When Matt Kernan reentered the United States last weekend he was greeted by TSA backscatter machines and the option to receive a pat-down. All individuals, whether citizens or foreigners are required to be screened before they enter US soil, even if they had been screened at their originating airport.

In Kernan’s case, he refused to be backscatter scanned for health reasons and informed TSA officials that if he was intrusively patted down he would consider the action assault and would subsequently file charges against TSA personnel. Like John “Don’t Touch My Junk” Tyner, Mr. Kernan recorded the engagement on his iPhone after advising TSA and the police department that he would do so.

We often asks how do we effect change in America? We start at the individual. We do what John Tyner and Matt Kernan did and exercise our Constitutionally protected rights – in this case, the 4th Amendment (and arguably, a host of others).

Edmund Burke once said that “all that is necessary for the triumph of evil is that good men do nothing.”

We are not implying that TSA screeners and technicians are evil, in fact, it’s just the opposite in this case. They work for a system that many consider as such because of its clear violations of the fundamental rule of law on which our country was founded. Here, TSA officials could have been evil, but they weren’t. They could have put Mr. Kernan in a secure room, stripped him of his belongings, cleared his iPhones memory card and arrested him for any number of trumped up charges. Cooler heads prevailed, however, and the TSA officials on the ground, seemingly just as tired and aghast at the policies of Janet Napolitano and Barrack Obama (and make no mistake, these policies come straight from the top), respected the Constitutional rights of an American citizen.

Matt Kernan did not let the evil of tyrannical government ideology violate his personal rights. The TSA and local law enforcement officials involved did not let their egos get into the way of respecting Mr. Kernan’s rights. This is how the system should work.

Kernan’s experience and Constitutionally-based argument proves that both, the backscatter and the intrusive pat down, can be legally avoided.

There are several recordings of the incident posted on Kernan’s blog. The Main Argument is available for viewing below and an excerpt of Kernan’s account follows.

Here is an excerpt from Kernan’s blog detailing his experience and the main points in his argument, which seem to have countered TSA policies:

(emphasis added)

After putting all my stuff through the x-ray, I was asked to go through the Backscatter. I politely said that I didn’t want to. The technician quipped to his colleague, “We’ve got an opt-out.” They laughed. He turned back and started to explain.

After he finished, I said, “I understand what the pat-down entails, but I wanted to let you know that I do not give you permission to touch my genitals or the surrounding area. If you do, I will consider it assault.”

He called his manager over, who again informed me of the policy. Throughout this event, this happened quite a few times. After raising my concerns regarding the policy to an officer, they often simply quoted back the policy. For the sake of brevity, I will simply say “Policy restatement.”

I said, “I am aware that it is policy, but I disagree with the policy, and I think that it is unconstitutional. As a U.S. citizen, I have the right to move freely within my country as long as I can demonstrate proof of citizenship and have demonstrated no reasonable cause to be detained.”

Policy restatement. “You have two options – the Backscatter or the pat down. It is your choice, but those are the only ways you can go through security.”

I asked if I could speak to his manager.

“I’m the supervisor here.”

“Do you have a manager?”

“Yes, but he’s very far away at the moment. And he’ll say the same thing I am.” Policy restatement.

At this point, I took out my iPhone, activated the voice recorder, and asked The Supervisor, “Per my constitutional rights, I am not allowed to be detained without reasonable cause for arrest. Now, am I free to go?”

He answered, “If you leave, we will call the APD.”

I asked, “Who is the APD?”

“The Airport Police Department.”

I said, “Actually, that’s probably a good idea. Let’s call them and your manager.”

The Supervisor turned and walked away without saying anything. I stood and waited, chatting to The Technician about how they aren’t allowed to wear radiation badges, even though they work with radiation equipment. He said, “I think I’m a couple steps ahead of you regarding looking out for my own health.”

I stood and waited for 20 minutes. Two cops showed up. Big ones. I admit, I did not want to be handcuffed by these guys.

