John Pistole: “What I Think Is Appropriate in Terms of Privacy”

This entire interview between TSA Director John Pistole, James Fallows, and Jeffrey Goldberg is worth reading. But I’m particularly interested in what Pistole says about his role in finding the appropriate balance between security and privacy.

James Fallows: I’d like to start with a question both Jeff and I have raised, which is the whole question of the balance between security, on the one hand, and liberty and privacy concerns, on the other. Is it TSA’s job to set that balance? Or how do you think that balance is set?

John Pistole: The way I view it is for TSA to develop the security protocols that afford the best security, while recognizing that there is a balance. The best security would be something way beyond what we’re doing.

Jeffrey Goldberg: The best security would be to just not allow people on planes. That’s perfect security.

Pistole: That’s “risk elimination.” And we’re not in the risk-elimination business, we’re in risk mitigation, informed by the latest intelligence, informed by our friends [in the intelligence agencies], and informed by the results of our covert testing.

Those things inform judgments and actions and then we take that information — I take that information — and then ask the experts how can we address these threats? They come up with different things based on all the information they have, and then they make a recommendation, and then it’s up to me to say, OK, does that exceed what I think is appropriate in terms of privacy?

So that’s my responsibility. To say, does this give us security, without violating something that would be a Fourth Amendment issue? [my emphasis]

According to Pistole, it’s up to him–his responsibility–to determine what the appropriate balance between privacy and security.

Now, I appreciate that, at some level, it is up to him. He’s in charge of TSA and he’s got to make the final decision whether to implement (or discontinue) a controversial scanning technology.

But it’s not up to him.

It’s up to the entities that review counterterrorism techniques for their civil liberties and privacy impact. Specifically it’s up to the Privacy and Civil Liberties Oversight Board, which is mandated by Congress to do the following:

(1) analyze and review actions the executive branch takes to protect the Nation from terrorism, ensuring that the need for such actions is balanced with the need to protect privacy and civil liberties; and

(2) ensure that liberty concerns are appropriately considered in the development and implementation of laws, regulations, and policies related to efforts to protect the Nation against terrorism.

The PCLOB never got fully off the ground after it was passed in 2007. More appallingly, Obama hasn’t even nominated anyone to the board.

Absent review by the PCLOB, Department of Homeland Security is required to conduct a Privacy Impact Assessment, which it appears not to have done either. And Pistole should know that these reviews should take place, since Bennie Thompson reminded him of the fact several weeks ago.

In the absence of an Executive branch level Privacy and Civil Liberties Oversight Board that would evaluate decisions such as this, it was crucial that the Department of Homeland Security’s Privacy Officer and Office for Civil Rights and Civil Liberties thoroughly evaluate and publish written assessments on how this decision affects the privacy and civil rights of the traveling public. To date, the Department has not published either a Privacy Impact Assessment (PIA) nor a Civil Liberties Impact Assessment (CLIA) on the enhanced pat down procedures. Without a published PIA or CLIA, we cannot ascertain the extent to which TSA has considered how these procedures should be implemented with respect to certain populations such as children, people with disabilities, and the elderly. By not issuing these assessments, the traveling public has no assurance that these procedures have been thoroughly evaluated for constitutionality.

There is a means to conduct an independent review of where the line between privacy and security is–or at least there’s supposed to be, even if Obama refuses to fulfill that mandate.

I’m sure it’s nice for Obama and Pistole that, rather than having an independent board review gate grope before it gets implemented, Pistole just took it on himself to decide whether it’s constitutional and appropriate or not.

But that’s not how it’s supposed to work.

43 replies
  1. MadDog says:

    …I’m sure it’s nice for Obama and Pistole that, rather than having an independent board review gate grope before it gets implemented, Pistole just took it on himself to decide whether it’s constitutional and appropriate or not…

    I’m guessing that Pistole groped himself and found the policy entirely pleasing.

  2. MadDog says:

    And since EW’s post publishing timestamp indicates that she is either really earlybirding it, an insomniac or sleepwriting (as I appear to be sleepreading *g*), I’ll add another “Why is the sky blue?” question to the mix:

    Why is it that our Congress writes legislation for the conduct of our government, but always leaves out any penalty for the failure to carry out that conduct (unlike the laws they write for us serfs)?

    In this particular case, as it seems in most others, Congress appears to have insisted that a Privacy Impact Assessment occur, but if not, no problem, we’ll take a raincheck, but only if you really want to.

    I guess I shouldn’t be so naive. Why on earth should I expect the government to be governed?

    • PJEvans says:

      I want an amendment that says specifically that all laws intended to apply to the general public shall apply to elected and appointed Federal officials.

