U.S. Supreme Court will eventually rule on the legality of whole-body scanning

can also be counterproductive by undermining community support for government counter-terrorism efforts and creating an injustice that terrorists can exploit to justify further acts of terrorism.”

The ACLU said a British study indicated the full-body scanners would not be effective, and “according to security experts, the explosive device used in the attempted attack on a Detroit-bound plane on Christmas Day would not have been detected by the body scanners.”

Also from Washington, the American-Arab Anti-Discrimination Committee said it “is deeply concerned by the new Transportation Security Administration … directives … (that) will require citizens from 14 countries, all Arab or Muslim countries, with the exception of Cuba, to go through enhanced security screening. Such screening can include full pat-downs, scans, delays and anything associated with secondary screening — an extra search of the passenger’s carry-on luggage may also be required. News sources also stated that the directives are applicable to any travelers, including U.S. citizens, who have passed through one of these 14 countries, or who have taken flights that have originated from these 14 countries.”

In the absence, at least for now, of an overarching U.S. Supreme Court decision, how would U.S. courts react to all this deep concern, assuming a legal challenge is initiated against taking pictures of one’s naughty bits while trying to fly to the United States?

At least two U.S. circuit courts of appeal have beaten back challenges to airport security measures. In 2006 the 3rd U.S. Circuit Court of Appeals — Justice Samuel Alito’s old stomping grounds — ruled a suspicionless, unwarranted search during airport screening was allowable under the “administrative search doctrine.”

The doctrine, an exception to searches requiring court warrants, was developed by the courts over a number of years. In a 1971 ruling, the 9th U.S. Circuit Court of Appeals said the doctrine meant “searches conducted as part of a general regulatory scheme in furtherance of an administrative purpose, rather than as part of a criminal investigation to secure evidence of a crime, may be permissible under the Fourth Amendment though not supported by a showing of probable cause directed to a particular place or person to be searched.”

In other words, if the main objective of the search is to prevent an act of terror instead of finding evidence to prosecute a suspect, then the doctrine applies. Over the years the doctrine has been used to justify metal detectors at airports, government buildings and schools.

UPI reports that in 2007, the 9th Circuit — considered the most liberal appeals court in the United States — ruled U.S. airline passengers could be searched at any point after checking in, and could no longer avoid a search by leaving the airport, which sometimes had been the case in the past.

As for the Supreme Court, the justices refused to review a 9th Circuit ruling in 2007 that said passengers could not board an airliner without showing a government-issued ID.

A high court refusal to review a case or an issue does not set a precedent. What the Supreme Court does have is a standard explaining when people should have an expectation of privacy, a necessary element of the Fourth Amendment’s ban on “unreasonable” searches and seizures.

Justice John Marshall Harlan wrote the standard in a 1967 case, which he said he had gleaned from court precedent. Harlan’s standard came in an separate concurring opinion agreeing with the majority in a wiretap case, but the Supreme Court has since adopted it for all cases.

Harlan said there was a twofold Fourth Amendment requirement, first that someone has “exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as ‘reasonable.’”

Are objections to full-body scans by people who have done nothing to give authorities a reason to suspect them “reasonable?” Or is the government’s use of the scans to prevent acts of terror even more “reasonable?” The U.S. courts, and eventually the Supreme Court, may have to provide the answer.