Originally Posted by
Trollkiller
I don't see a problem explaining the it in court. A BDO does not need articulatable suspicion to order a more thorough screening as long as it falls within the "standard" administrative search. In
Davis the 9th Circuit Court seems to agree that a screening "by one or more of the following systems:
behavioral profile, magnetometer, identification check, physical search" is allowable under an administrative search.
If the responsibility is the LEO's from the hand off point the BDO should not see a court room if the LEO searches the PAX based on the fact that the LEO would need their own independent observation to see if the behavior exhibited rises to the level of probable cause.
If for some really odd reason a BDO had to testify as to his observations he would not need to reveal what "tells" lead to his conclusion that the PAX needed further screening.
BDO: "With my background experience and training I noticed certain small 'tells' that when taken together indicates a person is hiding a nefarious intent."
Lawyer: "What 'tells' did you observe that lead you to the conclusion that my client had a nefarious intent?"
BDO: "I am sorry the Department of Homeland Security has deemed that information is protected under SSI."
Ta-Da! The BDO is in the clear and the defense lawyer would need to take on the cop's articulatable probable cause.
I disagree, and I have been there, albeit in different kinds of cases in which the government's case hinged on real classified information. During the discovery phase, a decent defense attorney (who could very well be the prosecuting attorney if this was some sort of civil rights case brought by a wrongfully-accused airport visitor) would request any & all documents the government possessed relevant to the case. When the TSA whined "SSI", the attorney would notify the judge that the government claimed state's secrets and would ask the judge to compel the government to turn over the SSI information. The government would either turn over the materials or would file a state secrets writ. The judge, if he were a federal judge, would have access to any SSI or classified information in dispute or which he believed was relevant to his decision on introduction of SSI materials in the trial. Both attorneys could be cleared to the level of the material and discuss the matter in camera.
Most judges sincerely want justice to be done and take a hard line at the government's insistence to keep relevant classified information out of discovery or the actual trial. SSI doesn't even approach being real classified information. Some day, very soon, I hope, a judge will tell the TSA to deposit their precious SSI in an orifice or two.