• Do American Airports Suck? Yes, Yes They Do

    April 26, 2017 // 16 Comments »

    tsa toy

    Traveling by air in America is one of the best ways to see the country, although it is not always the nicest view. I recently took a fresh look, with the goal of advising my foreign friends what to expect when they drop by the United States.



    Our Air Palaces

    You’ll enjoy our older airports’ retro-touches, which evoke the Golden Age of air travel of the 1950s and 1960s. The typical lack of free WiFi, just like when your parents first visited America, the two electrical outlets serving an entire wing of the airport, the toilets which have not been cleaned since when your parents first visited America, and the “Welcome Home Troops” signs reminiscent of those displayed for soldiers coming home from that war where America invaded your country, all quaintly harken back to simpler times.

    Your chances of finding public transportation to and from the airport are slim. Maybe if you look around there’ll be an old city bus for the workers (live like a local!) And stop standing out as a “tourist,” looking for trains that connect to the city center as you’ll find nearly everywhere else in the developed world. As you pay a month’s salary out to the cab driver who is cheating you just like in Cairo, or the Uber guy 23 hours into a shift trying to feed his family, think of it all as a great only-in-the-developing world story to tell if you survive to get back home.

    Keep in mind our newer airports are clean and shiny, and look like shopping malls, our most popular places of worship. You can buy the same stuff made in some other country in the airport as out of the airport, eat at the same fast food places, and sample the daily ration of fat required by all the pre-diabetic locals. The newer airports are also a lesson in economics. America has only three viable industries left: government, our largest employer (generally off limits to foreigners, though those we accuse of being terrorists are often taken in as a kind of adjunct), retail sales, and serving/delivering things to each other. See it all while you’re here!



    Security First

    But the real treat inside our airports is that most American of things, security.

    Prior to 9/11, no one but Nazis in old movies and zoologists mapping out elephant migration routes used the term “Homeland.” But now everyone in America does. You should try it, too. Say it with the right mix of fear and awe, and the locals might not even guess American English is not your first language.

    Speaking of which, one fun thing that distinguishes our international airports from those in many other third world countries is the near-exclusive use of English. Few Americans appreciate the efforts we go to as a nation to provide these gratis tutorial sessions to you.

    A curious fact is that American airport workers seem to believe that anyone can speak English if it is blasted at them loud enough and s-l-o-w enough. Idiomatic phrases, such as “ I SAID, liquids in a baggie, 3:1, c’mon, people are waiting behind you” will be taught to you by our security staff. If you don’t catch it all the first time, don’t worry, the worker will repeat it as many times as necessary. American passengers will often help out by advising you how to manhandle your laptop, tear open wrapped gifts, disassemble iPads, and pour out bottled water purchased earlier in the airport, all so you can speed through the security checkpoint enroute to Disneyworld and not Guantanamo.


    If you are new to our shores, understand removing shoes at the airport wasn’t always some sort of American custom, but we now embrace it with fervor. Even the Japanese, who are shoe-removing fetishists, often seem unsure about wearing only socks to tread upon a filthy public floor, but you jump right in. We also love to take off our belts, jackets, and jewelry at the airport. Play along; I once saw some yokels from Communist China, where the government controls their every action, worried pants might be next. Hah!

    They quickly found out we Americans would never bow to a bully government like they do at home. We instead wait in long, slow lines for our chance to appear before a petty government official with blind power over us, all for safety. Pay attention to our unique style of officials. Unlike in some parts of the world where holding near-life-or-death power over someone is just an excuse to collect bribes, or the bored-as-hell Euro style, our airport workers approach their task with gusto.

    If you get touched by a security agent on your private parts, that’s considered good luck by many.

    You may think this anger is all directed at you, as a foreign visitor. Actually, if you are from a Muslim country, it is all directed at you. But sometimes Americans are also often singled out for some fun.

    For example, on my last trip I was selected for random extra screening, which included removing a Chapstick from my pants pocket, and opening it in front of the security person as proof it was not terrorist balm meant to moisten my lips before shouting “Allah hu Akbar!”

    Just like with the foreigners, the agent spoke English loudly to me, as if to reaffirm we are all equal here in America. He also made me open my wallet in case it included a very, very thin gun. In some countries that might be seen as a request for a bribe, but here I understood it was just bullying by a public servant.

    What happened after I passed through the checkpoint I think as a “fun” freebie for those who comes from cultures that revere elders. After discovering a typo in the name on a boarding pass, security sent an elderly woman back to the airline counter for a new one even though she said that would cause her to miss her flight, after which she would need a new boarding pass once again. You’re not going to see something like that sitting at home!



    Boarding Your Flight

    At your the gate, be sure to see who boards first, as the list includes military in uniform. I know of no other country in the world that does that, so foreign friends, watch for it as a real “thing.”

    Americans will try and rush onto the plane as if they’re not sure that there’ll be a seat for them. But looks can be deceiving, because what those citizens are actually doing is playing one of America’s favorite blood sports, fighting for overhead storage space.

    See, the airlines had this idea that since everyone carries luggage on trips, if they charged a fee for luggage, they’d get rich. Americans responded as revolutionaries do, protesting such unjust laws by dragging enough crap on to the plane as “carry on” luggage that the aisles often look like the barricade scene from Les Miserables. The plane cannot accommodate all that stuff, and so a struggle ensues.

    Watch closely for regional variations, from passive aggression to outright close combat. Have your camera ready, and let the kids take a swing! If you miss that photo while boarding, you’ll see a slimmed down version of the scrum when it is time to exit the plane. Sometimes the exit fights are even more fun; people have been drinking inflight, and there are scores to settle from the boarding process.

    You’ll soon enough arrive at your American destination feeling very much like a local — exhausted and frustrated. And isn’t feeling like you belong somewhere new one of the real goals of travel anyway?



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    Copyright © 2019. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

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    There are 72 DHS Employees on Terrorist Watch List

    February 9, 2016 // 16 Comments »

    Stephen Lynch


    So you can read this one one of two ways:

    Either the terror watch list is complete bull, or the Department of Homeland Security has a big problem. Come to think about it, maybe you can read it both ways.

    At least 72 employees at the Department of Homeland Security are listed on the U.S. terrorist watch list, according to Representative Stephen Lynch (D., MA, pictured)


    It is entirely possible Representative Stephen Lynch just demonstrated there is little to no actual threat from terrorists.

    “Back in August, we did an investigation — the inspector general did — of the Department of Homeland Security, and they had 72 individuals that were on the terrorist watch list that were actually working at the Department of Homeland Security. The former DHS director had to resign because of that.”

    Lynch did not say what has happened to the 72 employees, however. That in fact is the key question. If any of them are indeed bad guys, how did they get their jobs at DHS, and keep them, and what, if any, naughtiness did they do? If some/none of the 72 are bad guys, why were they on the terror list and WTF is the point of such lists?


    Meanwhile, list or no list, DHS continues to fail inspections aimed at determining the efficiency of its internal safety mechanisms, as well as its efforts to protect the very Homeland that is part of its own name. Lynch referred to a recent report that found the Transportation Security Administration, which is “overseen” by DHS, failed to stop 95 percent of those who attempted to bring restricted items past airport security.

    “We had staffers go into eight different airports to test the department of homeland security screening process at major airports. They had a 95 percent failure rate,” Lynch said. “We had folks going in there with guns on their ankles, and other weapons on their persons, and there was a 95 percent failure rate.”

    And that brings up another question. If TSA has a 95 percent failure rate, and since no terror incidents have happened due to contraband being smuggled through our airports, doesn’t that strongly imply there really isn’t much of a threat? At a 95 percent failure rate, given the level of threat we are told is now part of our post-ISIS lives, shouldn’t planes be dropping daily from the sky?



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    Everything I Hate Happens Around Airplanes

    November 12, 2015 // 5 Comments »

    airline


    Everything I hate about who we have become as Americans happens around airplanes.


    Our Infrastructure

    Getting to any major airport not built in the last few years is a disaster. Utter lack of efficient public transportation is the norm. In most cases the best you get is an old, slow city bus with no room for luggage in place to ferry low-wage workers to their Cinnabon for the morning shift. Outside the big cities, you are lucky if you have even that. Either get there by private car, pay for a ride out the nose, or walk. Inside the airport, hah! Filthy toilets, lack of amenities, too hot/too cold/too crowded and usually smells like King Kong’s first dump of the day.


    Security Theatre

    OK, 9/11. So now 14 years later every airport is protected by petty thugs who make up rules that make little sense. We parade around dirty floors in bare feet, pour shampoo into little bottles, don’t bring water aboard but can buy it later for $5 a bottle, remove our laptops and belts, get x-rayed and scanned and whatever new was recently introduced. Or not. You can be randomly selected to just bypass a bunch of that, or if you can pay for some program so you can bypass all of that (nobody ever heard of sleeper agents?) or sometimes nobody checks and you bypass all that by “forgetting” to take your laptop out. Whatever. To avoid accusations of racial profiling while racial profiling, the occasional little old lady in a wheelchair is given the third degree.


    Our Apartheid of Money

    The airline will treat you less awful if you have money. Have it in the form of more frequent flier miles, the right credit card or the purchase of first class, and you have a shorter TSA line, get seated first, avoid the scrum when everyone else boards, don’t fight for overhead space and have your own elite potty. If all you have done is pay hundreds of dollars for a seat as a customer, to hell with you, get in the back and shut up.