      Also, I’d like to limit their paid expenses to travel on scheduled airlines (at coach fares) and in actual hotels (limit $100 per night, with a COLA not to exceed that of SS and Medicare).

  3. BoxTurtle says:

    But it’s not up to him.

    There’s nobody in authority challenging this, the President is backing it, the workers are carrying out his orders, and anybody who does challenge this at an airport is in for a rough time.

    So I’d say it IS up to him.

    Boxturtle (Oddly, I feel sorry for the screeners who take the abuse Pistole should receive)

  4. eCAHNomics says:

    Hey ew, guess you haven’t heard that the U.S. now has a unitary executive who can decide everything he wants for himself and delegate that power to whomever he chooses. Any other ideas are quaint.

    • BoxTurtle says:

      At least our unitary executive is incapable of executing the duties of the office. $DEITY help us if we got someone in there who could actually use the powers that congress has ceeded to him.

      Boxturtle (Would Tip O’Neil have died a natural death if Tricky Dick had to power to whack him?)

  5. bolloxref says:

    I notice that Pisshole has a ‘wide stance’ in that photo.

    Is he frequenting airport ‘rest’ areas rather too much?

  6. Knoxville says:

    What Pistole thinks is appropriate: “Hi, kids. I represent the authority of the state, and we’re going to play a little game. Mommy and daddy have no problem with that, right Mr. and Mrs. Smith?”

    [Groping our children follows.]

    • Margaret says:

      [Groping our children follows.]

      Yep. Just as soon as one of these geniuses figures out that explosives can be planted in body cavities or even surgically implanted, we’ll all have to evacuate in from of TSA agents who will then get to scoop and feel our poop.

      • eCAHNomics says:

        I did see a headline right when the gate groping began that TSA had decided they weren’t going to do cavity searches right away. (My bold.)

        • Margaret says:

          I did see a headline right when the gate groping began that TSA had decided they weren’t going to do cavity searches right away.

          Yeah. That takes specialized training. You can bet it’s coming though. I’d bet my entire savings on it.

          • BoxTurtle says:

            If they go to that, I swear I will design a SPECIAL meal to be eated just in time to arrive at the ‘exit’ when I step in front of a TSA agent. Cabbage. Beans. Chocolate overdose. Radishes. Laxitives.

            Boxturtle (Mike Rowe wouldn’t do the cavity search if that meal is done right)

      • Knoxville says:

        Our current choice: “Would you prefer us to take nake photos of you, or just let us feel you up and touch your privates?”

        Our next choice will be: “Would you like us to give you a full body cavity search, or just examine your feces?”

  7. harpie says:

    Oh, I’m so glad I’m livin’ in theUnited States of Authoritarianism!!!

    Weel done and thanks, Marcy!

    And MadDog @2-that’s a really good question

  8. alank the pie in the sky guy says:

    A board appointed by the president isn’t likely to be very meaningful. That’s why it’s called the executive branch. Only jarheads would think a such review board would make a difference in the protection of civil liberties.

  9. SirLurksAlot says:

    The 4th Amendment is dead & gone. Just waiting for the supremes to put the final nails in the coffin by reversing Roe and Griswold and that will be that. There’s nothing that can be done to roll back the security state and the boyz at the NSA keep on recording our every keystroke…sorry to be such a downer, but I don’t see it ending well.

  10. Margaret says:

    O” is for offers we make to our masters
    B” is for Bernanke
    A” is for assholes who call us disasters
    M” is for misery
    A” is for the arrogance that we all feel,
    Towards most of the citizenry…..

    • eblair says:

      He knows if he gives up on the scanners, he will get no multimillion dollar job in the security industry after he leaves office. I think that is a sufficient explanation for all of this. After 27 years working in the government, he almost surely is looking to cash in big time in a couple of years. Now perhaps I am being unfair because I don’t know that. But if anybody wants to disagree, I’ll lay 10-1 that he never budges on the scanners and that he gets a high paying job in the security industry. I am a gambling man, so lemme know.

  11. Frank33 says:

    Christmas time is the busy season for False Flag Ops. Undie Bomber was a drama queen with four ounces of PETN. And oh so dramatic with a dangerous fire aboard a descending airliner.

    And Undie had no passport. But since Undie had a bomb diaper, underwear needs to be “frisked” by the frisky TSA perverts. Those scanners are a big multi billion dollar business. Big enough to make it worthwhile to have another Undie Incident. Undie’s handler and Undie’s bombmaker are still free. As are many Al Qaeda double agents.

  12. Mason says:

    While I was browsing late last night, I read an article that said the Rapiscan machines can’t detect an explosive device that is taped to the body. It doesn’t distinguish the tape from the skin or detect anything covered by the tape.

