Wednesday, June 01, 2011

An Open Letter to State Officials in Response to the DOJ Threat Letter

From Rep. David Simpson's Blog

The Honorable Rick Perry

Texas State Governor
P.O. Box 12428
Austin, TX 78711

The Honorable David Dewhurst
President of the Senate
Capitol Station
P.O. Box 12068
Austin, TX 78711

The Honorable Joe Straus
Speaker of the House
Room CAP 2W.13, Capitol
Austin, TX 78768

The Honorable Gregg Abbott
Attorney General
P.O. Box 12548
Austin, TX 78711

Dear Sirs:

Today you received a letter from Mr. John E. Murphy, United States Attorney, Western District of Texas in regards to House Bill 1937 currently up for consideration by the Senate.

In his letter, Mr. Murphy made a veiled threat to the elected officials of Texas that if we move to protect the constitutional rights of our citizens, the TSA could shut down flights to and from Texas airports.

175 years ago in the first battle of the Texas Revolution against Mexico, a small band of Texans stood in defiance at Gonzalez, turning back the attempt to deprive them of their weapon of defense, a single cannon.

Gentlemen, we find ourselves at such a watershed moment today. The federal government is attempting to deprive the citizens of Texas of their constitutional rights under the Fourth Amendment of the United States Constitution and Article 1, Section 9 of the Texas Constitution. If we do not stand for our citizens in the face of this deprivation of their personal rights and dignity, who will?

Time is critical. If the bill does not pass the Senate tonight it may very well be dead until the next legislative session. Meanwhile, our wives, our children, our mothers and grandmothers, will be rudely violated by federal employees out of control.

My response to Mr. Murphy’s factually inaccurate letter follows. Please give this matter your immediate attention.

For Texas And Liberty!

David Simpson

TSA False Statement: “As you no doubt are aware, the bill makes it a crime for a federal Transportation Security Official to perform the security screening that he or she is authorized and required by federal law to perform.”

Truth: HB 1937 states that a person commits an offense if, while acting under color of the person’s office or employment without probable cause, performs a search for the purpose of granting access to a publicly accessible building or form of transportation and intentionally, knowingly, or recklessly touches the anus, sexual organ, buttocks or breasts of the other person. We know of no federal law that requires this kind of search without probable cause.

TSA False Statement: “The proposed legislation would make it unlawful for a federal agent such as a TSO to perform certain specified searches for the purpose of granting access to a publicly accessible building or form of transportation. The provision would thus criminalize searches that are required under federal regulations in order to ensure the safety of the American public.”

Truth: HB 1937 grants a defense to prosecution for an offense that the actor performed pursuant to and consistent with an explicit and applicable grant of federal statutory authority that is consistent with the United States Constitution.

So, if there is actually statutory authority consistent with the Constitution, all an agent must do is bring that statute to the attention of the court. In other words, Texas needs to tell the Department of Justice, “You show me your statutory authority.”

TSA False Statement: “The legislation also makes it crime for a public servant, as defined in the bill, to deny or impede another person in the exercise or enjoyment of any right or privilege, knowing that the public servant’s conduct is unlawful. As a result, it appears that the intent of the bill is to preclude a TSO from turning away from the secure area of an airport someone who otherwise would have been subjected to a pat down as a condition of entry.”

Truth: Actually, it is already current law in Texas that public servants cannot intentionally deny or impede another person in the exercise or enjoyment of any privilege, power, or immunity, knowing the public servant’s conduct is unlawful. TSO would only be precluded from touching specific private areas of an individual without probable cause to believe the person committed an offense. The bill will not prohibit a TSO from using administrative screening methods with metal detectors, scanners, explosive sniffing dogs or pat downs that do not include touching the travelers anus, breasts, sexual organs, or buttocks.

TSA False Statement: The effect of this bill, if enacted, would be to interfere directly with the Transportation Administration’s (TSA) responsibility for civil aviation security. 49 U.S. C Section 114 (d); 6 U.S.C. Section 202 (1). Congress has directed the Administrator of TSA to take ‘necessary actions to improve domestic air transportation security,” 49 U.S.C. Section 44904(e), and directed him to “prescribe regulations to protect passengers and property on aircraft . . . against an act of criminal violence or aircraft piracy.” Id. Section 44903(b). Congress has directed TSA to provide for “the screening of all passengers and property . . . before boarding,” in order to ensure that no passenger is unlawfully carrying a dangerous weapon, explosive, or other destructive substance. Id. Sections 44901(a), 44902(a), 114(e). If the Administrator determines that “a particular threat cannot be addressed in a way adequate to ensure. . . the safety of passengers and crew of a particular flight,” he “shall cancel the flight or series of flights.” Id Section 44905(b)

Truth: Nowhere in the language cited is there statutory authority for a government agent to touch the breasts, anus, sexual organs, or buttocks of a traveler. And, no where in the Texas legislation does it prohibit that touching if there is probable cause to believe an offense has been committed. HB 1937 merely works on the premise that Texans don’t have to forfeit their dignity to exercise their right of free travel.

TSA False Statement: HB 1937 would conflict directly with federal law.

Truth: It is perplexing that the United States Attorney would make a statement saying one thing while citing examples that do not substantiate the remark. Either he intentionally misrepresented the truth, was unaware of the actual language of HB 1937, or has other statutes to validate his statement. No comment on the first two scenarios, but if the third scenario exists, then the defense to prosecution will apply and Americans will be made aware of the actions of their elected officials.

TSA False Statement: The practical import of the bill is that it would threaten criminal prosecution of TSA personnel who carry out the security procedures required under federal statutes and TSA regulations passed to implement those statutes. Those officials cannot be put to the choice of risking criminal prosecution or carrying out their federal duties. Under the Supremacy Clause of the United States Constitution, Texas has no authority to regulate federal agents and employees in the performance of their federal duties or to pass a statute that conflicts with federal law.

Truth: HB 1937 only threatens criminal prosecution if there is inappropriate touching and there is no federal statute consistent with the United States Constitution to do so. As elected officials, Texas legislators have taken an oath to uphold both the U.S. Constitution and the Texas Constitution. In that capacity, they not only have authority to pass a statute that would reign in the daily violation of Fourth Amendment rights, they have a responsibility to do so.

TSA Threat: If HB 1937 were enacted, the federal government would likely seek an emergency stay of the statute. Unless or until such a stay were granted, TSA would likely be required to cancel any flight or series of flights for which it could not ensure the safety of passengers and crew.

Truth: The United States Attorney has thrown down the gauntlet. Either Texas backs off and continues to let government employees fondle innocent women, children and men as a condition of travel, or the TSA has the authority to cancel flights or series of flights.

Homeland Security Secretary Janet Napolitano says, “Well, actually, very, very, very few people get a pat-down.”

Atlanta TSA spokesman Jon Allen told us (Hot Air) that during March, 3 percent of air passengers were subject to a pat-down. The TSA collects this data by monitoring “data from select airports throughout the year,” he wrote in an email. That number is “consistent with that of previous time periods.” …

So, 97 percent of people who go through the nation’s airports do not go through these offensive searches. And yet, a United State’s Attorney warns that flights to Texas could be shut down because TSA would not be able to ensure the safety of passengers and crew if agents could not touch the genitals of the other 3 percent.

Someone must make a stand against the atrocities of our government agents. As Reagan said, “If not us, who? And if not now, when?”

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