    Selfishness

    To avoid the checked baggage fee, I am bringing aboard my entire drum kit, two giant stuffed pandas, a live goat and a couple of taped together cardboard boxes with grease stains. If my zone is called before yours, no overhead space for you, so Suck. It. The cabin attendants have no interest in refereeing fights, so back off or swing hard, your call.


    Selfishness, Part II

    If I want to eat fried snake bladder and garlic aboard, that’s my privilege. If I want to recline my seat into your face, I will. If I haven’t showered in a month and mouth-breathe, too bad. If I am so obese that I literally drip over the armrest, deal with it. If my kids want to kick you, vomit, scream or demand treats unavailable at 40,000 feet, throughout an entire 12 hour flight, I have no obligation to deal with that. And oh yes, waiting until you are on an airplane is exactly when you should clip your nails.


    People Don’t Care About Their Job

    Here’s a can of soda. Never ask me for anything ever again during this flight or I’ll claim you are disruptive and have security haul you away. Sort out your own carry-on and intra-passenger issues. Just stare straight ahead if your screen does not work. Once we land, fight your way to the front of the plane to get off eight seconds before someone else, I don’t really care what you do. I’ll be in the back complaining to the other cabin attendants about my job and eating Chipotle I brought aboard and which I alone am allowed to microwave.



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    TSA Trained Disney World in Goofy “Terrorist Detection” Methods

    November 7, 2015 // 5 Comments »

    TSA-spotcheck


    The same ridiculed and useless techniques used by the Transportation Safety Administration (TSA) to not find terrorists at America’s airports are now being used at Orlando theme parks, including Disney World, Seaworld and Busch Gardens, to not find terrorists.



    A Billion Dollars Hits the SPOT

    The Screening of Passengers by Observation Techniques, or SPOT, program is TSA’s one billion dollar “behavioral detection” scheme. SPOT requires TSA staff to be on the lookout for indicators, “tells” to you poker players out there, that give away bad guys. Some of the actual indicators are listed on the graphic, above.

    There are actually 92 individual indicators (terrorists are sneaky!), divided into various categories with a point score assigned to each. Those categories include a preliminary “observation and behavior analysis.” Those passengers pulled over for additional inspection are scored based on two more categories: whether they have “unusual items,” like almanacs and “numerous prepaid calling cards or cell phones,” and a final category for “signs of deception,” which include “covers mouth with hand when speaking” and “fast eye blink rate.”

    TSA agents are also told to watch out for persons traveling “wearing a disguise.”

    You can also be judged less suspicious. Points can be deducted from someone’s score based on observations that they are part of an “apparent” married couple, as long as both people are over 55. No word on same sex couples. That’s two points deducted. Women over the age of 55 have one pointed deducted; for men, the point deduction doesn’t come until they reach 65.



    SPOT On Failures

    As to how well the SPOT program works, let’s check in with the Inspector General of the Department of Homeland Security.

    That office found in 2013 that TSA had failed to evaluate SPOT at all, and thus “cannot ensure that passengers at United States airports are screened objectively, show that the program is cost-effective, or reasonably justify the program’s expansion.”

    The Government Accounting Office and independent scientists who bothered to evaluate SPOT say it performs no better than a coin-toss at catching terrorists.


    Enter the Mouse

    With that kind of track record, you are left shaking your head when you learn that Orlando TSA officers trained 400 local cops and security for area attractions like Disney in the SPOT system, all of whom are now watching for “excessive throat clearing,” “improper attire,” “gazing down,” and “wide open staring eyes” as signs of potential theme park terrorism.

    At least now, with SPOT, everyone has a “scientific basis” for their racial profiling.




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    TSA Fails to Detect Weapons 95% of Time

    November 5, 2015 // 6 Comments »

    tsa toy

    They also cannot find their own butt squatting over a mirror, but they sure can grope yours.


    Remember airports before 9/11? You walked through a metal detector, had a quick bag check, all done by contract employees who swung between polite, and bored. Shoes stayed on, your laptop could stay in its case, it all took minutes and no one bullied you. No one touched your junk for freedom.

    Then, because of massive intelligence failures, some Saudis with simple box cutters were able to commandeer planes and do 9/11. The paradigm then was for passengers and crew to cooperate with hijackers, presuming they wanted the plane or money. Fast forward to now: we take our shoes off because some dumbass failed to blow up a plane with a shoe bomb years ago. We pull out all our electronics because, well, nothing really. We go through scanners that display our junk on screens. The government created a massive bureaucracy of TSA bullies to harass and embarrass us for the audacity of trying to fly somewhere. We all can now enjoy watching old ladies, people in wheelchairs and soccer moms groped in public.

    But at least that all keeps us safe, right?


    Well, there’s the problem.

    U.S. lawmakers and federal watchdogs took the occasion Tuesday to deride the Transportation Security Administration’s ability, or lack thereof, to adequately detect weapons and other contraband during the passenger screening process at the nation’s airports. And TSA didn’t just miss a few things. Nope, according to auditors from the Inspector General’s Office, posing as travelers, 95 percent of contraband, like weapons and explosives, got through during clandestine testings.

    “In looking at the number of times people got through with guns or bombs in these covert testing exercises it really was pathetic. When I say that I mean pitiful,” said Representative Stephen Lynch, speaking Tuesday during a House Oversight hearing concerning classified reports from federal watchdogs. “Just thinking about the breaches there, it’s horrific,” he added.

    “The failures included failures in the technology, failures in TSA procedures, and human error,” the Inspector General told the committee. “We found layers of security simply missing.”

    The General Accounting Office piled on, adding “TSA has consistently fallen short in basic program management.”


    TSA’s answer?

    Peter Neffenger, the new TSA administrator, said the agency was undertaking a “full system review.” It is also considering using dogs to search passengers as well.




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    What to Do if You Think You’re on the No-Fly List

    April 25, 2015 // 10 Comments »

    It has come to this. There is a self-help guides from the ACLU on what to do if you think you are on the U.S. government’s no-fly list. Oh, and the TSA says 99 percent of the people who contact them about no-fly have been denied boarding only because their names are similar to a real bad guy. In most applications, a 99 percent failure rate is cause for alarm for an organization. In America, it is cause for alarm for us.

    Background

    On September 10, 2001, there wasn’t any formal no-fly list, though the FBI held a folder of 16 names of suspicious flyers. Among the many changes pressed on a scared population starting September 12 was the creation of two lists: the no-fly list and the selectee list. The latter was for person who would undergo additional scrutiny when they sought to fly. The former, like its name, meant if your name was on the list you simply could not board a flight inside the U.S., out of the U.S. or from some other country into the U.S.

    The flight ban can also extend far outside of America’s borders. The no-fly list is shared with 22 other countries.

    Names are nominated for no-fly or selectee by one of perhaps hundreds of thousands of government officials: an FBI agent, a CIA analyst, a State Department visa officer and so forth. Each nominating agency has its own criteria, standards and approval processes, some strict, some pretty sloppy. Your name may end up on the list based on scraps of online postings or as the result of a multi-year detailed investigation or because of a bureaucratic typo. The nominated name is sent to The Terrorist Screening Center (TSC), located in a classified location in suburban Northern Virginia. TSC is a multi-agency organization administered by the FBI, staffed by officials from the Department of Homeland Security, the Department of State, and all of the intel community.

    A key issue is that people are never notified they are on the no-fly list. The only way to even get a hint is to buy an airplane ticket and be prevented from boarding once you arrive at the airport after at check-in the airline receives a “no-fly” message. Through the interrogation process you may (or you may not) learn you might live in the list. You will never have any idea why you are on the list; maybe you share a similar name with some real or imagined bad guy. Still on the list? The only way to tell is to buy another ticket and see if you can board. Repeat.

    What Do You Do?

    For the most part, once denied boarding, you are on your own to get home. It is a long walk home from L.A. if you live in New York. But, in the topsy-turvy post-9/11 world, though the U.S. will not let you on an airplane (Twin Towers!) you can, for now, as a suspected terrorist, travel by ship, train, bus, rental car, horseback, donkey cart, unicycle or other means. Of course none of those conveyances have even rudimentary screening or security.

    One option if you find yourself denied boarding is to contact the Transportation Security Administration (TSA) via their TRIP Program and ask them to remove your name from the no-fly list. You might succeed just by asking nice; the TSA itself says that 99 percent of individuals who apply for redress are not on the terrorist watchlist, but are misidentified as people who are. To start, you simply use DHS’ online form. They strongly encourage an online submission, warning on their web site that “if documents are mailed, it may take 10-15 business days to receive your submission due to federal government mail screening requirements,” something left over from the very small and long ago anthrax powder letters mailed to a handful of people in 2001. Careful though– proving you are not a terrorist must be done in a 10 meg attachment or less or DHS will reject your request.

    If DHS agrees you are not a terrorist, you get a redress number which you can use when booking a ticket. There is never an explanation, and DHS is not allowed to tell you you are still on the no-fly list, or ever were, or why they did or did not issue you a redress number. If you never hear back from DHS and wonder if you are allowed to fly, the only way to tell is to buy another ticket and see if you can board. Repeat. Even with a redress number, DHS advises arriving at the airport extra early in anticipation of extra screening and questioning.

    What If You Stranded Overseas?

