November 25 marked the 10th anniversary of the signing of the Homeland Security Act, which created the sprawling Department of Homeland Security. Included in this new behemoth agency was another agency that had been created a year earlier, the Transportation Security Administration. It’s worth taking a look back at the short history of this agency.

The first and biggest conclusion we can reach is that the vast bulk of the increased security that we’ve obtained since 9/11 has been due to two factors: the securing of airplane cockpit doors, and the fact that no planeload of passengers in a hijacked aircraft will ever again sit back placidly and wait to land in Cuba or whatever. We’ve been saying this for years and it remains true. It’s hard to believe in light of all that has followed, but a few weeks after the 9/11 attacks, the ACLU issued a press release with the headline, “ACLU Applauds Sensible Scope of Bush Airport Security Plan.” What we were reacting to was a set of commonsense steps the administration had taken such as increased baggage screening and securing those cockpit doors.

In that same press release, however, we were already noting that far more dubious and intrusive ideas were beginning to circulate. Unfortunately, in the decade that followed we confronted more such proposals and programs than we ever imagined at the time. It’s worth a quick review of some of the lowlights:

  • Passenger profiling. I wrote here and here about this idea of ranking or rating the “trustworthiness” of everyone who flies through some kind of background check. Although the concept largely collapsed on its own unfeasibility (with Secure Flight the only remnant remaining), the profiling vision lives on in the new Pre-Check program.
  • Body scanners. Widespread introduction of this intrusive technology sparked widespread opposition, though the introduction of less-invasive “outline” technology has helped.
  • Pat-downs. Pat-down horror stories quickly began to circulate online and in the media after the TSA instituted new, far more intrusive pat down procedures. And the appalling complaints that poured into the ACLU made clear that the media stories were only the tip of the iceberg.
  • Watch lists. The airline watch list program (which we continue to challenge in court) has been one of the most truly Kafkaesque security programs we’ve seen in recent years, with uncounted individuals caught up with no meaningful remedy. Although the provision of dates of birth through Secure Flight seems to have ended the time when a victim could be found at every cocktail party and backyard barbecue, now we are seeing more intense harms affecting a smaller number of individuals.
  • Behavioral profiling. This intrusive new program is built on pseudoscience and, as we have long predicted, has led to racial profiling, but it continues to live on for now.

The TSA likes to talk about its pursuit of “layered security,” especially in response to critics who point out the security failings and gaps in each of the above programs. Unfortunately, what we’ve seen has been layer upon layer of intrusive and unpleasant programs that don’t necessarily add up to an airline system any safer than the system put in place at the time when we issued that first press release. Fortunately, actual attempts to attack on our airline system remain exceedingly rare as they have always been in a system that carries up to 2.5 million passengers a day on domestic flights alone. But for all the intrusion, inconvenience, time-waste and expense of the TSA’s efforts in the past 11 years, it is far from clear to me that a determined attacker’s chances of succeeding with a plot would be any lower. The marginal benefit (i.e. any additional security we’ve gained over what we got from locking the cockpit doors and other basic security steps) has been far too small to justify the costs.

And what have those costs been? In addition to the “tax” on the efficiency of our economy that these security measures bring due to wasted time and expense, and the general ruin of flying as a pleasurable activity, Americans now routinely feel the intrusive hand (often, literally) of the federal national security state bearing down on them in a way that is unprecedented in our history. To fly around our own country, Americans are now forced to accept privacy intrusions that would have left prior generations aghast. Many have made peace with today’s airline security system, but the fact remains, in a very real sense, we have lost some of our freedom.

(Crossposted on the American Consitution Society's ACSBlog.)

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D Schenker, Co-...

Thank you for the article. We appreciate efforts by the ACLU, EPIC, and others to protect our freedom to fly and hope to see the ACLU focus more of its resources on this issue. The violations of our rights at airports exceed the scope and severity of rights violations in many prisons. I say this as a former correctional officer as well as a a now-active anti-TSA protester. We need much more involvement and support from the ACLU.


Stand by you blog post and start defending our civil liberties. Blog posts are useless with no action. Most of us feel you have fallen down on your job to defend the Bill of Rights.


Dear ACLU, if you are to be of any use in defending civil liberties and civil rights that flow from these fundamental Constitutioanl rights, you need to actually do something. So far, the ACLU has remained mostly silent and entirely inactive while the federal government continuest to rapidly erode our rights. Shame on you.

Vicki B.

I feel like it's a double punishment when they do all this shit to me, a person who knows someone that died in Tower 1.
Every time I say "Gee, it's just too bad you guys weren't DOing all this stuff beFORE Eric died in Tower 1," and each time they look embarrassed but keep right on doing it.
My friend who survived Tower 1 and is now a burn victim refuses to fly ANYwhere b/c in his words, he'll be "damned if you fools are going to treat me like the people who tried to kill me."
He said that and walked out on them, and now drives everywhere or takes other transportation. Usually he drives though.

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