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The Confederate Lawyer
December 7, 2010

An Immodest Proposal
by Charles G. Mills
fitzgerald griffin foundation

GLEN COVE, NY — If we really want to make commercial air travel totally secure, why don’t we simply require everyone to be completely naked to clear security? Passengers could strip completely before getting their boarding passes and put all their clothes in their carry-on luggage along with their weapons and scissors, mace and toothpaste, knives and knitting needles, and handcuffs and jump ropes. They could not be allowed to have any carry-on luggage. After going through security, passengers could buy one of those t-shirts with the name of the city on it and don it for the flight. Once they arrived at their final destination, they could put their clothes back on in the baggage claim area.

Of course, we will never do this because it violates our public standards of decency. It is an immodest proposal. This raises an important point. Observing public minimum standards is a civic duty, but being allowed to observe our more strict private standards is a civil liberty. When we submit to full-body x-rays and pat downs to get on airplanes, we surrender our liberty to be modest in exchange for greater safety. Benjamin Franklin said, “They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety.” For two generations, we have been giving up liberty for the illusion of safety at our airports.

It started when domestic communists started hijacking planes bound for Florida and forcing the pilots to fly them to Cuba. A culture of failing to resist such pirates immediately took hold. The result of this culture almost two generations later was the destruction of the World Trade Center.

Instead of taking strong action against air pirates, we took strong action against passengers, depriving them of their right to bring their pistols on airplanes. Over the years, this approach has expanded as every hijacking attempt was met with greater restrictions on liberty. Our toothpaste and shampoo are no longer allowed in carry-on luggage. Our shoes and belts have to be x-rayed or tested.

It did not have to be this way. The Turks encouraged a rumor that they had court- martialed and executed an air pirate during the flight and arrived on time at their destination. People did not hijack Turkish planes. In 1975, the last year of the Franco regime, I flew from Madrid to Malaga with a passenger’s shotgun in the overhead rack.

Archie Bunker once said that they should hand out loaded pistols to all passengers as they board planes. This was an exaggeration for comic effect. But if two or three passengers on every flight had a pistol, the World Trade Center might still be standing.

The problem is, of course, bigger than aviation. We fight many crimes in the United States today by spying on and inconveniencing the innocent instead of by punishing the guilty.

The rules for flying are written by people who travel on private or government airplanes and who exempt themselves from what they impose on us. Many of them would like nothing better than to make flying so inconvenient that passengers choose trains instead.

We need to take the furor over pat downs by women who look like concentration camp guards in bad movies and intrusive scrutiny by scanners that produce something that looks like a 1940 nudist magazine as an opportunity to re-examine our whole approach to flying safety. Instead of disarming passengers, we should emphasize deterrence and punishment. Instead of pursuing policies that convey cowardice to air pirates, we should implement ones that communicate firm resolution.

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The Confederate Lawyer column is copyright © 2010 by Charles G. Mills and the Fitzgerald Griffin Foundation, www.fgfBooks.com. All rights reserved.

Charles G. Mills is the Judge Advocate or general counsel for the New York State American Legion. He has forty years of experience in many trial and appellate courts and has published several articles about the law.

See his biographical sketch and additional columns here.

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