    One popular trick the government likes to occasionally use is to wait for someone to depart the U.S., then slap him/her on the no-fly. The traveler, stuck abroad, clearly has fewer resources to challenge anything or file internet forms and wait by the post box.

    A nice scheme, but since U.S. citizens have a right under the Fourteenth Amendment of the Constitution to return to U.S. territory after traveling abroad, and lawful permanent residents (“green-card holders”) have a similar right to return under the Immigration and Nationality Act, in fact such a move by DHS is essentially unconstitutional and/or illegal.

    So, as one part of the government says you are a terrorist and cannot fly to America, another part of the government is constitutionally obligated to get you back to America. Denied boarding overseas due to the no-fly? Someone in the U.S. (can be a lawyer) must call the State Department and ask that they help you. The ACLU has a handy cheat-sheet with all the details. At some point you will visit the American Embassy in your country of no-fly exile, and, after an average two week delay, re-book your ticket to return to the United States. The cost of all this is on you, and you can expect a detailed welcome from the FBI and others when you touch down in the Homeland. Coming “home” may then mean your mom’s place in Cleveland, or it can mean a jail cell near the airport in Cleveland.

    Bad Guys?

    We’ll admit that there probably are some really bad people out there who’d we would just prefer not sitting next to us on a flight. But who ends up on the no-fly instead?

    The Associated Press reported in 2012 that the federal no-fly list had “more than doubled in the past year” and had grown to about 21,000 people, including some 500 Americans. CBS’ news show, 60 Minutes, states the no-fly list actually has 44,000 names on it. A CBS reporter claims to have seen a portion of the names on no-fly in 2007, and noted Saddam Hussein was on the list, as well as 14 of the 19 September 11th hijackers, all of whom were very dead at the time. Osama bin Laden was also on the list on the off-chance he would have decided to fly to the U.S. under his real name for some reason.

    Represented by the American Civil Liberties Union, a group of thirteen Americans who were barred from boarding domestic flights or planes leaving or bound for the U.S. between June 2009 and November 2012 is suing. One of the plaintiffs in that case is Army veteran Raymond Earl Knaeble, who found himself unable to fly coincidentally after converting to Islam. Four others in the no-fly lawsuit are also military veterans. One was forced to return to the U.S. from Columbia by bus, a long and dangerous trip. Another plaintiff was placed on the list only after he flew from California to the U.S. Virgin Islands. He was forced to take a five-day boat trip and a four-day train ride home.

    How Can This Be Legal?

    Like much of the (known) legislation passed after 9/11, it has been very hard to challenge the no-fly in courts. One significant issue is standing, the right to sue. Persons typically never know for certain they are on the no-fly list, the government will never confirm or deny someone is on the list, and so, absent proof, one may not be able to sue the government. The government has and likely will also continue to cite national security and classified information to block cases from even entering the court system.

    In the lawsuit noted above, the ACLU is arguing that the no-fly list is a violation of the due process clause of the Fifth Amendment. The Fifth Amendment says to the federal government that no one shall be “deprived of life, liberty or property without due process of law.” The meaning is that all levels of American government must operate within the law and provide fair procedures. For example, you cannot be arrested and tried without having legal counsel, being informed of the charges, having the chance to review the evidence against you and so forth. Creating a secret list without any clear means of challenging placement on that list, is, the ACLU contends, unconstitutional.

    The government argues in return that national security prevents a more open system– we can’t tip off the terrorists– and that limited judicial review covers any due process requirement. No-fly list appeals may ultimately go to a federal appellate court, but that court makes decisions based only on government input. The person affected is not even present and will never know what evidence the government presented against him in this secret court.

    The ACLU’s case against the no-fly list is currently being heard in U.S. District Court, in front of a judge who at least appears to be asking serious questions of the government, and who has stated she holds not being able to fly is indeed a case of the government depriving someone of their “liberty,” as stated in the Fifth Amendment. The outcome of the case is of course uncertain, and will no doubt be appealed as far as it can go.

    Until then Americans, happy travels!



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    Man Held 20 Hours for Asking to File TSA Complaint

    February 13, 2015 // 10 Comments »

    vanderklok_600


    Here’s a flash in the dark peek at justice in America, all in the name of keeping us safe from terrorism by using the tools of law enforcement to terrorize us.

    If that’s not the case, then why is Charles Kieser still employed by the TSA?



    The Terrorist

    Random American Citizen Roger Vanderklok (aka “Josef K.“) had the misfortune of going through TSA Supervisor Charles Kieser’s security-screening area. Vanderklok, 57, pictured with his wife, is a Philadelphia architect who runs half-marathons. He flies around the country for weekend races.

    The TSA said it was concerned about the gear in his carry-on bag, and pulled him out of line. The items of concern turned out to be only a running watch and some Power Bars, wrapped in a small PVC pipe for protection against crushing. Nonetheless, for the next 30 minutes, screeners checked and rechecked the bag. They found nothing dangerous. Vanderklok protested that he was no threat, and that the items were of no danger to anyone, and insisted on making a complaint.

    Electronics and “organic mass” can be used to make bombs, TSA Supervisor Charles Kieser said in response to Vanderlok’s complaint. “The passenger made a bomb threat to me,” Kieser testified later according to a court transcript. “He said ‘I’ll bring a bomb through here any day that I want… and you’ll never find it.'”

    The Stormtroopers

    Kieser did not evacuate the area or follow TSA protocol to contact the FBI, as required in the face of a bomb threat. Instead, he just summoned the Philadelphia Police. Vanderklok was taken to an airport holding cell, and his personal belongings, including his phone, were confiscated while police “investigated” him. Vanderklok was detained for three hours in the holding cell, missing his plane. He was not questioned. Instead, after waiting the three hours, he was handcuffed, taken to a downtown police station and placed in another cell. He says that no one, not the police officers at the airport nor the detectives downtown, told him why he was there. He didn’t find out until he was arraigned at 2 a.m. that he was being charged with “threatening the placement of a bomb” and making “terroristic threats.” Despite all that threat stuff, he was released on bail. His wife, worried about not hearing from her husband, was never notified of his arrest until Vanderklok was allowed to phone her for bail money.

    The Trial

    When Vanderklok finally had his case brought to court, the charges were quickly dismissed. A review of airport surveillance videos showed that TSA Supervisor Kieser simply made everything up. Vanderklok made no threats. The security video shows him standing calmly with his arms in front of him holding a laptop. Prosecutors called no witnesses against Vanderklok except TSA Supervisor Kieser.

    As you may have guessed, Vanderklok has now filed a civil suit against the TSA, the Philadelphia Police Department and the Department of Homeland Security, alleging that he was willfully deprived of his liberty, and his Fifth Amendment rights were violated, by the false statements made against him. Kieser remains employed by the TSA. No charges have been filed against him for what appears to have been outright perjury in his court testimony.

    Homeland Security has made no public comment, citing the pending lawsuit. Taxpayers will of course be on the hook for any settlement coming out of the lawsuit.

    BONUS: Taxpayers, on behalf of Philadelphia Airport TSA, recently paid out a $25,000 settlement over detaining a college student for possessing Arabic language flashcards.




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    Supreme Court Rules in Favor of TSA Whistleblower Robert MacLean

    February 6, 2015 // 9 Comments »

    Robert MacLean


    Whistleblower laws exist because government officials do not always act in the nation’s best interests.

    The Obama administration, in its war on whistleblowers, just lost a major battle. Major in its venue — the Supreme Court — and major in its implications for future whistleblower cases.

    The Court’s decision in Department of Homeland Security v. Robert MacLean curtails the government’s manipulation of pseudo-classified information to punish whistleblowers, and strengthens the Whistleblower Protection Act (WPA).

    The Facts

    In July 2003, TSA alerted all marshals of a possible hijacking plot. Soon after, TSA sent an unclassified, open-air text message to marshals’ cell phones canceling several months of missions to save on hotel costs. Fearing such cancellations in the midst of a hijacking alert created a danger to the flying public, veteran Air Marshal Robert MacLean tried to get TSA to change its decision.

    After hitting a dead end, MacLean spoke anonymously to MSNBC, who published a critical story. Only 24 hours later, and after 11 members of Congress voiced concern, TSA reversed itself, putting marshals back on the flights. A year later, MacLean appeared on TV in disguise to criticize agency policies he felt made it easier for passengers to recognize undercover marshals. The TSA recognized MacLean’s voice and discovered he had also released the unclassified 2003 text message. He was fired in April 2006.

    MacLean discovered that months after firing him, TSA had retroactively classified as “security sensitive information” (SSI) the unclassified text message he had leaked. SSI is a designation created by TSA via administrative memo, and had no basis in law. TSA decided nonetheless that leaking a retroactively SSI-classified document was cause enough to fire a federal worker. MacLean fought back.

    In 2013, after a long series of legal wrangles, a United States Court of Appeals decided that MacLean was entitled to his old marshal job back under the Whistleblower Protection Act of 1989. The act generally limits its protections to “disclosures not specifically prohibited by law.” The court said SSI information was not really “classified” at all, and thus MacLean’s disclosure was not a violation of law.

    The Department of Justice challenged the decision in front of the Supreme Court. The Supremes agreed on January 21 with the lower court’s decision, ruling in favor of MacLean and against the government.


    Significance of the Decision

    The Court made clear TSA’s self-created classification, SSI, did not have the power of law. MacLean’s disclosure of SSI material thus did not violate any actual laws making disclosure of properly classified material a crime. There were no grounds to have fired him.

