An estimated twenty four million people are flying over the Thanksgiving holiday, but an already tough travel week may be even worse this year. Passengers, lawmakers, and civil rights groups are among those objecting to the Transportation Security Administration‘s new screening procedures which include full body scans and aggressive pat-downs. Some have called for a boycott of full body scans on Wednesday and others have filed lawsuits against the agency. Diane and guests take a look at what this means for the busy travel season.

Guests

  • Marc Rotenberg executive director of the Electronic Privacy Information Center and professor of information technology law at Georgetown University Law Center
  • John Pistole Administrator, Transportation Security Administration
  • David Brenner Higgins Professor of Radiation Biophysics, Director of Center for Radiological Research at Columbia University Medical Center
  • Scott McCartney travel editor and "The Middle Seat" columnist for "The Wall Street Journal"
  • Frank Cilluffo director, Homeland Security Policy Institute at George Washington University.

Transcript

  • 10:06:54

    MS. DIANE REHMThanks for joining us. I'm Diane Rehm. The Transportation Security Administration is facing a backlash over new security procedures, including full body scans and aggressive pat-downs. Some groups are calling for boycotts at the body scanning machines on Wednesday, the busiest travel day of the year. Others have filed lawsuits against the agency. Here in the studio with me, Marc Rotenberg, he is with the Electronic Privacy Information center in Georgetown University Law Center and Frank Cilluffo of the Homeland Security Policy Institute at George Washington University. Joining us from the CakeMix Studio in Dallas, Texas, Scott McCartney of The Wall Street Journal. And before we begin our conversation with those guests, we're joined by John Pistole. He is the administrator of the TSA. Good morning to you, sir. Thanks for joining us.

  • 10:08:08

    MR. JOHN PISTOLEGood morning, Diane. Glad to be with you.

  • 10:08:10

    REHMThank you. In a statement yesterday, you said the TSA would try to make the screening as, quote, "minimally invasive as possible." Tell me what that means.

  • 10:08:26

    PISTOLEDiane, what we're trying to do is take the latest intelligence that we have about al-Qaida’s interest in blowing up airplanes, either passenger or cargo planes that we just saw out of Yemen, and trying to make sure that we have the best technology and the best protocols in place to detect those who would cause harm to -- in that respect, at the same time, recognize that the security aspects need to be balance with the privacy concerns that people have. And so, the goal here is to see if there is any refinement, any modification of our current practices where we can be less invasive and yet give that highest level of confidence to everybody on every flight.

  • 10:09:13

    PISTOLEYes, people have been screened. There's no, for example, Christmas Day bombers who use that, you know, the underwear bomber who used a non-metallic bomb that could have brought down the aircraft if it had detonated properly. So how do we balance those two issues and what we face or look? Reasonable people can disagree after what that precise mix or balance is between security and privacy. But in the final analysis, and especially this week, people wanna get home and enjoy Thanksgiving with loved ones. So how can we work in partnership with the American people as they travel to accomplish that?

  • 10:09:52

    REHMSo you're still asking the question rather than offering the answer?

  • 10:09:59

    PISTOLEWell, there's a number of things I'm doing, Diane, the TSA is doing. One is to go back with the GAO and the inspector general of Homeland Security to look at the -- what they call the covert testing that they've done over the last several years, where they have successfully smuggled items through the checkpoints. And one of the common findings was that the reason they were able accomplish this was for the lack of thorough pat-downs that our security officers are doing. So that's part of the challenge. Again, how do we address those issues? So it's not just a undercover agent, if you will, smuggling contraband, which could be explosives, you know, through a checkpoint. It actually could be a putative terrorist who is saying, okay, here's what their screen regimens are. I've read all about them. I've seen all about them. This is what we -- I need to do to defeat them.

  • 10:10:59

    PISTOLEAnd as we just saw from AQAP, al-Qaida in the Arabian Peninsula, over the weekend taking credit for the two Yemen cargo bombs, going into great detail about how they defeated security and how they can continue to defeat securities. So that's really a challenge that we face.

  • 10:11:14

    REHMYeah. I fully understand that. I think that people are concerned about what the line is and where a line is crossed. In other words, if you have a TSA official really examining a woman's breast or putting hands inside trousers or groping between a person's legs, I mean, isn't there a line and what is that line, who is defining that line?

  • 10:11:51

    PISTOLESure. Now, those are all good points, Diane. And clearly there is a line and some people believe that we have crossed that line in terms of privacy. I will say -- also heard from a number of people who said we're doing exactly what we should be doing, should have done it earlier, again, to protect us. So I really think it comes down to reasonable people can disagree as it relates to the specific application of security in each instance so -- whereas you may feel comfortable with it and say, you know, go ahead and do the thorough pat-down, somebody else receiving an exact same pat-down may say, whoa, this is way too invasive and I think it has crossed the line.

