This article proposes an appeal to the U.S. Supreme Court in order to protect the American People from the maurauding rash of federal searches at airports. by Brian McCandliss
(libertarian)
Sunday, November 21, 2010
Stopping the In-TSA-nity
As long-feared by many, airports and the federal government have begun implementing outrageous airport search-procedures which shock the American (and human) conscience. And as expected, President Obama and other federal officials have defended the procedures unflinchingly as "necessary."
This follows from federal case-law precedent established in the famous case of United States v. Davis (482 F2d 893), in which the United States Court of Appeals likewise upheld these searches as passing constitutional muster, on the rationale that commercial airline-passengers involve private contracts and property—and that they therefore fall under 4th Amendment exceptions regarding such (United States v. Davis, 482 F2d 893), since the commercial airlines are privately owned and operated; and therefore passengers must submit to being searched at the owner's discretion before being allowed to do so, as with any privately-owned establishment.
However as anyone who has studied contract-law knows, a contract is not a carte-blanche, but can be prohibited by "contracts of adhesion" and "unconscionable terms." Such contracts are not entered into freely in the legal sense, but are strongly and unfairly biased against one party in favor of the other; these typically involve one party taking willful advantage in order to gain an unfair benefit at the other's expense; and therefore, courts will typically rule these terms as non-binding and unenforceable.
Traditionally, 'adhesion contracts' share four elements: they are (1) adhesion contracts are drafted to drastically favor one party; (2) general enough to apply to numerous transactions; (3) offered with the representation that, except for price, the drafting party will enter into the transaction only on the terms contained in the document; and (4) minimize the actionable obligations of the adhering party, predominantly to the payment of the money.
Likewise, as a rule, a court will not enforce an "unconscionable contract clause." An unconscionable clause is one whose purpose is contrary to public policy, is overly harsh, or has one-sided results that shock the conscience of the court. For instance, a clause which purports to release one party for its intentional torts would be unconscionable and unenforceable.
Airline tickets clearly share these elements of adhesion and unconscionability, in that they are drafted to drastically the airline, while passengers must undergo humiliating searches with no increased benefit; the contracts are certainly general enough to apply to numerous transactions, since they apply to all passengers; they are offered with the representation that the airline will enter into the transaction only on the terms contained in the document—i.e. the search is not optional; and the contracts minimize the actionable obligations of the airline, by waving any action against the airline for personal violations committed by the airport-searches. For this reason, it is essential to appeal the Davis decision to the United States Supreme Court, so that it can be overturned on these bases; in short, passengers should be no more subject to unreasonable searches and seizures, than persons in any other public place.
The following is a rough draft of such a petition, to serve as a springboard for further joint-action by other concerned citizens.
Petition to the United States Supreme Court for a Writ of Certiorari
This is a preliminary draft of a petition to the United States Supreme Court, in order to address the issue of unreasonable searches being implemented at airports for passengers of commercial airlines.
Question Presented
Only one question is did the Appeals-court err in the Davis decision, when it failed to consider that airline-tickets represent contracts of adhesion and unconscionability, and thereby void standard exceptions to 4th Amendment protections from unreasonable searches and seizures in airports?
Background
Over time, passengers of (American) commercial airlines have been subjected to a war of attrition against their basic rights and freedoms, via an increasingly stringent battery of searches and seizures prior to boarding planes; this has typically been in reckless response to the wrongdoings of foreign operatives.
These measures have been reflexive-- and often extreme and unreasonable-- responses to the tactics implemented by these operatives, when less extreme and more reasonable alternatives could be equally effective; likewise, these searches and seizures have been imposed in the name of national security, using such as a carte blanche to dissuade protest, and often various criminal events as an excuse to oppress innocent passengers.
Such methods have included such measures as requiring passengers to pass through metal-detectors; searching all baggage after the 9/11 hijackers, forcing all passengers to remove their shoes for examination en route to boarding, in reaction to ; and most recently, the implementation of invasive body-scans designed to see through clothing, or being subjected to personally-invasive pat-down searches as an "opt-out," in reaction to a terrorist carrying an explosive in his underwear—despite that this passenger did not even pass through an American airport, but was allowed to bypass proper procedures in another country which practiced lax practices, and which thereby would not have stopped this operative regardless of such invasive practices if they were not used. Likewise, passengers are often detained and searched in response to simple but innocent irregularities, such as an expired driver's license.