    While by law the U.S. government recognizes only three basic levels of classification (confidential, secret, top secret), since 9/11 government agencies on their own have created pseudo categories of secrecy like SSI, hybrids that casually seek to incorporate the full weight of formal law. There are currently 107 designations just for “sensitive” information alone, none of which receive any review outside of the agency that created them. Allowing any part of the government to declare this or that classified under their own rules means everything can be classified, and every statement by every official potentially actionable, with no external oversight or redress possible.

    The Court also shot down government claims that a law allowing TSA to “prescribe regulations” means the agency can otherwise control disclosures with the force of law. The statute, the Court said, “does not [itself] prohibit anything; instead, it authorizes” the TSA to make choices. No one prohibited MacLean from disclosing an at-the-time unclassified text, nor would it be reasonable to assume something unclassified couldn’t be disclosed.

    The Court did agree with TSA that actions such as MacLean’s can have legitimate national security repercussions. Dealing with that issue “must be addressed by Congress or the President, rather than by this Court,” and, by extension, not by TSA acting on its own.



    Regulation is Not Law

    And as if the point was not clear enough, the Supreme Court stated “interpreting the word ‘law’ to include rules and regulations could defeat the purpose of the whistleblower statute. That interpretation would allow an agency to insulate itself… simply by promulgating a regulation that ‘specifically prohibited’ all whistleblowing.”

    The Supreme Court’s decision answers a key question regarding the scope of exemptions to federal whistleblower protection law. In a blow to the self-proclaimed “most transparent administration ever,” the Court ruled against the use of pseudo-classification as a tool to hide from the public embarrassing or even criminal information. Had the Court held otherwise, no act of whistleblowing could be considered protected. All the government would have had to do to stop an act by a conscientious employee would be to retroactively slap a self-made category of secrecy on whatever was disclosed, and wash its hands of the miscreant.

    Attorney Tom Devine,of the Government Accountability Project, was part of the team that represented MacLean. “This victory,” Devine said, “means that the cornerstone of whistleblower rights has survived — the supremacy of statutory rights passed by Congress over agency secrecy rules. If Mr. MacLean had lost, agencies could cancel those rights through internal regulations, and the Whistleblower Protection Act would have been an unenforceable honor system. In the aftermath, the WPA is alive, well and stronger than ever.”


    What About that Retroactive Classification?

    Also a part of MacLean’s firing from TSA was the issue of the agency retroactively marking the information he was punished for leaking as SSI, some time after it was sent out to all air marshals in an unclassified open text. The Court let stand this government power to retroactively classify information.

    According to MacLean attorney Tom Devine, retroactively pseudo-classifying information as SSI was not an issue in MacLean’s appeal, and should not inhibit all whistleblowing. Following MacLean’s firing, Executive Order 13556 in 2010 made clear categories such as SSI alone does not affect disclosure laws such as the Whistleblower Protection Act. In addition, the “anti-gag” provision of the later Whistleblower Protection Enhancement Act already outlawed liability for disclosures involving “unmarked but classified” information. That law’s definitions require information to be specifically designated as classified, not just to deserve secret status.


    Whither MacLean?

    That’s the bigger picture. On a more personal level, what’s next for MacLean?

    “I’m a sheepdog, I fight until I’m unconscious or dead,” said MacLean. “The public paid me considerably more than most federal employees. I had the power to arrest people. I was extensively trained and gave an oath that I would risk my life engaging in firefights inside crowded missiles.”

    “I want to resume serving in law enforcement,” said MacLean. “If my country wants me back serving as an air marshal, I will serve to the best of my ability and with honor.”



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    Terrorist Prosecution Fail; Taxpayers Eat it for $25,000+

    January 27, 2015 // 9 Comments »

    george


    Here’s another reason to be even more skeptical when you see those statistics about how the United States has arrested or detained 1,200,761,324 terrorists or whatever.

    A former college student, Nicholas George, the Face of Evil, pictured, was detained in 2009 for hours at Philadelphia International Airport because he was carrying Arabic flashcards and thus suspected by the TSA of having something to do with terrorism. With the assistance of the ACLU, George successfully sued the United States Government for abusing his First and Fourth Amendment rights. The $25,000 settlement ends five years of litigation, including numerous attempts to stall the case by the government, all paid for by you, the taxpayer. Because, freedom, ‘kay?

    The Madness

    The government’s madness began after Nicholas George was detained for having Arabic-English flashcards with words like “terrorist” and bomb” written on them. He was 21-years-old at the time and on his way to California, where he was a senior at Pomona College majoring in — wait for it — Middle Eastern studies. The U.S. government actually encourages Americans to learn “critical languages” such as Arabic, and both the CIA and the State Department offer recruitment incentives to those who do. The government also offers generous grants and loans to those who study Arabic. In order to better decode what a bad guy might be saying, it would make sense for a student to learn words such as “bomb.” The term would also certainly come up in any contemporary reading about world events.

    Back at the front lines of the war on terror, apparently the Philly airport, things played out a little differently.

    “At the metal detector at airport security, Transportation Security Administration agents asked me to empty my pockets,” George said. “I took the set of flashcards from my pocket and handed them to the officers. After I cleared the metal detector, they asked me to step aside for additional screening. One of them started rifling through the cards, and another took a book critical of U.S. foreign policy written by a Reagan administration official out of my carry-on. The minutes ticked by, and I got more confused about why I was being detained and more concerned that I would miss my flight. One of them called a supervisor.”

    Bin Laden Spoke Arabic

    After a half-hour delay at the security line, the supervisor showed up. After looking at the book and flashcards, the supervisor asked “Do you know who did 9/11?” George answered: “Osama Bin Laden.” Then she asked him if he knew what language Osama Bin Laden spoke. “Arabic,” he replied. George was in college, after all, so knew the answers. “So do you see why these cards are suspicious?” she finished. George did not know the answer to that question.

    George was then handcuffed and paraded through the airport to a police substation. Authorities searched his luggage and kept him locked up in a cell handcuffed. After about two hours George asked to go to the bathroom, and on the way back asked his jailer why he was being held. The cop answered, contending for the banality of evil award, “I dunno, what’d you do?” George was eventually set free without explanation. Having missed his flight, he was left on his own to get home.

    First and Fourth Amendments? Never Heard of ‘Em

    “Even after searching my luggage without probable cause of a crime and finding nothing out of the ordinary, TSA agents and the police felt they had the authority to detain and then arrest me, purely on ignorant assumptions about a language spoken by 295 million people worldwide,” George wrote in a blog post.

    Another victory in the war on terror,or for bullying, or for the triumph of the will of ignorance. Thanks TSA!



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    No-Fly List Appeals System Declared Unconstitutional

    July 15, 2014 // 3 Comments »




    No-Fly is No Fair.

    People on the government’s no-fly list are denied their constitutional right to due process, because the government’s procedures to challenge inclusion on the secretive roster are “wholly ineffective,” U.S. District Judge Anna Brown declared in a case brought by thirteen American citizens and supported by the ACLU.

    Important: The court did not declare the no-fly list itself unconstitutional per se, but did say that the lack of any effective system for knowing you are on the list (absent showing up at the airport and being denied boarding) and especially the lack of any real procedure for trying to clear your name and get off the list, are unconstitutional under the Fifth Amendment, as they deny people the Constitutional right to due process. Due process basically means the government cannot punish you, or take something away from you, without giving you the right to challenge that decision, typically in court with a lawyer.

    Specifically, in a 65-page opinion, the Oregon judge ordered the government to come up with a new way for the thirteen plaintiffs to contest their inclusion on the no-fly list that prohibits them from flying in or through U.S. airspace. The government must provide notice to the plaintiffs that they are on the list and give the reasons for their inclusion. The judge also ordered that the government allow the plaintiffs to submit evidence to refute the government’s suspicions.

    There is nothing, however, in the judge’s decision that negates or otherwise does away with the no-fly list. Because her decision took place only in a District Court, the government may appeal the case, perhaps as far as the Supreme Court.

    What is the Current Appeals Process Like for the No-Fly List?

    Understanding the importance of the judge’s decision requires understanding how the no-fly List “appeals” process works currently.

    If you find yourself denied boarding, you must contact the Transportation Security Administration (TSA) via their TRIP Program and ask them to remove your name from the no-fly list. You might succeed just by asking nice; the TSA itself says that 99 percent of individuals who apply for redress are not on the terrorist watchlist, but are misidentified as people who are. To start, you use DHS’ online form. They strongly encourage an online submission, warning on their web site that “if documents are mailed, it may take 10-15 business days to receive your submission due to federal government mail screening requirements,” something left over from the very small and long ago anthrax powder letters mailed to a handful of people in 2001. Careful though– proving you are not a terrorist must be done in a 10 meg attachment or less or DHS will reject your request.

    You are not currently allowed to know why, or based on what information, you are on the no-fly list. You just are. While you can ask a lawyer to help you prepare whatever you submit to DHS, you cannot be represented because you cannot otherwise interact with DHS.

    The government argues in return that national security prevents a more open system– they can’t tip off the terrorists– and that limited judicial review covers any due process requirement. No-fly list appeals may ultimately go to a federal appellate court, but that court makes decisions based only on government input. The person affected is not even present and will never know what evidence the government presented against him in this secret court.

    What if You’re Not a Terrorist?

