A Stitch in Haste

One of the basic principles of criminal procedure is that rank-and-file law enforcement officials should not be given too much discretion in selecting those against whom a law is to be applied. See, e.g., Delaware v. Prouse, 440 U.S. 648 (1979); accord, Indianapolis v. Edmond, 531 U.S. 32 (2000).

So, for example, if a highway patrolman sees three different vehicles speeding, then of course he has to pick only one to pull over -- we don't fault him for that. But a law that gave that same patrolman the authority to pull over any "suspicious vehicle" would likely be unconstitutional, because the officer is not competent to decide, without more guidance, what constitutes "suspicious."

Which is why this proposal gives me pause:

Now the TSA is aiming to become less obsessed with scissors and cigarette lighters and focusing more on passenger behavior.
...
Select TSA employees will be trained to identify suspicious individuals who raise red flags by exhibiting unusual or anxious behavior, which can be as simple as changes in mannerisms, excessive sweating on a cool day, or changes in the pitch of a person's voice. Racial or ethnic factors are not a criterion for singling out people, TSA officials say. Those who are identified as suspicious will be examined more thoroughly...

The TSA can say that this program will be objective, race-neutral and closely supervised. But I'm skeptical. And there's also the (two-sided) question of effectiveness. On the one hand, the TSA notes that a trial version of the program has caught people with fake IDs and drugs. What it has not caught is a single terrorist. The TSA has also not disclosed how many innocent people were or will be delayed needlessly by this dubious program. How much earlier are we going to have to arrive at the airport now? The TSA should not be allowed to pretend that there is no marginal cost to this program.

On the other hand, given that everybody, every single person, goes through the real (i.e., technological) security screening, wouldn't it make more sense just to ensure that that program works properly? If you car needs repairs, the solution is to fix it, not to buy a new tricycle.

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One other hasty stitch:

The TSA will also consider deploying SPOT teams to other transportation systems like train and bus stations.

Because, of course, the possibility still exists that a terrorist may try to fly a bus into a skyscraper.

As we encounter so often in the War on Terror: see only the benefits (no matter how small), and ignore the costs (no matter how great).