The police chief in Aurora, Colo., said he is confident that massacre gunman James Holmes acted alone.
The police chief was dead wrong.
Standing at Holmes’ side as he unleashed an AR-15 assault rifle and a shotgun and a handgun was Wayne LaPierre, political enforcer of the National Rifle Association.
Standing at Holmes’ side as he sprayed bullets and buckshot into a crowded movie theater were Barack Obama and Mitt Romney, a President and a would-be President, who have bowed to the NRA’s dictates and who responded to the slaughter Friday with revolting, useless treacle.
Standing at Holmes’ side as he murdered 12 and wounded 59 were the millions of zealots who would sooner see blood flow and lives end than have to check a box on a gun registration form.
In a vain claim of innocence, the fanatics will say Holmes is a monster and a maniac, that he fired and fired and fired as a man possessed. Each protestation clamps their fingers with his around the trigger.
Because they made sure that virtually everyone, Holmes included, has unfettered legal access to heavy weaponry. And they made sure he was permitted by law to drive to the kill scene with a fully loaded arsenal.
Such is the conscienceless extremism of America’s gun lovers that they accept wholesale slaughter as akin to a fatal highway pileup. Accidents happen, in their grotesque view, and so do mass killings by firearms.
Yes, they do. Massacres come and they go and nothing meaningful changes except that the body count goes up.
The big attacks leap to mind.
There was Columbine — amazingly, just down the road from Aurora — where two severely disaffected high school students gunned down 13.
There was Virginia Tech, where a student who had been diagnosed with a severe anxiety disorder murdered 32 and wounded 17 on two rampages.
Lower death tolls — two, three, four, five — in offices, parks and restaurants slip from memory as awful but routine, cause for momentary pain and nothing more.
The day-to-day mayhem of street-crime shootings, responsible for more deaths than all the mass carnage combined, makes it to the police blotter, the courts, the newspapers, the emergency rooms and the cemeteries.
Every Aurora-like spasm provokes the question: How did the killer get his guns?
Overwhelmingly, the answer is that he acquired them legally from a licensed dealer under the permissive laws of the local jurisdiction and the deliberately porous oversight of the federal government.
In Aurora, the authorities say someone lawfully bought the weapons used by Holmes and that he carried them lawfully until the moment he pulled a trigger. Even the purchase of the AR-15, a rapid-fire, military-style semi-automatic fit for nothing but combat, was by the books.
Once, federal law would have kept Holmes’ hands off a superdeadly weapon like the AR-15. In 1994, under President Bill Clinton, Congress outlawed the manufacture and possession of assault weapons, but the statute had a 10-year expiration date.
IN 2004, it went off the books to cheers from the NRA, led by LaPierre, who keeps Washington in line and who went to ground Friday, declining comment “until all the facts are known.” As if they aren’t already.
Obama postures as supporting a new assault weapons ban but has done exactly nothing to restore the prohibition. Nor has he moved to close the loophole that allows for gun purchases without background checks at weapons shows.
His statement about the Aurora massacre was a dodge. Obama said in part: “If there’s anything to take away from this tragedy, it’s the reminder that life is very fragile, our time here is limited and it is precious, and what matters at the end of the day is not the small things, it’s not the trivial things which so often consume us and our daily lives.”
With all due respect, the presidential takeaway should have been a drive for strengthened gun control, if only for the assault weapons ban. In righteous anger, Obama should have confronted the NRA’s political might regardless of polls that show a strong sentiment against restoring the prohibition.
So, too, Romney, who was no less saccharine than Obama in discussing Aurora and is no less craven on gun control. As governor of Massachusetts, he signed a state assault weapons ban and defended tough anti-gun statutes. Then, as a presidential candidate, he joined the NRA and has since professed fealty to the group’s positions.
Through their inaction and their silence, Obama and Romney have fallen into line with all those who enabled Holmes to take hold of that AR-15 and will enable others to do so in the future unless America’s political leaders develop the courage to fight to save lives.
Criminal defendants have a constitutional right to effective lawyers during plea negotiations, the Supreme Court ruled on Wednesday in a pair of 5-to-4 decisions.
Because about 95 percent of criminal convictions arise from guilty pleas, the decisions represent a vast expansion of judicial supervision of the criminal justice system.