    If DHS agrees you are not a terrorist, you get a redress number which you can use when booking a ticket. There is never an explanation, and DHS is not allowed to tell you you are still on the no-fly list, or ever were, or why they did or did not issue you a redress number. If you never hear back from DHS and wonder if you are allowed to fly, the only way to tell is to buy another ticket and see if you can board. Repeat. Even with a redress number that clears your name in theory, DHS advises arriving at the airport extra early in anticipation of extra screening and questioning.

    There are no deadlines for an answer from DHS. They may take weeks, months or forever to reply to you. Meanwhile, you, as an official dangerous person, will be able to travel by ship, train, bus, rental car, horseback, donkey cart, ferry, private rented plane, unicycle or other means. Of course none of those conveyances have TSA screening or security.

    How Do You Get on No-Fly in the First Place?

    On September 10, 2001, there wasn’t any formal no-fly list, though the FBI held a folder of 16 names of suspicious flyers. Among the many changes pressed on a scared population starting September 12 was the creation of two lists: the no-fly list and the selectee list. The latter was for person who would undergo additional scrutiny when they sought to fly. The former, like its name, meant if your name was on the list you simply could not board a flight inside the U.S., out of the U.S. or from some other country into the U.S.

    The flight ban can also extend far outside of America’s borders. The no-fly list is shared with 22 other countries.

    Names are nominated for no-fly or selectee by one of perhaps hundreds of thousands of government officials: an FBI agent, a CIA analyst, a State Department visa officer and so forth. Each nominating agency has its own criteria, standards and approval processes, some strict, some pretty sloppy. Your name may end up on the list based on scraps of online postings or as the result of a multi-year detailed investigation or because of a bureaucratic typo. The nominated name is sent to The Terrorist Screening Center (TSC), located in a classified location in suburban Northern Virginia. TSC is a multi-agency organization administered by the FBI, staffed by officials from the Department of Homeland Security, the Department of State, and all of the intel community.

    A key issue is that people are never notified they are on the no-fly list. The only way to even get a hint is to buy an airplane ticket and be prevented from boarding once you arrive at the airport after at check-in the airline receives a “no-fly” message. Through the interrogation process you may (or you may not) learn you might live in the list. You will never have any idea why you are on the list; maybe you share a similar name with some real or imagined bad guy. Still on the list? The only way to tell is to buy another ticket and see if you can board. Repeat.

    Want to read about the ultimate No-Fly list nightmare?




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    A Civics Lesson from America’s Airports, and the TSA

    May 8, 2014 // 15 Comments »

    It is unfortunate that so many foreigner visitors are unfamiliar with our freedoms. The tree of liberty needs to be refreshed from time to time with the residual remains of patriots, so I went to the airport for a civics lesson alongside them.

    I am sure that having flown out of sleek, modern facilities in Asia linked to nearby cities by fast, convenient public transportation, the tourists were unprepared for what it means to be truly free. The advertisements now included in the plastic security bins drove home the American government works for the people, not corporations. Still, many foreigners seemed confused as to why they had to semi-disrobe to board a plane.

    Was removing shoes at the airport some sort of American custom? Even the Japanese, who are shoe-removing fetishists, seemed unsure about wearing only socks to tread upon a filthy public floor. Then came off belts, jackets, jewelry and stuff in pockets. The foreigners, some from Commie Red China where the government controls their every action, were worried pants might be next, but quickly found out we Americans would never bow to a bully government like they had to do at home. We instead all waited in long, slow lines for our chance to appear before a petty government official with blind power over us.

    One thing that distinguishes our international airports from those in many other third world countries is the near-exclusive use of English. Few Americans appreciate the efforts we go to as a nation to provide these gratis tutorial sessions. A curious fact is that American airport workers seem to believe that anyone can speak English if it is blasted at them loud enough and s-l-o-w enough. Idiomatic phrases, such as “ I SAID, liquids in a baggie, 3:1, ya’all, c’mon, people are waiting behind you” are also taught. American passengers often helped out by advising foreign visitors of how to manhandle their laptops, tear open wrapped gifts, disassemble iPods, pour out big bottles of perfumes and bottled water foolishly purchased earlier in the airport and the like.

    As part of America’s commitment to equal treatment for all, I was somehow again selected for random additional screening. It was a good thing, as it meant at least I was still not on the no-fly list. The random part started when the helpful TSA employee scribbled something on my boarding pass and would not tell me what it meant. See, even though I am an American, I too could be treated with scorn. The foreigners, all of whom I could see did not get chosen by Das Selection, seemed impressed. In what other country could the son of a simple tradesman be singled out to represent what is now our America to the world?

    My random extra screening included removing a Chapstick from my pants pocket, and opening it in front of the TSA person as proof it was not terrorist balm meant to moisten one’s lips before shouting “Allah hu Akbar!” Like with the foreigners, the TSA gent spoke English loudly to me, as if to reaffirm loudly we are all equal here in America. He also “asked” that I remove and open my wallet in case it included a very thin gun. In some countries that might be seen as a sleazy request for a bribe, but here we all understood it was just bullying by a public servant. I think when Mr. TSA Employee of the Month saw I had a major credit card was when he knew I was “A-OK.” But not before swabbing my hands for explosives. The Chinese tourists watching all this no doubt remembered the great American cowboy movies they had seen, where men settled things with violence, and smiled seeing how far we had come. As a culture that revers its elders, the Chinese also noted how, after discovering a typo in the name on a boarding pass, TSA sent an elderly woman back to the airline counter for a new one even though she said that would cause her to miss her flight. Not all governments around the world understand they are there to serve the people, not themselves.

    Overall, as I reassembled myself alongside the many visitors sweating and yammering in foreign tongues about how much freedom we Americans enjoy, I could not help but feel proud. Travel and tourism builds bridges, and lets visitors see a people for what they really are. As those modern-day explorers returned to their repressive, petty and inefficient governments at home, I knew that they had at least once, briefly but certainly memorably, breathed free air alongside me.

    BONUS: The foreign visitors no doubt also enjoyed the airport’s retro-touches, which evoked the Golden Age of air travel of the 1950s and 1960s. The lack of WiFi, just like when their parents first visited America, the two electrical outlets serving an entire wing of the airport, the toilets which appear to have not been cleaned since 1950 and the “Welcome Home Troops” signs reminiscent of those displayed for soldiers coming home from the Korean, Vietnam and other wars, all harken back to simpler times.



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    War on Whistleblowers Moves to Supreme Court

    March 21, 2014 // 10 Comments »

    The Obama administration opened a new front in its ongoing war on whistleblowers. It’s taking its case against one man, former Transportation Security Administration (TSA) Air Marshal Robert MacLean, all the way to the Supreme Court. So hold on, because we’re going back down the rabbit hole with the Most Transparent Administration ever.

    Despite all the talk by Washington insiders about how whistleblowers like Edward Snowden should work through the system rather than bring their concerns directly into the public sphere, MacLean is living proof of the hell of trying to do so. Through the Supreme Court, the Department of Justice (DOJ) wants to use MacLean’s case to further limit what kinds of information can qualify for statutory whistleblowing protections. If the DOJ gets its way, only information that the government thinks is appropriate — a contradiction in terms when it comes to whistleblowing — could be revealed. Such a restriction would gut the legal protections of the Whistleblower Protection Act and have a chilling effect on future acts of conscience.

    Having lost its case against MacLean in the lower courts, the DOJ is seeking to win in front of the Supreme Court. If heard by the Supremes — and there’s no guarantee of that — this would represent that body’s first federal whistleblower case of the post-9/11 era. And if it were to rule for the government, even more information about an out-of-control executive branch will disappear under the dark umbrella of “national security.”

    On the other hand, should the court rule against the government, or simply turn down the case, whistleblowers like MacLean will secure a little more protection than they’ve had so far in the Obama years. Either way, an important message will be sent at a moment when revelations of government wrongdoing have moved from the status of obscure issue to front-page news.

    The issues in the MacLean case — who is entitled to whistleblower protection, what use can be made of retroactive classification to hide previously unclassified information, how many informal classification categories the government can create bureaucratically, and what role the Constitution and the Supreme Court have in all this — are arcane and complex. But stay with me.  Understanding the depths to which the government is willing to sink to punish one man who blew the whistle tells us the world about Washington these days and, as they say, the devil is in the details.

    Robert MacLean, Whistleblower

    MacLean’s case is simple — and complicated.

    Here’s the simple part: MacLean was an air marshal, flying armed aboard American aircraft as the last defense against a terror attack. In July 2003, all air marshals received a briefing about a possible hijacking plot. Soon after, the TSA, which oversees the marshals, sent an unencrypted, open-air text message to their cell phones cancelling several months of missions for cost-cutting reasons. Fearing that such cancellations in the midst of a hijacking alert might create a dangerous situation for the flying public, MacLean worked his way through the system. He first brought his concerns to his supervisor and then to the Department of Homeland Security’s inspector general.  Each responded that nothing could be done.

    After hitting a dead end, and hoping that public pressure might force the TSA to change its policy, MacLean talked anonymously to a reporter who broadcast a critical story. After 11 members of Congress pitched in, the TSA reversed itself. A year later, MacLean appeared on TV in disguise to criticize agency dress and boarding policies that he felt made it easier for passengers to recognize marshals who work undercover. (On your next flight keep an eye out for the young man in khakis with a fanny pack and a large watch, often wearing a baseball cap and eyeing boarders from a first class seat.) This time the TSA recognized MacLean’s voice and discovered that he had also released the unclassified 2003 text message. He was fired in April 2006.

