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The longest partial government shutdown in American history has passed the one-month mark at the time of this writing, and negotiations to end it are not promising. When the shutdown began on December 22, 2018, eight hundred thousand federal workers were put out of work. Around half of them are required to continue working without pay. Meanwhile, wealthy Senators continue to be paid.

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Notably, the shutdown has affected the 50,000 Transportation Security Administration screeners in American airports. On January 20, 2019, the proportion of screeners not reporting to work hit 10% nationwide for the first time, compared to an average of 3% under normal circumstances. Many TSA employees are looking for part-time work to pay their bills, and others have applied for unemployment benefits, although there are formal restrictions on both of these options.

Why have these workers not gone on strike? Washington Post reporter Robert Costa claims some senior Republican legislators told him they believe a strike that crippled air travel would be the fastest way to get President Trump to agree to sign the federal budget. The American Federation of Government Employees (AFGE) union represents TSA agents. But the 2001 Aviation and Transportation Security Act does not permit them to strike or bargain at the local level because of their role in defending “national security.”

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From a pragmatic standpoint, TSA and other government employee unions still fear the fate of the federal air traffic controllers who went on strike in 1981. President Reagan broke the strike by replacing all 11,500 workers with military air traffic controllers and new trainees—and banning the striking workers from federal employment for life.

There has been much criticism of the TSA and its “security theater” since its creation in the aftermath of the 9/11 attacks. But reporting in the past month has not connected the specific flaws of this particular bureaucracy with the present condition of its workers. Legal and sociological research suggests that these factors are inherently intertwined. The ideology that a perpetual threat to national security pervades airports and, increasingly, other public areas, is now a two-decade-old feature of U.S. politics.

The Origins of Airline Security

A point of nostalgia for older travelers is the ease of air travel in the days before universal mandatory security screening. This era ended with the cultural and political revolutionary ferment of the late 1960s, both in western states and in decolonizing states of the Global South. Starting in 1968, small groups of revolutionaries and criminals began staging protests, demanding ransoms, or seeking asylum in revolutionary states by hijacking airplanes. Each event seemed to inspire copycats. While there had been only seven air hijackings in the United States from 1961 to 1967, there were thirty hijackings in 1968 and seventy in 1969.

In late 1968, the FAA developed a task force to develop a screening procedure in which they required passengers fitting a profile to produce identification and to undergo metal detector screening. Only individuals who failed these criteria went on to have their personal items searched. This procedure was in place at all major airports by 1970. In part because of backlash about the secrecy of the profiling criteria, however, the FAA decided to require all passengers to pass metal detectors and searches of carry-on items in December 1972.

The Michigan Law Review reviewed the judgments on the legality of these searches in 1973. The initial arguments used the Sixth Amendment to argue that burdensome screening infringed upon an individual’s “right to travel,” but courts usually found that the new security measures ensured collective safety for travel.

More troubling was the new regime’s relationship to the Fourth Amendment ban on unreasonable searches and seizures. By the middle of the twentieth century, the meaning of the amendment had actually grown from an original limitation to private residences or workplaces to include the privacy of the individual’s person, even in public spaces, such as a phone booth. However, in the early 1970s, courts were interpreting new surveillance technologies, such as metal detectors, as “non-intrusive” and thus acceptable.

A further point of investigation was whether searches without warrants were legal in these situations. The courts seemed to be testing many arguments in favor of exceptions to the warrant requirement, including border searches or “administrative” inspections (for fire, health, and safety purposes).

Another defense of the airport security practice was that passengers continuing to their gates with the knowledge that they would be screened had “consented” to the searches. The Review found none of these arguments compelling enough to be grounds to justify the procedure at airports in the long term. Although the stated aim of the procedures was to prevent hijacking, only 20% of the arrests made in screening were related to weapons or potential hijacking plans; the remainder were for various types of contraband, usually drugs.

