Invasive Searches and the Soul of the Democratic Party

11/23/2010 03:29 pm ET | Updated May 25, 2011

Since the Transportation Security Agency began deep searches of airline passengers, a firestorm of protest has broken out. YouTube videos and news reports have shown TSA agents in the unseemly role of asking pilots--who control the fate of planes and may carry arms--to submit to x-rated searches, women, from teenage to elderly, to allow hands inside their underwear and even children to strip.

The subtext of the deep searches is that flyers should allow themselves to be x-rayed by one of the new machines procured by TSA. However, a substantial number of Americans, including flight professionals, do not want to be x-rayed. Never mind the supposedly low level of radiation of these X-rays relative to the older variety. Anyone who remembers the abuse to which technology was put in the 20th century may reasonably wonder that it has come to Americans being X-rayed for security.

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." So says the Fourth Amendment.

In researching a forthcoming book on freedom, I looked up the history of this protection, present in a number of state constitutions before making its way into the Bill of Rights and before that in British and American common law. Like most of the freedoms in our Bill of Rights, it was expressly included as a reaction to previous abuse. The idea that a man's home is his castle, which developed in England, was a reaction to warrantless and general warrant searches used by the king's men for purposes of suppressing dissent and collecting taxes. In America, John Adams included a precursor to the 4th Amendment in the Massachusetts constitution in reaction to an epidemic of general warrant searches practiced by the British in the 1750s.

Conducted by the state, frisking of people without specific cause or an X-ray requirement to fly which is an essential part of modern life make a mockery of the 4th Amendment. X-rays also subject people to radiation that, however modest, threatens incrementally people's health. A threat to health, even if less significant than a knock on the head is a step beyond inconvenience. It is about fundamental human rights, the "life" part of "life, liberty and the pursuit of happiness" and it sits uneasily with many Americans. John Adams and Thomas Jefferson were intimately acquainted with despotism and protections from their study of hundreds of governments from classical days on down. Adams even wrote a book on the subject. They had no inkling of how technology would advance but could easily have predicted how despots would put it to use in the 20th century. X-raying people in the name of security is something one can readily imagine a Stalin--or other despot who did not believe in human rights doing--but would appear to cross the line in a free society.

That the X-rays and groping appear to be the result of two troubling features of modern American government-lobbying by well connected lobbyists on whom the companies lavished millions--and insulation of security decisionmaking from electoral oversight--makes it even worse.

The evidence suggests that the scanners and invasive searches provide limited security benefits at a high cost to freedom. However, the policy is also politically diastrous for the Administraion and Democrats. It makes Democrats--for decades the champions of civil liberties and freedom of person-appear callously statist. No doubt, some Democrats fear being soft on terrorism. However, depriving of millions of Americans of their 4th Amendment rights is a poor way to fight terrorism. There are much better methods out there starting with focusing in on those most likely to be terrorists using normal police techniques. We do not wiretap everyone to catch mobsters in New York's Little Italy. But officials at the TSA are doing the equivalent.

Simply put, the incremental value for air security of deep search and the X-raying of people is far outweighted by the cost of turning a free people into subjects.

Somehow, no one is getting what a disaster this is at 1600 Pennsylvania Avenue.

During the Bush Administration, Democrats spoke up bravely about civil liberties. Suddenly they are quiet. And the Administration has so far supported this unholy marriage of bureaucratic insularity and big budget procurement.

There is a better alternative.

On the eve of Thanksgiving, President Obama should cancel the gropings which do nothing to improve security and are a political and policy disaster, put the purchase of further scanners under review and thoroughly re-examine air security policy. A bi-partisan group should be commissioned to study the issue and provide recommendations. Doing so might put the President at odds with the bureaucracy but would demonstrate leadership that would win huge dividends with the people. It would be good policy and excellent politics.