Wednesday, January 28, 2015

Detained and Cuffed Traveler Takes on TSA Overreach and Wins 25K Settlement

by Nomad

A five-year legal battle ended last month over the suspicious airport security agents handling of a passenger.  At the heart of the issue: Can there ever be a balance between our security and our civil liberties?

Nick George must feel the sweet satisfaction of closure after a settlement was reached last month  related to an August 2009 incident at a Philadelphia airport. While traveling from Pennsylvania to California George found himself in as absurd and frightening  situation as anything Kafka could have imagined.

Suspicious Minds
On his way to begin his senior year at Pomona College, George caught the attention of security agents at Philadelphia International Airport. As he  passed through the routine screening for his cross-country flight, Transportation Security Authority (TSA) agents asked him to empty his pockets. He was carrying a set of English-Arabic flashcards.

That's not too surprising since George was a Middle Eastern Studies major and had planned to fill up his flight time studying. He had in fact, recently completed a study abroad program in Jordan. Following his semester abroad, he also reportedly traveled to Egypt, Ethiopia, and Sudan. Traveling to Sudan is not a crime. Neither is carrying Arabic language flash cards but these facts were enough to make TSA agents highly suspicious. of George.

George recounts his experience:
After a half-hour delay at the security line, the supervisor showed up, and things turned from annoying to surreal. After looking at the book and flashcards, the supervisor asked me: "Do you know who did 9/11?" Taken totally aback, I answered: "Osama Bin Laden." Then she asked me if I knew what language Osama Bin Laden spoke. "Arabic," I replied. "So do you see why these cards are suspicious?" she finished.
The fact that there are at least 230 million Arabic speakers in the world seems to have gone over the heads of TSA agents. .

A search of his luggage revealed a book that was critical of the America's Middle East foreign policy- written by a Reagan administration official, Clyde Prestowitz. The book, Rogue Nation, it should be noted, was written by a conservative and is, like hundreds of other books, critical of the policies and practices of George Bush. Wikipedia points out that the book is "by no means anti-American." 
According to another account, when George was asked by security agents about how he felt about 9/11, he gave an "incredibly suspicious answer." 
"He said he hemmed and hawed a bit. 'It's a complicated question. But I ended up saying: It was bad. I am against it.'"
Certainly it might seem like a weak response but then the phrase "hem and haw" is an agent's subjective opinion. (In fact, George didn't have to answer any of the questions at all since he had not been charged with anything or read his Miranda rights.)

Hadn't any agent realized that potential terrorists would most certainly not have answered the question this way? Terrorists tend after all to misrepresent things under questioning and say whatever the agent wants to hear. A terrorist's answer would have been well-rehearsed and designed to allay suspicion. 

But there was even silliness about the interrogation. One agent's suspicions were aroused by George's new hair cut. Compared to his long hair in his Pennsylvania driver’s license photo, George's hair was much shorter. One agent reportedly claimed:
“That is an indication sometimes that somebody may have gone through a radicalization.
Never mind that George was returning to school after an extended summer break. 

Tough Guys
At this point, things got much worse, according to George. As the TSA officer was speaking to him, a Philadelphia police officer appeared and ordered George to put his hands behind his back. In full view of the other passengers, he was handcuffed and walked through the entire airport and into the police detaining area.
No one informed me of my rights, and no one would tell me why I was being not just searched but arrested by police, when I was in violation of no law. I had never been arrested, and no one knew I was there.
Based solely on these two items, George   would spend the next few hours being questioned by TSA, FBI, and Philadelphia police officials.
The police officer left me in a cell at the police station for several more hours. He did not uncuff my hands from behind my back. He did not tell me what I was being held for. He did not tell me how long I would be there. After about two hours I asked to go to the bathroom, and on the way back I again asked why I was being held. He answered me with the same attitude the TSA agent had shown me: "I dunno, what'd you do?"
By the time he was finally released, his flight had left and had landed at its destination.

Part Two
Most of us might have been furious but would have also been happy to drop the matter as soon as possible. Not Mr. George. In February 2010, the national ACLU and the ACLU of Pennsylvania filed a lawsuit on Mr. George’s behalf in the U.S. District Court for the Eastern District of Pennsylvania, charging that his treatment violated his First and Fourth Amendment rights.

After the government and the agents involved attempted to get the case thrown against them thrown out, the district court sided with the ACLU and ordered the case to move forward. The government lawyers tried a variety of legal maneuvers in court. The court however was not playing ball.

After five years,  a settlement was reached in December 2014 between the two sides in which the defendant, (the government officials) agreed to pay $25,000. In addition, the settlement requires some long-overdue administrative reforms. , For example, the Philadelphia Police Department is now required to amend its policies.
As law enforcement officers, they will be periodically instructed that they have an independent duty to establish probable cause before arrest, and cannot simply clap in cuffs anyone the TSA calls suspicious.
The Price We Pay?
Surprisingly perhaps there were people who supported decisions of the airport security. For example, in 2010, a columnist for The San Francisco Chronicle Debra J. Saunders wrote:
According to the complaint, a TSA supervisor questioned George "in a hostile and aggressive manner," while he was "polite and calm." Also, FBI agents questioned George to see if he was involved with any "pro-Islamic groups," then determined George was not a threat. However, the complaint alleges that FBI questions were "wide-ranging and strayed far from any conceivable criminal activity."
Boo hoo.
"Nick is not claiming to have been scarred for life. No one is trying to get rich off this," [ACLU attorney Mary Catherine Roper] told me. And: "What this is about is accountability."
Saunders thinks security is a more important issue than civil protections. George's complaints and legal action, she claims, is a recipe for airport insecurity. 
You see, if learning Arabic or traveling to the Middle East is enough to get you handcuffed and questioned by the FBI, then - Roper said this - "the terrorists have won."
Au contraire, if TSA staff, airport cops and FBI agents - the plaintiffs in this lawsuit - are afraid to do their jobs, then terrorists will win.
Better safe than sorry. In order to fight terrorism, we must do what we must do. And if a few laws are broken, a few constitutional rights are ignored, then that's the price we all must pay for living in a ... free society.  

The problem is, of course, where does it all stop? Where do we draw the line? When is there ever fool-proof security? If mandatory strip searches of all passengers could guarantee 95% security, would Saunders approve of that too?

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One organization, The Identity Project, provides advice, assistance, publicity, and legal defense to those who find their rights infringed, or their legitimate activities curtailed, by demands for identification.   One of its goals is to build public awareness about citizen rights. Below you can find their general guidelines for travelers in airports.