The Bin Laden Exception

Erik Luna*

Editor's Note: This Essay is part of a Colloquy Exchange between Professors Alexander Reinert and Erik Luna on the Fourth Amendment concerns of the new, invasive airport security measures. Read Professor Reinert's contribution, Revisiting "Special Needs" Theory Via Airport Searches, here

[download pdf]

Introduction

On the evening of May 1, 2011, the American people learned that the world's most wanted criminal—Osama bin Laden—had been killed in Pakistan during a covert operation by an elite U.S. military team.[1]  The news triggered spontaneous gatherings and revelry across the country.  For the millennium's new generation, bin Laden had been the embodiment of evil—a real-life boogeyman—and, for some, "the first person I was ever taught to hate."[2]  Many young Americans will not be able to recall life without a deep-seated fear of the terrorist leader and the organization he founded,[3] all against a national backdrop of the so-called "war on terror."  Bin Laden's death thus signaled the "end of an era" and progress "toward a safer, less violent world."[4]

After emotions settled, however, thoughts turned to the ultimate impact of the operation that closed "the Bin Laden decade."[5]  The al Qaeda leader "really did a number on all of us," wrote New York Times columnist Thomas Friedman.[6]  "Who will tell the people how deep the hole is that Bin Laden helped each of us dig over the last decade—and who will tell the people how hard and how necessary it will be to climb out?"[7]  The question appears ripe in light of recent statements by top officials.  Defense Secretary Leon Panetta claimed that the United States was "within reach of strategically defeating Al Qaeda."[8]  Shortly thereafter, President Barack Obama announced that "Al Qaeda is under more pressure than at any time since 9/11" and that "more than half of al Qaeda's leadership" had been taken out.[9]

The time has come to begin a post-mortem examination, so to speak, of the damage wrought upon the United States and its people during the decade of bin Laden.  Some, like Friedman, have looked to the international consequences, including the perpetually troubled relationship among Arab states, Israel, and the United States, which was undoubtedly worsened by 9/11 and its aftershock.  This colloquy contemplates an area of domestic concern that represents perhaps the most palpable effect of terrorism on the American citizenry: travel by plane.  In his contribution, Professor Alexander Reinert provides thoughtful analysis of Fourth Amendment doctrine as applied to airport security.[10]  Here, I hope to complement his piece by offering some context on terrorism, with the goal of prompting discussion as to whether bin Laden's legacy will include yet another instance of constitutional exceptionalism.

Revisiting "Special Needs" Theory Via Airport Searches

Alexander A. Reinert*

Editor's Note: This Essay is part of a Colloquy Exchange between Professors Alexander Reinert and Erik Luna on the Fourth Amendment concerns of the new, invasive airport security measures. Read Professor Luna's contribution, The Bin Laden Exception, here

[download pdf]

Introduction

Imagine for a moment occupying your spare time by reading random appellate opinions in the Federal Reporter, and coming across the following passages in decisions addressing the Fourth Amendment limitations on airport searches:

When the risk is the jeopardy to hundreds of human lives and millions of dollars of property inherent in the pirating or blowing up of a large airplane, the danger alone meets the test of reasonableness, so long as the search is conducted in good faith for the purpose of preventing hijacking or like damage and with reasonable scope and the passenger has been given advance notice of his liability to such a search so that he can avoid it by choosing not to travel by air.[1] The airport search is a direct reaction to the wave of airplane hijackings . . . , at which time popular feelings of fear and anger, and ultimately rage, called out for some program to safeguard air flights, and understandably so.  Airplane hijacking is a particularly frightening crime.  Many hijackers have been psychotic or political fanatics, for whom death holds no fear and little consequence . . . .  Today, the general methodology of the airport search has become more or less routine.[2] The danger [of airplane hijacking] is so well known, the governmental interest so overwhelming, and the invasion of privacy so minimal, that the warrant requirement is excused by exigent national circumstances.[3]

Surely you would be forgiven for thinking you were reading about the security measures recently put in place by the Transportation Security Administration (TSA): specifically, the TSA's installation of scanners that are capable of creating highly controversial images of random travelers as well as the "enhanced" pat frisks applied to passengers in certain circumstances.  But the language quoted above is from a different era entirely—the period beginning in the late 1960s when federal appellate courts heard a slew of constitutional challenges to new security measures imposed by airlines and the Federal Aviation Administration (FAA) in the wake of a sharp increase in politically-motivated "skyjackings."  My goal in this Essay is to examine the controversy surrounding the TSA's new airport search regime by reference to the Fourth Amendment jurisprudence developed in response to the first instantiation of mass airport searches.