Location: Newport Beach, California, USA (Recently of San Francisco)
Programs: UA-1P,SPG-Gold,Marriott-Silver
Posts: 10,357
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Originally Posted by TSORon
“coercive situation” on the checkpoint is an opinion. One that has not yet reached a court (that I am aware of).
Not with respect to TSOs, at least not that I'm aware of. So what? It's very clear that, under no circumstances, is anyone required to answer your questions. I've already posted the Fifth Amendment.
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And I dearly hope it never does. As should you.
On the contrary, as an attorney I took an oath to uphold the Constitution. As TSA continues to try and push its authority beyond Constitutional limits, I most certainly do want to see it challenged in court.
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Can you imagine the changes in policy that the TSA would have to institute to make up for the ability to ask questions of the passengers?
I never said you can't ask questions. I said you can not require answers to your questions. Big difference.
I assume you'll get to it, but in a later post I asked this:
Could you provide an example of a "legitimate question" that you might ask in the course of performing the administrative search to ensure that a passenger doesn't have weapons or explosives?
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Draconian, oppressive, and every bit of it legal. Be careful what you ask for…
Again, incorrect. TSA can't usurp powers beyond those available to it under the Constitution. Ever. Period.
In my personal, non-professional opinion, TSA is already draconian and oppressive (and close to useless -- as I've said many times, the checkpoint screening (and BDOs and gate screenings) are all a dog-and-pony show, and will remain such as long uninspected cargo and U.S. mail are placed on commercial passenger planes.
Being that I was a helicopter guy, your explanation seems to clear the air Believe me though, the idiot who climbed up the aircraft using the pitot probe should be FIRED.
Instead, he was probably promoted.
__________________ Department of Homeland Security sounds better in the original German: Heimatsicherheitsministerium
Location: Newport Beach, California, USA (Recently of San Francisco)
Programs: UA-1P,SPG-Gold,Marriott-Silver
Posts: 10,357
Quote:
Originally Posted by TSORon
Quite. But it is not the only law, it is the basis for our laws.
Incorrect. It is the source of our law in that it strictly delimits the powers available to the government. Under no circumstances can the government exceed these powers.
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It itself is based on other laws, laws from other nations and other times.
I have no idea what you mean by, "based on other laws." The Constitution is a positivist document that implements the jurisprudential concepts of the Declaration of Independence. That document is based on Natural Law, and only Natural Law. Natural Law isn't a "law from other nations and other times," but a conception of human social interaction, first described by Aristotle but not originating with him, that says we all share universal values by virtue of being human, and government may have only as much power as we willingly cede to it in the interest of effective social organization.
Do you really want to argue constitutional theory with a lawyer?
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I asked you to be specific, you couldn’t.
The Fifth Amendment is perfectly specific.
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Sorry, such a broad brush as the 5th amendment is not even close to specific. Support your case counselor, or admit you cant.
I see you are quite ignorant about how our system of laws work. You seem to be assuming that, unless Congress passes a statute that says, "No one has to answer TSO questions," it's perfectly legal to insist that they do.
That's not the way this country's legal system works.
First of all, TSA is an administrative agency and, as such, enacts its own regulations, policies and procedures that, in theory, should be in accordance with the directives of Congress. Those regulations, policies and procedures must be Constitutional to be legal, because the government cannot usurp powers not granted to at formation (or subsequently through constitutional amendment). When TSA, through its TSOs, enacts a regulation, policy or procedure that exceeds the powers granted to the government by the Constitution, that regulation, policy or procedure is illegal and void from its inception (the legal term is, "ab initio"). No one has to comply with an illegal and unconstitutional rule, regulation or procedure.
When the rule, regulation or procedure is challenged in court, the judiciary, which is the branch of government to which the determination of constitutional compliance is committed, will evalute the challenged rule, regulation or procedure and rule it either constitutional or unconstitutional. When it is ruled unconstitutional, this is not a "new law," but a determination that the action taken by the government actor was illegal from its inception.
