Thoughts on the TSA Controversy

By Jack Goldsmith
Sunday, November 21, 2010, 12:36 PM

I assume that TSA’s intrusive patdowns are not cost-effective, that some TSA employees will abuse the new body scanners, and that the TSA on the whole focuses too much on “security theater” and not enough on targeted interrogation.  But I also think some of the many harsh criticisms of TSA go too far and locate some of the responsibility for the situation in the wrong place.  The American people, and politicians of both parties, have made clear that they have zero tolerance for attacks in the homeland, and that any agency or official deemed responsible for an attack (or near attack) from the perfect perspective of hindsight will be severely punished, no matter how improbable the attack or how hard it was to identify ex ante.  TSA and other security officials get this message clearly and react accordingly with risk-averse policies.  (The new measures are a direct response to the outrage over the fact that the Christmas Day bomber smuggled explosives on board in his underwear.)

And yet at the same time we demand perfect security, we also loudly complain about the inconvenience of airport security checkpoints that are practically the only time and place that most Americans are inconvenienced by our war against terrorists – a war in which some enemy soldiers are committed to pursuing, as Scott Shane reports this morning, “low-cost attacks designed to inflict broad economic damage.”  Yes, we should wring out of the TSA system unnecessary inconvenience and privacy intrusion.  But we cannot eliminate those things.  (As Stewart Baker explained in Skating on Stilts, a greater focus on finding terrorists rather than finding weapons would raise a different kind of privacy outcry.)  In fact, since weapons are growing steadily smaller and more powerful, over time we must either (i) adjust our risk tolerance or (ii) accept more inconvenience and less privacy.  I fear that we are going to have to do both.