“Criminal justice today is for the most part a system of pleas, not a system of trials,” Justice Anthony M. Kennedy wrote for the majority. “The right to adequate assistance of counsel cannot be defined or enforced without taking account of the central role plea bargaining takes in securing convictions and determining sentences.”
Justice Antonin Scalia took the unusual step of summarizing his dissents from the bench. “Today’s opinions open a whole new field of constitutionalized criminal procedure: federal plea-bargaining law,” he said.
Scholars who welcomed that development agreed about its significance.
“The Supreme Court’s decision in these two cases constitute the single greatest revolution in the criminal justice process since Gideon v. Wainwright provided indigents the right to counsel,” said Wesley M. Oliver, a law professor at Widener University.
It has long been established that defendants are entitled to new trials if they can show that incompetent work by their lawyers probably affected the verdicts in their cases. The Supreme Court has also required lawyers to offer competent advice in urging defendants to give up their right to a trial by accepting a guilty plea.
The cases decided Wednesday answered a harder question: What is to be done in cases in which a lawyer’s incompetence caused the client to reject a favorable plea bargain?
Justice Kennedy, who wrote both majority opinions and was joined both times by the court’s four more liberal members, acknowledged that allowing the possibility of reopening cases involving rejected pleas that were followed by convictions presented all sorts of knotty problems. But he said the realities of American criminal justice required the court to take action.
One of the cases, Missouri v. Frye, No 10-444, involved Galin E. Frye, who was charged with driving without a license in 2007. A prosecutor offered to let him plead guilty in exchange for a 90-day sentence.
But Mr. Frye’s lawyer at the time, Michael Coles, failed to tell his client about the offer. After it expired, Mr. Frye pleaded guilty without a deal in place, and a judge sentenced him to three years.
The second case, Lafler v. Cooper, No. 10-209, concerned Anthony Cooper, who shot a woman in Detroit in 2003 and then received bad legal advice. Because all four of his bullets struck the victim below her waist, his lawyer said, Mr. Cooper could not be convicted of assault with intent to murder.
Based on that advice, Mr. Cooper rejected a plea bargain that called for a sentence of four to seven years. He was convicted, and is serving 15 to 30 years.
Judge Henry Hudson of the U.S. District Court for the Eastern District of Virginia held that Obamacare’s individual mandate—requiring most Americans must buy health insurance—is unconstitutional. Although states might be able to require people to buy health insurance (like they do car insurance), the federal government cannot because it’s not authorized by any provision in the U.S. Constitution.
After correctly striking down the mandate, Judge Hudson then went in the wrong direction. Virginia Attorney General Ken Cuccinelli argued that the individual mandate cannot be severed from the rest of Obamacare’s 2,700 pages. As such, striking down the mandate means you have to strike down the whole law. Judge Hudson declined to take that step.
Cuccinelli’s right, and Judge Hudson—who’s a very good judge—got this one wrong. Hudson held that the record doesn’t make clear whether Congress intended the law to survive without the mandate, and that without such a record he should only strike down the part that’s clearly unconstitutional.
That’s not what Supreme Court precedent requires. As I explained in detail in a brief I filed on behalf of the Family Research Council in the multi-state challenge to Obamacare in Florida, if a provision in a law is unconstitutional, a court must ask whether the statute can function in the manner Congress intended without the invalid part. If not, then the court must strike down the whole law.
There are two key points on this question of severability when it comes to Obamacare.
First, the law does not contain a severability clause, in which Congress announces that if part of the law is found invalid, the remaining provisions continue to carry the force of law. Courts treat a severability clause as strong evidence that Congress intended the rest of a law to survive without the unconstitutional section.
Even without a severability clause, a court still presumes an unconstitutional provision can be severed. It just doesn’t take as much to make the case that Congress would rather have no law at all.
That’s where the second point becomes critical. In Section 1501 of the Patient Protection and Affordable Care Act (Obamacare’s official name), Congress inserted a finding that the individual mandate, “is essential to creating effective health insurance markets.” Then, in their briefs and court arguments, the Justice Department admitted that the individual mandate is absolutely necessary for Obamacare to function as Congress intended.
The Virginia district court did not comment on this congressional finding and these government admissions. Taken in this context, the mandate is so intertwined with various parts of the law that a court needs to strike down many of Obamacare’s 450 sections.
Judge Hudson noted that he would have no way of knowing which provisions of Obamacare Congress intended to save without the mandate, also commenting that a number of provisions surely cannot be severed from the mandate. However, the correct course in that event is to strike down the entire law, allowing Congress to take the issue up all over again.
