'Mission creep' hits airport security: People exhibiting "fear" or "stress" are now just the sort of individuals TSA is on the lookout for

Approach any major airport in the United States in this brave new, post-Sept. 11 world, and there is one message transmitted loud and clear to you — be afraid. Armed police are everywhere. You can't stop your car for more than a few seconds without being warned by an armed police officer that you'd better move on.

Detached voices over the public address system remind you constantly of the applicable "homeland security threat level" (perpetually stuck at orange), and recount what you can and cannot carry on the plane. Your "government-issued identification card" must always be at the ready to show on demand. You have to partially disrobe and traverse a security gauntlet before even getting to the gate area. The oppressive sense of fear fostered by the airlines and the Transportation Security Administration continues from curbside dropoff to exiting the airport in your destination city. Fear has become the currency of modern air travel.

Interestingly, however, people exhibiting "fear" or "stress" are now suspected of being just the sort of undesirable individuals the TSA is on the lookout for, and whom it will single out for special attention, including arrest. A cadre of undercover "Behavior Detection Officers," or BDOs, is roaming America's air terminals (and possibly some in other countries) on behalf of the TSA, peering into the faces of people to discern "slight facial movements" or other behavior characteristics indicating a possible lawbreaker or terrorist.

TSA's Web site proudly pats itself on the back for behaviorally detecting at least one lawbreaker at Baltimore-Washington International Airport — an unlucky man who appeared nervous near a ticket counter. His nervous demeanor led to his detention, search and subsequent arrest for carrying a concealed firearm without the requisite permit.

Many Americans — reflecting the post-Sept. 11 philosophy that whatever government decides to do or wants to do to make us "safe" is permissible, no matter how constitutionally questionable — might applaud the TSA for such actions. But this is the sort of problematic "mission creep" many warned about several years ago when the TSA was established.

Established to screen passengers and cargo for weapons and explosives prior to boarding or loading onto commercial air carriers, the TSA seems now to views its mission as being of a magnitude far in excess of people intending to hijack or destroy commercial aircraft. TSA personnel now believe it their bounden duty to watch for anybody at an airport who might be committing or contemplating committing any crime whatsoever, regardless of any link to a passenger plane.

News accounts, for example, chronicle TSA BDOs identifying persons who turn out simply to be in this country unlawfully, and others who possess illegal drugs. Of course, their zeal has also led BDOs to stopping, detaining and questioning people who are engaging in actions no more "criminal" than simply appearing nervous or "stressful" and who "avoid eye contact" with other people. The obvious question, with all this going on, is who wouldn't be nervous or stressful?

This is not the first time federal agents have attempted to use some form of "profiling" as the basis to detain, search and arrest suspects. For example, beginning in the late 1970s, federal drug agents conducted a series of searches of people at airports who fit a so-called "drug courier profile" — people who, among other things, appeared nervous, avoided eye contact and did not carry baggage. Many of the cases thus developed were declared unconstitutional, with judges correctly concluding that arresting people based on what is in essence a "hunch" that they are acting suspiciously violates the Bill of Rights' requirement that searches be "reasonable." Judges also were mindful of the potential for abuse if law enforcement was permitted to search anyone fitting a subjective "profile."

It will be interesting to see if the federal judges of 2007 handle these most recent "profiling" cases according to the same constitutional standard as their predecessors in the 1970s and 1980s.

While the language of the Fourth Amendment's guarantee against being searched (and arrested) based on suspect "behavior" remains the same in 2007 as 30 years ago, I and many others worry that the largely government-induced fear now pervading our society has created the perfect storm in which government agents will henceforth be able to stop anybody, anytime, anyplace for suspect activity based on a behavior "pattern," all in the name of "fighting terrorism."

And that, friends, ought truly to make you nervous and stressful.

— Former congressman and U.S. Attorney Bob Barr practices law in Atlanta.

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