  • 10:12:32

    REHMOkay. So let me understand. If I go to security to get on an airplane on Wednesday, do I have the choice to go through the new scanning machine...

  • 10:12:46

    PISTOLEYeah.

  • 10:12:46

    REHM...or to be thoroughly patted down?

  • 10:12:50

    PISTOLEThat's a good point, Diane, because actually, very few people, a very small percentage are actually receiving a pat-down, you know, contrary to what it appears in the media, and it's a secondary screening. So somebody would generally only be pat-down if they have gone through the walk-through metal detector, the traditional metal detector, and alarmed and you can't resolve that alarm, screening officer can't resolve that alarm in talking to the person, or alarmed through the new advanced imaging technology or they opt out. So everybody has the option of not going through the Advance Imaging Technology. We have about 400 machines in 70 airports out of 453 airports around the country. So if they opt out, we just wanna make sure that a Christmas Day-type bomber, who has that nonmetallic bomb on his purse, and if he opts out of AIT, he does receive a thorough pat-down so he's not able to get on the plane with a bomb...

  • 10:13:43

    REHMSure.

  • 10:13:43

    PISTOLE...that will bring that aircraft down.

  • 10:13:44

    REHMThere are a number of people, particularly frequent flyers, pilots, have already been given the opt-out option.

  • 10:13:54

    PISTOLEMm-hmm.

  • 10:13:54

    REHMBut frequent flyers are concerned about the amount of radiation. And I gather that there are some scientists who argue that the amount of radiation given off by these scanning machines is far greater than the TSA has acknowledged.

  • 10:14:19

    PISTOLEWell, the scientific data that we rely on was done by FDA and the National Institute of Science and Technology and John Hopkins, all of which independently formed the basis for our conclusions that the machines are safe. So I would defer to those experts in terms of saying that they have done extensive research on the advanced imaging technology machines and found them to be way below, even the minimal standards of radiation that people might be concerned about.

  • 10:14:46

    REHMBut tell me this, Mr. Pistole, if -- you know, we had this kind of situation. To give you an extreme example, with Agent Orange, when it was said over and over and over, there is no problem with the use of Agent Orange, and look at the number of people in this country and elsewhere who have suffered long term because of it. How can you possibly rely on this information that is given by the FDA?

  • 10:15:28

    PISTOLEWell, again, it's not just the FDA. It is John Hopkins, it is the National Institute of Science and Technology. And then so, I mean, three independent components who are coming up with the same conclusion. So I think we have to rely on that. I would strongly disagree with the comparisons to Agent Orange is -- because of all the tests that's been done on this. I understand your point. But I also believe that, well, at least the studies I've seen said, for example, you could -- you'd have to go through 44,000 times in a year to just reach the minimum baseline. So, again, I would just defer to those experts.

  • 10:16:03

    PISTOLEI think, to your point, the one thing we don't have are what are the long-term results of this minimal exposure. So I think the studies try to address that, but we just don't have that empirical data from, you know, say a 20 or 30 years study to your point.

  • 10:16:19

    REHMAll right. And what happens if there is an opt-out protest on Wednesday? Is the TSA prepared for this?

  • 10:16:30

    PISTOLEWe are fully staffed to deal with the normal crush, if you will, of Thanksgiving travelers. And if -- of course, one of the great things in this country is people can protest, and, hopefully, peaceful and things. The challenge becomes -- and my concern, really, is for all those people, the vast majority that we see, you know, 81 percent of people say that the AIT machines are appropriate. Another study or survey said, you know, high percent 78 or something said we need enhanced security checkpoints. My concern is for those people who are simply trying to get home to be at the holidays with loved ones and get delayed, miss a flight even, because of others protesting, who -- their concerns over these issues.

  • 10:17:16

    REHMAnd finally, what's your reaction to the lawsuits that have been filed against the procedures?

  • 10:17:25

    PISTOLEWell, I think that's, you know, a part of our American culture from the standpoint of if we don't feel like we have sufficient redress, then we'd seek it in the courts and then -- and that's one of the great things about America. I practiced law a couple of years before I joined the FBI, before I joined TSA, so I appreciate and respect that. I think it will come down to just the court's analysis of that balancing of privacy security and safety. And again, just refer to those studies that have been done and then the individual situations that arise. So look forward to the results from those.

  • 10:18:00

    REHMAnd if in fact there is an opt-out protest, how is TSA gonna handle it?

  • 10:18:08

    PISTOLEWell, of course, if it's all peaceful, then it will happen. It will just delay, again, the rest of the traveling public. And so people will be processed much more slowly. If people opt out of both the advanced imaging technology, if they're in one of those 70 airports and refuse a pat-down, then they'll, of course, will not be allowed to board a flight, so they'll be turned away. I don't know what the airlines will say about refunding, though, in that situation. So...

