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John Locke, Ron Paul, and Airport Security

It has been rather a long time since I wrote on politics. As you can probably imagine, I'm pretty worked up about this whole body scanner business. As recently announced in a post on Homeland Stupidity, Ron Paul and two co-sponsors have introduced a bill in the House which would remove immunity from airport screeners and other federal employees who engage in certain sorts of behavior associated with airport screening. That is, it ensures that the screeners at airports are subject to the same laws regarding battery, sexual assault, child pornography, etc., as everyone else. I think there is something deeply right about this proposal, something that our country seems largely to have forgotten, but there are still problems. I'll say what's good first.

The liberal tradition in political philosophy is characterized by the (literally) revolutionary thesis that governments derive their legitimacy from the consent of the governed. But as John Locke and other liberal theorists saw, if the government derives its authority from the people, it can only have as much authority as the people are in a position to give. What that means is that what you may not individually do to me, you may not collectively do to me through the government. It means that the government does not have immunity. In fact, in Locke's view, it is constitutive of a legitimate government that you can sue it if it violates your rights. If there isn't an impartial arbiter to decide between you and any branch or official of the government you may have a dispute with, then you are in a state of nature with respect to that branch or official; we haven't succeeded in creating the civil state. (Note: I guess this is somewhat controversial, but I interpret Locke's three 'states' as working pairwise - that is, one individual is in a certain state with respect to another individual, rather than in general.) So this is what's right about the proposal: if a particular act is a rights violation when done by private individuals or groups, then it's a rights violation when done by the government, and neither the government nor its employees should have immunity.

Let me clarify this, though: it is perfectly acceptable to attach conditions to entry to private property. You could require adults to walk through body scanners to enter a football game, for instance, as long as they either knew when they bought their tickets, or could get their tickets refunded if they didn't want to go through. The same would seem to apply to airports under this bill. It does exclude the consent of third-parties, such as parents, as excuses, but parents can't consent to these kinds of mistreatment (nude pictures, inappropriate touching) on behalf of their children in general. So this isn't a radical proposal that would undermine all attempts at airport security; it would simply requires genuine informed consent on the part of passengers to whatever procedures they will be subjected to, and it would require reasonable treatment of minors. It would also lead to severe penalties if the conduct deviated from what was consented to.

The only things I worry about are (a) whether it would catch the right people, and (b) whether it's the most effective way to stop this nonsense. I think it's great for the ground-level screeners to be afraid to administer body scans and/or 'enhanced pat downs.' Although the government complains about these sorts of 'chilling effects' whenever it argues that people should have immunity, the chilling effects are really the point of having these laws in the first place. Some forms of misconduct (e.g. sexual assault) are sufficiently severe that 'following orders' is no excuse. So I am not opposed to having some kind of penalties for the ground-level screeners, especially in cases which are more egregious than the norm. The thing that I'm worried about is just that in cases like this some little guy always ends up taking the fall, when the higher-ups should be. This leads to the second concern: even if the bill passed, the higher-ups might keep ordering the screeners to engage in this behavior until there was a successful lawsuit against the higher-ups or the agency, and that could take a long time. So while I like the idea of just applying the perfectly good laws on battery, sexual assault, child porn, etc., that are already on the books, I think some more specific/explicit legislation might be more effective at actually stopping these tyrannical (I don't use that word lightly) practices.

Nevertheless, I would very much like to see this bill get more attention. (It would be a genuine miracle if it passed...)