    People who are assigned the responsibility of spending taxpayer money wisely generally evaluate design, functionality, and cost before deciding whether to buy a product. The GAO did that and concluded that there was no credible evidence that the Rapiscan machine would have detected the underwear bomber’s explosive device. Since the GAO’s conclusion refuted the Rapiscan’s major selling point, Congress rejected authorizing DHS to buy the machines. Pistole decided to ignore Congress and the GAO. He purchased the machines with stimulus money that was intended to create jobs. Only one new job was created.

    In some circles that would be considered a violation of his duties and responsibilities as the head of TSA as well as a willful refusal to respect congressional authority, and a misappropriation of agency funds.

    If I were the president, I would have fired Pistole before Thanksgiving and rescinded the order to purchase more machines.

    Pistole’s actions indicate a person suffering from delusions of grandeur, if not outright criminal intent. Therefore, if I were the president, I would direct the FBI to commence an investigation to determine if Pistole, or anyone else received any improper financial compensation or other benefit in return for deciding to purchase the machines.

  13. fatster says:

    Example of how the wheels of justice fell off the DOJ:

    Federal prosecutors likely to keep jobs after cases collapse

    “A USA TODAY investigation has found that prosecutors have little reason to fear losing their jobs, even if they violate laws or constitutional safeguards designed to ensure the justice system is fair.”


  14. onitgoes says:

    My roommate was watching the E! network “nooz” last night (hey: their version of the “nooz” is probably about as edifying as Fox “nooz,” and probably more accurate in what they report on).

    I noted they had a somewhat lengthy segment about celebrity women (of various types; some were super models, some were actors, and some were reality show “stars”) complaining about about feeling abused by TSA. These are wealthy womeon (for better or worse) who do travel a lot.

    There were claims made that they were being specially picked out to go thru the porno machine, and that male TSA “perverts” (their terminology) were nudging each other and laughing and drooling. Others opted for the pat-downs to avoid the porno-machines, but found the intrusive nature of the pat-downs very insensitive and invasive.

    Probably will amount to nothing, but I found their complaints to be interesting, as well as believable. Yeah, yeah: spoiled “starz” and all, but they are citizens, too.

    TSA, of course, “claimed” that the “choosing” of who got to go thru the porno-scanners was completely random & done by computer, but these women claimed not. I tend, in this case, to believe the women, no matter how spoiled they are.

    This whole thing is a scam, and all too often, TSA staffers will take advantage of stuff like this.

    I fully expect nothing to change, however, as the whole SCAM is too lucrative for our Oligarchs to give it up.

    • fatster says:

      Corruption. Look at this:

      “The world is considered a more corrupt place now than it was three years ago, a poll suggests.
      . . .

      “The opinion poll commissioned by the BBC sampled 13,000 people in 26 nations.

      “One question asked people to rate which issues they saw as most serious.

      “Corruption was ranked as the second most important topic behind poverty.”


    • klynn says:

      All the female stars interviewed should get together and produce a PSA type of piece to go on the net and perhaps buy advertising space at movie theaters and have their clip run.

      Make sure they include plenty of info from the ACLU on invasion of privacy. As well as historical quotes on the balance of liberty vs safety.

  15. ottogrendel says:

    Sounds like Pistole is yet another social dominating authoritarian, and his comments sound just like those of a prison warden. I am so tired of “leaders.”

    Risk mitigation? “I wish you’d stop being so good to me, Cap’n.”

  16. nonpartisanliberal says:

    Pistole ought to consult actress Donna d’Errico who was singled out for a full-body scan at LAX by a predatory TSA agent. When she asked why she was the only one from a long line of passengers being ordered into the scanner (she was not given the option of a pat down), the punk told her, “Because you caught my eye and the others didn’t.”

  17. Mauimom says:

    I was in the security line at Washington Dulles a week ago and had to endure a “recorded message” [played on the tv screens around the area] from Pistole, thanking me for my “cooperation,” and assuring me that this was all “for our security.”

    I was so furious it was all I could do to contain myself from screaming at the screen and ranting to my neighbors in the line. [THAT would have had a great outcome!!]

    OTOH, maybe playing such “messages” is just a ploy to smoke out those of us who oppose this.

  18. KarenM says:

    We have a Constitution and laws that determine what is appropriate for privacy… to the best of my knowledge, none of those laws have Pistole’s name on them.

  19. jpe12 says:

    At the same time, though, the PCLOB doesn’t much in the way of power. If they don’t like a determination, it seems their only recourse is a strongly worded letter in the way of a report to a congressional committee.

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