That raises a serious cautionary flag to Congress. The new Congress should do everything possible to repeal Obamacare entirely. However, if those efforts fail—as they likely will given that President Obama will veto any flat-out repeal, meaning a repeal couldn’t succeed before the 2012 elections—Republicans must not allow partial repeals to doom the court challenges to Obamacare.
Some moderate Democrats support a bill that would repeal the individual mandate. If that were to pass, then all of the major Obamacare lawsuits would become moot (since all of them challenge the mandate), and would be thrown out of court. Should that happen, then the rest of Obamacare would survive until 2013—or permanently.
Repeal Obamacare entirely. If Congress can’t, then it should be very careful, allowing the lawyers on these cases every opportunity to convince the Supreme Court that the individual mandate is unconstitutional, and cannot be severed from the remainder of the law.
If the Court holds the mandate unconstitutional and that it cannot be severed, then the whole law goes down, and we’ll kill this leviathan once and for all.
A Federal Judge declared the Obama administration's health care law unconstitutional Monday, siding with Virginia's attorney general in a dispute that both sides agree will ultimately be decided by the U.S. Supreme Court.
U.S. District Judge Henry E. Hudson is the first federal judge to strike down the law, which has been upheld by two others in Virginia and Michigan. Several other lawsuits have been dismissed and others are pending, including one filed by 20 other states in Florida.
"The Minimum Essential Coverage Provision is neither within the letter nor the spirit of the Constitution," Hudson wrote in a 42-page decision. However, he declined to invalidate the entire healthcare law, a small victory for Obama.
The law has become a cornerstone of Obama's presidency, aiming to expand health insurance for millions more Americans while curbing costs, and his Justice Department lawyers have been sent around the country to defend it in federal courts.
The Obama administration will likely appeal.
Virginia Republican Attorney General Kenneth Cuccinelli filed a separate lawsuit in defense of a new state law that prohibits the government from forcing state residents to buy health insurance. However, the key issue was his claim that the federal law's requirement that citizens buy health insurance or pay a penalty is unconstitutional.
Hudson, a Republican who was appointed by President George W. Bush, sounded sympathetic to the state's case when he heard oral arguments in October, and the White House expected to lose this round.
Administration officials told reporters last week that a negative ruling would have virtually no impact on the law's implementation, noting that its two major provisions — the coverage mandate and the creation of new insurance markets — don't take effect until 2014.
The central issue in Virginia's lawsuit was whether the federal government has the power under the constitution to impose the insurance requirement. The Justice Department said the mandate is a proper exercise of the government's authority under the Commerce Clause.
Cuccinelli argued that while the government can regulate economic activity that substantially affects interstate commerce, the decision not to buy insurance amounts to economic inactivity that is beyond the government's reach.
Congressional Republicans are touting plans to repeal the Obama Administration's health care reform law, but they face wariness for a full rollback from a key constituency: the business lobby.
In the weeks before the midterm elections, many Republicans used the health care law to tap into anti-government sentiment and angst about the economy. In their Pledge to America, Republican candidates committed to "repeal and replace the government takeover of health care" by any means necessary. Even John Boehner, the incoming House Speaker, filed a brief on Nov. 16 in support of a lawsuit filed by 20 states challenging the constitutionality of a central part of the new law that requires individuals to purchase health insurance. "ObamaCare is a jobkiller, and our economy simply cannot afford this unprecedented, unconstitutional power grab by the federal government," Boehner said in a statement.
But few in the business community want to embark on the grueling process of seeking a full repeal of health care reform, because they believe it will ultimately fail. Even if a repeal effort passed the Republican-led House, it would be certain to die in a Senate still dominated by Democrats. And if repeal legislation miraculously survived the Senate, President Obama would never sign it. The more viable strategy, business believes, is to try to tweak or eliminate key parts of the law. James Gelfand, the U.S. Chamber of Commerce's director of health policy, says of the new law, "We'd like it to go away. But we're business people, and we're pragmatic."
The Big Business game plan is moving forward on several key fronts. The first strike is likely to come on the provision of the law requiring businesses to file 1099 tax forms on any individual or business with which it incurs an expense of more than $600 over the course of a year, starting in 2012. Small-business owners, in particular, warn that the requirement will overwhelm them with paperwork — and, consequently, stymie job creation and economic growth. Last week, a senior Democrat, Senator Max Baucus, announced plans to file legislation repealing the 1099 portion of the law. Second, business groups will focus on new restrictions on how much individuals can deduct on nonprescription drugs, like Tylenol, using flexible spending accounts.
