Originally Posted by
PTravel
It's a well-pleaded complaint. He's alleged specific violations and specific harm. He has standing. The complaint should survive a 12(b)(6) motion (failure to state a claim). If it survives the procedural challenge it will proceed on the merits. What will be particularly interesting is discovery.
I predict discovery is going to go something like this:
- Claimant requests all documents regarding the policies and decision making around implementation of body scanners and equivalent pat downs.
- Claimant requests all documents regarding safety research into the scanners
- Claimant requests all documents relating to test procedures and resulting metrics used to evaluate the machines.
- Defendant responds to all requests with motions to suppress based on Executive Privilege, or State Secrets Doctrine.
- Regardless of judges response to these motions, very few, if any additional documents that aren't public will be released. Any new documents that are filed will be filed under seal to protect competitive interests of OSIS/LLL or in deference to aforementioned Executive Privilege/State Secrets Doctrine.
- Defendant attempts to shut down the entire case on national security grounds and something about overwhelming public safety interest. This motion may or may not pass depending on how sympathetic the judge is to the case.
- If the case is still going at this point, legislative steps will be taken to retroactively protect DHS/TSA officials, and employees from legal consequences, a few congressmen will oppose it, but it will pass attached to a tax cut, defense spending, or other unrelated bill with wide support, and a fancy name like the Start Thinking Of the Children's and Kid's Safety Regarding Intrusive Scanner Energy act.
In other words, this case will be decided on existing publicly available information, and play out very similar to the NSA/AT&T warrant less wiretapping case. Hoping to get any new info about the new procedures or the history of their implementation through this lawsuit is wishful thinking at best. Regardless of the outcome, none will be held accountable for any laws broken, but *maybe* just *maybe* if we get lucky a judge along the way will have some common sense and at least put an end to the enhanced pat down madness.
Not a lawyer, but this has all happened before
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As you say, the best thing he has going for him is that he has clear standing even without additional data (one of the biggest problems with the warrant less wiretapping cases was that no single individual could prove standing while the government was exerting state secrets doctrine to keep from responding to any discovery requests)