America’s Anti-hijacking Campaign -- Will it Conform to Our Constitution?

• Publication year: 2001
• Citation: Vol. 3 No. 2001

Addie S. Ries⁰

On September 11, 2001, tragedy struck the United States after nineteen hijackers slipped past security in three American airports and, wielding only knives and box cutters, successfully gained control of four United States commercial airliners. The terrorists crashed two planes into the World Trade Center, collapsing the Twin Towers and killing more than 3000 people, and rammed a third plane into the Pentagon where there were an additional 189 casualties.¹ The ability of hijackers to use our commercial jets as weapons of mass destruction proves that airport security is not only a concern for airline passengers, but also a threat to national security.

Recovery was underway September 27th, when President Bush proclaimed after reopening the nation's airports that the United States was once again "open for business."² But business in the United States has been slow since the attacks. Seven weeks after the attacks, House Minority Leader Richard Gephardt said that "[t]he biggest thing that is interrupting our economy is fear, especially fear of getting onto airplanes."³ Consequently, commercial airlines have seen sharp declines in ticket sales as Americans are staying close to home or choosing alternative means of travel for fear of flying what were once dubbed the "friendly skies." Although Congress has authorized a $15 billion bailout package to help the airlines recover, this measure alone is unlikely to sustain the airlines unless it is accompanied by an increase in ticket sales.⁴

It is imperative to restore consumer confidence in America's airlines in order to stimulate demand. Thus, the American people, still reeling from the September 11th attack and fearful of future attacks, need to be reassured that airport security is being improved to ensure their safety in the air and prevent other terrorists from using commercial airliners as weapons of mass destruction.

While increased airport security is necessary to protect Americans in the air and on the ground, it is vital to consider the effects of new security measures on the personal freedoms guaranteed by the Constitution. United States history, through the internment of Japanese Americans during World War II⁵ and the Palmer raids during the Cold War,⁶ proves that it is all too easy to forget civil liberties in times of insecurity. Unfortunately, the immediate situation poses many of the same complex problems that led to the adoption of the above security measures, which have since been blemishes on our long record of commitment to democracy and human rights. Because the terrorists walk among law-abiding citizens in this country and have been able to exploit our civil rights for their evil purposes, Americans' ability to protect against additional attacks without somewhat restricting those rights is impeded. The threat of future attacks creates a sense of urgency that further increases the pressure on Congress to enact laws for the immediate protection of citizens that may later be seen as contrary to our belief in the principles of democracy and freedom.

The very nature of the current situation, however, provides even more compelling reasons why Americans should not forsake their constitutional freedoms. In the past, the United States has engaged in wars to help free nations from government oppression and human rights violations. Now we have been attacked by a group of terrorists who seek to destroy that dedication to freedom and human rights in our own country as well as in other parts of the world. These terrorists will have achieved victory if we are frightened into giving up some of our hard-earned freedoms that they so vehemently despise. Columnist Jacob Sullum writes that "[i]f [our government] rushes to adopt authoritarian measures . . . 'freedom itself could be added to the list of casualties."⁷ Rather than helping terrorists achieve their goals, every safety measure adopted to combat terrorism should be evaluated as to its constitutionality. We should opt for measures that will promote safety with the least effect on Americans' personal freedoms.

This Comment addresses the security measures that are currently being used and those currently being considered for use in our nation's airports. Sections I and II will discuss the constitutional protections of passengers' civil liberties prominently involved in this analysis. The analysis of whether each of these technologies pass muster under the Fourth and Fifth Amendments of our Constitution is contained in Section III. Section IV outlines a constitutional solution.

I. The Fourth Amendment Freedom from Unreasonable Search

The Fourth Amendment of the United States Constitution states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.⁸

While the text of the Fourth Amendment may not appear to govern airport security measures on its face, federal courts have interpreted it to apply to the pre-boarding searches of passengers and their baggage in airports. In Katz v. United States, the Supreme Court held that the Fourth Amendment protects individual privacy against only unreasonable governmental intrusion.⁹ In order to determine which intrusions constitute "searches" and therefore are subject to the protections of the Fourth Amendment, the Supreme Court has adopted the test enunciated by Justice Harlan in his concurrence in the Katz case. This test includes a two-pronged analysis. First, the person being searched must have an actual, subjective expectation of privacy. Second, that expectation must be one that society accepts as a reasonable one.¹⁰

Furthermore, a "search" has been held to encompass examinations made by private airline employees who are not government actors. In United States v. Davis, the Ninth Circuit explained that generally, any search of a passenger or her baggage conducted pursuant to a government-initiated search program will implicate the Fourth Amendment even when performed by airport personnel.¹¹ The outer boundary of this principle is defined in Gold v. United States, where the Ninth Circuit stated that an airport search would cease to constitute governmental action subject to Fourth Amendment protections when the search is "an independent investigation by the carrier for its own purposes."¹²

However, because of the extraordinary nature of airport searches and the limited time available in which to conduct them, courts have commonly justified airport searches through analyses that avoid a warrant requirement under the Fourth Amendment.¹³ In an opinion upholding the use of warrantless searches conducted without probable cause during roadblocks, the Supreme Court stated that "[w]here a Fourth Amendment intrusion serves special governmental needs, beyond the normal need for law enforcement, it is necessary to balance the individual's privacy expectations against the [g]overnment's interests to determine whether it is impractical to require a warrant or some level of individualized suspicion in the particular context."¹⁴ Although the Supreme Court has not yet specifically applied the special needs doctrine to airport searches, in dicta it has repeatedly referred to airport security as the ideal setting for the use of this doctrine.¹⁵

Under all theories, however, courts continue to demand that the searches permitted under these theories adhere to the reasonableness requirement of the Fourth Amendment.¹⁶ The Supreme Court has held that a search may satisfy the reasonableness requirement if, after balancing the equities, the government's need to conduct the search outweighs the intrusion on the individual's rights and privacy.¹⁷ Thus, the reasonableness of airport searches must be determined by weighing the exigencies of national security (including the level of individualized suspicion aroused by the passenger) against the passenger's civil liberties guaranteed by the Constitution.

II. The Fifth Amendment The Right to Travel

In Kent v. Dulles, Justice Douglas wrote the following on behalf of the Supreme Court:

The right to travel is a part of the "liberty" of which the citizen cannot be deprived without the due process of law under the

Fifth Amendment. . . . [D]eeply engrained in our history [is] this freedom of movement . . . . [a]cross frontiers in either direction, and inside frontiers . . . . Freedom of movement is basic in our scheme of values.¹⁸

Air travel is not the only form of travel, and one could argue that greatly restricting the personal liberties of airline passengers does not deny them the freedom to travel. However, while airline security is the main issue at hand, the standards set for searching air passengers can and are likely to be extended to passengers on boats, buses, trains, and subways, as these means of transportation are also susceptible to terrorism. Thus, it must be acknowledged that the technologies accepted for use in airport security will affect a person's right to travel by dictating to what level of intrusion a person must submit in order to exercise her right to travel by any public means.¹⁹

In balancing the competing interests of passenger privacy and airport security, the Ninth Circuit in Davis stated that "[a]lthough the right to travel is not absolute, and its scope and limitations remain uncertain, it is firmly settled that freedom to travel at home and abroad without unreasonable government restriction is a fundamental constitutional right of every American citizen."²⁰ The government's interest in conducting the searches is concededly stronger now that it is clear that all Americans, not just those exercising the right to travel, are at risk. However, the above passage implies that there might be some particularly intrusive searches to which...