  • 10:18:32

    REHMUh-huh. All right, sir. Thank you so much for joining us, John Pistole. He is the administrator of TSA. Thanks again.

  • 10:18:43

    PISTOLEThank you.

  • 10:18:44

    REHMShort break. We'll be right back.

  • 10:20:03

    REHMAnd joining us now for just a moment is David Brenner. He is with Columbia University's Medical Center and the Center for Radiological Research. Good morning, Dr. Brenner. Thanks for joining us.

  • 10:20:20

    DR. DAVID BRENNERGood morning, Diane. It's a pleasure to be here.

  • 10:20:21

    REHMI'd be most interested in your opinion on the TSA's information about the amount of radiation these body scan machines give off.

  • 10:20:37

    BRENNERWell, Diane, I think there are a couple of points from what John Pistole said. The doses of radiation are certainly very, very small, as he said. We think they are in fact somewhat larger than the TSA is saying. And...

  • 10:20:53

    REHMHow much larger?

  • 10:20:54

    BRENNERWell, perhaps somewhere in the region of 10 or 15 times larger. That being said, it's still a very small dose. But one thing that we do need are some independent assessments of what the radiation doses are.

  • 10:21:08

    REHMWell, actually, he said that independent assessments had come from Johns Hopkins University in addition to the FDA and other organizations. Are you saying that's not sufficient?

  • 10:21:24

    BRENNERWell, I think what people have done since those studies is actually to study the images that you've seen on the Internet, on the TV, the scans. And you can actually go back and figure out, based on the quality of the image, how much radiation was needed to generate that image. And it is rather more than the TSA is suggesting. Again, still a very low dose, but rather larger than they're suggesting. I think...

  • 10:21:52

    REHMIs…

  • 10:21:52

    BRENNERI think we do need some more independent studies. It's not very easy, it should be said, to measure these very low doses of radiation.

  • 10:21:59

    REHMWell, it's interesting, of course, that the pilots themselves have said that they are boycotting these machines because of the frequency with which they'd have to go through.

  • 10:22:13

    BRENNERWell, that's right. A pilot or a flight attendant is typically gonna go through security 200, 300 times, 400 times a year. So even though -- I think everybody agrees -- the risk from going through one of these scanners once is very small indeed, you multiply that risk by 300 for a very frequent flier or for a flight attendant, and the risks now start to not be quite so small.

  • 10:22:41

    REHMThere are also, as you mentioned, the flight attendants. Have they been exempted from these body scanning machines?

  • 10:22:52

    BRENNERI believe not. I believe flight attendants, as of now, are going to be required to go through them. And of course, frequent fliers who can go through also two or 300 times a year certainly have to go through these machines.

  • 10:23:07

    REHMSo it's only the pilots who have been exempted.

  • 10:23:12

    BRENNERThat's correct.

  • 10:23:14

    REHMSo what's it going to take, Dr. Brenner, to accurately assess the amount of radiation and the numbers of times one can safely go through them?

  • 10:23:29

    BRENNERWell, I think, Diane, it's important to bring out one aspect, which hasn't come out so far, is that there are actually two types of these whole body scanners, these so-called AIT scanners. One is called an X-ray backscatter scanner, and the other is usually called a millimeter wave scanner, and the difference is the type of radiation that they use. One, as the name implies, uses X-rays. The other uses a type of radiation actually very similar to microwaves on a microwave oven.

  • 10:23:58

    BRENNERAs far as we know, the millimeter wave machines are safe. There is no evidence at all of any health risks associated with them. On the other hand, the X-ray machines, well, we certainly know that X-rays have the potential to cause cancer. So the question is, why would you want to use an X-ray machine when you have the option of using a millimeter wave machine, which give you the same information but, apparently, without any risk associated with the radiation?

  • 10:24:31

    REHMCan you answer that question, why it is that the TSA would have chosen the X-ray backscatter as opposed to the millimeter wave?

  • 10:24:46

    BRENNERWell, in fact, they're using both. I think the ratio is about 60-40 to X-ray machine is to millimeter wave. So they rather more (unintelligible)

  • 10:24:56

    REHMHow can we know which we’re going through?

  • 10:25:00

    BRENNERWell, probably, if you looked in detail, it would say this is an X-ray device or this is a millimeter wave device, but it's actually quite hard. They look actually fairly similar as you walk through. And at any given airport, you're not gonna have the choice of one on the other. There will only be one type that's deployed.

  • 10:25:20

    REHMDr. Brenner, are you a frequent flyer?

