At the WaPo Conspiracy, David Post raises an interesting issue relating to the “seizure” by the TSA when one crosses an imaginary security line at the airport:

But even worse is this:  while waiting on the hoi polloi line, I started watching the TSA video that was running on the monitors overhead, and I was struck when the narrator said:  ”Once you enter the screening area, you will not be permitted to leave without TSA permission.”  Really?! Actually, I am permitted to leave without TSA  permission, whether they like it or not, because the Fourth Amendment’s prohibition on “unreasonable . . . seizures” gives me that permission. We have a word for this, too, in the law, when government agents don’t allow us to leave freely:  ”being in custody.”

While his point makes sense from a logical perspective, his fellow traveler, Orin Kerr, notes that the law doesn’t quite agree:

It’s perhaps worth noting that the caselaw is generally to the contrary. The “right to leave” argument was first litigated in the early 1970s when airport security screening was new. At the time, the Fifth Circuit clearly rejected the argument. See United States v. Skipwith, 482 F.2d 1272, 1277 (5th Cir. 1973). The Fifth Circuit reasoned that an alternative approach would give hijackers a way to probe for poor security practices and then only go through security when it was lax:

[A right to leave the screening area] greatly damages the prophylactic purpose of the search procedure. Such an option would constitute a one-way street for the benefit of a party planning airplane mischief, since there is no guarantee that if he were allowed to leave he might not return and be more successful. Of greater importance, the very fact that a safe exit is available if apprehension is threatened, would, by diminishing the risk, encourage attempts. Established search procedures are perhaps more valuable by what they discourage than by what they discover. I see no constitutional requirement, where a defendant knew by objective signs that he was incurring the possibility of a search, that he should thereafter be allowed to play heads-I-win, tails-you-lose.

This was further bolstered by the 11th Circuit’s 1984 Herzbrun opinion, that it’s not custody, but consent. Hey, you chose to go In there, and can’t complain about it afterward.  Belying this strained rationale is the pretense that we fly by choice, not because it’s a practical necessity.  After all, anyone who wants to go from New York to California could always drive, or walk, or take a Conestoga Wagon like our forebearers (well, not mine, but somebody’s forebearers).

The more truthful explanation can be found in the “special needs” analysis of the 9th Circuit’s United States v. Aukai opinion:

[R]equiring that a potential passenger be allowed to revoke consent to an ongoing airport security search makes little sense in a post-9/11 world. Such a rule would afford terrorists multiple opportunities to attempt to penetrate airport security by “electing not to fly” on the cusp of detection until a vulnerable portal is found. This rule would also allow terrorists a low-cost method of detecting systematic vulnerabilities in airport security, knowledge that could be extremely valuable in planning future attacks.

This raises the question, what’s the point of having constitutional doctrine if it can be thrown out whenever a bunch of judges decide that something is “special,” and therefore a permissible constraint on constitutional rights because, well, it just is?

It’s not that the explanation proffered in Aukai makes no sense. It’s a reasonable view, provided one embraces the “fear the terrorists” justification for creating a system designed to control the many in the hope of catching the none few.  The problem is that it’s inconsistent with any constitutional doctrine.  Nowhere does the Constitution provide for an exception when “we don’t wanna” apply it.

Those who are inclined to toss aside constitutional rights whenever they find them inconvenient will scoff at Post’s challenge.  After all, terrorists!!!  We must stop them, and we must be safe.  And after all, you did see the sign and walk into the TSA secure area willingly.  But what Post questions isn’t that we willingly enter airports, but that we cannot change our mind, revoke our consent, and walk away.

For courts considering such questions, the answer mainly lies in crafting a rationale that offers sufficient appeal that people will accept it as being in their best interests.  Following 9/11, Americans were pretty much willing to do anything to be safe, as the mantra of 9/11 changes everything was chanted from sea to shining sea.  Before that, it was the hijackings that made it critical that we accept the reality that flight required the forfeiture of freedom.  Cool sayings like “freedom isn’t free” appeal to the fearful and simplistic alike.

So while Orin is certainly correct that the law doesn’t support David Post’s view, it’s not because his view is incorrect, illogical or doctrinally unsound, but because when the courts run out of valid doctrinal arguments to support their desired outcome, they can always invoke the special needs doctrine, which ultimately allows the courts to make up any crap they want and ram it down our throats.

And that’s why you can’t leave once the TSA says so.