Click to listen:  Jonathan Emord on Coast-to-Coast AM, December 13, 2011

Jonathan Emord appeared on George Noory’s Coast-to-Coast AM program on December 13, 2011 to discuss the Transportation Administration’s (TSA) misguided approach to security screening. He explained that the agency spent $57 billion in the past 10 years and maintains 65,000 employees, yet a recent investigation by Congress’s General Accounting Office (GAO) found that 17 known terrorists were able to travel, on 24 different occasions, and pass through 8 separate TSA screening locations.  “The whole thing, sadly, is a game of smoke and mirrors,” explained Emord.

This year Congress found that the TSA’s security measures have been more theatric than effective. In a report released November 16th, Congress disclosed troubling results of its investigation. Among those results, more than 25,000 security breaches have occurred at U.S. airports in the last decade despite a massive TSA presence.  Congress determined the TSA was a “top heavy” bureaucracy that has grown more than 400% since 2001 despite total airline passengers declining by 12%.  The result, according to Congress, is an agency whose primary mission has been neglected because its constant focus is on managing an “enormous and unwieldy bureaucracy.”

To maintain a semblance of effectiveness, the TSA pushed the limits of constitutional law, deploying evermore invasive procedures.  It is a “security theater” that may be outdated and minimally effective.  In hearings this past summer, Congress explained that TSA invested $122 million in body scanning technologies although it “remains questionable” whether those devices could detect the weaponry employed by terrorist groups.  In July hearings before the House Oversight and Government Reform Subcommittee on National Security, experts testified that the United States is now alone in treating its traveling public in this manner.  Voicing concern over the TSA’s decision to employ scanning devices, House Subcommittee Chair Jason Chaffetz (R-UT) quipped:  “Nobody has to look at my grandmother naked to secure an airplane.”

Have we given up more than we bargained for in a constitutional sense?  The Fourth Amendment limits government intrusion, particularly at times and in places where we have a reasonable expectation of privacy.  However, aviation security is largely immune from the Fourth Amendment’s limitation on warrantless searches, which are justified as regulatory schemes “aimed at a group or class of people rather than a particular person.” See People v. Dukes, 580 N.Y.S.2d 850, 851-52 (N.Y. 1992).  And the Supreme Court continues to uphold mandatory airport searches where the “risk of public safety is substantial and real.” See Tobias W. Mock, The TSA’s New X-Ray Vision: The Fourth Amendment Implications of “Body Scan” Searches at Domestic Airport Security Checkpoints, 49 Santa Clara L. Rev. 213, 231-32 (2009) (concluding that routine body-scan searches are unconstitutional).  Airport screening is a necessary precaution.  But given the TSA’s mismanagement of its core objectives, perhaps the courts should revisit just how long the constitutional leash extends.

This is a familiar debate that will continue until the TSA demonstrates that the methods used in airline safety are effective and proportionate.  If we are to sacrifice our freedom, shouldn’t we demand that our sacrifice be honored with an effective scheme?  For more on this topic listen to Jonathan Emord’s interview with George Noory above, and click here to read Congress’s November report discussing the TSA’s performance over the past ten years.


In the first hour of George Noory’s December 13th program, Emord also discussed the FDA’s attempts to regulate mobile medical apps and its court case concerning graphic images on cigarette labeling.  Please see our past blog entry here for more information on the FDA’s regulation of mobile medial applications, or contact any of the FDA lawyers at Emord & Associates.



— Peter Arhangelsky is a Principal with Emord & Associates and can be reached at (202) 466-6937 or

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