  • 10:25:25

    BRENNERYes. Well, not -- certainly not 200-a-year person. But going through a few times, I really wouldn't hesitate going through even the X-ray machine a few times. As I said, from an individual point of view, the risks are gonna be very, very small. Really, where we get more concerned is what generally we call a population risk, which is take that very small risk and then think about how many people are going to be exposed to that risk. And in this case, it's very large. The number of people going -- getting on airplanes in the U.S. each year is 750 million, that's nearly a billion. That's an enormous number of people. So you take that very small risk and then you multiply it by a very, very large number of people and you start together a public health concern. Some of these 750 million scans are almost certainly going to produce a cancer in many years down the line. And again, the numbers are probably still gonna be small. But again, if there's an option of using a type of machine which doesn't have any X-ray radiation, to my mind you should use that.

  • 10:26:41

    REHMDavid Brenner, he is with the Center for Radiological Research at Columbia University Medical Center. Thank you so much for joining us.

  • 10:26:53

    BRENNERMy pleasure, Diane.

  • 10:26:55

    REHMAnd if you’d like to join us, 800-433-8850. Send us your e-mail to drshow@wamu.rog. Join us on Facebook. Send us a tweet. Marc Rotenberg, do you, your group, the Electronic Privacy Information Center is one of the groups that's filed suit. What's your reaction to what Administrator Pistole has said? What's the basis of your lawsuit?

  • 10:27:30

    MR. MARC ROTENBERGLet me begin by saying, Diane, that my organization, EPIC, has actually been studying this issue for more than five years. We looked at aviation security issues after 9/11. We became aware of the proposed deployment of the body scanner technology and talked to researchers, did some independent study. And we also began our Freedom of Information Act lawsuit. It's that lawsuit that led us to believe that the program should be suspended. We went to the agency couple of years ago and we said, please make available the technical specifications for these devices. And we found first of all, contrary to what the TSA had told the American public, that the body scanners were designed to store and record the images that were captured of American air travelers, unprocessed, unfiltered, exactly as you've seen without any clothes. This was not what the TSA had told the public. But, in fact, they had required this. That was our first concern.

  • 10:28:34

    MR. MARC ROTENBERGOur second concern was that in looking at the technical specifications, we realized that the devices were not designed to detect the type of powdered explosive that has been the focus of so much of the public debate. When the system specifications were first set out, the concern was non-metallic images. It was ceramic knives, for example, plastic explosives and liquids. Those were all specified. But powders such as PETM were not. And if you look back at the recent news stories -- and they're serious, without question -- it is the powder that poses the greatest risk. And then we did a legal analysis and we recognized that while the courts have given the TSA a great deal of latitude in the airports for understandable reasons, there are clearly some lines there that the agency can't cross. We ultimately concluded that the program was invasive, unlawful and ineffective. And that's why we filed the current suit. The current suit is to suspend the program.

  • 10:29:38

    REHMMarc Rotenberg, he is executive director of the Electronic Privacy Information Center at Georgetown University Law Center. And turning to you, Frank Cilluffo, are any of these measures making us safer?

  • 10:29:58

    MR. FRANK CILLUFFOYou know, that's a very good question. We always have to refine our countermeasures, and there are no silver bullets in this environment. We need layered defenses front-loaded with good intelligence, underpinned with technology, underpinned by a seasoned workforce and underpinned by a trained workforce to -- that also factors in customer service.

  • 10:30:21

    REHMAnd you're concerned about that workforce?

  • 10:30:24

    CILLUFFOI think we need to invest more in that workforce, yes. I think that a good person, human intelligence is always going to be the most critical instrument to prevent terrorism. That said, I think this debate is healthy. I think it's constructive. That's what sets apart democracies from totalitarian regimes. I also think that the actual procedures are invasive and there are legitimate privacy concerns. But there are also the concerns for public safety of the flying passengers. And, unfortunately, the world we live in, we do have an adversary that's persistent. Aviation threats had been around since 1948. Al Qaida, its affiliates and those inspired by their Jihadi ideology have placed great emphasis on aviation threats.

  • 10:31:13

    CILLUFFOSo where is that right balance as you so rightfully call that? What is that bright line? I'm not sure there is a bright line. But I also am concerned about the immediate public safety threats, and this is not something that's out of science fiction. This is something less than a year ago. Abdulmutallab was, in his underwear, was used -- was using PETN to try to take down a U.S. airline. So the threat is real, but so, too, are the privacy implications. Finding that right balance, I think, is absolutely critical.

  • 10:31:45

    REHMNow, there are those members of Congress who've already said, well, let's profile people first before we put them through this kind of rigorous examination. Doesn't that in and of itself, as a refining procedure, raise even more questions?

