Homeland Security Watch

News and analysis of critical issues in homeland security

October 15, 2009

“Do I have the right to refuse this search?”

Filed under: General Homeland Security — by Christopher Bellavita on October 15, 2009

Today’s guest author is Deirdre Walker.  She retired recently as the Assistant Chief of the Montgomery County, Maryland, Department of Police.  She spent 24 years as a police officer.

“Do I have the right to refuse this search?”

This is a question I heard many times during my law enforcement career.  Often my answer was no.  But occasionally it would be “yes,” followed by an admonition to have a good day.

For the last half of my career, I would have documented each interaction, whether or not it involved an arrest.  I would have written down the nature and length of the interaction, the gender, race, and age of the person, and the outcome of the contact (arrest, citation, etc.).

I carry the baggage of this history with me as I’ve traveled over the last eight years, mindlessly placing my luggage on the conveyer belt and removing my shoes for TSA inspection.

Recently, something changed.

Within the last few months, I have been singled out for “additional screening” roughly half the time I step into an airport security line.  On Friday, October 9, as I stepped out of the full-body scanning device at BWI, I decided I needed more information to identify why it is that I have become such an appealing candidate for secondary screening.

Little did I know this would be only the first of many questions I now have regarding my airport experiences.

Over these last few months, I have grown increasingly frustrated with what I view as an unjustifiable intrusion on my privacy.   It was not so much the search (then) as it was the embarrassment of being singled out, effectively being told “You are different,” but getting no explanation as to why.

That frustration has been tempered by a combination of my desire to be a good citizen, and my empathy for the TSA screeners.  These folks, after all, are merely doing what we, the American traveling public, have permitted and now expect them to do.

I am left to wonder whether my own passive acceptance of these evolving search procedures has contributed to a potentially fatal dichotomy:  what we allow TSA screeners to do in order to maximize efficiency and enhance our perception of safety, or what we really need them to do in order to preserve our rights and dignity and enhance our actual safety.

We have asked TSA to find the tools terrorists use and prevent both from boarding a passenger plane.  We have unintentionally created an agency that now seeks efficiency and compliance more than any weapon or explosive.

While returning my computer and shoes to their proper places, I watched the screening line at BWI.  I thought about the haphazard events surrounding the security screening process.  As I watched the screening officers, I wondered what information drives their decisions.  Left only to my observations, I concluded that their decisions were entirely random, and likely based upon three criteria:  passenger load, staffing, and whim.

I was left to conclude that I am not screened because I look like a terrorist. I am routinely screened because I look like someone who will readily comply.  I decided then that my next invitation to enjoy additional screening would be met with more inquiry.

I did not have wait very long.  On my return through Albany to BWI — Surprise! —  I got “randomly selected” for additional screening.

This time, I was “invited” to step into one of the explosive detection machines, commonly referred to as a “puffer machine.”  The traveller is exposed to short, intense bursts of air, which are then, supposedly, analyzed for trace residue.

I read an article awhile ago that suggested these machines are entirely ineffective.   I have subsequently observed that they now sit idle at many airports where they were originally installed (Tampa International, for example).  In recently renovated airports (San Jose) they have not been installed.  At some other airports (like BWI), they have been replaced by the body-scanning technology.

When notified by the cheerful screener that I had been selected for additional screening (the screener’s tone reminded my of the announcer who tells the contestant that she has just won a TV on the Price is Right), I stepped reluctantly toward the machine and asked her quietly whether I had the right to refuse the search.  I did not want to become a spectacle, or have to rent a car and drive back to Maryland.

The screeners face dropped and she appeared stunned, as if my question had been received like a body-blow.   She asked me to repeat what I said, and I repeated my inquiry regarding whether or not I had the right to refuse this search, especially since it was my understanding that the equipment did not work.  She responded defensively, “It sounds an alarm!”

What followed is what I can only describe as a process that left me with more questions and a hunger for something we need and something that has apparently been missing from TSA procedures since September 12, 2001: Data.

It is, again, important to note my general respect for the front line TSA screeners — with the exception of those screeners who feel that it is necessary to yell at people.  In my experience as a cop, as a supervisor and as a manager, I know that yelling at people is the one method guaranteed to ensure sub-par performance and a collapse of any semblance of cooperation.

My motivation to write this piece is first, to vent, but then to take a stab at the windmill that has grown from flawed processes to become a barrier to achieving the real mission and ultimate goal:  Passenger safety.

I believe, fundamentally, that our collective compliance with the current screening procedures has served only to undermine TSA, and has denied our screeners the tools they need to correct their course.

After realizing I was serious about refusing to step into the puffer machine, I was told that I would be subjected to a “full-body pat-down” and that all of my “stuff would be fully searched.”

