The post about the TSA agent’s excessive “patdown” of a young boy, caught on video, prompted spirited debate with many high quality comments.

Before presenting John Billingsly’s COTD, let me note up-front two of John’s points that I disagree with. First,while refusing to follow an illegal order is mandatory, the fact that one is given an order to do something unethical—and this patdown was unethical—does not reduce the responsibility to refuse if the harm to another is clear, obvious, and objectively unjust, as in this case. Second, everyone involved in a wrongful act is accountable, from the top of the chain of command to the bottom. I also have a third and fourth, but I’ll let others cover those.

Here is John Billingsley’s Comment of the Day on the post, From The Ethics Alarms “Res Ipsa Loquitur” Files: Now THAT’S An Unethical TSA Patdown:

According to a report at Dallasnews.com, “Afterward, the TSA officer was instructed by his supervisor, who was observing, to complete the final step of the screening process.” My emphasis added. This suggests to me that the agent himself was going to break procedure and omit “the final step” of the screening process, which I believe to be the genital grope, until he was directly ordered by his supervisor who was there in person to do it.

I understand the “just following orders” issue per the Nuremberg Trials. It looks like he was going to disobey the order (procedure) until he received the direct order from his supervisor. I don’t think there are many low level employees who would immediately disobey a direct order of a supervisor in that situation. When you are a grunt at the bottom and your boss tells you to do things the way you have been taught to do them, it is going to be very difficult to make the decision to disobey.

I doubt that man, or any other TSA employee, has had any ethics training and he wouldn’t know Nuremberg from a Nebelwerfer. In the military, I received a great deal of training on the laws of armed conflict and the importance of disobeying illegal orders. However, other than a few clear cut examples like don’t shoot POWs, don’t harm noncombatants, and don’t harm medical personnel and facilities, the question of legal and illegal become murky. Expecting a private in a tight spot to analyze a murky situation, come to the right decision, and disobey the orders of his captain is expecting too much. The issues that Nuremberg dealt with were things like should you follow orders to take trainloads of people and put them in a gas chamber or murder noncombatants in an area you occupy. Nothing murky about these questions.

To say that he should have disobeyed this order because it was illegal, rather than just saying he shouldn’t do it because it was repugnant, which there is some indication he felt himself, it has to be established that the order was in fact illegal. If it is legal to order a pat down, then touching the genitals has to be legal because there is no way to thoroughly pat down someone without touching their genitals. The only way to tell if someone has a weapon concealed over their genitals is to press against their clothing hard enough to determine if there is anything between their clothing and skin that could be used as a weapon. That doesn’t mean fondling but it means that there has to be direct pressure sufficient to be sure there is nothing there.

So, yes, if he was really doing a good pat down he had to feel his crotch. If your doctor is going to give you a prostate exam, then she is going to stick her finger way up your ass. There ain’t no other way. To do a perfunctory exam or pat down is worse than no exam at all because it gives a false sense of security. Bottom line, if you truly feel there is a reason to pat someone down, then do it right and realize it isn’t going to be fun. I work in a facility where dangerous contraband has gotten in because the examiner was too embarrassed to do a good search. There are facilities where people have died as a result.

My main point was actually the second paragraph: I believe essentially all of the TSA procedures are security theater. The question shouldn’t be, did this particular agent pat this child down inappropriately?— it should be “why in the hell is any agent patting anyone down?” When the Nuremberg Court tried people for following, and giving, illegal orders it didn’t try privates . It tried Reichsfeldmarschalls and others at the top. Instead of unloading on every TSA agent individually, unload on Peter Neffenger. He is the one giving the orders. He is the one who must take responsibility. He is the one who should be in front of the court, not these hapless low-level agents.