With summer travel in full swing, nearly two million Americans every day are subject to airport security that’s invasive and dubiously effective. Travelers may now be able to post one-star reviews of their poor treatment on Yelp, but that doesn’t address the real problem with airport security: current screening methods are illegal.
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In July 2011, the U.S. Court of Appeals for the D.C. Circuit ruled that the Transportation Security Administration (TSA) broke the law when it rolled out body scanners, because the agency did not go through the rulemaking process established by Congress. Now, in August 2015, the TSA still hasn’t complied with the court’s mandate that it go through the proper rulemaking process.
This means the American people have no way to hold the TSA accountable in court for employing these invasive and ineffective machines. The TSA has been doing as it pleases, kicking the can of accountability further and further into the future. It is time for the TSA’s lawlessness to end — that is why our organizations, the Competitive Enterprise Institute, National Center for Transgender Equality, and The Rutherford Institute, filed suit on the four-year anniversary of the ruling, asking the court to compel the TSA to complete a body scanner rule within 90 days. (They are being represented by CEI’s attorneys.)
The TSA started using whole-body imaging scanners to screen airline passengers back in 2008. But the agency never proposed updated regulations, solicited public comments on its body scanners, or published its rules in the Federal Register. Under the federal Administrative Procedure Act, however, the TSA is supposed to take these steps before it revises its screening policies.
In 2012, the TSA tried to explain away its inability to complete the regulatory process, saying it needed to fill “three current vacancies for economists.” This is laughable. The TSA has more than 50,000 full-time equivalent employees; it spent nearly $7.4 billion in 2014. In fact, Congress has noted that TSA has more employees than “the Departments of Labor, Energy, Education, Housing and Urban Development, and State, combined.” And the TSA’s parent department, the Department of Homeland Security, employs more than 1,800 attorneys. The TSA’s claim that it lacks the budget and personnel to comply with federal law and a court’s mandate is simply absurd.
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The TSA’s continued lawlessness is especially troubling in light of recent reports about the agency’s abysmal performance. On June 1, 2015, ABC News broke a story about a leaked Department of Homeland Security Inspector General audit of the TSA’s airport screening practices. The classified study found that the TSA failed to detect an astonishing 96% of weapons and explosives that investigators tried to smuggle through airport security. Given that body scanners remain the main tool the TSA uses to screen airline passengers — with a prison-style pat-down the only alternative — this report casts serious doubt on the TSA’s claims that the machines are effective safeguards.
Lawmakers in Washington are also skeptical of the TSA’s ability to protect American travelers. In 2011, Rep. John Mica, who co-wrote the law creating the TSA, said in a hearing that he had the body scanners tested by the Government Accountability Office. Although that study remains classified, Rep. Mica said that if Congress “could reveal the failure rate, the American public would be outraged.” After the inspector general’s report was leaked in June, Sen. Ben Sasse said that “[t]he administration has an obligation to responsibly declassify the inspector generalʹs investigation and to publicly release everything else it knows about TSA’s failures.”
We may differ in why we are concerned about the TSA’s body scanner policy, but we all agree that the TSA should be required to follow the law. The TSA must finally publish a final rule on how it uses body scanners in airports. Until then, the agency’s actions will continue to be shielded from public scrutiny and transportation safety will continue to be threatened by bureaucratic lawlessness.
Marc Scribner is a Research Fellow at the Competitive Enterprise Institute, Harper Jean Tobin is Director of Policy at the National Center for Transgender Equality, and John Whitehead is President of The Rutherford Institute. All three organizations and Scribner are co-petitioners in the lawsuit over the TSA’s body scanners.
Anthony L. Fisher is a senior editor and opinion columnist for MS NOW.