The Texas TSA bill might be back. That would be a welcome change for the US Constitution.

Texas TSA bill history

In March of 2011, the Texas House received a bill to make employees of the Transportation Security Administration (TSA) liable for prosecution as sex offenders if they “patted down” a passenger without probable cause to believe that that passenger was trying to get a gun or a bomb aboard a flight. During this debate, a beauty contestant famously endured such a “pat-down.” She then tearfully said that the TSA employees had “violated” her.

The TSA uses full-body scanners at America’s busiest airports. Most of these are X-ray backscatter machines. Besides producing a nude image of a passenger, it gives the passenger a small dose of radiation. (A typical coast-to-coast or overseas flight subjects everyone on board to about 1000 times as much radiation if done in the daytime.) Some passengers opt out of the scans. In that case, a TSA officer will “pat down” the passenger. Many passengers have protested that the “pat downs” are far more intrusive than the simple “frisk for a gun” that they might have seen on a TV police drama.

The Texas TSA bill (HR 1937) passed the House with a unanimous vote. But then the United States Attorney for Western Texas wrote to several Texas Senators. In that letter, he said that TSA would have the authority, or even the duty, to cancel flights if they couldn’t frisk people as they saw fit.

After that, Texas Lieutenant Governor David Dewhurst pulled the Texas TSA bill from the Senate floor. At once several privacy advocates called Dewhurst a traitor to liberty. Dewhurst said later that he saw several other Senators taking their names off the bill, but other Senators disputed this.

Now Dewhurst has asked Governor Rick Perry to put HR 1937 back on the table in a special session of the Legislature. In addition, State Rep. David Simpson (R-7) demanded that the US Attorney give a reason for patting people down without probable cause.

Is the Texas TSA bill redundant?

Judge Andrew Napolitano, formerly of the Essex Vicinage of the New Jersey Superior Court, says that no one has the right to pat people down in such a way. In an interview with Simpson, Napolitano gave his view that the government was bluffing when it said it could shut down every airport in Texas. The judge also recognizes that the Texas TSA bill simply reminds any TSA official in Texas to obey the law against unwanted touching, just like anyone else.

Are such pat-downs necessary?

An El Al Boeing 777 waits to load before take-off. El Al Israel airlines handles its own security, and their regimen does not include TSA-style pat-downs. Photo: CNAV

Answer: no. Your editor knows this. One airline has built a perfect record for keeping bomb-carrying psychopaths and would-be assassins off its planes for forty years. And they don’t pat people down to do it.

El Al Israel Airlines operates hundreds of flights a day between Israel and dozens of airports all over the world. They have every reason to worry about security. In 1968, four Palestinian terrorists tried to hijack an El Al fight to the infamous Dawson’s Field. Only two of the would-be saboteurs got aboard. The pilot, a sky marshal, and a resourceful passenger dealt with those two, killing one. More recently, in 2002 someone tried to shoot down an El Al plane with a shoulder-launched heat-seeking missile. Eighteen months later, El Al equipped every plane with radar and flares for when anyone got such a missile off the ground aimed at one of their planes.

But the head of El Al security decided that his airline would not humiliate its passengers to keep them safe. Instead, they “grill” passengers before even allowing them to check their luggage. Your editor flew El Al into and out of Israel last spring, and knows what it’s like. They’ll ask you where you came to the airport from. They’ll want to know your business in Israel, and whom you know in that country. They’ll ask you the same questions twice, to see whether you will change your story. Sometimes they’ll unpack and hand-search your luggage. But they will never, never, pat you down as the TSA does.

The reason: first they look for a guilty conscience, and then they look for weapons. And it works. The one person who tried to get on an El Al fight with murderous intent, couldn’t get past El Al security in the Los Angeles airport. (Sadly, he killed two people on the ground before the El Al people killed him.)

So what does this prove?

It proves two things:

1. Airlines can handle their own security.
2. Whoever handles security, doesn’t have to rob you of your dignity to tell whether you’re safe.

Many regular fliers will tolerate the pat-downs, the full-body scans, and the rest of it, because they think that the TSA can’t do its job without them. El Al has proved otherwise.

Furthermore, the TSA is talking through its hat if they think they can shut down every airport in Texas. Any airport, even under current law, has the right to opt out of TSA screening completely, and handle its own security. Shortly after the Manhattan Incident, El Al offered to show any airport, and any airline, how it handles security. As the Texas TSA bill comes back to the Texas Senate floor, the Senators should remember that. Almost certainly El Al’s offer still stands.

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What will happen to the Texas TSA bill?

No one knows for sure. What should happen is that Texas pass its TSA bill and call the federal government’s bluff. State legislators in Utah and New Jersey have introduced similar “TSA bills.”

The Constitution says that you cannot search someone without a warrant, and that judges may not cut search warrants without probable cause. The Texas TSA bill, and other TSA bills, will enforce the Constitution and need not make the skies less safe.

Featured image: a modified Gadsden flag makes the same point that an outraged passenger made, when he threatened TSA officials with arrest if they patted him down too personally. Hat tip: Iowahawk.