Israeli security at Ben Gurion International Airport is considered preeminent in the world. I personally have passed through El Al security lines several times over the last few decades. Pop quiz: how many times did I have to take off my shoes? Answer: . . . zero. I don’t mind engaging in a ‘security conversation’ with a professional and amiable – if serious – security agent if it means my shoes stay on my feet. Not just because getting in and out of shoes can be awkward and time consuming, and because you find yourself thinking “am I wearing the socks with the holes?” and “what’s that sticky stuff on this floor?” but because as a security measure, having absolutely everyone do it is just such a waste of time. Sometimes, yes, it is very appropriate to check someone’s shoes. Whose? The person who has displayed indicators that relate to a method of operation that involves a shoe bomb or use of a shoe to stash a weapon, etc. The Richard Reids of the terrorist world.
Janet Napolitano has recently hinted that the TSA would be doing away with the need for passengers to take off their shoes, as the agency is adding shoe scanning technology to its repertoire. “We are moving towards an intelligence and risk-based approach to how we screen,” Napolitano said, and “I think one of the first things you will see over time is the ability to keep your shoes on.” Napolitano refrained from discussing technology details or a time frame. The two top contenders for the shoe scanning contract are Syagen and Morpho.
I would argue that shoe scanners have little relationship to the kind of intelligence required as part of an effective aviation security SOP, and I also believe that a threat – not risk – based approach makes more sense. If the shoe scanners are used as part of that kind of scheme, great. If I have to continue to wait for a threat-based system to be adapted, well, I have to admit that I’d rather do that with my shoes on.
The use of security conversation is an outstanding practice that works tremendously well for Israel. However, there are two issues which it makes its practical use in the USA problematic.
First and foremost is the 5th Amendment to the US Constitution which prohibits the government from forcing someone to make incriminating comments about themselves to government officials. In short, you do not have to talk to any government official or agent acting on the behalf of the government other to give them your name. Case law on this issue is so clear that even answering such innocuous questions as whether your trip was business or pleasure as asked by Custom officials upon your return to the USA does not require your answer. If a TSA employee came up to in line at an Airport and started asking you questions it would be within your constitutional rights to refuse to answer.
The reason why you might refuse is the second problematic issue with using the security conversation in the USA. That is 18 USC 1001, which basically says if you make a false or misleading statement to any government official you can be fined and sentenced to prison for 5-8 years. Prosecutions under 1001 have been very successful. Under 1001 your statements can be oral or in writing nor do you have to be sworn.
Imagine this scenario, you are a government whistle blower and you are taking a trip. The TSA employee asks if you are going on business or pleasure. You say pleasure because it is your vacation. Once you get to your vacation destination, you remember you forgot to perform some work that requires your immediate attention. You whip out your government laptop and answer some emails, make some phone calls, and then to be sure stop by your agency’s local office to check on something classified. You have just violated 18 USC 1001 because you are working on your pleasure trip—you lied to a government official. A smart AUSA would charge you with this criminal count so that it makes it look like you are a liar and so taht your legitimate whistle blowing allegations are clouded and come under suspicion. You might win in federal court, but will you be able to afford the legal fees and the damage done to your reputation?
So while the security conversation does make us all safer there are constitutional and legal roadblocks to actually enforcing it against US citizens on US territory.
Problems with your reasoning Mr. Booth.
First:
The fifth amendment ONLY excuses ones necessity to answer for crimes committed. It does not excuse one from admitting to crimes one will commit in the future. Security Questioning helps to uncover “cover stories” to help disclose intent to commit a crime/terrorism. So as you are right, one does NOT have to disclose the reason for his/her trip, the truthful answering of these questions would likely lead the traveler to a quicker, less in-depth screening experience.
Second:
“Knowingly and willfully” were conveniently forgotten in your testimony. When you are intent on having a vacation and end up working, you did NOT knowingly and willfully lie to a government official. Therefore TITLE 18, I, 47 § 1001 would not apply. Ergo, “A smart AUSA would” likely NOT charge you with anything…
However an inexperienced Law & Order watching rookie likely would!
If anyone believes that answering security questions are without hazard then I suggest you review these following web sites:
http://library.findlaw.com/2004/May/11/147945.html
http://library.findlaw.com/2004/May/11/147945.html
http://www.professorbainbridge.com/professorbainbridgecom/2004/03/after-martha-the-future-of-18-usc-1001-1.html
http://nomadlaw.com/2010/09/10-brief-responses-700-comments-about-refusing-answer-questions-at-passport-control/
If you don’t believe that answering questions instead of remaining silent can get you in trouble, speak with Martha Stewart–and she even had an attorney present!
While most AUSAs are stand up lawyers, there are always a few that may not be. The late Senator Stevens from Alaska found that out the hard way–and they didn’t even make a Law and Order episode about it.