    When MacLean contested his dismissal through internal government channels, he discovered that, months after firing him, the TSA had retroactively classified the text message he had leaked. Leaking classified documents is more than cause enough to fire a federal worker, and that might have been the end of it. MacLean, however, was no typical cubicle-dwelling federal employee. An Air Force veteran, he asserted his status as a protected whistleblower and has spent the last seven years marching through the system trying to get his job back.

    How Everything in Government Became Classified

    The text message MacLean leaked was retroactively classified as “security sensitive information” (SSI), a designation that had been around for years but whose usage the TSA only codified via memo in November 2003. When it comes to made-up classifications, that agency’s set of them proved to be only one of 28 known versions that now exist within the government bureaucracy. In truth, no one is sure how many varieties of pseudo-classifications even exist under those multiple policies, or how many documents they cover as there are no established reporting requirements.

    By law there are officially only three levels of governmental classification: confidential, secret, and top secret. Other indicators, such as NOFORN and ORCON, seen for instance on some of the NSA documents Edward Snowden released, are called “handling instructions,” although they, too, function as unofficial categories of classification. Each of the three levels of official classification has its own formal definition and criteria for use. It is theoretically possible to question the level of classification of a document.  However much they may be ignored, there are standards for their declassification and various supervisors can also shift levels of classification as a final report, memo, or briefing takes shape. The system is designed, at least in theory and occasionally in practice, to have some modicum of accountability and reviewability.

    The government’s post-9/11 desire to classify more and more information ran head on into the limits of classification as enacted by Congress. The response by various agencies was to invent a proliferation of designations like SSI that would sweep unclassified information under the umbrella of classification and confer on ever more unclassified information a (sort of) classified status. In the case of the TSA, the agency even admits on its own website that a document with an SSI stamp is unclassified, but prohibits its disclosure anyway.

    Imagine the equivalent at home: you arbitrarily establish a classification called Spouse Sensitive Information that prohibits your partner from seeing the family bank statements. And if all this is starting to make no sense, then you can better understand the topsy-turvy world Robert MacLean found himself in.

    MacLean Wins a Battle in Court

    In 2013, after a long series of civil service and legal wrangles, the United States Court of Appeals for the Federal Circuit handed down a decision confirming the government’s right to retroactively classify information. This may make some sense — if you squint hard enough from a Washington perspective. Imagine a piece of innocuous information already released that later takes on national security significance. A retroactive classification can’t get the toothpaste back in the tube, but bureaucratically speaking it would at least prevent more toothpaste from being squeezed out. The same ruling, of course, could also be misused to ensnare someone like MacLean who shared unclassified information.

    The court also decided that, retrospective classification or not, MacLean was indeed entitled to protection under the Whistleblower Protection Act of 1989. That act generally limits its protections to “disclosures not specifically prohibited by law,” typically held to mean unclassified material. This, the court insisted, was the category MacLean fit into and so could not be fired. The court avoided the question of whether or not someone could be fired for disclosing retroactively classified information and focused on whether a made-up category like SSI was “classified” at all.

    The court affirmed that laws passed by Congress creating formal classifications like “top secret” trump regulations made up by executive branch bureaucrats. In other words, as the Constitution intended, the legislative branch makes the laws and serves as a check and balance on the executive branch. Congress says what is classified and that say-so cannot be modified via an executive branch memo. One of MacLean’s lawyers hailed the court’s decision as restoring “enforceability for the Whistleblower Protection Act’s public free speech rights. It ruled that only Congress has the authority to remove whistleblower rights. Agency-imposed restraints are not relevant for whistleblower protection rights.”

    The ruling made it clear that the TSA had fired MacLean in retaliation for a legally protected act of whistleblowing. He should have been offered his job back the next day.

    Not a Happy Ending But a Sad New Beginning

    No such luck. Instead, on January 27, 2014, the Department of Justice petitioned the Supreme Court to overturn the lower court’s decision. If it has its way, the next time a troublesome whistleblower emerges, the executive need only retroactively slap a non-reviewable pseudo-classification on whatever information has been revealed and fire the employee. The department is, then, asking the Supreme Court to grant the executive branch the practical power to decide whether or not a whistleblower is entitled to legal protection. The chilling effect is obvious.

    In addition, the mere fact that the DOJ is seeking to bring the case via a petition is significant. Such petitions, called writs of certiorari, or certs, ask that the Supreme Court overturn a lower court’s decision. Through the cert process, the court sets its own agenda. Some 10,000 certs are submitted in a typical year. Most lack merit and are quickly set aside without comment. Typically, fewer than 100 of those 10,000 are chosen to move forward for a possibly precedent-setting decision. However, only a tiny number of all the certs filed are initiated by the government; on average, just 15 in a Supreme Court term.

    It’s undoubtedly a measure of the importance the Obama administration gives to preserving secrecy above all else that it has chosen to take such an aggressive stance against MacLean — especially given the desperately low odds of success. It will be several months before we know whether the court will hear the case.

    This Is War

    MacLean is simply trying to get his old air marshal job back by proving he was wrongly fired for an act of whistleblowing.  For the rest of us, however, this is about much more than where MacLean goes to work.

    The Obama administration’s attacks on whistleblowers are well documented. It has charged more of them — seven — under the Espionage Act than all past presidencies combined. In addition, it recently pressured State Department whistleblower Stephen Kim into a guilty plea (in return for a lighter sentence) by threatening him with the full force of that act. His case was even more controversial because the FBI named Fox News’s James Rosen as a co-conspirator for receiving information from Kim as part of his job as a journalist. None of this is accidental, coincidental, or haphazard.  It’s a pattern.  And it’s meant to be.  This is war.

    MacLean’s case is one more battle in that war.  By taking the extraordinary step of going to the Supreme Court, the executive branch wants, by fiat, to be able to turn an unclassified but embarrassing disclosure today into a prohibited act tomorrow, and then use that to get rid of an employee. They are, in essence, putting whistleblowers in the untenable position of having to predict the future. The intent is clearly to silence them before they speak on the theory that the easiest leak to stop is the one that never happens. A frightened, cowed workforce is likely to be one result; another — falling into the category of unintended consequences — might be to force more potential whistleblowers to take the Manning/Snowden path.

    The case against MacLean also represents an attempt to broaden executive power in another way. At the moment, only Congress can “prohibit actions under the law,” something unique to it under the Constitution. In its case against MacLean, the Justice Department seeks to establish the right of the executive and its agencies to create their own pseudo-categories of classification that can be used to prohibit actions not otherwise prohibited by law. In other words, it wants to trump Congress. Regulation made by memo would then stand above the law in prosecuting — or effectively persecuting — whistleblowers. A person of conscience like MacLean could be run out of his job by a memo.

    In seeking to claim more power over whistleblowers, the executive also seeks to overturn another principle of law that goes by the term ex post facto. Laws are implemented on a certain day and at a certain time. Long-held practice says that one cannot be punished later for an act that was legal when it happened. Indeed, ex post facto criminal laws are expressly forbidden by the Constitution. This prohibition was written in direct response to the injustices of British rule at a time when Parliamentary laws could indeed criminalize actions retrospectively. While some leeway exists today in the U.S. for ex post facto actions in civil cases and when it comes to sex crimes against children, the issue as it affects whistleblowers brushes heavily against the Constitution and, in a broader sense, against what is right and necessary in a democracy.

    When a government is of, by, and for the people, when an educated citizenry (in Thomas Jefferson’s words) is essential to a democracy, it is imperative that we all know what the government does in our name. How else can we determine how to vote, who to support, or what to oppose? Whistleblowers play a crucial role in this process. When the government willfully seeks to conceal its actions, someone is required to step up and act with courage and selflessness.

    That our current government has been willing to fight for more than seven years — maybe all the way to the Supreme Court — to weaken legal whistleblowing protections tells a tale of our times. That it seeks to silence whistleblowers at a moment when their disclosures are just beginning to reveal the scope of our unconstitutional national security state is cause for great concern. That the government demands whistleblowers work within the system and then seeks to modify that same system to thwart them goes beyond hypocrisy.

    This is the very definition of post-Constitutional America where legality and illegality blur — and always in the government’s favor; where the founding principles of our nation only apply when, as, and if the executive sees fit. The devil is indeed in the details.




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    TSA and Airport Travel Post-Boston 2013

    April 21, 2013 // 12 Comments »

    2013 Boston Bombings: By two white guys.

    2013 Ricin mailings: By a white guy Elvis impersonator. Not sure now who did it.

    2012 Sandy Hook school massacre: By a white guy.

    2012 Sikh temple massacre in Wisconsin: By a white guy.

    2012 Aurora movie theater massacre: By a white guy.

    2011 Seal Beach massacre: By a white guy.

    2011 Tucson Shooting: By a white guy.

    2008 Northern Illinois University shootings: By a white guy.

    2007 Virginia Tech Shooting: OK, by an Asian guy.

    OK, OK, equal time for 9/11!!!! 9/11!!!! 9/11!!!!

    1999 Columbine School massacre: By two white guys.

    1996 Atlanta Olympic Bombing: By a white guy.

    1995 Oklahoma City bombing: By a white guy.

    (There are actually more mass shootings by white guys; see the full list)

    So who does TSA pull out of line for advanced screening at the airport yesterday in front of me?