  • 10:32:08

    CILLUFFOIt certainly raises more questions. And if people look at the Israeli model, it is heavily focused on profiling. I think that we do need to be doing more behavioral profiling because, again, ultimately it's going to be people that can determine whether or not someone is engaged in terrorist activity. But it does bring about new privacy questions that are legitimate and real.

  • 10:32:30

    REHMAnd, of course, the comparison to Israeli transportation safety brings into focus the fact that as we've heard so many more millions of Americans are flying through multiple airports.

  • 10:32:46

    CILLUFFOAbsolutely.

  • 10:32:48

    REHMFrank Cilluffo is director of Homeland Security Policy Institute at George Washington University. And turning to you now, Scott McCartney, I know you are columnist for The Wall Street Journal. What are the concerns that you have heard from the airline industry itself on these new security measures?

  • 10:33:18

    MR. SCOTT MCCARTNEYWell, I think, first and foremost, there is a great concern about Thanksgiving this weekend. And it starts tomorrow for some airlines. American and Southwest both told me last week that they're booked heavier for Tuesday than they are for Wednesday this year. Sunday will be the busiest day. And what you get with Thanksgiving are inexperienced travelers. People who are not familiar with TSA procedures, certainly not familiar with the current -- with the new TSA procedures.

  • 10:33:46

    MR. SCOTT MCCARTNEYTo go through the body scanner, for example, protest aside, it's a different procedure. You have to empty absolutely everything out of your pockets, your belt, jewelry, things like that. People aren't gonna be used to it. They're gonna alarm, because they forgot they have a pen in their pocket or didn't take their watch off or left their wallet in their pocket. And so I think there is a great concern that, protests aside, things are gonna be really long and slow at TSA checkpoints for Thanksgiving.

  • 10:34:18

    MR. SCOTT MCCARTNEYAnd then, longer term the concern is, you know, we saw this after 9/11. If it takes a lot longer to get through airports, if there is more hassle, if people do feel, and they obviously do feel like their privacy is being invaded, then they'll go to alternative forms of transportation. And that is a problem for the airline industry. We've seen particularly on short-haul flights a lot of people are driving or taking trains or finding -- or just not traveling. And that's an economic hit for an industry that's fragile to begin with.

  • 10:34:51

    REHMScott McCartney, he's travel editor and "The Middle Seat" columnist for The Wall Street Journal. And you're listening to "The Diane Rehm Show." Here's an e-mail from Daniel who says, "I'm curious about the money behind the new scanners. Is there anything to the stories of Michael Chertoff, lobbying on behalf of the manufacturer?" And of course, Marc Rotenberg, he was a former security administration official in the Bush administration.

  • 10:35:32

    ROTENBERGAll right. I was very concerned when I heard this earlier, Diane. Michael Chertoff is the former secretary of the Department of Homeland Security, a person who is very influential in these debates. And so, when the question was raised after Dec. 25, whether or not these devices would have detected the powdered explosive that was used, Mr. Chertoff went on to radio shows and to TV shows and assured the public that these devices were necessary and effective, which is a very powerful statement coming from the former secretary of Homeland Security. It was only after that we learned that one of the major vendors of the device, Rapiscan, was his client, and that he was lobbying here in Washington on behalf of Rapiscan for a program that could cause the American taxpayer over $2.5 billion dollars for the next eight years.

  • 10:36:25

    REHMI thought that there was a wall between what a federal civil servant could do for several years after leaving office.

  • 10:36:38

    ROTENBERGWell, those -- there have been different ethics policies in the past in Washington. But it turns out to be a very important issue, because you see, the public should place faith in the opinions and views of the leaders in government and for people who have served in office. But to subsequently learn that this person is being paid quite a bit, I would imagine, because this is a very valuable contract to the vendors, is being paid to defend the companies against the questions that other experts have raised, I think is very troubling.

  • 10:37:07

    REHMFrank Cilluffo.

  • 10:37:09

    CILLUFFOYou know, I know Michael Chertoff quite well personally, and I don't know his dealings in this particular situation. But I don't see him shelling for something that he doesn't believe works. Now, should he have been more transparent in terms of -- if they were a client...

  • 10:37:24

    REHMI should say.

  • 10:37:25

    CILLUFFO...absolutely. Absolutely. And I've also heard George Soros, by the way, has investment on the other side of this issue. So those should be issues the American public should know but don't automatically assume it's because of business interests alone.

  • 10:37:39

    REHMAll right. We'll take a short break. We'll open the phones when we return. Stay with us.

  • 10:40:03

    REHMWelcome back. As we talked about the new scanning machines that travelers are going to encounter at airports across the country, we have several guests with us. We'll go to the phones now. First, to Brian in San Antonio, Texas. Good morning to you.

  • 10:40:23

    BRIANHey, good morning, Diane.

  • 10:40:25

    REHMHi.