The business community also plans to fight new regulations that would fully implement health reform. On Nov. 17, the U.S. Chamber of Commerce's CEO, Tom Donohue, challenged what the organization calls a "regulatory tsunami" by the government, including the one created by health care. As the health care law is implemented in the coming years, the chamber predicts it will create 183 new agencies, commissions and panels. While the new law sharply expands Americans' access to health care, critics warn of the cost: a CATO Institute report claims that the law will increase taxes by nearly $670 billion in the coming decade. "We've never seen anything on this scale before," Donohue said, adding, "It defies all logic and common sense." The chamber will hire a regulatory economist and encourage its internal law firm to take a more activist posture in fighting increased regulation.
The last prong of the attack will come in congressional oversight. In the coming weeks, Republicans are expected to hold hearings on what has happened with the health care law. That may look good for the television cameras and generate headlines. It will also test the public's willingness to go further with a broader legislative rollback of the law.
When a San Diego man opted out of security screening using the Advanced Imaging Technology (AIT) at Lindbergh Field Friday, he stripped down to his underwear in an attempt to avoid the pat-down procedures.
Samuel Wolanyk took the protest started Nov. 13 by Oceanside's John Tyner to a whole new level.
While Tyner videotaped his refusal to be patted down, telling the agent "If you touch my junk, I'll have you arrested," Wolanyk decided to give TSA a look at his body down to his Calvin Klein's.
Through a statement released by his attorney Sunday night, Wolanyk said "TSA needs to see that I'm not carrying any weapons, explosives, or other prohibited substances, I refuse to have images of my naked body viewed by perfect strangers, and having been felt up for the first time by TSA the week prior (I travel frequently) I was not willing to be molested again."
Wolanyk's attorney said that TSA requested his client put his clothes on so he could be patted down properly but his client refused to put his clothes back on. He never refused a pat down, according to his attorney.
Wolanyk was arrested for refusing to complete the security process. A woman, identified by Harbor police as Danielle Kelli Hayman, 39, of San Diego was detained for recording the incident on a phone.
San Diego has played a central role in the debate over the need for AIT machines in our nation's airports. From Tyner's videotape and U.S. Rep. Bob Filner's call for a congressional hearing, to the parody song penned by Poway musician and Grammy-winner Steve Vaus. This Wednesday, one group is asking Americans to opt out of the AIT machines.
s backlash against airline passenger pat-downs intensified with a viral online video, the nation's top airline security official said Monday that his agency is walking a fine line between privacy concerns and public safety.
A short video clip circulating on the internet shows a shirtless boy receiving a pat-down from a Transportation Security Administration agent. His father watches, hands on his hips, obstructing part of the view.
But the words playing in the background are clear.
"Are they harassing a kid?" one man asks.
"It's ridiculous," another voice chimes in. "Unbelievable."
Finance student Luke Tait said he started recording the incident with his cell phone when he saw the "visibly upset" father while waiting in line Friday at the airport in Salt Lake City, Utah.
"It was an interesting situation. I never saw a little boy with his shirt off getting a pat-down," Tait told CNN.
TSA spokesman Dwayne Baird said screeners searched the child after he set off a metal detector alarm.
"The father removed his son's shirt in order to speed up the screening process. Once screening was complete, both proceeded to the gate for their flight," Baird said in a statement.
Asked about the incident Monday on CNN's "American Morning," TSA Administrator John Pistole said his understanding was the same as the account given by Baird.
The TSA is trying to strike a delicate balance, Pistole said -- ensuring the safety of the traveling public while taking privacy concerns into account. "The bottom line is, everybody wants to arrive safely at their destination," he said.
In the short term, no changes will be made as the holiday season approaches. Some 2 million people a day are expected to travel on Tuesday and Wednesday of this week.
A Michigan man, who endured an "extremely embarrassing" pat-down earlier this month, disagreed.
"These new pat-downs have to be stopped until [TSA agents] are trained and are comfortable doing what they need to do," Thomas Sawyer told CNN's "American Morning."
