This peaceful protestor may be able to hold FEMA/TSA administrator's feet to the fire. It's an encouraging development. His rights were violated as are ours when we are subjected to invasive searches before getting on a plane.
Airport Security vs. The Constitution
You wouldn't think Aaron Tobey and Donald Rumsfeld have much in common. Tobey is the guy who stripped down to his shorts at the Richmond, Virginia airport last December. Rumsfeld is the former Defense Secretary under George W. Bush. Tobey, who was protesting the invasive airport screening practices that have outraged a good portion of the traveling public, is a stickler for constitutional rights. Rumsfeld? Not so much.
The two of them, however, are united by a common case: Bivens v. Six Unknown Named Agents. The other day a federal appeals court said two Americans who claimed to have been tortured by U.S. armed forces in Iraq can sue Rumsfeld for violating their constitutional rights. The court relied on the Bivens precedent. Bivens just happens to be the hook Tobey is hanging his hat on in his lawsuit against Homeland Security Secretary Janet Napolitano and Transportation Security Administration chief John Pistole. ...
On Dec. 30 last year, Tobey was in pre-flight screening when he was directed toward one of those special imaging machines that can see through clothing. Tobey paused to strip off his T-shirt and sweatpants. On his torso he had written: "Amendment 4: The right of the people to be secure against unreasonable searches and seizures shall not be violated." ...
Tobey claims his arrest was unjustified and unconstitutional, and the blame for it falls in part on Napolitano and Pistole, who put in place the policies that permitted it. ... the feds (say that) U.S. District Judge Henry Hudson should dismiss Tobey's lawsuit.
If the name sounds familiar, that's because it is. Hudson is the first judge to have ruled against ObamaCare's individual mandatethe provision that says Washington not only can tax your income but tell you how to spend what's left by forcing you to enter into a contract with a private insurance company. Hudson struck down the mandate Dec. 13, 2010just two weeks and change before Tobey made his shirtless statement at RIC.
Hudson said he would rule on whether Tobey's suit can proceed within two weeks. That was last week. So the decision in the Rumsfeld case could not come at a better time. The 7th U.S. Circuit Court of Appeals ruled Rumsfeld enjoys no immunity: "Plaintiffs [Donald Vance and Nathan Ertel] have alleged sufficient facts to show that Secretary Rumsfeld personally established the relevant policies that caused the alleged violations of their constitutional rights during detention."
As in Tobey's case, the federal government has argued that Rumsfeld enjoys immunity. The 7th Circuit says: No, he doesn't. That doesn't mean it has ruled in the plaintiffs' favor or found Rumsfeld personally culpable for the torture they claim to have endured. It merely means the case can go forwardjust as it ought to.
Americans have cheered when foreign dictators in Romania, Egypt, and elsewhere have been made to answer for grinding citizens under their boots. It would be curious indeed if American officials were harder to hold accountable. Vance and Ertel will get their day in court. So should Aaron Tobey.