    Some brown guy.

    Fun Brain Teaser: The FBI, et al, would say that because they have harassed the Browns, set up fake stings and taken away their shampoo at the airport, we have in fact been kept safe, hence the results above. So, if the FBI and the gang turn their attention to harassing EVERYONE, we’ll truly be safe, right?




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    For Christmas, Help Your Kids Learn the Tools of Fascism

    December 24, 2012 // 17 Comments »

    Still not sure what to buy for Christmas? Well, why not kill two birds with one stone and close out your Christmas list while helping your children get better acquainted with the tools of a fascist society. I am not making this up, though I wish to God I was.




    To begin, why not dive deep into the bowels of our control society with an actual airport security checkpoint toy, the Playmobil Security Check Point. Look at that hippie in the magnometer! He looks suspicious, maybe an actual terrorist. Better conduct a mini-body cavity search on him to ensure a peaceful and free Yuletide for proper citizens. (Be sure to read the readers’ reviews on Amazon for each item, proof that not everyone is a robot just yet).






    Next, why not a Playmobil Police Checkpoint? You can have drunk Barbie stripped and searched. As a bonus, kids can practice ratting out their parents to the law enforcement officials. Look in the ash tray Officer Good, mommy sometimes smokes extra-smelly cigarettes in the car when Daddy is out at his NRA meetings!







    Finally, no law enforcement official wants to go into a “situation” without backup, so be sure to also purchase Playmobil Police Officers, including the smiling Aryan guy with the assault rifle.



    But why screw around with toys and games when you can take a real step towards a happy Christmas with body armor sized for children. The body armor comes in eight colors and, for $200 extra, you can upgrade the protection to Level IIIA just in case that assault rifle ban doesn’t catch on in Congress. While the vest is thin enough to wear under clothing, all the cool kids this year are wearing theirs on the outside. The same online store sells the vests fitted for men and women, so the whole family can have coordinated body armor under the tree. I hereby offer a bounty of $1 cash for the first person to send in a family photo showing Mom, Dad and the kiddies in coordinated armor around the fireplace.






    But armored vests are not for everyone, which is why parents should consider a ballistic backpack for their kids this holiday shooting season. As the ad copy for this product says, “You can always be confident that the armor hasn’t been accidentally left at home. The backpack can be quickly brought to the front as a shield while fleeing the scene of the shooting.”









    It’s a Christmas miracle! Merry Christmas to all, and of course, stay low and watch your backs this festive season!



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    Privacy and Santa’s No-Fly List: Naughty or Nice?

    December 21, 2012 // 12 Comments »

    The greatest civil rights challenge of our times is playing out in real time around us, the question of whether our rights of privacy will be forever taken away. The Constitution enshrines these rights in the Fourth Amendment, but in reality the Founders found them inalienable, rights that simply are and truly need not be specifically called out. That said, being practical men, they jotted down some things in the Bill of Rights just to be sure.

    The Fourth Amendment was in fact adopted as a response to the British abuse of writs of assistance, a type of broad search order, during the American Revolution. Instead, per the Fourth, search and seizure should be limited in scope according to specific information agreed to by the issuing court. The concept goes deep into our collective Western history; Sir Edward Coke, in Semayne’s Case in 1604, famously stated “The house of every one is to him as his castle and fortress, as well for his defense against injury and violence as for his repose.” Semayne’s Case acknowledged that even the King did not have unbridled authority to intrude on his subjects’ dwellings.

    Yet a mere two hundred some years later the whole thing is in shambles as evil men and women, people now in government who wouldn’t qualify as product in the Founder’s bed pans, seek to manipulate technology to blow away our rights. The Founders declared that we were free from the government searching our homes without a court-issued warrant, itself requiring the government to prove that such a search was necessary and limiting its scope. Various Court challenges along the way progressively interpreted the physical searches of the Founders’ days to include “searches” of mail, phone conversations and the like. Now, claiming as all tyrants do, that new rules are necessary to protect us (How does destroying our rights protect our rights?), the amazing ease of searching people electronically is being used to squash the concept of privacy. With snooping tools, packet sniffing, telecom cooperation and supercomputing, the government invades our privacy at will.

    But so what? Doesn’t Santa himself keep a close eye on us, relegating every boy and girl to his own no-fly list, naughty or nice? If you have nothing to hide, why are you hiding?

    The obvious first response is that in an era of paranoia, with “terrorists” lurking in every airport line and behind every Tweet, one does not wish to test his/her ideas of what to say or what to possess against secret government standards (if standards exist at all). For example, the New World Order agency TSA handcuffed and body searched a college student at the Philadelphia International Airport for several hours over the possession of Arabic language flashcards. The kid was returning from his home in a Philly suburb to Pomona College in California, where he was studying Arabic. Though he has used his language skills to work in Egypt through a State Department program, TSA cited as justification “his passport, with travel stamps from several Mideast countries.” TSA also noted the kid carried “a book critical of U.S. foreign policy.” In such a twisty-turney world of paranoid officials, only a fool would claim that she has nothing to hide and thus unrestrained search is not a threat.

    But the more serious and far-reaching reason the Founders worried about unfettered search by the government is that protection of privacy underlies many of the other rights we cherish, most obviously those of the First Amendment guaranteeing free speech. Free speech includes the right to write something as well as the right to own and read something. Thought is expressed via “speech” (emails, conversations, Facebook) and searches of those media strike directly at the very notion of free speech. The Fourth Amendment is necessary to protect the First Amendment. It is no surprise that 24/7 surveillance was a key component of Orwell’s nightmare future in 1984.

    So spare a thought (but don’t write it down for God’s sake!) this holiday season for those less fortunate than you, those without the right to privacy, those whose rights to free speech are being challenged by a government whose electronic ticklers reach deeper and deeper into their lives.

    Wait, that’s us, isn’t it? Better watch out, better not cry Citizens. And watch your back.




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    America is Safer: Khan Detained and Questioned by TSA in Canada

    October 29, 2012 // 5 Comments »

    Imran Khan, a former cricket star, and Pakistani politician critical of U.S. drone strikes, says American authorities detained and questioned him at a Canadian airport.

    He had boarded a plane in Toronto bound for New York, but was removed from the plane and interrogated on his views on drones. This month he led a contentious march to the border of Pakistan’s tribal region to protest drone strikes. A person traveling with Khan said Khan was told there was concern about possible violence at an anti-drone protest the politician was scheduled to lead in the United States. But that protest had been canceled. Khan also was asked about the fund-raising he was doing in the country. He was allowed to enter the U.S. on a later flight, albeit after a two hour interrogation.

    So, whatever, freedom!

    What could be the possible point of detaining and interrogating Khan? Was he a threat to the passengers and the plane? Did he have Semtex stapled to his underwear? Was he planning to take the last chicken meal and leave everyone behind him with the fish?

    The only possible rationale of course was intimidation, the American government letting one of its critics know that We Are Watching, and even though we chose to let you go this time buddy boy, don’t assume it’ll always work this smoothly. Just like that– finger snap– you could be on another plane, straight to sunny Gitmo. Oh, and have a nice day.

    The intimidation game is amplified given who Khan is. A once and possibly future leader of Pakistan (he is aiming at Prime Minister, and is considered one of the most popular politicians in Pakistan), the U.S. is getting its licks in early and often. Also, with Khan’s status in Pakistan and the Muslim world, the U.S. knew his detention would make world news. It was intended to do so, warning non-celebrity drone opponents of what awaits them in free America. This should all buttress America’s “soft power” efforts to make friends abroad.

    Ya’ll watch your step now in this part of ‘da countryside boy!

    BONUS: What were U.S. law enforcement agents doing working in Canada? Why, enforcing U.S. law on foreign soil, of course! For the “convenience” of travelers, the U.S. has worked out pre-inspection regimes with certain countries, mostly Canada, Shannon, Ireland and some Caribbean nations. These agreements allow the U.S. to station law enforcement personnel abroad and throw people out of the U.S. even before they enter the U.S. The U.S. also has TSA “advisors” in fifteen other foreign airports. And what a nice cover job those make!

    From Glenn Greenwald, more on the use of border controls to intimidate and harass U.S. critics.




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    Why Doesn’t TSA Trust the State Department?

    August 2, 2012 // 2 Comments »

    The mighty men and women of TSA have a trust issue. Perhaps many were unloved as children, but they as a group simply are not people persons. Until very recently, a soldier in uniform, the pilot who is going to fly the actual plane, and a guy on a camel with a T-shirt reading “I am a Terrorist” holding an AK-74 were all treated the same at airport security checkpoints. Under some bizarre, irrational interpretation of fairness, limited security resources were not focused on the most likely threats but instead spread thin. A little old grandma’s wrapped birthday gift would set off the same level of scrutiny as a leaking box with wires hanging out the sides.

    No more. A tiny ray of reality seems to have entered the TSA world with the announcement that certain groups of low-risk travelers will be moved into a category called “TSA Pre-check.” No application needed or allowed as with previous attempts to sort out folks. Now, based on where you work and especially on whether or not you hold a US Government security clearance, you will face lighter screening.

    First in the pool are uniformed military at certain airports. Kind of a no brainer.

    Then we learned in a round-about-way that TSA is also including to exclude from full screening many CIA officers. Wired.com reports that TSA signed an agreement with the Director of National Intelligence in February to include members of the intelligence community in “pre check.” Again, kind of a no brainer.