One cop was older than the other, but they were still clearly partners. Neither of them took the lead on answering my questions, and neither of them told the other what to do. They came over to me and asked me to explain the issue. I first showed them the iPhone. After I explained my position, they restated the policy to me.

I said, “Yes sir. I understand the policy, but I still disagree and I still don’t think that I can be made to do these searches in order to go home. Now am I free to go?”

They didn’t answer.

I repeated the question. “Since you are actual police officers and not simply TSA, I am sure you have had much more training on my rights as a U.S. citizen, so you understand what is at stake here. So, am I free to go? Or am I being detained?”

Young Cop answers, “You aren’t being detained, but you can’t go through there.”

“Isn’t that what detaining is? Preventing me from leaving?”

“You can leave if you want, but it has to be that direction.” He points back towards customs.  Young Cop asks, “Why are you doing this?”

I explain that I’m worried that the Backscatter has unproven health risks. And that for all he knows, I might be a sexual assault victim and don’t feel like being touched. I say that the policy is needlessly invasive and it doesn’t provide any added security.

He asks, “But didn’t you go through this when you left on your flight?”

“Yes,” I say, grinning, “But I didn’t want to miss my flight then.”

The cops leave, and I stand around and wait some more. It should be noted that throughout this time, no fewer than 10 TSA officers and technicians are standing around, watching me. I was literally the only one still waiting to go through security.

The cops, The TSA Supervisor, and another guy were standing behind the checkpoint deliberating about something. I explained this to my iPhone and The Supervisor shouted, “Does that thing have video?”

“No sir. Just audio.” I was telling the truth – I’m still on an iPhone 3G.

After a while, Young Cop comes and asks me for my papers. My passport, my boarding pass, my driver’s license, and even a business card. I give him everything except the business card. He told me that he was just gathering information for the police report, which is standard procedure. I complied – I knew that this was indeed standard.

He left, and a Delta Airlines manager comes over and starts talking to me. He is clearly acting as a mediator. He asks what I would consent to, if given my options. I explain that I want the least intrusive possible solution that is required. I say, “I will not do anything that is not explicitly stated on recording as mandatory.” He leaves.

Let me pause and clarify the actors’ moods here, because they will soon start to change:

• The Supervisor: Very standoffish. Sticking to policy, no exceptions.
• The TSA Officials: Mainly amused. Not very concerned otherwise.
• The Cops: Impartial observers and consultants. Possibly a bit frustrated that I’m creating the troubles, but being very professional and respectful regardless.
• The Delta Supervisor: Trying to help me see the light. He doesn’t mind the work – he’s here all day anyway, so he’d rather spend it ensuring that his customer is happy.

After another wait, Old Cop returns, and asks me what I want. I tell him, “I want to go home without going through the Backscatter and without having my genitals touched. Those are my only two conditions. I will strip naked here if that is what it takes, but I don’t want to be touched.”

He offers as an alternative, “What if we were to escort you out with us? It would involve a pat-down, but it would be us doing it instead.”

“Would you touch my balls?”

“I don’t want to touch your – genital region, but my hand might brush against it.”

I clarify, “Well, like I said, I’ll do whatever you say is mandatory. If you tell me that you have to touch my balls—“

“—I said no such thing. You’re putting words in my mouth.”

“OK. I apologize. If you say that a pat-down is mandatory, and that as a condition of that pat-down, I may have my genitals brushed against by your hand, even though you don’t want to, I will do that. But only if you say it is mandatory.”

“I’m not going to say that.”

“OK. So am I free to go?”

“You are free to go in that direction.” He points back towards customs. Then he walks away to commune with the others.

My iPhone is running out of battery, so I take out my laptop, sit in a corner, and plug it in. I have some work to do anyway, so I pull up Excel and start chugging away for about 20 minutes.

This is where the turning point happens.