One Step Behind

Without fixed standards, the public’s attitude toward airport security shifted, year by year, towardsmore passivity about increasing invasions of their privacy. The 9/11 attacks are a well-known watershed in the evolution of public opinion.

In 2001, the government effectively nationalized what had been private security forces at the nation’s airports by creating the Transportation Security Administration. It also began subjecting passengers to increasingly stringent and arbitrary searches wholly reactive to isolated incidents. A lone attacker attempted to detonate a bomb in his shoe, so all shoes required separate scanning. Another activated a device with flammable liquids, so all liquids must be restricted to three ounce bottles and scanned separately.

Communication studies scholar George McHendry analyzed a TSA operations manual released to the public in 2008 as a part of a public relations effort to prove the agency’s “transparency.” The manual was improperly redacted using PDF software, revealing sections TSA had intended to keep secret. Government redactions in released classified documents are usually intended to protect the privacy of individuals or protect the specific details of ongoing operations. Instead, McHendry points out, the TSA’s redactions seemed mainly geared towards concealing the futility and arbitrariness of their procedures. It redacted the list of passports that receive automatic enhanced screening (Iraq, Libya, etc.). It also redacted the procedures for calibrating and testing the scanning machines, which involve sending an officer with a pistol on their ankle through the machine ninety-six times—all of which must return a positive result. These procedures fail to anticipate creative attempts to circumvent them.

The process of reaction and redaction itself has become a political dance, McHendry writes. Perhaps the most controversial change in airport screening in the past decade has been the introduction of whole-body imaging scanners. Early uses of the technology produced detailed black and white images of subjects’ nude bodies. In reaction to the public outcry against the devices, the TSA modified the devices’ software so they would only reveal cartoon outlines and any foreign objects to screeners. Yet the devices retain and database the original image. Still, although the TSA allows individuals to opt out of the imagers, the vast majority of travelers have become used to them and submit.

Securing the TSA Workforce

In light of the current government shutdown, it has become clear that the post-9/11 expansion of federal powers over transportation security was, just as significantly, an extension of power over the security workforce. In January 2003, TSA Administrator James Loy declared TSA agents were not “entitled to engage in collective bargaining” because of their “critical national security responsibilities.” Legal scholar Gary Newkirk examined the legal struggle that ensued between AFGE, which represents 700,000 federal employees, and TSA management.

Until 2001, private security firms performed screening in US airports. The majority of these firms were foreign-owned; eighty percent of their workers were foreign nationals, and a significant number were found to have improper immigration status. But the resulting service was cheap for airlines and airport operators, and political support had kept regulation lax.

In the aftermath of the 9/11 attacks, there was widespread bipartisan support for the federal takeover of the security screening industry. However, some conservative Republicans feared this would mean the unionization of a formerly low-cost industry. They presumed, as did union officials for federal employees, that the new TSA agents would be subject to the Federal Service Labor-Management Relations Statute. This law has helped keep government work the last union-friendly sector in the country. However, Title 5 of the law permits exemptions from the rule for workers with emergency or national security roles.

Citing the urgency of staffing 50,000 agents in less than a year to make the system operational, TSA Administrator Loy exercised his exceptional power in a way that seemed to pacify conservative opponents of government unions. AFGE subsequently filed suit and lobbied hard to get the exemption revoked. In the short run, they won a victory in the 2003 Homeland Security Act, which allowed workers to organize and belong to the union by default.

And yet, in the years since, this rule exempting TSA workers from using a union’s basic tool—the strike—has been renewed in different ways. Despite the fact that no serious terrorist attack has occurred on American soil in nearly two decades, national security remains the justification for railroading thousands of workers into passive acceptance of their fate.


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Michigan Law Review, Vol. 72, No. 1 (Nov., 1973), pp. 128-157
The Michigan Law Review Association
Criticism, Vol. 57, No. 2, Critical Air Studies: A Special Issue Edited by Christopher Schaberg (Spring 2015), pp. 211-233
Wayne State University Press