Sawyer, a bladder cancer survivor who has worn a urostomy bag since a surgery three years ago, said a TSA agent at Detroit Metropolitan Airport caused the seal of the bag to open partially during a pat-down, spilling urine on his clothes.
Sawyer said he tried to caution the agent against pressing too hard on his abdomen because of the bag. The agent didn't understand and continued with the search, Sawyer said, and "pulled the seal kind of half-off" the bag.
"These people need to be trained on medical conditions ... and emotional conditions," Sawyer said Monday on CNN's "American Morning." He said the agent "didn't apologize, he didn't do anything."
"I'm a good American, I know why we're doing this and I understand it," Sawyer said. "But this was extremely embarrassing and it didn't have to happen. With educated TSA workers, it wouldn't have happened."
Pistole pointed out that the pat-downs are not mandatory -- passengers receive them only if they opt out of a screening with advanced imaging technology. The technology is the TSA's best effort, he said, to head off attacks like the would-be Christmas Day bomber last year. Umar Farouk AbdulMutallab allegedly had a bomb sewn into his underwear on a flight from Amsterdam, the Netherlands, to Detroit, Michigan.
Asked whether the technology and pat-downs would have been able to find that device, Pistole said he believes they would have, saying it would have shown up as "an anomaly" with the imaging technology and then might have been located in a pat-down.
There has never been an explosive found on a flight from one U.S. city to another, Pistole acknowledged. But, he pointed out, domestic terrorists exist -- Timothy McVeigh, Eric Rudolph and Ted Kaczynski, for instance -- and there are people who want to do the government harm. While America is "fortunate" that such an incident has not occurred on a domestic flight, he said, it could conceivably happen.
"We welcome feedback and comments on the screening procedures from the traveling public, and we will work to make them as minimally invasive as possible while still providing the security that the American people want and deserve," Pistole said in a statement released Sunday. "We are constantly evaluating and adapting our security measures, and as we have said from the beginning, we are seeking to strike the right balance between privacy and security."
But Rep. John Mica told "State of the Union" Sunday the enhanced screening shows the TSA is "headed in the wrong direction as far as who they're screening and how they're doing it."
"I don't think the roll-out was good and the application is even worse," he said. "This does need to be refined. But he's saying it's the only tool and I believe that's wrong."
The Florida Republican, who will be chairman of the House Transportation and Infrastructure Committee in January, has argued that airports should hire private security screeners.
The ramped up use of pat-downs and full-body scanning is needed to stop non-metallic threats including weapons and explosives from getting aboard planes, the TSA says. And it appears that most Americans agree.
In a recent CBS News poll, 4 out of 5 Americans supported the use of full-body scans.
President Barack Obama stood by the new controversial screening measures Saturday, calling methods such as pat-downs and body scans necessary to assure airline safety.
The president told reporters that the balance between protecting travelers' rights and their security is a "tough situation," but stressed that such methods are needed after what happened last Christmas Day.
But Obama's support hasn't stopped a growing group of objectors, from civil rights and privacy advocates to scientists and pilots, from loudly claiming these measures are too invasive, ineffective and possibly unsafe.
Secretary of State Hillary Clinton, asked by CBS' "Face the Nation" on Sunday whether she would submit to an enhanced pat-down, laughed and said, "Not if I could avoid it. No, I mean, who would?"
Pistole noted Monday Clinton went on to say she understands the importance and focus on travelers' security.
Some are calling the frenzied travel day before Thanksgiving "National Opt-Out Day," urging travelers selected for full-body scanning to refuse.
Travelers have the right to opt out of full-body scanning, according to the TSA, but the pat-down alternative has, in turn, created its own public furor.
Last week, a San Diego, California, man's viral video of his clash with security screeners spawned several T-shirt designs with his "Don't touch my junk" quip.
And CNN affiliates around the country have reported examples of passengers who say they find pat-downs embarassing or invasive.
But on Sunday, Pistole told CNN that the outcry over the new screening was overblown.
"Very few people actually receive the pat-down. In spite of all the public furor about this, very few people do," he said.
Caught between complaints that airport screening has become too intrusive and threats of new terror attacks on aviation, Obama Administration officials say they are sensitive to criticisms that security measures go too far, but they are insisting that the measures now in place are justified by the risks.