Lots of people who don't understand either the Constitution or the jurisprudence that underlies it, think that the government can pass and enforce any law that it wishes, and that, until it's past as a law, the right it is intended to enforce doesn't exist.
That is completely wrong. The government is not the source of rights in the U.S. Those rights are inherent in the people (read the Declaration of Independence -- and Aristotle), and that small portion of rights that have been expressly ceded under the Constitution at formation (and through amendment) demarcate the limits of government power.
The Fifth Amendment clearly delimits the power of the government to compel testimony.
This, by the way, is high school civics. Did you cut class, or what?
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Sorry, but after all that I am concerned about your claims of being an attorney.
My California State Bar No. is 160552. Feel free to forward your concerns to the State Bar.
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The 5th amendment indicates MANY things, and if that is all you can bring to the table you need to go back to class.
The Fifth Amendment says this: "No person . . . shall be compelled in any criminal case to be a witness against himself," which is the part that is relevant to this discussion. You can engage in silly and inane insults all you want, but it doesn't change the fact that you haven't any idea what you're talking about AND you are completely wrong.
What you have done is provide support for my argument that airport security should be the exclusive province of law enforcement officers, the overwhelming majority of whom understand the constitutional limits on government power as well as any lawyer. When security is left to ill-educated and untrained amateurs, who are given what, in their minds, is unlimited authority "to keep us safe," abuses can, and frequently do, result, with no increase in safety.
This, by the way, is high school civics. Did you cut class, or what?
You're really dating yourself. Civics was replaced by Black History Month about 30 years ago. Telling teenagers that they have civil rights was deemed subversive and any teacher that does it will be terminated for cause.
__________________ Department of Homeland Security sounds better in the original German: Heimatsicherheitsministerium
Being that I was a helicopter guy, your explanation seems to clear the air Believe me though, the idiot who climbed up the aircraft using the pitot probe should be FIRED.
We're in agreement with that. If a person doesn't know what they are doing around aircraft then they need to keep their hands in their pockets so as to not damage anything. At a minimum a person should read and heed the warning signs. Too bad the OAT probes had cooled off. That would have presented an interesting situation for that TSI.
You are a suspicious character, I can pass along anyone I like to secondary screening based on nothing more than gut feeling, or nothing at all. I can also pass anyone, for the same reasons, or no reason. Its all within the boundaries of procedure. Because I’m not doing anything to you that I wont do to the next guy or gal, for any reason, or none.
Do you honestly mean "for any reason"? So TSA's procedures would allow a TSO, for example, to refer every person of a particular skin color to secondary screening because "them [insert slur here]s are all suspicious"? Somehow, I'm guessing that would set TSA up for a massive civil rights lawsuit ... and that TSA wouldn't really allow that much flexibility.
So, what guidance are you given? Surely it's more than just "they look suspicious"?
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Originally Posted by TSORon
Its not a criminal proceeding or investigation, I can’t hold anything against you at all.
But it could be a prelude to a criminal proceeding. If you find that my silence is "suspicious", and refer me to a LEO for further investigation based on your "probable cause", my silence now is in fact being used against me in a criminal proceeding.
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Originally Posted by TSORon
Usually, you go out the same way you went in. My dog can do that, you shouldn’t have any problems.
And your dog (a) goes that way every day, (b) isn't hauling a coat, a rollerboard, a briefcase, a government-issued ID, and a boarding pass at the same time, and (c) isn't stressed out about the events that led him into the room. It's easy for most people to become disoriented under stress.
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Originally Posted by TSORon
Everything in life has consequences, either good or bad. Failing/refusing to answer a legitimate question has its consequences. You call the tune, you pay the piper.
But you presume that the question(s) we are discussing are legitimate. Clearly, in the STL case, the questions weren't legitimate; $4700 in cash is not contraband (even in TSA's definition), and does not present a threat to aviation. The questions regarding the money's origin and destination would not have helped the TSO to clear the money for travel.
Of course, informing the TSO that their question isn't legitimate is liable to create accusations of non-compliance with TSO instructions, thereby escalating the incident ... and at that point, everyone loses.
