The Freedom Bulletin

Naomi Wolf wrote a great piece in the Guardian about last week’s Supreme Court ruling allowing strip searches for people accused of even the most minor offenses. She compares this decision to many other instances of forced nudity by totalitarian regimes, mentioning Nazi Germany, the slave trade, Guantanamo, the imprisonment of Bradley Manning, and, of course, the actions of the TSA in airports around the country:

“Believe me: you don’t want the state having the power to strip your clothes off. History shows that the use of forced nudity by a state that is descending into fascism is powerfully effective in controlling and subduing populations.

The political use of forced nudity by anti-democratic regimes is long established. Forcing people to undress is the first step in breaking down their sense of individuality and dignity and reinforcing their powerlessness.”

I couldn’t agree more with her. If I had to choose the worst violation of freedom that a government could commit against people, forced nudity would be it. This ruling, or anything that expands the use of strip searches, is an affront to liberty and is exactly the wrong direction for our society to go in.

H/T: The Humble Libertarian

More on the strip search ruling:

• Noah Feldman on why Justice Kennedy (and so many others) are OK with this invasion of privacy
• Glenn Greenwald on how Obama’s DOJ advocated for the ruling
• Andrew Rosenthal on “the right to strip”
• The Silver Underground on how cops dress as bunnies to catch people not wearing seat belts so that they can be ticketed (and possibly strip searched?)

What a bad ruling the Supreme Court made yesterday. In 2005, Albert Florence was arrested and spent 7 days in jail because police officers accused him of failing to pay a fine, despite the fact that he was carrying proof  in his glove compartment that he had paid it, and the fact that failure to pay a fine is not considered a crime in his state of New Jersey. In the words of the Supreme Court decision (PDF), this is what happened to him:

“At the first jail, petitioner…had to shower with a delousing agent and was checked for scars, marks, gang tattoos, and contraband as he disrobed. Petitioner claims that he also had to open his mouth, lift his tongue, hold out his arms, turn around, and lift his genitals. At the second jail, petitioner…had to remove his clothing while an officer looked for body markings, wounds, and contraband; had an officer look at his ears, nose, mouth, hair, scalp, fingers, hands, armpits, and other body openings; had a mandatory shower; and had his clothes examined. Petitioner claims that he was also required to life his genitals, turn around, and cough while squatting.”

Florence’s lawyers argued that it violates the Fourth Amendment to conduct strip searches without reasonable suspicion that the inmate is hiding something. But 5 of 9 Supreme Court justices ruled today that what happened to Florence is completely fine.

I completely disagree with them. A strip search is a severe violation of a person’s privacy, freedom, dignity, and sexual integrity. It should never be done to anyone who has not been proven guilty of a crime beyond a reasonable doubt, and even among convicted criminals, it should be done only to inmates who are known to pose a specific, truly dangerous threat…if even then. But the Supreme Court decision, as Justice Breyer pointed out in his dissent, would subject people to strip searches for merely being accused of ”such infractions as driving with a noisy muffler, driving with an inoperable headlight, failing to use a turn signal, or riding a bicycle without an audible bell.”

Breyer also wrote (correctly) that invasive seaches are “inherently harmful, humiliating, and degrading… And the harm to privacy interests would seem particularly acute where the person searched may well have no expectation of being subject to such a search, say, because she had simply received a traffic ticket for failing to buckle a seatbelt, because he had not previously paid a civil fine, or because she had been arrested for a minor trespass.”

Strip searches, body cavity searches, and mandatory showers are all things that it is inappropriate for one person to do to another (or the government to do to a person) in a free society. In my opinion, to force someone to expose the most private parts of their body constitutes a form of sexual assault. The job of the prison system is not to prevent disease, lice, drug use, and danger at any cost, but simply to punish people who have committed crimes, or make sure that detainees awaiting trial don’t escape, while preserving everyone’s dignity.

The ruling was 5-4, with Justices Kennedy, Roberts, Alito, Thomas, and Scalia in the majority and Justices Breyer, Ginsburg, Sotomayor, and Kagan (didn’t think I’d ever say this but…good for them!) dissenting.

