The TSA Touches Our Constitutional Junk

We ask for cooperation, patience and a commitment to vigilance in the face of a determined enemy.

     — Janet Napolitano, Secretary of Homeland Security

Nobody likes having their Fourth Amendment [rights] violated going through a security line, but the truth of the matter is, we're gonna have to do it.

     — Mo McGowan, former Director of TSA Security Operations

The two quotes above are taken from a Fox News video that is embedded further down in this post.

The stirring words from our Secretary of Homeland Security are unusual, in that they acknowledge that we actually have an enemy. However, if you were to ask Ms. Napolitano who that enemy is, she would probably stutter a bit, dodge, and then change the subject. If pressed, she would almost certainly tell you that the enemy is “violent extremism”. Ever since halfway through the Bush administration, that has been the official U.S. government descriptor of what everyone else calls “Muslim terrorists” or “mujahideen”. Government directives require that federal employees not employ the terms “Islamofascism”, “terrorism”, or “jihad”. The word “jihad” is not mentioned even once in the FBI’s official counterterrorism lexicon. Our enemies are “violent extremists”, and that’s that.

No high-ranking administration official — especially Janet Napolitano — would have been as candid as Mo McGowan in acknowledging that the TSA has effectively and unilaterally suspended the Fourth Amendment. For our European readers (and for Americans who are too young to have taken a Civics class), the Fourth Amendment to the United States Constitution says this:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Over the past two centuries, precedent has established that the President’s war powers include the authority to suspend certain portions of the Constitution during wartime, notably the habeas corpus provisions that would otherwise prevent the detention of enemy spies and infiltrators. Under such circumstances one may assume that the Fourth Amendment could also be put on hold. But these exceptions do not confer a blanket authority to suspend the Bill of Rights. And they apply only in wartime.

In case no one has noticed, we’re not in a war. Congress has not declared a war in decades. Our military engages from time to time in “overseas contingency operations” to counteract “man-caused disasters”, but there is no longer even an official “war on terror”.

The Executive Branch cannot legally suspend any portion of the Constitution, no matter how compelling their arguments in favor of doing so might be.

Unfortunately, we’ve been governed extra-constitutionally for almost a hundred years, so that’s why the following video has caused no particular stir. Mr. McGowan may have been a bit imprudent in his assertions, but he is speaking the exact truth: the federal government can suspend any part of the Constitution to any time it wants, because We the People have let them get away with it for at least four generations.

Take your blood pressure medication now, and then watch the video. I’ve put it below the jump to avoid the “Blogger bug”:


In his assertion that the Fourth Amendment must be suspended, Mo McGowan speaks matter-of-factly. His evident unconcern is not due to his being evil — banal or otherwise — but because he is used to it. The government has been able to override the Constitution at will for as long as he or any other living person can remember. Whenever the Constitution got in the way of doing his job, why, he just had to push it aside. It was no big deal — everybody did it.

In order for this situation to change, the American people will have to stage a really big ruction of some sort. To get an idea of how big, consider this: there are about fifteen million federal employees in addition to our elected representatives and federal judges. Every single one of them has a vested interest in the extra-constitutional status quo, and together they control the armed forces, federal law enforcement, the IRS, and the power of the purse. Virtually all high-level federal administrators will dig in their heels to resist any attempt by We the People to reclaim the Constitution.

The Tea Parties are only the bare beginning of what must be done. We’ve got a long way to go.