With the Thanksgiving travel crush imminent, the chief of the Transportation Security Administration, John S. Pistole, said in a statement that his agency would try to make screening methods “as minimally invasive as possible.” But he gave no indication that the agency would reverse its move to full-body scanners, now deployed in 70 of 450 airports in the United States, and physical pat-downs for passengers who object to the scans.
“This has always been viewed as an evolving program that will be adapted as conditions warrant, and we greatly appreciate the cooperation and understanding of the American people,” Mr. Pistole said.
Security officials said the new procedures were the only way to detect explosives hidden under clothing. “We cannot forget that less than one year ago a suicide bomber with explosives in his underwear tried to bring down a plane over Detroit,” Mr. Pistole said.
The debate over the proper balance of security and privacy was unfolding as Al Qaeda in the Arabian Peninsula, the terrorist group responsible for the Detroit airliner bomb last Christmas and for placing explosive devices aboard cargo planes last month, threatened similar plots to sow fear, disrupt travel and transport, and impose huge costs on the United States.
“This strategy of attacking the enemy with smaller but more frequent operations is what some may refer to as the strategy of a thousand cuts,” the Yemen-based group said in a new issue of its English-language magazine, Inspire, which resembles a glossy publication but is available for download on militant Web sites. “The aim is to bleed the enemy to death.”
The T.S.A., which screens about two million air passengers a day, began testing the full-body scanners in 2007, installed them more widely starting last year and accelerated their use after the failed plot last Christmas. If a screener spots something suspicious on a scan, which shows an outline of the unclothed body, or if a passenger prefers to skip the scan, the passenger must undergo a physical search that many passengers have found intrusive.
The furor began after Nov. 1, when the agency introduced the more aggressive pat-down procedure. Despite the storm of criticism from passengers, pilots and members of Congress, agency officials point to opinion polls showing that about 80 percent of the public supports the use of body scanners. About 1 percent of passengers have opted out of the scanner and undergone pat-downs so far this month, officials said.
Congressional leaders have promised to hold hearings on the issue.
Still, the administration has appeared to be caught off guard by the outrage of some passengers. Mr. Pistole agreed on Saturday to demands from pilots that they be exempted from the searches, after critics noted that a pilot who wants to destroy a plane hardly needs explosives to do so.
On Saturday in Lisbon, President Obama acknowledged public complaints but said he had been told by T.S.A. and counterterrorism advisers that “at this point” the measures “are the only ones right now that they consider to be effective against the kind of threat that we saw in the Christmas Day bombing.”
Secretary of State Hillary Rodham Clinton said on NBC’s “Meet the Press” on Sunday that she did not want to “second guess” security officials, but added that “everyone, including our security experts, are looking for ways to diminish the impact on the traveling public.”
On another Sunday talk show, CBS’s “Face the Nation,” Mrs. Clinton said she would not like to go through a security pat-down.
“Not if I could avoid it,” she said. “No. I mean, who would?”
On CNN’s “State of the Union” on Sunday, Mr. Pistole, a 26-year F.B.I. veteran who took over at the T.S.A. in June, described the scanners and pat-downs as the last line of defense against terrorists who evade no-fly lists and the “behavior detection officers” looking out for suspicious conduct at airports.
“If they do opt out, we just want to make sure, for example, on Christmas Day,” Mr. Pistole said, in a clear reference to the underwear bomber, that “they receive a thorough pat-down so they don’t pose a risk to that plane.”
In a sense, the strategy trumpeted by Al Qaeda in the Arabian Peninsula in the new issue of Inspire represents a victory for Western counterterrorism. The group acknowledged that Sept. 11-style attacks may be impossible to organize without being detected by the expanded intelligence dragnet.
“Really, it’s a good marketing spin on a pretty desperate strategy,” said James Carafano, a security specialist at the Heritage Foundation.
But the magazine showed that Al-Qaeda planners have an increasing awareness that smaller-scale attacks, including those focused on air cargo, can cause enormous economic damage and public anxiety.
“It has a particular impact, coming as it does at a time when we’re arguing about how to prevent the kind of attack the same group tried at Christmas,” said Bruce Hoffman, an expert on terrorism at Georgetown University.
Both Mr. Carafano and Mr. Hoffman said they would advise the administration to revise the screening procedures. Mr. Carafano said limiting the body scans and pat-downs to secondary screening, for travelers who raise suspicions, would be more sensible than expanding the costly scanners to all travelers.
