failure as he reiterates his commitment to fill this gap in our security. This incident, like the Fort Hood shooting, exemplifies why our government must apply every valid preventative approach to identify a potential terrorist.
The myriad methods to identify a terrorist, whether “no-fly list,” “explosive and weapons detection,” mental illness based approaches, “profiling” or “deception detection” – all continue to fail us. Furthermore, the development of deception detection training at Boston Logan Airport demonstrated that the Israeli methods of interrogation will not work in the United States.
All media outlets are discussing the need for profiling of Muslim Arabs, but profiling does not work for the following three reasons:
1. In practice, ethnic profiling tells us that within a certain group of people there is a higher probability for a terrorist; it does not tell us who the next terrorist is!
2. Ethnic profiling is contrary to the value our society places on diversity and freedom from discrimination based on racial, ethnic, religious, age and/or gender based criteria. If we use profiling it will diminish our position among the majority of affected citizens who support us as a beacon of freedom and liberty.
3. By narrowing our field of vision, profiling can lead to the consequence of letting terrorists go undetected, because the terrorist may not be part of any known “profile worthy” group – e.g., the Oklahoma City bomber, Timothy McVeigh
The Solution
Our unique methodology for screening passengers can easily discern (independently of race, ethnicity, religious affiliation, age, and gender) the defining characteristics of human beings who are about to engage in terrorist acts.
The question is when will our government use true “hostile intent” through the “continuum of aggressive behavior” to identify potential terrorists? Only when observers focus specifically on “aggressive behavior” do the objective and culturally neutral signs of “aggression” clearly stand out, providing the opportunity to prevent these violent encounters. This method will not only make all citizens safer, but will also pass the inevitable test of legal defensibility given probable action by the ACLU.
As our Government analyzes what went wrong regarding Abdulmatallab’s entrance into the United States, you can be assured that Al Qaeda is also analyzing how their plans went wrong. Who do you think will figure it out first . . . ?
Visit our blog at http://blog.AggressionManagement.com where we discuss the shooting at Fort Hood and the attempted terrorist act on Flight 253.
A.J. Sutter - January 14, 2010 at 9:40 am
“Who do you think will figure it out first”: the answer to this isn’t a foregone conclusion: it has, after all, been more than 8 years since Al Qaeda succeeded in attacking on US soil, thank goodness.
Ken Rhodes - January 14, 2010 at 6:25 pm
I am slightly bemused by the discussion of profiling, fourth amendment rights, etc., in the specific instance under discussion. Yes, as a general topic for improvement in our security apparatus, these are important points. But hey, the guy’s dad called us and said “my son’s gonna bomb you.” I think President Obama got it right–this is a MASSIVE breakdown in the apparatus, as regards information sharing and decision making.
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