  • 10:40:25

    BRIANI do have a question. So I'm a father of two young girls. And my concern is if they fail that initial scanning at the airport and they would be subjected to a pat-down, you know, I'd be very, you know, concerned and worried -- I'm a father that I'm going to expose my young girls to these types of procedure. It's certainly...

  • 10:40:44

    REHMI can certainly understand that. Scott McCartney, what's your thinking?

  • 10:40:48

    MCCARTNEYTSA changed their policy on this. They have come up with a different less invasive procedure for children 12 and under. And in all cases, parents can, obviously, watch as pat-down is done. I think it's still a concern for people with young children, for people with teenagers. But I think that TSA is adamant that you can't exempt anyone. I mean, people wonder why are they patting down 80-year-old grandparents and why are they patting down small children. And the problem is, as soon as you say, well, we're not gonna do this group, then that's the vulnerability that somebody may take advantage of.

  • 10:41:30

    REHMBrian, now how old did you say your children are?

  • 10:41:34

    BRIANI have a 4-year-old and a 16-month old.

  • 10:41:37

    REHMWell, there you go. What about that 16-month old, Scott?

  • 10:41:43

    MCCARTNEYI think, you know, I think TSA has more or less gone back to the old pat-down procedures for children. Some – you know, an infant who's 16 months, I just don't think it's gonna be all that invasive and the parents can be standing right there.

  • 10:42:01

    REHMAll right.

  • 10:42:01

    MCCARTNEYI'm more concerned about the 13-year olds that are gonna get the full procedure.

  • 10:42:05

    REHMYeah. I understand that. Brian, thanks for you call. Here is a comment on Facebook from Nathan who says, "Here's a topic that intersects with your series on the U.S. Constitution. Can your guests discuss these screenings in light of the Fourth Amendment?" How is it that authorities have probable cause to search travelers, Marc Rotenberg?

  • 10:42:33

    ROTENBERGWell, that's a very interesting question, Diane, and may be one of the most interesting Fourth Amendment issues we have today. It's certainly one that's affecting many people in the United States who've never thought about this before. The first point to be made is that no court has ever upheld these screening procedures either the enhanced pat-down or these body scanners. It would be a new issue when we present it to the court.

  • 10:42:58

    ROTENBERGThe second point to be made is that, even though the courts have given a great deal of latitude to the TSA in airport screening, there is clearly a line there. In other words, there is a point at which a court will say, this particular search, in light of all the relevant facts, is unreasonable. And we think that line has been crossed. We think that line has been crossed because this is so invasive, because it's suspicionless, because it's so unlikely to produce any of the materials that the agency is looking for. And that's why we need the courts to make that determination, not simply to alarm the agency. Now...

  • 10:43:34

    MCCARTNEYDiane, the issue in the past has been the courts have given latitudes to TSA to screen for things that are a threat to aviation safety and only – and this has really come up in drug smuggling cases and things like that, when you can't search for anything other than weapons. Now, if you find something in the course of that search for weapons, then that is admissible in court. But otherwise, it has to be confined to weapon searches, threats to aviation security. And so that's been the standard that the courts have applied in the past.

  • 10:44:10

    REHMFrank, any comment?

  • 10:44:12

    CILLUFFOI think Scott answered the question. It is the threats to aviation security, and there are obviously presidential directives and executive orders. But whether or not they all adhere to the courts at different levels obviously is a delicate set of issues.

  • 10:44:31

    REHMTo Gaithersburg, Md., to Allison. Good morning, you're on the air.

  • 10:44:37

    ALLISONHi, Diane. Thanks so much for taking my call.

  • 10:44:39

    REHMSure.

  • 10:44:40

    ALLISONI wanna highlight the heightened concerns about discrimination that some groups of passengers are feeling. Particularly, you know, I'm thinking about transgender passengers who might be using some kind of prosthesis or breast cancer survivors. Certainly we've got some horror stories from the last week of a breast cancer survivor being asked to remove her prosthesis, amputees also. I wonder if your guests have suggestions for passengers with these concerns. And if we do feel discriminated against or harassed, what recourse do we have either immediately or long term?

  • 10:45:16

    REHMWell, let's take the first part of that. Scott?

  • 10:45:20

    MCCARTNEYWell, I think it's a major concern. There's not a lot recourse. The one thing you can do always, and anybody can do this, is request that your pat-down procedure be performed in private. And that can be with, if you have a traveling companion, somebody you'd like to go with you to witness it. But in terms of removing prosthesis and things like that, you do have the right to have it done in private. But that's about it, I'm afraid. And so I'm not sure TSA has really figured this out. I might -- I think one thing that's been overlooked in all of these is the need for a trusted traveler program in this country. We have it for people entering the United States. We don't have it for people getting on the airplanes.