The cops come back and start talking with me. Again, they are asking why I’m doing it, don’t I have a connection to make, etc. They are acting more curious at this point – no longer trying to find a contradiction in my logic.

I eventually ask what would happen if I got up and left, and just walked through security. They shrugged. “We wouldn’t do anything on our own. We are only acting on behalf of the TSA. They are in charge of this area.”

“So if he told you to arrest me, you would? And if he didn’t, you wouldn’t?”

“That’s right,” Young Cop says.

“OK well then I think it is best if we all talk together as a group now. Can you call them over?”

The Supervisor returns, along with the Delta Manager. The Supervisor is quite visibly frustrated.

I explain, “The police have explained to me that it is your call on whether or not I am being detained. If I walked through that metal detector right now, you would have to ask them to arrest me in order for them to do anything.”

He starts to defer responsibility to the officers. They emphasize that no – they have no issue with me and they are only acting on his behalf. It is his jurisdiction. It is policy. They won’t detain me unless he tells them to.

So I emphasize the iPhone again, and ask,” So, if I were to get up, walk through the metal detector, and not have it go off, would you still have them arrest me?”

The Supervisor answers, “I can’t answer that question. That is no longer an option because you were selected for the Backscatter.”

“Well you can answer the question because it is a yes or no question. If I got up and left, would you have them arrest me?”

“I can’t answer that question.”

The moods have changed. The cops are now frustrated with him because he’s pawning off his decision-making responsibility to them. He’s stopping what is clearly a logical solution to the problem. Meanwhile, the Supervisor is just growing more and more furious with me.

In another deferment of responsibility (which he probably thought was an intimidation factor), “Well then I guess I’m just going to have to call the FSD.”

Unphased, I ask, “What’s the FSD?”

“The Federal Security Director.” And he walks away.

I can see him talking on the phone to the FSD – a man apparently named Paul – and I can only catch parts of the conversation:

• “No, he’s been perfectly polite…”
• “We tried that…”
• “All he said was … Constitutional rights”

He walks over to Old Cop and hands him the phone. I can hear similar sound bites. They hang up, deliberate some more, and then wait some more.

Meanwhile, I’m typing away on my computer. Answering emails, working on my Excel model – things that I would have done at home regardless.

The Supervisor walks over and stands uncomfortably close to me. After typing for a bit more, I look up. His voice shakes, “I don’t know if I ever introduced myself.” He pulls out his badge. “My name is XXX XXX. Here is my badge. Now, I’ve shown you my credentials.”

Ah – he’s gotten the Miranda talk. I hide my smile.

“Here’s what we’re going to do. I’m going to escort you out of the terminal to the public area. You are to stay with me at all times. Do you understand?”

“Will I be touched?”

“I can’t guarantee that, but I am going to escort you out.”

“OK. I will do this. But I will restate that I still do not give you permission to touch my genitals or the surrounding area. If you do, I will still consider it assault.”

“I understand.”

And then came the most ridiculous scene of which I’ve ever been a part. I gather my things – jacket, scarf, hat, briefcase, chocolates. We walk over to the staff entrance and he scans his badge to let me through. We walk down the long hallway that led back to the baggage claim area. We skip the escalators and moving walkways. As we walk, there are TSA officials stationed at apparent checkpoints along the route. As we pass them, they form part of the circle that is around me. By the end of the walk, I count 13 TSA officials and 2 uniformed police officers forming a circle around me. We reach the baggage claim area, and everyone stops at the orange line. The Supervisor grunts, “Have a nice day,” and leaves.

In order to enter the USA, I was never touched, I was never “Backscatted,” and I was never metal detected. In the end, it took 2.5 hours, but I proved that it is possible. I’m looking forward to my next flight on Wednesday.

If you’ve decided to join the National Opt-Out Day protest scheduled for November 24, 2010, then consider utilizing the arguments of Matt Kernan, as his approach is logical and Constitutionally sound, and seems to be quite effective.

References: Matt Kernan, Infowars