I shrugged and waited while the screeners figured out what to do next.  One of the screeners said “Who is the supervisor?  Notify a supervisor.”  I waited two to three minutes with two female screeners.  I was then approached by a uniformed screener and the following exchange took place.

“She refused the puffer.  We are supposed to notify a supervisor.  You’re a supervisor, right?”

Apparently reminded of his role, the subordinate screener then said “We’re notifying you.”  She said nothing further.   The supervisor then informed me that if I did not step into the “puffer” I would be subjected to a full body-pat-down, that I would be “wanded” and that all of my belongings would be fully searched by hand.

By this time, my belongings had already passed through the x-ray and sat oddly unattended on the belt.  They had aroused no suspicion, either as they passed through the x-ray or as they sat completely unattended.  I thought it odd that my initial refusal to be subjected to the ‘puffer’ now rendered the x-ray examination effectively flawed.  I was being cajoled and was then offered the opportunity to change my mind, which, again, I thought rather odd.  If I posed such a risk by refusing the secondary screening, why would that risk be now mitigated, if only I were to change my mind?

I did not change my mind.  So, I stepped between two glass walls and was subjected to what my police training would allow me to conclude was a procedural vacuum.

I had been told repeatedly I would be subjected to a “pat-down.”  I correctly suspected otherwise.  During the course of my police career, I have conducted many pat-downs on the street.  The Supreme Court has described pat downs as a cursory check of the outer clothing of a person by a police officer, upon articulable suspicion that the officer’s safety is at risk of being compromised.  My department’s procedure indicated that this pat-down was to be conducted with an open hand, gently patting the outer clothing of an individual, for purposes of officer safety only, with the goal of detecting weapons.  In other words, it is not a search.

What happened to me in Albany was not the promised “pat-down.”  It was a full search conducted in full public view.  It was also one of the most flawed searches I have ever witnessed.

From the outset, it was very clear that the screener would have preferred to be anywhere else.  She acted as if she was afraid of me, though given that I had set myself apart as apparently crazy, perhaps I cannot blame her.  With rubber-gloved hands she checked my head, my arms, my legs, my buttocks (and discovered a pen that had fallen into one of my pockets) and even the bottom of my feet.  Perhaps in a nod to decorum, she did not check my crotch, my armpits or either breast area.

Here was a big problem:  an effective search cannot nod to decorum.

These three areas on a woman, and the crotch area of men, offer the greatest opportunity to seclude weapons and contraband.   Bad guys and girls rely on the type of reluctance displayed by this screener to get weapons and drugs past the authorities.  We train cops to realize that their life depends upon the ability to compartmentalize any apprehension about the need to lift and separate.  Fatal consequences can and do result when officers fail to detect a secreted weapon which is later used against them.

At the Albany airport,  I was left to wonder what kind of training the screener received. I was forced to conclude the answer might be “none.”  At a minimum, she needs re-training, assuming there is any policy or training that governs searches.  Further, after being repeatedly informed that I would be “wanded” by the metal detector in addition to the ‘pat-down,’ I was not.

Had I actually intended to move contraband past the screening point, my best strategy would have been to refuse secondary screening.

I am also forced to conclude that the purpose of the “pat-down” was not to actually interdict contraband.    In my case, I believe I was subjected to a haphazard response in order to effectively punish me for refusing secondary screening and to encourage a different decision in the future.

All of this is admittedly subjective, based on my perceptions at the time.  What is also entirely subjective is identifying which travelers are selected for secondary screening.

This is where I find myself now obsessing over TSA policy, or its apparent lack.  Every one of us goes to work each day harboring prejudice.  This is simply human nature.  What I have witnessed in law enforcement over the course of the last two decades serves to remind me how active and passive prejudice can undermine public trust in important institutions, like police agencies.  And TSA.

Over the last fifteen years or so, many police agencies started capturing data on police interactions.  The primary purpose was to document what had historically been undocumented: informal street contacts.  By capturing specific data, we were able to ask ourselves tough questions about potentially biased-policing.  Many agencies are still struggling with the answers to those questions.

Regardless, the data permitted us to detect problematic patterns, commonly referred to as passive discrimination.  This is a type of discrimination that occurs when we are not aware of how our own biases affect our decisions.  This kind of bias must be called to our attention, and there must be accountability to correct it.

One of the most troubling observations I made, at both Albany and BWI, was that — aside from the likely notation in a log (that no one will ever look at) — there was no information captured and I was asked no questions, aside from whether or not I wanted to change my mind.

Given that TSA interacts with tens if not hundreds of millions of travelers each year, it is incredible to me that we, the stewards of homeland security,  have failed to insist that data capturing and analysis should occur in a manner similar to what local police agencies have been doing for many years.