  • 10:46:10

    MCCARTNEYI think if we're gonna go through all these, the time may have come to -- as TSA has with pilots to say, you know, if you're willing to go through whatever background checks we wanna come up with, criminal checks, give us your fingerprints, do whatever the government wants to be declared a trusted traveler, then people who do have prosthesis, people who are traveling 200 times a year, anybody who's concern about it would have a different procedure for getting on an airplane that could ensure safety, but also protect them.

  • 10:46:44

    REHMMarc Rotenberg.

  • 10:46:45

    ROTENBERGDiane, I just wanna say to Scott's point, I think we have to be a little bit careful here about looking for silver bullet. He suggested the idea of a trusted traveler program. Well, in fact, that was tried. And a company named Clear was given the right to obtain an enormous amount of information about frequent American air travelers, biometric identifiers, deep background investigations. And then when the company went bankrupt, they were prepared to put that database up for sale. So each of these proposals you see creates some new risks. And they need to be...

  • 10:47:17

    MCCARTNEYWell...

  • 10:47:17

    ROTENBERG...carefully evaluated.

  • 10:47:19

    MCCARTNEYRight. But Marc, that's -- I'm not proposing Clear. Clear was not a trusted traveler program.

  • 10:47:23

    REHMMm-hmm.

  • 10:47:23

    MCCARTNEYClear was specifically called a registered traveler program. There was absolutely no difference in the security screenings somebody got when they are a Clear member and when they aren't. But if you look at the global...

  • 10:47:33

    ROTENBERGRight. But, Scott, you understand the risks. Because many of these proposals...

  • 10:47:35

    MCCARTNEYOh, sure.

  • 10:47:36

    ROTENBERG...that are thrown out, they actually create new risks to American travelers in terms of security.

  • 10:47:41

    REHMAll right.

  • 10:47:41

    CILLUFFOBut to Scott's point, the trusted traveler would be voluntarily providing that information. And that's a decision, I think, individuals can make. And you can enhance the risk factor of identifying potential...

  • 10:47:54

    MCCARTNEYRight. If...

  • 10:47:54

    REHMAll right. And here's a question an e-mailer says to Frank Cilluffo that “You dismissed the fact that former Secretary of Homeland Security Michael Chertoff authorized the purchase of scanners by Rapiscan, the company he now works for, by saying that George Soros is rumored to be an investor. So what? The role of an investor is completely different from the role of the government employee, especially if that former public servant now works for the company that profits because of his former actions.” Frank?

  • 10:48:41

    CILLUFFOI actually don't disagree with that point. I don't know the details behind Secretary Chertoff's role in -- as an investor or as a client in that space, so I think that those are both fair points.

  • 10:48:56

    REHMMark?

  • 10:48:56

    ROTENBERGI think the word Frank is looking for is lobbyist. Mr. Chertoff is the lobbyist for the company here in Washington that's trying to get money by persuading the American public these devices are effective.

  • 10:49:07

    REHMAll right.

  • 10:49:08

    CILLUFFOBut I don't know the details.

  • 10:49:09

    REHMTo Middleway, W. Va., good morning, Pete.

  • 10:49:15

    PETEGood morning.

  • 10:49:16

    REHMGo right ahead, sir.

  • 10:49:18

    PETEYeah. I just had to pull over off the road so I could talk.

  • 10:49:21

    REHMGood.

  • 10:49:23

    PETEWhen you had your radiation expert on, I was a little disappointed that they didn't address one thing the TSA has said which is that the exposure of radiation to -- from one of these scanners is roughly equivalent to a couple of minutes of flying time at 30,000 feet. If that's the case, even if the radiation level is 10 times what the TSA says, that suggests to me that it's a lot more dangerous simply to fly and that adding on whatever risk is involved with the scanners is trivial by comparison.

  • 10:49:58

    REHMScott?

  • 10:49:59

    MCCARTNEYWell, there is a radiation risk to fly, but, you know, as TSA uses that point and I think others have to try and show how small the radiation doses from the machines. One of the issues that wasn't addressed is it's -- as I understand it, some people have raised questions, not just about the amount of radiation, but how it's concentrated. So when you fly on an airplane, the radiation you're exposed to is quite diffuse. In this case, it is focused on your skin essentially. It's -- these are not X-ray machines that are trying to see your spine and your lungs. They just -- it's looking at your skin. And so, the question is, well, if you're focusing the dose on a particular body area, then do you need to measure it a different way?

  • 10:50:51

    REHMAll right. To Cleveland, Ohio, good morning, Rita. You're on the air.