This case highlights a frustrating fact about today’s political landscape: neither the so-called “liberal” justices nor the so-called “conservative” justices are truly pro-liberty. I found myself agreeing with the skeptical questions that Alito, Scalia, Kennedy, and Roberts asked during the ObamaCare arguments last week, but vehemently disagree with the stance they took in the Florence case. It is strange that Justice Breyer, for example, could treat it as obvious that the government can force everyone to receive vaccines, but then so eloquently take the pro-liberty point of view about strip searches. We need to have more people in law and politics who are pro-liberty about everything – opposed to mandatory purchase of health insurance, mandatory vaccination, and suspicionless searches.

Read the decision and all the briefs here.

Sources: AP, Reuters, Washington Post

In December, two elderly women, in separate incidents, accused the TSA of violating their rights with degrading, excessively intrusive airport security screenings. Now the federal agency is apologizing for what their agents did:

“In an about-face, the feds have admitted wrongdoing in the cases of two elderly women who say they were strip-searched at Kennedy Airport by overzealous screeners.

Federal officials had initially insisted that all ‘screening procedures were followed’ after Ruth Sherman, 89, and Lenore Zimmerman, 85, went public with separate accounts of humiliating strip searches.

But in a letter obtained by the Daily News, the Homeland Security Department acknowledges that screeners violated standard practice in their treatment of the ailing octogenarians last November.”

Read the rest at the New York Daily News.

Although it’s always good for the TSA to apologize for humiliating innocent travelers, they aren’t exactly doing so for the right reason. Both women accuse TSA agents of strip-searching them, but the TSA still denies this and is only apologizing for making Sherman show them her colostomy bag and putting Zimmerman’s back brace through a scanner, both of which are against official policy. As Zimmerman said, ”I don’t have a problem with the back brace. I have a problem with being strip-searched.”

The TSA has gotten some (deserved) bad publicity in the past few days due to a couple of very questionable airport security decisions.

On Thursday, a teenage girl was stopped and ordered to check her purse because it had a gun design on it:

“A teenage girl’s sense of style got her in trouble at the airport.

Vanessa Gibbs, 17, claims the Transportation Security Administration stopped her at the security gate because of the design of a gun on her handbag.”

The agents said that it could be considered a replica weapon, which have been banned on airplanes under federal law since 2002. It’s bad enough for governments to trample on people’s right to bear arms…but now they ban gun designs, too? Ridiculous.

In somewhat related news, an elderly lady is claiming that TSA agents strip searched her at JFK Airport in New York:

“An 85-year-old woman said Saturday that she was injured and humiliated when she was strip searched at an airport after she asked to be patted down instead of going through a body scanner, allegations that transportation security officials denied.

Lenore Zimmerman said she was taken to a private room and made to take off her pants and other clothes after she asked to forgo the screening because she worried it would interfere with her defibrillator. She missed her flight and had to take one 2 1/2 hours later, she said.”

It’s worthwhile to point out that the TSA is denying these allegations…but if they are true, then this is just another example of security gone way too far, at the expense of liberty.

This week the Supreme Court heard arguments in the case of Albert Florence. Horrifically, Mr. Florence was wrongly arrested due to a computer mistake for failing to pay a traffic fine, which he had actually paid, and was then thrown in jail and strip searched twice. The Court is deciding whether New Jersey’s practice of strip-searching all inmates who are held in jail before trial is constitutional.

Interestingly, the more “liberal” justices seemed more opposed to strip searches and the more “conservative” ones seemed to lean toward supporting them.

Justice Sotomayor said that much contraband enters jails ”not on intake, but…from corrupt correction officials” and reminded her fellow justices of a very important principle, asking, ”What are we doing with the presumption of innocence? That’s also a constitutional right.”

Justice Kagan contrasted this case with a 1979 decision approving body cavity searches after contact visits, saying, ”Here, you are talking about somebody who is arrested on the spot. There is no opportunity for planning, for conspiracy with respect to contraband.”