Some might argue that the potential for intrusion is not the same between police and TSA.  I believe my experience this past weekend demonstrates otherwise.   Currently, there is no way to know whether a certain male screener routinely identifies predominantly women for additional screening.  There is no way to identify whether a Latino screener routinely isolates African-Americans, or vice versa.  To assert that the screeners are highly trained and do not engaged in this type of discrimination, whether passive or active, is unsupportable because there is no data.  You simply cannot solve problems that you do not want to identify.

Finally, I am most concerned about the “random” nature of my repeated selection for secondary screening.  If there is no discrimination at work, and my selection is entirely random, then we have yet another, and probably more significant problem.

For years in policing, we relied on random patrols to curb crime.  We relied upon this “strategy” until someone went out and captured some data, and did a study that demonstrated conclusively that random patrols do not work (Kansas City Study).

As police have employed other types of “random” interventions, as in DWI checkpoints, they have had to develop policies, procedures and training to ensure that the “random” nature of these intrusions is truly random.  Whether every car gets checked, or every tenth car, police must demonstrate that they have attempted to eliminate the effects of active and passive discrimination when using “random” strategies.  No such accountability currently exists at TSA.

As I left the screening check point in Albany,  I looked over a few feet and observed an elderly Asian couple talking to “my” supervisor.  I unashamedly eavesdropped.

I heard the man say that his wife had not been told that the machine would blow air and that she had been quite startled.  The woman said she should have been informed and the supervisor agreed. He said he would speak to the screener (but again, who knows whether he actually did).

Then the  man said “And she should have been told she can refuse.”  The bells in my head were deafening.

I believe what we have here is the beginning of the end of complacency.  It is now apparent to me that in the haste to ensure compliance with procedures that are inconsistent if not inarticulable, TSA has hastened the likelihood of failure.  If we do not insist that TSA work to create articulable policies that make sense, procedures that are explicit and consistent and training that supports both, then we are complicit in what will inevitably be an ultimate compromise of TSA.

That compromise may come in the form of terrorist attack, or it may come in the form of a collapse of public support.  Either or both are inevitable. Either or both are preventable.

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214 Comments »

Comment by William R. Cumming

October 15, 2009 @ 2:41 am

A brilliant post and thanks Deirdre for taking the time and effort to right it. What do I conclude from my past experience, and note never in a policing function nor investigation of criminal activity, nor civilian security functions or activities. But hey I did run and inspect a nuclear surety program for several years.

Okay here goes. TSA has an authoritarian personnel management system and practices that have nothing to do with the goals and objectives for which they were created.

The overall objective of TSA is to provide a “Presence” at the airport and not a security system that is effective. Because neither TSA, nor the federal government, contols the totality of airport security the passenger screening effort is just to indicate to the uninformed and unexpert some evidence that there will be screening and thereby terrorists will be deterred.

Finally it indicates that TSA middle and higher management are just collecting salaries and really have no clue as to what the system is, not what they think it is. This is the type of unit activity I used to routinely flunk when an inspector, but only after documenting that the heirarchy not just the front line employees did not have a clue as to wheat they were doing, should be doing, or what to report or act upon.

These are harsh judgements. If I am right, and I think I am, then Deirdre has done a real service if someone empowered to do so does so. I have long advocated the return of TSA to DOT. I believe the fundamental reason for TSA inclusion in DHS was not anti-terrorism or counter-terrorism but to enlarge the body count (FTE)at DHS and to my knowledge the complete documentation of why TSA was included in DSH has never been released, studied if it exists by competent oversight or inspection, and probably reveals that I have accurately concluded the real reason for TSA inclusion in DHS. Another example where perhaps the unbalanced transportation security system we (the US) now has is because there is a fundamental disconnect from knowledge of transportation systems at the top of TSA. Hey, creation of TSA did take the burden of the security “Presence” off the airlines, which are heavily subsidized directly and indirectly, in so many ways including the tax code, that the fact that they are considered private enterprises is the biggest joke in our current system of corporate socialism. Airplanes are potential terrorist weapons as the world knows and almost all knowledgeable about their use or potential use knew long before 9/11. The fact that Condi Rice never thought they could be weapons is just another example of why a Sovietogolist missed the significance of the briefings she received when she became NSC adviser.
And I forget but does TSA have a confirmed appointee and deputy leading it now? Hey its only October of the first year of the Administration.

Comment by Poly

October 15, 2009 @ 10:41 am

I liked both the post..

Comment by S. Richards

October 15, 2009 @ 11:04 am

Ms. Walker has scored big time with this article. It’s sad that probably no one at DHS/TSA will take the time to read, digest and LEARN from her experiences and suggestions.

I, too, believe that the time is fast approaching when the public is going to rebel against the growing invasiveness of screening, i.e., WBI or a humiliating pat down. Further, the unwillingness or inability of the TSA to articulate how their procedures keep air travelers save (all shoes off or requirement to show ID)leads the thinking public to believe that TSA really doesn’t know if these requirements work at all.