  • 10:50:57

    RITAGood morning. Thank you. I've been listening to this and changed my comment. This seems like an onion. The more you peel it, the more layers appear. There's a sociological implications, the personal implications, the political implications of all of this. And the bottom line, I think, that everybody has to realize is the age in which we live -- we don't want to offend groups, so we can't profile -- the age in which we live, we have lost probably the majority of our privacy and I think we're stuck. And as far as the loopholes and people getting through places where they can sneak in or they can do things, nothing is 100 percent. But the losses here are profound and people are affected by it.

  • 10:51:46

    REHMMarc Rotenberg.

  • 10:51:47

    ROTENBERGWell, I have almost the opposite sense. My sense right now, looking at the reaction of travelers, the protest, all across the country, across the political spectrum, all age groups, is in fact the people feel very strongly about their privacy and they're upset because they believe that the government has simply crossed a line it should not cross. And I think it's actually a very heartening thing that today in the United States people feel as strongly about this issue that they're not prepared to speak out.

  • 10:52:16

    REHMScott, there have been lots of questions about the professionalism of these security screeners, the individual people trained or not trained well enough to be able to do these kinds of pat-downs. What's your thinking?

  • 10:52:39

    MCCARTNEYWell, this has been a continual issue for TSA and is today, there was a recent report from the Homeland Security inspector general really raising serious questions about TSA's training program, on-the-job training that at least one airport screeners were told to just sign off. They never received the training. There was never any feedback. Some people were being trained on old X-ray machine technologies for the bag scanners, even when new X-ray machines had already been deployed. So training of TSA agents, professionalism, it's something that I think got better, was horrendous after 9/11, got better for a while.

  • 10:53:21

    MCCARTNEYAnd I think the new administration is learning the tough lesson that TSA is not just a security organization. It's also a customer service organization. And they need to -- I think this whole episode shows really a lack of thinking that way. It was -- this was a law enforcement change that was put into place without really thinking through what it meant for the traveling public.

  • 10:53:47

    REHMAnd you're listening to "The Diane Rehm Show." New York City Council is looking at banning these body scanners. What can you tell us, Marc?

  • 10:54:01

    ROTENBERGI was with Councilmember David Greenfield this week and five other members of the New York City Council who are planning to introduce a resolution that would ban the body scanners in New York. The city owns the Port Authority. It owns the airports. They have the authority to do this. And I think, again, it's fascinating, you know, that in New York City, which no doubt has very strong feelings, post 9/11, about security in this country, that people are standing up.

  • 10:54:28

    ROTENBERGPart of the reason that Councilmember Greenfield did this, I think, is because they looked at the experience of Israel. And if there's an airport in the world that's concerned about safety, it's the Ben Gurion Airport in Tel Aviv. And he realized that in all the various techniques that they try at that airport, body scanners are simply not on the list. In fact, the former head of airport security in Israel said that he could get enough explosive through one of those devices to blow up a jumbo jet.

  • 10:54:52

    REHMAh. And I gather, Frank Cilluffo, that some airports are actually opting out of TSA and going to their own private security figures.

  • 10:55:05

    CILLUFFOSome have already done so prior to this latest outcry. So that is a decision the airports can make. They still need to adhere to TSA standards to make sure that there are baselines that are being met to have minimum essential standards. But that is an option that an airport can take, and they are.

  • 10:55:25

    CILLUFFOI just wanna comment quickly on the caller's question a second ago, the onion. Every time you do peel back, you wanna cry a little more. So there is some of that. But the reality is we're dealing with thinking predators that base their actions on our actions. We've been quite reactive. We seem to fix the loophole we last witnessed, and we need to do that if they're glaring holes. But we also wanna try to get ahead of the adversary who bases their actions largely on our actions.

  • 10:55:54

    CILLUFFOAnd history can -- tells a lot here in the '80s hostage taking was the tactic of choice. Then you had two very successful counterterrorism initiatives by the Germans and the Israelis in Entebbe and in Mogadishu. And overnight, you saw the terrorists moving from hostage taking to bombs on planes. Obviously, 9/11 was even a whole new threat of a massive scale, where they used the planes as missiles. So we need to constantly stay ahead, but we also need to make sure that security is part of this debate and part of this discussion because the threat is real. The adversary is devoting a lot of time and effort to it, and we need to as well.

  • 10:56:32

    REHMFrank Cilluffo, he is director of the Homeland Security Policy Institute at George Washington University. Scott McCartney is travel editor and The Middle Seat columnist for The Wall Street Journal. Marc Rotenberg is executive director of the Electronic Privacy Information Center and professor of information technology law at Georgetown University Law Center. Well, let's hope that this onion continues to be peeled so we find out more and more about what this means for the traveling public. Thank you all for joining us.

  • 10:57:18

    CILLUFFOThank you, Diane.

  • 10:57:19

    MCCARTNEYThank you.

  • 10:57:20

    REHMAnd thanks for listening all. I'm Diane Rehm.

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