March 13, 2012

The TSA, Civil Liberty, and Reason

By official policy, and the rulings of Federal courts, the TSA is forbidden from profiling aircraft passengers on racial or religious grounds. This safeguards a few from tedious and unpleasant searches. In principle, a minority has its civil rights protected – assuming that the passengers in question are U.S. citizens and are guaranteed such rights. In upholding this laudable principle, however, the TSA has been left with a serious procedural problem: How do you find a terrorist without being allowed to use the most obvious and salient criteria to narrow the list of potential suspects? The answer has been to search everyone, and to randomly search a few more closely.

Most people realize intuitively that this is not a very effective way to conduct a search. To show how thoroughly absurd it is though, let’s consider what might happen if the same kind of constraints where placed on another Federal agency, the Centers for Disease Control.

Imagine there were a sudden outbreak of a serious disease, perhaps a lethal form of influenza, in a major US city. New strains of influenza typically originate in China. Logically, the CDC might want to quarantine people who had recently travelled in China, and generally to search for people with recent connections to China. However, since this would inevitably inconvenience a certain minority, and could conceivably even stigmatize them as possible disease carriers, the CDC, in our scenario, would be disallowed from singling them out. Instead of quarantining travelers from China, it would be much fairer just to quarantine a few people at random, and to declare a universal curfew for everybody to cut down the rate of person-to-person contact. This would, of course, do little to slow the progress of the epidemic. It would keep the CDC just as busy though, and there would be a certain comforting feeling that some action was being taken. Everyone would be inconvenienced, most of them to no good purpose.

I am a civil libertarian at heart. I am well aware that singling out minorities is not a measure we should ever take lightly. The dark example of the internment of US citizens in the Second World War, for no greater crime than having Japanese ancestors, should neither be forgotten nor minimized. Nor should we imagine that the even worse persecutions that have occurred elsewhere are impossible here because Americans are, somehow, just better than that. We’re not. However, if we are to keep our liberty, we cannot allow the ideal of social equality to trump all others on every occasion. There is an enormous difference between a search of someone’s luggage on the grounds that they share a religion or an ethnicity with terrorists, and rousting that person from their home in the middle of the night and hustling them off to a concentration camp. Not only is there a difference in severity, but there is also a difference in kind. One does not follow inevitably from the other. If I share an appearance, a locality, and other characteristics with a criminal, I should not be surprised to find myself in a police line-up – but this does not mean the common characteristics I and the criminal possess are the objects of the state’s persecution. If a tall man commits a crime, it makes sense for the police to look for a tall man – but this does not mean being tall is a crime in itself.

Further, in the process of being “fair” to everyone by inconveniencing us all equally, the Federal courts have established a precedent that should alarm every one of us: the idea that the state may inflict a harm, albeit at present a small one, on persons who are obviously innocent in the name of a social good. When a TSA agent dutifully gropes a four-year-old or an elderly nun it is not done in the furtherance of public safety, but merely in the furtherance of an absolutist sense of fairness. To put this another way, the courts have taken the position that it is not objectionable to treat the public like cattle, so long as officials do not distinguish between the color or religion of the cows. Perhaps this does not lead inevitably to worse infringements either, but given a choice between the evil of profiling and the evil of universal abuse – at least the former achieves its original purpose.

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