Mr. Hoffman said the administration should move away from adding more layers of security for every passenger in response to every new plot and consider an Israeli-style approach to identify passengers who pose a particular risk, based on advance intelligence, questioning travelers and watching their behavior.
“We’ve had nine years of just grafting security measures one on another,” Mr. Hoffman said. “Maybe it’s time to step back, take a hard look and look for a new approach.”
At least one group of air travelers will get a break from the body scans and pat-downs that have provoked a national outcry.
On Friday, the Transportation Security Administration announced that it would let uniformed airline pilots skip the screenings, reversing an earlier policy that everyone had to go through the screenings as part of the agency’s efforts to prevent terrorist attacks. Pilots who are traveling out of uniform or not on official business will still be subject to searches, the agency said.
The full-body scans and pat-downs being performed at a number of airports have angered travelers, many of whom said the searches were invasive and likened them to virtual strip searches. Passengers have also raised concerns about the long-term effect of radiation exposure from airport scanners.
The agency said pilots would still have to pass through a metal detector at airport checkpoints and present two photo identifications that would be verified against a flight crew database.
The government ruling comes after an extensive two-year lobbying campaign by unions and organizations representing airline pilots. The groups made the argument that because their members had already been through extensive background checks by federal law enforcement officials, there was no need for the added security searches.
Those lobbying for changes in pilot screenings include Captain Chesley B. Sullenberger, who gained national fame last year after safely landing a plane in the Hudson River with over 100 passengers on board.
“Allowing these uniformed pilots, whose identity has been verified, to go through expedited screening at the checkpoint just makes for smart security and an efficient use of our resources,” John S. Pistole, the agency’s administrator, said in a statement.
Dwayne Baird, a spokesman for the T.S.A., said on Saturday that the ruling would apply only to pilots, and not flight attendants.
“They will still have to go through the same screening as everyone else,” Mr. Baird said.
Flight attendants and their unions have argued that they should also be allowed to bypass the pat-downs and screenings, as well.
“Flight attendants are subject to extensive background checks, so there is no reasonable explanation why this highly vetted group of aviation employees continues to be exposed to lengthy airport security lines which may affect their ability to report to the aircraft on time,” Patricia A. Friend, president of the Association of Flight Attendants, said in a statement this month.
Mr. Baird said he did not have any information on why flight attendants were not included in the new T.S.A. policy, even though they undergo the same background checks as pilots. He said he had no information about forthcoming changes for ordinary passengers.
Questioned on the protocol while at a NATO summit meeting in Portugal, President Obama acknowledged travelers’ frustrations. “What I’ve said to the T.S.A. is that you have to constantly refine and measure whether what we’re doing is the only way to assure the American people’s safety,” he said. “And you also have to think through, ‘Are there other ways of doing it that are less intrusive?’ ”
Heeding a sudden furor, John Pistole, administrator of the Transportation Security Administration, said in a Sunday afternoon statement to POLITICO that airport screening procedures “will be adapted as conditions warrant,” in an effort to make them “as minimally invasive as possible, while still providing the security that the American people want and deserve.”
TSA's new flexibility comes as the government gears up for a flood of travel over the Thanksgiving holiday weekend. Administration officials say any changes are more likely to be in the implementation of the security procedures than in the security measures themselves.
Pistole’s statement to POLITICO modified his vow a few hours earlier on CNN’s “State of the Union” that the procedures were "not going to change." Both President Barack Obama and Secretary of State Hillary Clinton said over the weekend that the administration was continually looking for ways to refine the screening to make it less intrusive and frustrating.
Here is the full text of the statement from Pistole, a former deputy director of the FBI:
"We welcome feedback and comments on the screening procedures from the traveling public, and we will work to make them as minimally invasive as possible, while still providing the security that the American people want and deserve. We are constantly evaluating and adapting our security measures, and as we have said from the beginning, we are seeking to strike the right balance between privacy and security.
“In all such security programs, especially those that are applied nationwide, there is a continual process of refinement and adjustment to ensure that best practices are applied and that feedback and comment from the traveling public is taken into account. This has always been viewed as an evolving program that will be adapted as conditions warrant, and we greatly appreciate the cooperation and understanding of the American people.
“We cannot forget that less than one year ago a suicide bomber with explosives in his underwear tried to bring down a plane over Detroit. The terrorists allegedly behind the thwarted cargo attempt last month are out there bragging about how they will strike again.
