Is Fourth Amendment jurisprudence really waving terrorists onto airplanes? Semeraro on Crovitz and Airline Security
Gordon Crovitz recently discussed airline security in the Wall Street Journal, asserting that “foreign terrorists have . . . been granted Fourth Amendment reasonableness rights” and that this decision led to attempted-bomber Umar Farouk Abdulmutallab being “waved through” without a search when he attempted to board a U.S.-bound plane. Of course, if this description is accurate, then airline security needs a major rethinking. It’s an important topic, but one where the law is sufficiently complex that as a non-expert I can’t be sure of the right answers. Fortunately, there’s a Fourth Amendment expert down the hall, my colleague Steve Semeraro, who is familiar with the relevant law. I checked with Steve, and here’s what he had to say:
Crovitz reasons that, because the Obama administration applies a reasonable suspicion standard to determine who goes on the no-fly list, airline security searches cannot be based on hunches. If only we could have relied on a hunch that Abdulmutallab was up to something, well then surely he would have been searched. To be sure, the processes and procedures put in place by the Bush Administration failed to stop this attempted bombing. But this failure had nothing to do with the reasonable suspicion standard.
First, that standard applies only to the no-fly list. Under American law, anyone may be searched at the border, or its functional equivalent such as the door to an international flight headed to the U.S. Law enforcement authorities do not even need a hunch; they may search anyone who, for example, pays cash for his ticket and checks no luggage. So, the reasonable suspicion standard is utterly irrelevant to the security officials’ failure to search Abdulmutallab.
Second, even if the reasonable suspicion standard had applied, it would not have prevented a search. As any second-year law student knows, the reasonable suspicion standard is virtually the lowest standard applied in the American legal system. To be sure, it requires articulable facts to suspect an individual is up to no good, but it permits the drawing of reasonable inferences in interpreting those facts. It prohibits only the exclusive reliance on “inarticulable hunches,” that is those based on nothing more than say the color of someone’s skin or some other wholly inexplicable factor. Surely, the information available about Abdulmutallab far exceeded this standard, and he thus should have been prohibited from flying. To say as Crovitz does that applying the reasonable suspicion standard allowed “domestic law enforcement [to] trump prevention” is irresponsible and serves only to mask the real failure to share and disseminate information about suspected terrorism across intelligence agencies.
My own understanding of the Fourth Amendment is certainly non-expert; but I did think that Steve’s analysis made sense. It is intuitively reasonable (and quite reassuring) that we already have rules in place which should have kept Abdulmutallab off of the plane. What Steve’s analysis suggests is that the problem lies not with overapplication of domestic search-and-seizure law standards, but rather with a phenomenon we all see regularly — basic failure at the level of the bureaucracy.
(Image credit: Wikicommons)