- The Washington Times - Tuesday, February 24, 2004

The wonderful folks at the Transportation Security Administration (TSA) — an agency created in the wake of the September 11, 2001, terrorist attacks, who are just now preparing to implement the already discredited Computer-Assisted Passenger Pre-screening System (“CAPPS II”) — have finally discovered what most government bureaucracies learn in their first days. They have discovered taxpayer-citizens are but wallets to be opened and fleeced at will.

A set of TSA Guidelines issued recently set forth what fines its employees are to charge, and what circumstances will cause those fines to be increased, decreased or perhaps not levied at all. A great deal of confusion has already resulted.

The confusion is certain to increase as more and more TSA supervisors discover the gold at the end of this taxpayer rainbow. While certain offenses listed in the Sanction Guidance Table are logical and appropriate, others clearly reflect the dangers of allowing an agency to exercise what amounts essentially to arbitrary and absolute power.

With regard to sanctions to be levied against airport operators and cargo handlers, hitting offenders with stiff fines for actions such as failing to conduct criminal background checks, neglecting to comply with security directives, falsifying records or reports, or allowing unauthorized access to secure areas, not only makes sense but is to be encouraged.

However, when the TSA turns from enforcing security requirements applicable to airports, aircraft and cargo, and focuses on how it exercises power over individual air travelers, serious problems manifest themselves.

A threshold problem presents itself at U.S. airport checkpoints through which some 2 million-plus air travelers must pass each day — there are no signs warning a traveler caught with a forgotten Swiss Army knife might be subject to fines up to $10,000. Thus, basic notions of due process and notification are not met, adding to the arbitrariness of the process. According to press accounts, a woman returning to Boston from Baltimore after her wedding forgot her carry-on bag contained a — shudder — silver-plated cake-serving set. Even though the woman was allowed to place the items in her checked baggage and proceed on a later flight, some green-eyeshade bureaucrat at TSA later decided her offense was so egregious as to warrant a $150 fine.

A California lawyer was fined a like amount for failing to remember she carried a small steak knife in her briefcase (for slicing fruit; something many do in California). The lawyer made the further mistake, however, of asking for a hearing when notice of the later-levied fine arrived. Even though the barrister decided not to pursue the hearing (since TSA insisted the hearing take place in Baltimore, while she lived in Los Angeles), the nice folks at TSA decided to punish her for even considering an appeal of its action. Her fine was doubled.

Two other aspects of the TSA’s new guidelines, however, are perhaps even more outrageous than the manner in which they can levy and increase the fines in the first instance.

A fine of up to $1,500 can be levied (after the fact, of course) against an air traveler for something called “nonphysical interference with screening.” What is that? Looking at the screener the wrong way? Failing to jump high enough when told to jump? Or maybe, just maybe, “nonphysical interference with screening” consists of a bad “attitude”; perhaps failing to greet a screener with appropriate deference or subservience as she arbitrarily forces you to disrobe publicly or submit to an additional, “random” inspection?

No kidding. The TSA is asserting the right and the power to fine you, a law-abiding American citizen or lawful visitor to this great land, simply because its employees don’t like your “attitude.” One of eight “aggravating factors” listed in the new Guidelines is the “attitude of violator.” Of course, you may not know until long after you’ve departed the airport, landed and gone on home, that your “attitude” sufficiently rankled some TSA employee after they found an item of contraband mistakenly left in your carry-on, such as to warrant a hefty fine.

Remember, we’re not talking of deliberately bringing weapons through a security checkpoint. That would be a criminal offense — not a civil infraction — and should be prosecuted.

What we’re talking about here are mistakes of law-abiding, but harried men and women trying their best to comply with vague, even unknown, security guidelines in the crowded and pressure-filled atmosphere that permeates all airports in the post-September 11 world. These people deserve better treatment than is now being afforded them by the Transportation Security Administration in exercising these unfair and onerous sanctions.

Bob Barr, a former Republican member of the U.S. House of Representatives from Georgia, is a columnist for United Press International.

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