Friday 18 February 2011

Letter: Request for urgent oversight of US Transportation Security Administration

Following is a letter I sent today to several US government officials expressing concern over recent reports of abuses of power by the Transportation Security Administration.

Dear Sirs/Madam,
This letter goes out to my Congressional representative Edward Markey, my state Senators John Kerry and Scott Brown, Secretary of Homeland Security Janet Napolitano, and United States President Barack Obama. I write to you as an expatriated United States citizen who has cause to occasionally travel to the United States through its border controls. I am increasingly concerned about reports of abuses of power by representatives of the Department of Homeland Security (DHS), particularly agents of the Transportation Security Administration (TSA), facing air travelers. The case of Seattle resident Phil Mocek, who faced criminal charges brought by the police department of Albuquerque New Mexico, brings the problem into stark relief. The charges were criminal trespass; resisting, obstructing or refusing to obey a lawful order of an officer; concealing his identity with intent to obstruct, intimidate, hinder or interrupt; and disorderly conduct. The circumstances were such that Mr Mocek was asked by a TSA agent at Albuquerque International Sunport to stop filming during his security screening and refused. Mr Mocek was acquitted by a jury without presenting any evidence as the jury felt there was no case to answer. More information can be found here: Despite the court victory, I understand that Mr Mocek has not been compensated for his legal costs and that there has been no disciplinary action against any of the agents or officers involved, nor any corrective action on the part of the agencies involved. This is deeply troubling.

I understand as well, and please correct me, that the DHS have refused to furnish the text of standard operating procedures of TSA agents requested under the Freedom of Information Act (FOIA), instead only furnishing a list of SOPs some time after the deadline for disclosure under the FOIA had already lapsed. It would appear, rather alarmingly, that there are no laws or published regulations defining what the TSA is permitted to do, and what travelers are required to submit to, in the name of TSA "screening". This is scandalous. How is it possible for a traveler to assert his rights in the face of such arbitrary authority? I would like to draw your attention to Title 49, subtitle VII, Part A, subpart I, chapter 401 of the United States Code which states:
(c) General Safety Considerations.
In carrying out subpart III of this part and those provisions of subpart IV applicable in carrying out subpart III, the Administrator of the Federal Aviation Administration shall consider the following matters:
(1) the requirements of national defense and commercial and general aviation.
(2) the public right of freedom of transit through the navigable airspace.

The "public right of freedom of transit through the navigable airspace" is guaranteed by the Airline Deregulation Act of 1978, and the TSA is required by federal law to consider this right when it issues regulations. Freedom of movement is required in order for citizens to exercise their First Amendment right to assemble, and is also guaranteed by Article 12 of the International Covenant on Civil and Political Rights of which the United States is a signatory. It is extremely important that the procedures of TSA officials are known to members of the public so that their limitations are understood and that they can be scrutinized by law makers and the judiciary. I quote the following excerpt from a Wikipedia article about the TSA:
"Private screening did not disappear under the TSA, which allows airports to opt out of federal screening and hire firms to do the job instead. Such firms must still get TSA approval under its Screening Partnership Program (SPP) and follow TSA procedures.[7] Among the U.S. airports with privately operated checkpoints are San Francisco International Airport; Kansas City International Airport; Greater Rochester International Airport; Tupelo Regional Airport; Key West International Airport; and Jackson Hole Airport.[8][9]"

Evidently private companies can apply for TSA approval and be bound the TSA procedures. If private companies have access to these procedures then there can be no defensible refusal by the United States government to disclose these procedures to the public. I am quite frankly shocked and dismayed by this state of affairs. I demand that there be Congressional oversight of this government agency so that the balance of power may be restored. I offer you this outside perspective for your consideration: Your reply is urgently sought. Thank you and kind regards.

Yours sincerely,
Matthew Flaherty

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