Thoughtful Analysis of Why TSA is Out of Bounds

While public reaction to the TSA's ruling that the FAA pull airman's certificates at the agency's whim was swift as well as negative, the Teamsters held back on public pronouncements. On Wednesday, though, the union filed its formal answer to the TSA's power-grab; and it's devastating. Conclusion: the TSA is attempting something unprecedented, unworkable, and unconstitutional. Here are excerpts from the well-made union argument:

Re: Docket No: TSA-2002-13732-37 (Threat Assessment Regarding Citizens of the United States Who Apply For FAA Certificates;
Docket No: FAA-2003-14293-310 (Ineligibility for Airman Certificate Based on Security Grounds)

This procedure violates the Fifth amendment to the United States Constitution. There are no due process provisions in the above-referenced rules even though the revocation or denial of an airman certificate will effectively end an employee's career in the aviation industry. Further, the individual has no meaningful opportunity to defend his reputation, even though the stigma of being labeled a "security threat" by the U.S. Government will stifle his attempts to find employment outside the aviation industry...

The Due Process Clause of the Fifth Amendment prohibits the United States from depriving any person of property or liberty Without "due process of law." ...Without an airman certificate, a pilot, airline mechanic or flight instructor is prohibited altogether from earning a living at his or her chosen profession anywhere within the United States... certificate holders and applicants have a liberty interest in maintaining their reputation and good name.

[Speaking of that 'good name']

The above-referenced rules allow TSA to designate certificate holders and applicants as "security threats." ...It is hard to imagine a worse "badge of infamy" than being considered a potential terrorist by your own government. Certificate holders and applicants have a liberty interest in avoiding this "stain" and maintaining their good name.

[No meaningful notice; no due process in TSA's mandate]

Though a full evidentiary hearing is not required, certificate holders and applicants must still be given meaningful notice and an opportunity to be heard prior to losing their liberty and property interests in their airman certificates. At a minimum, the individual certificate holder or applicant must be afforded

1. notice of the substantive evidence against him,
2. a chance to respond both orally and in writing, and
3. a chance to provide affidavits and statements from rebuttal witnesses.

...Further, TSA must bear the burden of demonstrating that the individual is a security threat. As will be shown below, TSA's procedures fall short of these minimum requirements. ...The most significant due process violation in TSA's procedures is its failure to provide any notice to the individual certificate holder or applicant of the substantive evidence against him.

[It's impossible to mount a defense, or even understand the accusation]

Additionally, TSA's current policy of withholding evidence denies any possibility of meaningful administrative or judicial review. ...Due process also requires that the individual certificate holder or applicant be given an opportunity to respond orally to the evidence and charges against him...

In determining whether a particular certificate holder or applicant poses a security threat, a wide variety of intelligence information from sources both inside and outside the United States will clearly be relevant. ...This is especially important here, where the TSA may be considering information from a variety of intelligence sources and it may not be easy for the certificate holder or applicant to discern what information TSA considers to be most relevant.

['guilty until proven innocent']

Finally, TSA's procedures violate the due process provision of the Fifth Amendment because they place the burden of proof on the individual certificate holder or applicant to demonstrate that he is not a security threat. The government must bear the burden of proof whenever it takes action against an individual. ...due process requires, at a minimum, that the individual he provided with notice of the charges and evidence against him and an opportunity to respond both orally and in writing, including the opportunity to present affidavits and statements from witnesses.

[Definition itself is vague]

TSA's rules define "security threat" as follows: "An individual poses a security, threat when the individual is suspected of posing, or is known to pose (1) a threat to transportation or national security; (2) a threat of air piracy or terrorism; (3) a threat to airline or passenger security; or (4) a threat to civil aviation security."

TSA does not define what constitutes a "threat," nor does it explain what specific criteria TSA will use in determining whether or not an individual poses a threat. This definition is unconstitutionally vague and violates the Due Process Clause of the Fifth Amendment.

"It is established that a law fails to meet the requirements of the Due Process Clause if it is so vague and standardless that it leaves the public uncertain as to the conduct it prohibits..." City of Chicago v. Morales, 527 U.S. 41, 56 (1998). The offense to due process lies in both the nature and consequences of vagueness...

[...and the heart of the matter: TSA's motives exposed!]

These regulations do not prescribe specific criteria for determining whether an individual poses a security threat. The rules put no limits on a TSA decisionmaker's discretion in determining whether an individual poses a security threat. The rules therefore encourage arbitrary, inconsistent, and discriminatory enforcement...

FMI: Read the Teamsters' Answer; Write your own