Originally Posted by
SATTSO
In fofana the passenger was designated as a selectee, and per SOP EVERYTHING that passenger has on them must be searched for WEI. This is NOT a searched conducted because a TSO feels a prohibited item may be there. This is search conducted because of the recognition that TSA recognizes that nothing is perfect and WEI may pass through the x-ray undetected. So SOP dictates a through hand search of all selectees property to specifically look for WEI, as in fofana was done in fofana.
And as you stated, it does not matter what the TSO believes (as she stated she did not believe there were any WEI present, so she said she was looking for contraband). Her opinion was not relevant to why this search was taking place. But the judge had only the statements to go on, and not SOP, so I understand why the decision was rendered.
And I can tell you this: not one thing has had to be changed or re-written regarding selected searches because of this ruling. It is still conducted to find WEIs.
Edit: and I agree with you on another matter - the decision was based almost entirely on what the TSO said. If she has said she opened the envelope to look for WEI (such as an improvised det, which is easily hid in an envelope), I believe the decision would have been in TSAs favor.
Losing this case was 100% the fault of the TSA and the DOJ prosecuters. The screener admitted she wasn't looking for prohibited items. She stated (remarkably truthfully) that she knew there weren't prohibited items in the envelope and that she was looking for "contraband." You can bet that this is the last time that the TSA will allow a screener to testify in any court.
Concerning the bolded item, any federal judge, by virtue of their appointment and confirmation, can have access to any level of classified information necessary to adjudicate a case. (I've done this with TS/SCI information.) The judge reviews the materials
in camera with both attorneys present, who must be individually cleared. Your sacred SOP isn't even classified. So, there was simply no excuse (other than organizational arrogance) why the TSA didn't disclose whatever SSI was necessary in order to prove their case.
Fortunately, the American People capitalized on TSA arrogance --this time.