    A Bit of Black Ops in Passports?

    Quite intriguingly, TSA chief John Pistole explained that membership in the special pre-check program is acknowledged when one uses his/her passport as ID. “The beauty of it from my perspective is that the information that the person is a known and trusted traveler is embedded in a bar code in the passport. And it doesn’t distinguish between a member of the intel community or a frequent flier. So the security officer at the checkpoint doesn’t know whoever you are.”

    Passport barcodes are in the back of the booklet and are tied to the physical booklet itself, not the traveler who is issued that booklet. US passports issued after 2007 contain an RFID chip which holds information about the traveler, including all the bio info from the passport and the photo. TSA does not scan or read the passport barcodes when you pass through the airport. They do scan the passport info encoded in plain letters and numbers, and can/do read the RFID chip. It would be interesting to know exactly what database TSA refers this info to to determine who is and who is not a pre-check qualified traveler. That database would have to be largely unclassified, as it would not do to have a handy list of all CIA officers (we hope), just a list of passport numbers and a go/no go code.

    Whither State?

    The justification for including CIA officers as a group in the pre-check program makes sense. As a group they all hold at least Top Secret clearances and are well-known to the government. If you are not ready to trust them to leave their shoes on going through the airport you probably should not trust them to hunt terrorists, operate killer drones and all that. Kind of a no brainer.

    But what about State Department Foreign Service Officers as a group? They are not in the pre-check program. As a group they all hold at least Top Secret clearances and are well-known to the government. If you are not ready to trust them to meet with foreign governments, reconstruct Iraq, Afghanistan and Haiti, why trust them to leave their shoes on going through the airport?

    Ironically, it is the State Department who issues the passports others can use as tickets to faster security processing. Maybe there’s a way State can spoof the passports to get their people included?

    Permission to ease through TSA security has been under discussion inside State for a long time. State’s internal “ideas marketplace,” the Sounding Board, has had a thread on this topic since 2010, with over 140 entries. Yet not a word there or anywhere else on why State’s diplomats are not trusted by TSA. State Department employees coming from overseas were initially excluded from airline discount programs for pets, originally offered only to the military. State had to fight its way into that program, largely through its employee association, AFSA’s, efforts. It is always “People First” at State.

    Bonus for State Department people: It appears State has been part of some inter-agency working group “looking into this” since at least March 2012, with the boffo results above. I contacted AFSA, who tells me they have raised and continue to pursue this very issue with management.


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    About the Irrelevancy Thing at State…

    July 19, 2012 // 4 Comments »




    I recently wrote about the State Department’s increasing irrelevancy. About one out of every four positions are unfilled or under-staffed, while the military continues to assume a greater and greater role in America’s relations with other countries. You can read more here.

    The article brought forth the usual handful of angry emails from offended Foreign Service Officers unable to cope with the cognitive dissonance of their own irrelevancy in a job they worked so hard to obtain and which constantly tells them they are some sort of elite special forces kind of thing as they file stuff in triplicate.

    So let’s poke our head under the rock at Foggy Bottom and see what State did today to assert its crucial importance to anyone but itself.

    The State Department issued a Worldwide Caution, nearly identical in wording to the same Worldwide Caution they have been re-issuing about every six months since the 9/11 wake up call. The purpose of this document is clear: “U.S. citizens are reminded to maintain a high level of vigilance and to take appropriate steps to increase their security awareness.”

    Well now, that seems important. Let’s drill down a bit. I bet you did not know this:

    Current information suggests that al-Qaida, its affiliated organizations and other terrorist groups continue to plan terrorist attacks against U.S. and Western interests in Europe. European governments have taken action to guard against terrorist attacks, and some have spoken publicly about the heightened threat conditions. In the past several years, attacks have been planned or occurred in various European cities.

    Or maybe this will shock you into a higher level of vigilance:

    Credible information indicates terrorist groups also seek to continue attacks against U.S. interests in the Middle East and North Africa. For example, Iraq remains dangerous and unpredictable.


    Of course, not all the advice is so… generic. If you are planning a yacht trip off the coast of Somalia, the State Department quite correctly reminds you:

    The U.S. government maritime authorities advise mariners to avoid the port of Mogadishu and to remain at least 200 nautical miles off the coast of Somalia. In addition, when transiting around the Horn of Africa or in the Red Sea, it is strongly recommended that vessels travel in convoys and maintain good communications at all times.

    Now I bet a lot of mariners planning a casual transit around the Horn o’ Africa enroute to the spice trade would not have thought to maintain good communications. Noted!

    A Safe Trip Abroad

    The Worldwide Caution refers you to an online State Department pamphlet, A Safe Trip Abroad, that appears to have been written in 1955 by the Beaver’s mother. “To help avoid becoming a target, do not dress in a way that could mark you as an affluent tourist,” it scolds. “If you wear glasses, pack an extra pair.” “Bring travelers’ checks.” Do they even sell those anymore? Has anyone tried to cash a travelers’ check in this decade? “If possible, lock your luggage.” Oops, if you do that TSA will simply break the lock to inspect your underwear before you even board the plane. “Make two photocopies of your… airline tickets.” R i g h t… who out there is old enough to even remember paper aero-plane tickets?

    It is not that this information has not been updated since 1989, but look at this paragraph:

    Before you go, learn as much as you can about the local laws and customs of the places you plan to visit. Good resources are your library, your travel agent, and the embassies, consulates or tourist bureaus of the countries you will visit.

    That is precious. Is it because most State Department offices don’t have web access yet that they still use libraries, travel agents and tourist bureaus? Do State travelers hope to pick up paper maps at local petrol stations enroute to the steamship or dirigible port?

    Here ara a few things the State Department expects most Americans will take care of before that four day cruise to the Bahamas:

    Have your affairs in order at home. If you leave a current will, insurance documents, and power of attorney with your family or a friend, you can feel secure about traveling and will be prepared for any emergency that may arise while you are away. If you have minor children, consider making guardianship arrangements for them.

    OK honey, I have iPhone charged and loaded with the e-boarding passes. Did you construct a legal guardianship agreement for Wally and the Beaver or should I do that at the same time I incorporate us in the Caymens to avoid US taxes?

    But of course, since the State Department is clearly not irrelevant, they save some of the best advice for last. Indeed, this seems to be advice that they follow themselves:

    Try to seem purposeful when you move about. Even if you are lost, act as if you know where you are going.




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    Rationale Thought on (In)Security

    April 5, 2012 // 1 Comment »

    TomDispatch offers a head-smacking piece on how far we have slid down that slippery slope into becoming just another crappy security state:

    Sometimes a little distance is all it takes. I left town — and the country — for nine days, hardly a blink in time, but time enough, as it happened, for another small, airless room to be added to the American national security labyrinth. While I was gone, Attorney General Eric Holder and Director of National Intelligence James Clapper, Jr., okayed new guidelines allowing the National Counterterrorism Center, a post-9/11 creation, to hold on to information about Americans in no way known to be connected to terrorism — about you and me, that is — for up to five years.

    Joseph K., that icon of single-lettered anonymity from Franz Kafka’s novel The Trial, would undoubtedly have felt right at home in Clapper’s Washington… For most Americans, though, it was just life as we’ve known it since September 11, 2001, since we scared ourselves to death and accepted that just about anything goes, as long as it supposedly involves protecting us from terrorists.

    Read the entire article on TomDispatch now.

    On the same theme, we deviate slightly today from our usual fetid pile of snark and sarcasm to being you some rationale, intelligent commentary about the silliness of airport security screening as practiced in the US. Bruce Schneier writes:

    (The Transportation Security Administration, TSA) wants us to trust that a 400-ml bottle of liquid is dangerous, but transferring it to four 100-ml bottles magically makes it safe. They want us to trust that the butter knives given to first-class passengers are nevertheless too dangerous to be taken through a security checkpoint. They want us to trust the no-fly list: 21,000 people so dangerous they’re not allowed to fly, yet so innocent they can’t be arrested. They want us to trust that the deployment of expensive full-body scanners has nothing to do with the fact that the former secretary of homeland security, Michael Chertoff, lobbies for one of the companies that makes them. They want us to trust that there’s a reason to confiscate a cupcake (Las Vegas), a 3-inch plastic toy gun (London Gatwick), a purse with an embroidered gun on it (Norfolk, VA), a T-shirt with a picture of a gun on it (London Heathrow) and a plastic lightsaber that’s really a flashlight with a long cone on top (Dallas/Fort Worth).


    Increased fear is the final harm, and its effects are both emotional and physical. By sowing mistrust, by stripping us of our privacy—and in many cases our dignity—by taking away our rights, by subjecting us to arbitrary and irrational rules, and by constantly reminding us that this is the only thing between us and death by the hands of terrorists, the TSA and its ilk are sowing fear. And by doing so, they are playing directly into the terrorists’ hands.


    The goal of terrorism is not to crash planes, or even to kill people; the goal of terrorism is to cause terror. Liquid bombs, PETN, planes as missiles: these are all tactics designed to cause terror by killing innocents. But terrorists can only do so much. They cannot take away our freedoms. They cannot reduce our liberties. They cannot, by themselves, cause that much terror. It’s our reaction to terrorism that determines whether or not their actions are ultimately successful. That we allow governments to do these things to us—to effectively do the terrorists’ job for them—is the greatest harm of all.


    Read the entire article online.



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