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An Arizona legislative bill is dead over conflicts with the TSA's agenda

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February 8, 2011

By Eileen McGuire-Mahony

TSA Administrator John Pistole may have just shut down the Arizona legislature. The state's House was considering a bill that would have mandated the TSA be replaced with privately hired security professionals in all airports across the state. HB 2288, sponsored by Republican Rep. Jeff Dial, has been pulled from the Transportation Committee's calendar, and some legislators believe the Federal government was behind it.[1]

If Arizona lawmakers are right that HB 2288 has been pulled from the legislative calendar over, “some move by the federal government”, as Rep. Chester Crandell, said, the potential implications for states rights and partnerships across levels of government are daunting. Rep. Dial's bill on airport screening picked up 15 sponsors and made it though second reading on January 24, 2011, before being assigned to the Transportation Committee. However, the agenda for the Committee's January 27, 2011 meeting shows the bill struck off.

Some pundits panned the bill ahead of its disappearance from the calendar, arguing that private airport security was in fact a major cause of the 9/11 attacks.[2]

Created in the frenzy of security legislation that followed the September 11th attacks, the Transportation Security Agency and its parent, the Department of Homeland Security, have exploded in size and budget. At the end of October 2010, the TSA announced new 'security precautions': invasive physical searches of passengers that included handling peoples' genitals and increased use of x-ray machines despite a lack of clear evidence the millimeter radiation is safe for use on the proposed scale.[3][4][5][6]. Within days of the new policy, leaked images of naked travelers began hitting the Web[7][8]

Pistole and his supervisor, DHS Secretary Janet Napolitano, herself a former Governor of Arizona, later admitted the surprise roll-out of the new searches was a poor public relations decision; they also admitted the searches were invasive and unpleasant, perhaps even humiliating, but both figures were insistent that nothing less was acceptable in the face of what they described as looming and constant terrorist threats.[9][10][11][12][13] When Pistole announced there would be no roll-back of the new searches, derisively dubbed 'gate rape' and 'porno scanners' by civil rights activists and privacy advocates, a little known clause of the legislation authorizing the TSA came into play. Any commercial airport in the U.S., so long as it screens passengers to TSA standards, is free to opt out of having actual TSA employees on its grounds, and may instead hire private security.[14]

Florida Congressman John L. Mica, an author of the TSA law, publicly encouraged airports to do just that. Amidst reports of inappropriate behavior and sexually grotesque comments from TSA workers reveling in their power over travelers, the idea gained some traction.[15][16][17][18][19][20][21][22][23][24][25][26][27] Private employees were seen to be easier to discipline and fire, thus making them friendly toward passengers. Low hiring standards for the TSA, which does not even require a high school diploma, were also cited as reason to look elsewhere for security personnel.[28] When an Atlanta TSA employee allegedly abducted and raped a female passenger and was later found to have been convicted of harassment and stalking in the past, fresh public opprobrium was heaped on the agency.[29][30][31][32] The Agency itself had to confirm that neither stalking nor harassment are considered disqualifying behaviors among its job applicants and was left red faced trying to explain how its touted careful screening of all employees was unable to detect the alleged attacker's instability.[33][34]

However, at the same time, the TSA was pushing for collective bargaining rights, something President Obama has been promising since his campaign days. His first two nominees to head the TSA were both forced to withdraw their nominations over GOP objections, related to nominees' personal conduct but also to an unwillingness to have a TSA Administrator so keen on unionizing.[35] However, John Pistole did pass his confirmation hearings. Having largely survived the outcry over invasive searches, last week Pistole announced that he was using his prerogative as the TSA Administrator to disallow any further applications from airports to replace the TSA with private workers.[36][37] Only days later, the TSA won its collective bargaining.[38][39]

Pistole immediately announced his agency would not consider any applications to replace the TSA with private workers not already submitted and indicated his decision was final. While Federal authority on anything deemed to relate to national security will likely crush any serious state attempt to challenge the TSA and its Administrator, Pistole's ruling was on private airports and their security decisions, not on individual state legislatures.

While neither the TSA nor the DHS has spoken directly on whether Arizona can pass a statewide law that clashes with a TSA order, Arizona isn't waiting to find out. The state is testing the idea of enshrining nullification in law. Nullification is a pillar or states rights - the belief that a state may vote to ignore a Federal law it finds invalid or unconstitutional. This session, at least 17 bills, in play in both the Senate and the House, seek to give Arizonans wider powers in refusing to abide by Federal laws seen as overreaching or illegitimate. Leading them all is Lori Klein's SB 1433, a proposal to set up a 12 member committee to review all Federal legislation and decree that both the state and its residents "shall not recognize or be obligated to live under the statute, mandate or executive order."[40]

Democrats contend that Klein misunderstands the concept of dual sovereignty and pointed her to the courts. Klein responded that she is well aware of the availability of the courts as a source of redress for citizens and states who disagree with Washington, but pointed to the cumbersome and expensive process of litigating Federal law as a deterrent to anyone using the system. Her bill specifically says that the only legal opinion Arizona should recognize in overriding its nullification rights is that of the U.S. Supreme Court. While Klein's bill went through second reading on the first of the month and Dial's bill may be finished, America's brief outrage at TSA practices appears to have dissipated in Arizona and elsewhere. For now, it's shoes off and business as usual in Arizona's airports.

