A search is a search

Amidst all the clamor from liberal defenders of the constitution about Bush's double secret surveillance program, it's interesting that a bastion of liberalism, the 9th Circuit Court of Appeals in San Francisco, had this to say about another form of searches without probable cause:

An appeals court on Thursday dismissed a legal challenge to federal airport regulations requiring passengers to show identification before they board planes.

Don't know about you, but last time I boarded a plane I was forced to show ID. I'm pretty sure they didn't have probable cause.

After reviewing the government's identification policy in private, a unanimous three-judge panel said the policy was not overly intrusive. The review was done in private for security reasons.

The court noted that the secret regulations allow passengers to fly without providing an ID if they submit to searches. The court dismissed assertions that such searches are unreasonable.

There's that word "unreasonable" again, as in the 4th Amendment. The same word is at the heart of the NSA spy controversy, used by the Bush adminstration along with presidential CIC powers to justify listening to Al Qaeda-US person phone calls.

Bush's detractors generally consider this an end-run around the constitution, yet to me it appears there is more constitutional argument behind the NSA eavesdrop than with TSA airport screeners. At least with the NSA program we presume they're listening to calls from known terrorists. Everybody is a terrorist at the airport.

Personally I don't like either intrusion, but both are practical trade-offs made in the name of security in an age of WMD. The interesting thing is the case was filed by a libertarian not a liberal, so let's see how much scorn is heaped on the 9th Circuit for this clearly unlawful violation of the 4th Amendment.

MORE 1/28/06

Andrew McCarthy responds to the NSA super-snooper critics and says, poppycock!

We are either at war or we are not. If we are, the president of the United States, whom the Constitution makes the commander-in-chief of our military forces, is empowered to conduct the war — meaning he has unreviewable authority to employ all of the essential incidents of war fighting.

Not some of them. All of them. Including eavesdropping on potential enemy communications. That eavesdropping — whether you wish to refer to it by the loaded "spying" or go more high-tech with "electronic surveillance" or "signals intelligence" — is as much an incident of warfare as choosing which targets to bomb, which hills to capture, and which enemies to detain.

Airport security screenings occur regardless of war or peace. The court of appeals argued that one has other travel alternatives, therefore the mandatory searches were "reasonable" and didn't violate the 4th Amendment. But with the NSA program, one also has other avenues to communicate, such as personal contact, snail mail or couriers. Theoretically one only becomes ensnared in the NSA's net if they choose to use certain methods of communication, and with suspected terrorists.

The glaring difference is that the NSA 'searches' are done without prior consent, but that sorta makes McCarthy's point--they are a counterintelligence operation enacted by the CIC after a major attack to protect the country. Conversly, the government treats everyone who chooses to board a commercial airplane as a terrorist at all times, and without probable cause. This should also infuriate those waving the 4th Amendment in Bush's face, right?

Looking back, not only did the Clinton administration embrace tougher airport screenings (without probable cause), but the Gore Commission even initially recommended racial profiling. We were at war then too, but few realized it and the complaints were minor in comparison. For the record, I'm only pointing out the inconsistency, not suggesting we stop these procedures.

MORE FROM THE NINTH CIRCUIT 1/31/06

They've ruled the partial birth abortion ban unconstitutional, due to no provision for the "health of the mother". I understand the construct, but can't help but wonder how abortion enhances the "health of the baby". Oops, forgot it was just a blob.

How does this relate to airport security? It doesn't, but hey--it's my blog and I can color outside the lines if I want to.