Defense of Airport Body Scanners Undermined

(CN) - Classified TSA documents revealed by clerical error show that the agency does not think terrorists are plotting to attack airplanes, suggesting that nude body scans are unnecessary to protect passengers.

After Rapiscan developed "backscatter" body scanners using Advanced Imaging Technology in 2007, Jonathan Corbett sued the Transportation Security Administration three years later.

He claimed that the TSA procedures violated the Fourth Amendment's prohibition against unreasonable searches in requiring agents to touch the passengers' private areas and let them see clear images of the passengers' nude bodies.

Corbett claimed that the "the abstract risk[s] of terrorism without a credible, specific threat" does not justify the unreasonable screening procedures, which are performed without probable cause or a search warrant.

"The nude body scanners serve to palpate every inch of skin, this time with electromagnetic radiation rather than fingers," he wrote in a recent brief. "Every crevice, fold, and bump is turned into a picture of the traveler's nude body. It is, essentially, the high-tech version of an invasive pat-down."

After a federal judge found in 2011 that only federal courts of appeals can hear challenges to TSA orders, Corbett's case is now pending before the 11th Circuit.

In the course of discovery, the TSA gave Corbett classified documents, which he incorporated into the brief that he filed under seal.

A clerk at the 11th Circuit somehow neglected to place the document under seal, however, allowing the public to see the redacted information.

This mistake revealed the TSA's apparent admission that terrorists are unlikely to target airports in a subsequent attack.

"As of mid-2011, terrorist threat groups present in the Homeland are not known to be actively plotting against civil aviation targets or airports; instead, their focus is on fundraising, recruiting, and propagandizing," the TSA said.

In addition, the brief states that "the government concedes that it would be difficult to have a repeat of 9/11 due to hardened cockpit doors and the willingness of passengers to challenge hijackers rather than assume a hijacking merely means a diversion to Cuba. The government also credits updated pre-flight security for that difficulty assessment, but the assessment was written before the en masse deployment of body scanners and before the update to the pat-down procedure. Further, the government admits that there have been no attempted domestic hijackings of any kind in the 12 years since 9/11."

The nude body scanners are not very good at detecting explosives, and almost everything caught by the machine, such as guns, could be found using a traditional metal detector, Corbett says.

The only thing the scanners allegedly excel at over a metal detector is finding illegal drugs, which do not threaten the safety of passengers.

Because less intrusive, but equally effective, search methods exist, the TSA's use of nude scanners and full pat-downs is unnecessary and unconstitutional, according to the brief Corbett filed pro se.

"The limited support that the TSA has for the nude body scanners and pat-down procedures in Congress, in the eyes of the public, and in the courts so far is a direct result of the TSA's insistence that these devices are necessary to mitigate the threat of non-metallic explosives," it states. "When given the choice between sacrificing some of their privacy or risk being blown up, many people - especially politicians who would not want to have the finger pointed at them for being 'responsible' for allowing the next terrorist attack to happen - choose the former.

"However, this is a false choice, and the TSA has deliberately misled the public, Congress, and the courts into concluding that no less invasive alternatives can 'do the job.' At least three other technologies are available to the TSA for the purpose of screening travelers for explosives, and a review of the administrative record shows that the TSA's decision to use nude body scanners and pat-downs over these other technologies was arbitrary and capricious."

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