Comment by El Walker

October 15, 2009 @ 11:46 am

Up with data! Up with thoughtful commentary!
One wonders if the writer will seek redress for the infringement of her rights, with the requested relief being adequate training of screeners and data collection….
Sometimes it’s clear that money is the only way to compensate a person for a wrong. That’s not the case here; You might instead choose to use this event to create actual leverage to help TSA evolve into a more effective organization, which is in everyone’s interest. (Easy for me to say….)

Comment by John Smith

October 15, 2009 @ 12:21 pm

Part of the difficulty lies with the nature of terrorism. Terrorism is an incredibly rare event. TSA has not found or stopped a single terrorist not because of anything it’s doing wrong (though there are many, many, many things TSA does wrong!) but because terrorism happens very infrequently. This is why there’s such a lack of data — it is literally impossible to measure TSA’s effectiveness at stopping terrorists. This is very different from crime; even in low-crime areas, crime does in fact occur, and data about that crime can inform police departments in setting and changing policy. TSA’s critical error is to take the lack of terrorist attacks on or against aviation as signs of its success, rather than a normal state of affairs, which its policies had nothing to do with.

Comment by Brendan

October 15, 2009 @ 2:44 pm

That is a great post. I can say that from my subjective experiences that the “random selection” is anything but random.

I have not been “randomly selected” in a few years, but I used to be selected almost every time I flew somewhere.

I used to have long hair for a guy. I have since cut about 10 inches off of my hair, and I am no longer “selected”. I have not been through any extra screening or bag searching since then. I must assume from my experience that it was my appearance that had me selected. Perhaps you will figure out why you get selected so often.

Comment by Christopher Bellavita

October 15, 2009 @ 3:08 pm

More comments on this post at http://bit.ly/LS8Wl

Comment by RAH

October 19, 2009 @ 12:13 am

The TSA are not COPS they do not have the authority to touch certain areas like the Police do otherwise there would be alot of people complaining that they were fondled. When you refuse to do something that you are asked to do that raises the alarm and it shows you maybe hiding something that is why there is additional screening. If you listen to the news you would know why the TSA is doing the procedures they are doing. Random screening is happing more and more so the people trying to get something by are being stopped. The shoes, look up REED. The liquid how are exploves created. When you go to board a plane do you know the person sitting next to you? or on the plane with you? They went through the same process as you so no one is different and there is nothing getting on the plane that is dangerous. If you don’t want to be screened then don’t wear baggy clothing or sweatshirts that are bulky. Instead of getting mad at the TSA’s for doing their job, try to understand what happened in the world for them to use the procedures. I like my Job and I feel like I am making a difference. Most of the TSA Personnel are prior Military not just someone from a fast food place.

Comment by mike

October 29, 2009 @ 8:19 am

RAH says, “Instead of getting mad at the TSA’s for doing their job, try to understand what happened in the world for them to use the procedures. I like my Job and I feel like I am making a difference. Most of the TSA Personnel are prior Military not just someone from a fast food place.

It seems like most of the complaints aimed at the TSA boil down to a perceived lack of consistency in how TSA rules are enforced and an apparent lack of accountability on the part of the TSA. In these regards, I would agree with RAH that people shouldn’t blame the TSA screeners, they should instead blame whoever’s running the show.

Ms. Walker points out that the TSA doesn’t seem to be reviewing its own procedures and personnel in the same way that law enforcement does. I don’t think that saying that “The TSA are not COPS…” excuses them in from adhering to good law enforcement procedures.

Note that prior military experience does not equate to law enforcement or security experience or skills.. Someone could have spent four years as a filing clerk in the Reserve and rightfully claim that they have military experience.

Comment by Jon

October 29, 2009 @ 8:41 am

RAH,

You missed the point of the entire article, which only serves to undermine your assertion that TSA procedures are effective and necessary.

First, you state that TSA doesn’t have the authority to do a full body pat down. If that’s the case, they it’s just “security theatre”, as security guru Bruce Schneier says. It doesn’t increase security, it just use as a tool of embarrassment and harassment to ensure compliance with the procedure at the next visit.

Second, you ramble on about the necessity for random screening. Again, you missed the point. The writer argued quite thoroughly for the need of data to ensure the randomness of the selection process, so as not to allow bias to creep into the process.

Third, you state that everyone on the plane has gone through the same process. Not only is that argument unsupportable (see the previous paragraph), but it supports that author’s argument that public complacency has pushed us into this farce in the first place.

You allude to the fact that you’re a TSA agent and you tell us that “If you don’t want to be screened then don’t wear baggy clothing or sweatshirts that are bulky”. Thanks for the tip, I won’t. And now that you’ve spilled the beans on the TSA’s selection criteria, neither will the terrorists.

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