A security role for Congress

The legislature should ensure TSA practices protect our pocketbooks and our civil liberties

December 24, 2010|By Robert Friedman

As members of Congress travel home for the holidays following the lame duck session, they should take a look around our nation's airports and ask whether the $8 billion that the Transportation Security Administration has spent since 2001 on new security technology was money well spent.

With $30 million in investments for machines that puffed air to "sniff" out explosives residue on passengers now gathering dust in a government warehouse, Americans are justified in wondering whether the TSA is too quick to write large checks for technologically unproven security systems.

We also know that an easy software fix could distort the images on the controversial full-body scanners so they appear like fun-house mirror reflections instead of the sometimes-embarrassing contours of the human body.

And the government has also been rolling out a behavioral observation program in which security officers aim to look not just underneath people's clothes but into their very thoughts and emotions. The theory is that dangerous people reveal their evil intentions in observable facial expressions that trained experts can detect.

These security measures — puffers, body imaging and behavioral profiling — are an understandable response to the ever-evolving aviation security threat. Experience teaches that there will be a next generation of box cutters, shoe bombs or improvised undergarments.

But these programs face two legitimate kinds of criticism. First, some argue they are "security theatre" — programs providing the appearance of protection with little or no actual security benefit, at an enormous cost to the taxpayer. A recent Government Accountability Office report echoes this concern; the TSA has not conducted a risk assessment or cost-benefit analysis or established quantifiable performance measures on its new technologies.

Second, the programs raise obvious civil liberties and privacy concerns and seem open to abuse. For example, we already know that the U.S. Marshals Service saved thousands of body scan images at an Orlando, Fla., courthouse, and behavioral profiling has been criticized as merely racial profiling by another name.

Congress has tried to find a role too, but its seesaw response to the body scanner and pat-down debate illustrates its limitations. Last year, the House voted overwhelmingly to restrict the use of whole body imaging. After the attempted Christmas Day bombing, members of Congress criticized the administration for not implementing the most advanced scanners more quickly. Now, many Republicans — and even some Democrats, such as Homeland Security Committee Chairman Rep. Bennie Thompson — have raised a furor over the enhanced pat-downs.

The back and forth reveals Congress' challenges in wading into the operational details of homeland security programs. And Sen. Charles Schumer earlier this month introduced legislation that would make it illegal to distribute or record the images produced by full-body scanners at airports. But this bill does not go far enough.

There is one important thing Congress can do. The executive branch's obsession in the face of a potential or actual terrorist attack will always be security first. Rather than compete with the administration on this terrain, Congress can put in place a framework that holds every time the government rolls out a new security program based on a scientific or technological development.

One element of the legislation Congress should enact would focus on the scientific or technical capabilities of new security programs. The DHS should have to conduct a scientific validity assessment to make sure the theory and evidence behind the program is legitimate on its own terms and effective when taken from the laboratory into a real-world security environment.

With behavioral profiling, for example, the administration would have to satisfy itself, through a peer review process, that people's facial expressions did reveal possible dangerous intentions, and also that this program could be implemented in a meaningful way in a busy and hectic airport environment.

Second, Congress should require that the administration put in place appropriate privacy and civil liberties protections for each new security program. The required DHS privacy impact assessments are a good start. But there should also be a quality assurance regime for each program that tests whether it is being used properly in an actual aviation security environment — as well as an ombudsman system that allows wrongly harmed travelers to obtain timely and complete relief from the agency.

If Congress acts to put in place this lasting framework — rather than competing with the administration in an ad hoc manner — we can get the best of both worlds: an executive branch free to implement the newest and most necessary security programs but operating under a structure that ensures these programs actually work and don't unnecessarily interfere with our freedom and privacy.

Robert Friedman, an attorney and Maryland native, is a nonresident fellow at the Georgetown Center on National Security and the Law. He has co-authored scholarship on the constitutionality of behavioral profiling. His e-mail is rfriedman88@gmail.com.

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