However, such conditions are not valid in contracts of adhesion. And airline-tickets are contracts of adhesion, for the following reasons:
1) the terms were never subject to negotiation by the passenger.
2) The same terms are extended to all passengers.
3) They are unconscionable, in that the airline has unquestionably greater bargaining power over the passenger, since the airline has relatively nothing to lose from one passenger, while the passenger must either accept the terms or be forego air-travel.
4) The passenger has no viable alternatives, since
all airlines impose such search-requirements as per TSA regulations—which likewise prevents the passenger's bargaining power, and
alternative methods of transportation are much slower than air-travel, typically by a factor of ten, thereby creating an unconscionable advantage to the airline(s).
5) Air-travel is a necessity of modern-day life, because
It has been a staple transport for over 50 years;
it is significantly faster than alternative-methods;
few alternative commercial travel-options exist for many domestic locations;
no alternative options exist for travel to most foreign locations.
6) They transcend legal safeguards, in that UCC-207 precludes standard contract-boilerplate terms by merchants, such as those in airline-tickets, from applying to individual consumers; and
7) The federal government sometimes subsidizes airlines for losses, on the grounds that these are due to passenger fear of terrorism, rather than of searches; this furthers the unconscionability. of the airlines in unequal bargaining-power over passengers, by insulating them from the economic consequences of their actions, thereby increasing the one-sidedness of the contract.
These factors prove commercial airline-tickets to be contracts of adhesion; and therefore, any 4th Amendment search-exception pertaining to private contracts, are not valid against commercial airline- passengers.
National Security Interest Considerations
The TSA has done nothing but increase stringency of checks against passengers, indifferent to the rights of passengers against infringements, such as exempting passengers from searches based on clearance or description. These exemptions could be based on citizenship, religious or other factors; likewise watch-lists
Rather, the ease with which airlines have cooperated with federal security at the expense of their passengers' rights, has prompted federal agencies to lethargy, and even tyranny, in the name of protecting national security, via failure to innovate equally or more-effective methods of maintaining security while likewise safeguarding individual rights. This represents an unacceptable sacrificing of individual liberty for safety, against long-standing and fundamental policy and precedent of American values, and indicates the underhanded use of security-interests and recent criminal events as a carte-blanche to undermine basic rights of the innocent via nationalism.
Finally, since search-measures have reactively escalated in response to metal, shoe-bombs, and then "underwear-bombs," it is perhaps only a matter of time before the airports perform routine X-rays and/or cavity-searches, in response to terrorists hiding bombs or other weapons internally—again in "knee-jerk" response to enemy operatives simply moving to the next step of concealment; this will be likewise justified via the carte-blanche of "national security." The national interest therefore requires this Court to grant this petition, in order to stem the increasing tide of erosion by the federal government against the American People.
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Posted By: trd
Date: November 26, 2010 12:18:02 PM
At this rate, all passengers will be subjected to a strip-down search an oral scope down the esophagus and a colonoscopy. I vote for getting rid of the TSA and the passengers will defend the airplane agaist any hijacking.
Posted By: BrianMcCandliss
Date: November 26, 2010 03:18:46 PM
As English philosopher Edmund Burke said, "The only thing necessary for the triumph of evil, is for good men to do nothing."
But of course, this doesn't mean that just randomly doing any old thing will stop it-- rather, it has to be effective; as Thoreau said, "there are a thousand hacking at the branches of evil, for every one striking at the root."
In this vein, I hear nothing but of outraged protest about the latest "turn of the rack" by the TSA Inquisition (i.e. "touching junk"); but no one is is proposing to do anything about it.
Here I offer a viable solution via federal suit, but few pay any mind-- no, they'd rather vent. It solves absolutely nothing, but by golly they feel like they did, by being "heard."
And when I write to them about it, they typically simply say "the courts don't work, so there's no point in trying that route."
That's clearly non-constructive-- but sadly typical among the legal layman, particularly anti-government types who want to make a statement; even if the court struck down the suit, we'd have them on record as doing so, and could demand action on that First Amendment basis.
But being anti-government, it seems that they'd rather take that route-- and bang their head against the wall, than try the door.
While there's no legal scholar who's more anti-government than I am, I also know that you don't stop the Leviathan Juggernaut by throwing yourself down in front of it-- instead of jamming the gears.