Justice Scalia claimed that strip searches were routine at the time the Bill of Rights was ratified. Although I don’t know for sure, that would be very surprising to me. He also implied that it would be okay to strip someone “to see if the person has any fleas or cooties or, you know, any other communicable disease before he is put into the general population.”

My view:

Although jail officials and people who support strip searches do not refer to them as a punishment and do not conduct them for that purpose, being subjected to such a degrading invasion of privacy is unarguably a punishment, and a severe one at that. It is always wrong to inflict punishments on people who have not been convicted of a crime, both from a common-sense point of view and according to the Fifth Amendment to the Constitution, which forbids that anyone ”be deprived of life, liberty, or property, without due process of law.” Heck, you could even argue the more radical position that strip searches, even of people who have been convicted of crimes, are unconstitutional because they are a “cruel and unusual” punishment under the Eighth Amendment.

Looking at the debate from a slightly different angle, using common sense about searches and seizures also makes it clear that strip searching people, when there is no reason to suspect they may be hiding weapons or contraband, is unconstitutional. If someone is arrested, then presumably there is reasonable suspicion that they committed some crime. But the strip search is not related to finding evidence of a crime, it is done for safety and security purposes. If the inmate has done nothing to raise suspicion of smuggling contraband, then there is no reasonable suspicion to conduct a strip search, and it therefore violates the Fourth Amendment. This is even more true when someone is arrested for a minor offense such as failing to pay a traffic ticket.

A lawyer from the Department of Justice told the Court, ”You cannot say that there are some minor offenders that don’t pose a contraband risk. You have individuals who are making (a) very quick determination. They have very little time, and if they guess wrong, those mistakes can be deadly.” But a strip search is a severe violation of a person’s dignity, privacy, and sexual integrity. The burden of justification must always be on those who want to inflict such a violation, and it is certainly not enough of a justification that there is some chance, however small, that the person might have contraband. If you don’t have enough time to figure out which inmates raise a reasonable suspicion, you shouldn’t be searching anyone.

In my opinion, this particular case is a no-brainer. Punishing people in this way, when they must be presumed innocent and have done nothing to raise suspicion, is unconstitutional, and I hope the Supreme Court recognizes this.

In what I think is another example of the government sacrificing way too much dignity and liberty in the name of security, two inmates are suing a Chicopee, MA, women’s prison for its excessively degrading strip search policy. April Marlborough and Debra Baggett are suing Hampden County Sheriff Michael J. Ashe and Patricia Murphy, superintendent of the Western Massachusetts Regional Women’s Correctional Center, because the jail requires all inmates to be strip-searched before being moved to the segregation unit, and male officers videotape the searches.

Their lawyer, Howard A. Friedman, said, ”In this culture we respect the privacy of private parts, certainly in the viewing of the opposite sex…On information and belief, hundreds of women have been subjected to this humiliating and unconstitutional practice.”

Read more at MassLive.com.

They are asking for damages and for the jail’s policy to be changed, and I hope they succeed. Nobody, not even alleged (or even convicted) criminals, deserve this kind of treatment.

Despite the small steps the TSA is taking to be slightly more respectful of people’s freedoms (eventually no more removing of shoes, reducing pat-downs for kids, non-naked scanners, etc.), stories like the following one show that there is still a long way to go toward restoring liberty in airport security. On September 11, after her flight landed in Detroit, Shoshana Hebshi was, for no apparent reason, handcuffed, interrogated, and strip searched:

“Silly me. I thought flying on 9/11 would be easy. I figured most people would choose not to fly that day so lines would be short, planes would be lightly filled and though security might be ratcheted up, we’d all feel safer knowing we had come a long way since that dreadful Tuesday morning 10 years ago.

But then armed officers stormed my plane, threw me in handcuffs and locked me up.”

I’m thankful to Hebshi and others like her who have taken the time to share their stories of mistreatment by the government and spread awareness of individual liberty. Read the rest of this truly awful story at her blog, and this article at CBS News.