References

  1. The Arizona Republic, “Arizona bid to hire private security denied by TSA”, February 8, 2011
  2. Blog for Arizona, "he coming week - legislative edition," February 1, 2011
  3. LifeScience, "David Brenner's Testimony before the Congressional Biomedical Caucus," accessed February 8, 2011
  4. National Public Radio, "Letter of Concern to Dr. John P. Holdren," April 6, 2010
  5. National Public Radio, "Scientists Question Safety Of New Airport Scanners," may 17, 2010
  6. Slate, "Groping in the Dark: The government's secret plan to feel you up at airports," November 23, 2010
  7. Privacy, Inc., "Feds admit storing checkpoint body scan images," August 4, 2010
  8. Gizmodo, "One Hundred Naked Citizens: One Hundred Leaked Body Scans," November 16, 2010
  9. Transportation Security Administration, "TSA Statement on New Pat-down Procedures," October 28, 2010
  10. Department of Homeland Security, "Privacy Impact Assessment Update for TSA Advanced Imaging Technology," January 25, 2011
  11. The Tucson Citizen, "TSA works to quell furor over screenings," November 23, 2010
  12. Los Angeles Times, "'Invasive' airport pat-downs not going away for the holidays," November 22, 2010
  13. NJ.com, "TSA official says controversial patdowns are 'more invasive,' but terror threat is bigger concern," November 17, 2010
  14. Transportation Security Administration, "Screening Partnership Program," accessed February 8, 2011
  15. Texas Straight Talk, "TSA- Bullies at the Airport," November 29, 2011
  16. MyFox Detroit, "Michigan Man Left Covered in Own Urine following TSA Pat-Down," November 23, 2010
  17. Newser, "Cancer Survivor Forced to Remove Breast in Pat-Down," November 22, 2010
  18. PNC Minnesota, "Rape Survivor Devastated by TSA Enhanced Pat Down," November 8, 2010
  19. San Francisco Chronicle, "TSA pats down a screaming toddler," November 16, 2010
  20. New York Post, "TSA pat-down of shirtless boy, 8, adds fuel to the ire," November 22, 2010
  21. Daily Mail, "'They were staring me up and down': Woman claimed TSA security staff singled her out for her breasts," November 22, 2010
  22. Daily Mail, "'Humiliated': Female passenger subjected to patdown 'because her sanitary towel showed up on body scanner'," November 26, 2010
  23. AOL News, "'Baywatch' Beauty Feels Overexposed After TSA Scan," December 6, 2010
  24. Orlando Sentinel, "Report: TSA apologizes for forcing boy heading to Disney to remove leg braces," February 16, 2010
  25. Washington Post, "The TSA is invasive, annoying - and unconstitutional," November 28, 2010
  26. American Civil Liberty Union, "The Audacity of Grope: TSA's New Pat-Down," accessed February 8, 2011
  27. American Civil Liberties Union, "Passengers' Stories of Recent Travel," accessed February 8, 2011
  28. Conde Nast Traveller, "Inside Job: My Life as an Airport Screener', march 2007
  29. La Grange News, "TSA employee accused of kidnap, assault," November 23, 2010
  30. WSBTV-2.com, "TSA Worker Accused Of Assault Had Prior Record," November 24, 2010
  31. CBS Atlanta, "TSA Employee Accused Of Kidnapping, Sexual Assault," November 23, 2010
  32. Atlanta Journal Constitution, "Hartsfield TSA worker allegedly abducts, assaults woman," November 23, 2010
  33. MyAntiwar, "TSA worker accused of assault did jail time for stalking, harassment," November 26, 2010
  34. Politico, "Report: TSA officer abducts, assaults woman," November 23, 2010
  35. Huffington Post, “John Pistole, FBI Deputy Director, Becomes Obama's Third Nominee To Head TSA”, May 17, 2010
  36. Boarding Area, "TSA Opts Out Of Letting Airports Opt Out," January 29, 2011
  37. CNN, "TSA shuts door on private airport screening program," January 29, 2011
  38. Transportation Security Administration, "TSA Administrator Pistole’s Decision on Collective Bargaining," February 4, 2011
  39. Wall Street Journal, "Government Grants Airport Screeners Union Rights," February 4, 2011
  40. East Valley Tribune, "Proposal would let Arizona legislators nullify federal laws," February 6, 2011