Location: Newport Beach, California, USA (Recently of San Francisco)
Programs: UA-1P,SPG-Gold,Marriott-Silver
Posts: 10,357
Quote:
Originally Posted by PTravel
I am curious. Could you give me an example of what you consider to be a "legitimate question" that you might ask as part of the administrative search procedure?
Does my refusal to answer your question about the item you're holding have any effect on how you will proceed to clear or deny the item?
I believe Bart has already answered this (albeit reluctantly). His answer was, in effect, that there is nothing you can say that will cause him to clear an item about which he has suspicions.
Was it?
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Originally Posted by Bart
If a TSO were searching for a tube of toothpaste that exceeded the 3:1:1 restriction, and found a plastic baggie containing a white powdery substance right next to the tube of toothpaste [...]
I do not find it unusual if the supervisor inquired about the contents. If the passenger acted nervous, or evaded answering any questions, then, like it or not, you have an unresolved security issue. [...]
If, on the other hand, the passenger cooperated by explaining that the baggie was really a baking soda compound, for example, used in conjunction with brushing teeth, and the passenger didn't exhibit any nervous behavior, then the supervisor may determine that there's no need to pursue the matter any further.
But later, in response to my question, "Will you vary the thoroughness of your examination of the suspicious substance based on the person's responses to your questions?", Bart responded, "No."
If you're not going to vary the thoroughness of your examination of the substance based on the person's responses, then what use are they to you? In other words, if you are able to determine whether or not the substance is a weapon, explosive, or incendiary without questioning the person about his property, and you are not going to reduce the need for you to examine the substance by questioning the person, then why would you question him?
Earlier, you wrote:
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If the passenger acted nervous, or evaded answering any questions, then, like it or not, you have an unresolved security issue.
I don't understand how someone's words and actions can affect whether or not his suspicious-to-you substance is "an unresolved security issue". It seems that you're saying that a certain level of cooperation with your interrogation would, like it or not, result in you having a resolved security issue.
Your statement suggests to me that your opinion of whether or not the substance is a weapon, explosive, or incendiary will vary based on the words and actions of the owner of that substance. Is this the case? If so, then it would be wise for anyone who wishes to carry a white powdered explosive past you and onto an airplane to act confident and answer your questions. Do you feel that you are improving air travel security by allowing people with suspicious substances to slip through with a less-thorough search if they confidently comply with your questioning?
And that's why I keep posting that no one should ever respond to any questions from a LEO or TSO, other than those of the innocuous, "how's the weather?" sort.
I don't even answer that kind of question if I believe the TSO asking is running his/her own little BDO operation.
One of the IAD TSO's - an older gentleman who obviously had a more important job at one time - loves to practice subtle interrogation as he examines your ID and boarding pass. I've figured out his game, and I refuse to say word one to him. Last time we met, he ended my check with an earnestly sarcastic "have a nice day, sir," and I just smiled. I know it burns his a** every time he sees me coming.
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Originally Posted by PTravel
In your most recent point on the subject you said this:
"Asking a question "may" be considered to be interrogation, but only if one chooses to think of it as such."
That is incorrect as a matter of law. Any question asked by a state actor in a coercive situation is interrogation and no response is required.
What you and many TSOs do not seem to understand is that, when it comes to Constitutional rights, the law is rigid and unyielding. And this is for a reason: TSA routinely pushes the envelope of constitutional protections (and frequently exceeds it) in the name of security. The Constitution of this country does not permit the compromise of personal liberty in the name of security and, frankly, if that means a plane blows up rather than the government establishing itself as a tyrant in contravention of the Constitution, THAT is what our constitutional government requires.
The TSA does not. The threats of fines after the airline made this public makes that clear. And wasn't that the same airport that they tried to fine because their security treated a red team like terrorists?
Which is why the airlines are bigger sheeple than the Kettles. And why the airlines are now reluctant to bring safety matters to the attention of the Feds.
"We'll just fine those that are whistle blowers!".... sorta defeats safety reporting, doesn't it?
Believe me though, the idiot who climbed up the aircraft using the pitot probe should be FIRED.
