The wheels of justice are frozen


While lawsuits continue to be filed against the TSA on a variety of fronts, generally the TSA has been successful in foiling any and all efforts to make it accountable or to even reveal its statistics. Also, generally, the TSA does this by sheer obfuscation and technicality. I must admit, that is a strategy. However, without the antagonist tiring and simply going away, that strategy usually eventually fails.

A brief history here: there have been many individual lawsuits agains the TSA and its procedures: Blitz, Corbett, Ventura, Thomson, Tobey, Kassner, Redfern, Fielder, Dean, in addition to others that were filed via civil liberties organizations on behalf of individuals, such as The Rutherford Institute and the Electronic Privacy Information Center.

Most of these cases were dismissed when the TSA successfully argued that Federal District Courts, where these cases were filed, lacked jurisdiction. Apparently, the first stop is the Federal Appellate Court, since the TSA holds that all of the arguments concern TSA procedures, not Constitutional issues. If you were to go out and investigate how to file in Federal District Court, the instructions and forms are easy to find. I challenge you to find similar information on the Federal Appellate Court.

So now comes the case of Redfern and Pradhan vs. Napolitano and Pistole. The case was initially dismissed by Federal District (Massachusetts) Court Judge Casper, but the First District Appellate Court has since asked to hear Fourth Amendment arguments. For the first time in history, a Federal judge has cut through the fog and understood that the issue is far greater than what the TSA claims. Now all that has to happen is that the Court agrees that simply relying on TSA data without any independent fact-finding is not in the best interest of justice.

Freedom to Travel USA filed an amicus brief in that lawsuit, asking the Court to fact-find on actual procedures and experiences before ruling. That brief heavily relies on Blackburn v. Snow, in which a court struck down mandatory strip-searches of all visitors to a prison as being overkill given the level of threat presented.

And now comes Corbett. In the latest of a string of lawsuits, the TSA is pleading that their records should be the only records admitted — even though a recent study by the Government Accountability Office indicated that TSA customer complaint procedures are “inefficient and possibly blinding it to problems.” Hopefully this fog will also be lifted. What’s amazing is that these claims and assertions by the TSA are even offered.

‘Tis a mad, mad world in TSA-land. The Queen of Hearts and her henchmen must eventually be seen as what they are. Let’s all come back up the rabbit hole; Wonderland isn’t all it’s cracked up to be.

(Photo: Emmanuel Huybrechts/Flickr Creative Commons)

  • Bob

    It may in fact be a mad world, but the govt has always had the right to set which courts can hear which arguments. Try to sue the IRS in a district court and see what happens.

    The Federal Appellate Court is one step below the Supremes and has the power to set case precedence. When you are talking about a Federal agency this is absolutely the right court that you want to argue your case in.

    While i support him, i have scratched my head as John Corbett has attempted to bypass the Federal Court. EPIC did it, and their case got heard.

    In matters like this you are wasting time and effort in dealing with the lower courts because the govt will continue to appeal.

    • Bob, if Jon sees this, he can comment himself. I’ll only say that he isn’t a lawyer. He’s been representing himself all along, which is not only pretty damn impressive but probably indicates why he didn’t know which courts do what. I sure wouldn’t know.

      • Bob

        John has done a fantastic job, and i hope he succeeds. However it has been known from day one that the Federal Appellate Court is the only court that will hear homeland security cases. That will not change.

        I posted on Johns blog when the Supreme Court declined to hear his case. It is my opinion (and others) that his case was declined because he attempted to avoid the Appellate Court. The Supremes do not like that. You have to work the chain of command. If the Appellate Court shoots him down, then i think he will have a much better chance with the high court.

        Ventura also had the same issue. His case was shot down for lack of jurisdiction. However he had the means to push it further and instead choose to grandstand.

        • Interesting about Jess Ventura. Presumably he had a lawyer. So I wonder why his lawyer didn’t steer him to the right court? That would seem to be pretty lousy legal representation. And if Ventura could’ve pushed it further, he should have.

          Obviously I’m not a lawyer, so I don’t understand any of this stuff.

          Wendy Thomson has also tried filing suit and can weigh in if she sees this discussion.

          (Oh, and for people who don’t know who we’re talking about, it’s Jonathan Corbett — links above in the original post, but here’s another:
          http://tsanewsblog.com/1901/news/passenger-slips-metal-by-tsa-scanners-repeatedly/

    • TSAisTerrorism

      I won’t presume to speak for Jon, but it is my understanding that his decision to sue in the District Court was deliberate. His position is that he is arguing a Constitutional matter: that the current search procedures performed by TSA violate the 4th Amendment. He has stated that taking his case through the Appellate Court precludes him from introducing evidence, and further makes the case one on procedures, not legality.

      It is the perfect set up for TSA because they can say, “These are the procedures, they are written down, they are therefore legal. We can’t show them to you because you might be a terrorist, and the terrorists win!” The Court then will take TSA’s word that the procedures are effective (they aren’t) and therefore legal in “today’s post 9/11 world.”

      It prevents Jon from arguing that an electronic strip search or genital groping pat down is unreasonable because TSA will argue that there are privacy filters and they come in contact with resistance, not labia and testicles. It prevents him from arguing that the machines are ineffective, which he has already proven, because TSA will trot out that they can’t use metal detectors because they only find guns and knives, not non-metallic bombs. The question will go unasked that the scanners and gropings can’t either.

      You get the idea…

      • Bob

        All fine and dandy, but he was told specifically by the District Court that they had no jurisdiction over the matter. At that point he needed to move.

        The Appeals Court does not prevent John from introducing evidence. EPIC’s case was Argued before the same court and they introduced plenty.

        And he is allowed to see SSI as long as he can show that it is needed for his case. The judge just puts a gag order on him.

        In any case it will be interesting to see how it turns out. I have a feeling it will get tossed on a technicality.