“We all wish we lived in a world where security procedures at airports weren't necessary, but that just isn't the case."
US man who refused a groin pat-down inspires campaign to stop intimate searches and full body scans.
It all started with a man who said no one was going to touch his "Junk".
John Tyner turned down an invitation to step into one of the new body scanners springing up in American airports which offer security guards an all but naked view of passengers. When Tyner refused, the guard at San Diego said he would have to submit to a body pat-down and then went on to describe what that meant.
Tyner said he was fine with that up to the point where a hand would explore his groin.
"If you touch my junk, I'm gonna have you arrested," he said.
Needless to say, Tyner didn't fly. Instead he was threatened with a civil suit and a fine of $10,000 (£6,200).
A week later, the incident has reverberated across the country to the halls of Congress and prompted a campaign for travellers to boycott body scanners next Wednesday, the day before Thanksgiving and one of the busiest for American airports.
Tyner recorded the encounter with airport security using his camera phone. The video went viral and days later the head of the Transport Security Administration (TSA), John Pistole, found himself before Congress defending the full body scanners introduced after a Nigerian terrorist attempted to blow up a plane over Detroit last Christmas Day with explosives hidden in his underwear. Pistole was also forced to defend the introduction at the beginning of this month of more probing body searches for those who do not wish to go through the scanners. The search includes a firm pressing of a security guard's hand on genitalia and breasts.
"The outcry is huge," Senator Kay Bailey Hutchinson from Texas told Pistole. "I know that you're aware of it. But we've got to see some action."
Senator George LeMieux said: "I wouldn't want my wife to be touched in the way that these folks are being touched. I wouldn't want to be touched that way."
Pistole was having none of it.
"I'm not going to change those policies," he said. The TSA chief said that most air passengers, given a choice between a plane full of people who have been screened and one where they have not, would choose the former: "I think everybody will want to opt for the screening with the assurance that that flight is safe and secure."
On Thursday, Congressman Ron Paul introduced legislation to counter what he called the "calamity" of airport security. It proposes barring the government from doing what ordinary citizens would not be allowed to do to strangers – photographing them naked or touching their private parts.
"If we can't take nude photos of people why do we allow the government to do it? We would go to jail," he said. "Something has to be done. Everybody's fed up. The people are fed up. The pilots are fed up. I'm fed up. What we're putting up with at the airport is so symbolic of us just not standing up and saying enough is enough. I know the American people are starting to wake up but our government, those in charge, Congress, are doing nothing."
Paul highlighted an issue that critics latched on to: that pilots also have to be body scanned or intimately searched.
"Can you think how silly the whole thing is? The pilot has a gun in the cockpit and he's managing this aircraft which is a missile, and we make him go through this groping, x-ray exercise, having people feel in their underwear. It's absurd," he said.
For all the noise, a CBS poll this week found that four out of five Americans see body scanners as a necessary security measure. It has not gone unnoticed that some of those most critical of the government over the issue – including conservative members of Congress, Fox News and websites such as the Drudge Report – vigorously accused the Obama administration of security lapses because the "underwear bomber" was able to get explosives on to a plane.
Pistole has strongly criticised the call to boycott screenings.
"On the eve of a major national holiday and less than one year after al-Qaida's failed attack last Christmas Day, it is irresponsible for a group to suggest travellers opt out of the very screening that may prevent an attack using non-metallic explosives," he said.
The Internet is helping to fuel anger over air traveler screening, but changes to what some have termed a "virtual strip search" are unlikely to materialize before the busy Thanksgiving travel period draws near.
John Tyner, a software engineer from Oceanside, Calif., became an Internet sensation after telling a TSA screener: "If you touch my junk, I'll have you arrested." Tyner had the foresight to record the exchange on his mobile phone (videos are here) and is now facing a possible lawsuit for entering a security line and then not allowing a government employee access to his crotch during a pat-down search.
Foes who had hoped a Senate hearing would lead to a privacy outcry on Capitol Hill were disappointed when Democratic senators applauded the Obama administration and Republicans offering only modest criticism. Indeed, Jay Rockefeller, chairman of the Senate committee overseeing air travel, told the TSA chief: "I think you're doing a terrific job."
An administrator with the Transportation Security Agency said the agency would be "announcing some new policies" in the "near future" that will change the screening process for pilots, who have protested being forced to choose between an X-ray machine's "virtual strip search" or a pat-down from a TSA agent.
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