"Mission Creep" at TSA:
The perils of discretionary authority
5 Jul 2009 in Regulatory Policy, Litigation
Wall Street Journal aviation columnist Scott McCartney reports that the Transportation Security Administration's recent efforts to expand its domain into general law enforcement has encountered legal obstacles.
The Transportation Security Administration has moved beyond just checking for weapons and explosives. It’s now training airport screeners to spot anything suspicious, and then honoring them when searches lead to arrests for crimes like drug possession and credit-card fraud.
But two court cases in the past month question whether TSA searches—which the agency says have broadened to allow screeners to use more judgment—have been going too far.
The cases involve TSA's seizure of fake passports from one passenger, and its aggressive interrogation of another who was carrying a lockbox containing $4,700 in cash. In the latter case, TSA apparently threatened to arrest the passenger if he did not submit to its claim of authority. Neither fake passports nor lockboxes with cash pose any plausible security risk to air travel.
The passenger in the first case successfully argued that TSA had violated his Fourth Amendment right again unreasonable search and seizure. U.S. District Court Judge Algenon L. Marbley ruled that TSA violated the passengers rights because it has no statutory authority to search for anything other than weapons and explosives. The passenger was the treasurer of a political organization allied with Rep. Ron Paul's campaign for the Republican nomination for president, and while he was not arrested, he has filed suit against TSA with the help of the American Civil Liberties Union.
McCartney suggests that TSA may be engaged in "mission creep," a well-known phenomenon among government agencies that need to come up with new justifications for their existence after their statutory purpose has been accomplished. TSA's response to the second incident suggests that mission creep is indeed underway:
TSA spokesman Greg Soule says airport screeners are trained to “look for threats to aviation security” and discrepancies in a passenger’s identity. TSA says verifying someone’s identity, or exposing false identity, is a security issue so that names can be checked against terrorism watch lists. Large amounts of cash can be evidence of criminal activity, Mr. Soule says, and so screeners look at the “quantity, packaging, circumstances of discovery or method by which the cash is carried.”
In short, the agency appears to believe that its authority extends much more broadly into law enforcement than merely ensuring that persons entering the sterile zone of the airport do not possess weapons or explosives.
Whether TSA actually fulfills its statutory mission is unclear. System tests are performed frequently but results are typically classified. Sometimes, poor results are leaked anyway. In 2007, the Government Accountability Office succeeded in evading TSA's systems for excluding liquid explosives and components.
Given these problems, mission creep is a sensible bureaucratic strategy because it provides additional ways for the agency to show success. It also may help with personnel recruitment (by making transportation security officer [TSO] positions more attractive) and retention (by creating new pathways to performance rewards).
However, giving TSOs general law enforcement authorities also invites, and may well guarantee, abuse of discretion. Unlike law enforcement, airport security proceeds without probable cause; all passengers must submit to it. TSOs have the power to cause passengers to miss their flights if they resist, and that threat alone will be sufficient to motivate the vast majority of passengers to relinquish legal rights that many would defend in another setting.
