Having pled before the D.C. Circuit Court of Appeals that doing a notice-and-comment rulemaking on its strip-search machine policy is difficult and expensive, the Transportation Security Administration is dropping a cool quarter-billion dollars on new strip-search machines. That’s quite a fixation the TSA has, putting spending on new gadgets ahead of following the law.

But the writing is on the wall for the practice of putting travelers through strip-search machines and prison-style pat-downs at the government checkpoints in American airports.

On Tuesday, the D.C. Circuit ruled against a petition to have the court force TSA to move forward with taking public comments as required by law. The language of the order signals the court’s expectation, though, that the TSA will get this done, quoting the TSA’s language and, well, saying as much.

ORDERED that the petition for writ of mandamus be denied in light of the Government’s representation that “the process of finalizing the AIT Rulemaking documents so that the NPRM may be published is expected to be complete by or before the end of February 2013.” Accordingly, we expect that the NPRM will be published before the end of March 2013.

Generous court — it gave the TSA an extra month.

I imagine the folks at EPIC are preparing a filing for April 1st. No foolin’, there will be a public push to go along with it, as large or larger than the most recent.

The TSA knows it can only carry on so long in contempt of the law and the court. I expect the rulemaking documents will issue by midnight on March 31st, even if a special Sunday edition of the Federal Register has to be published to do it.

The court’s ruling is technically adverse to the petitioners, but it is better than a flat denial. The court was not going to cancel a policy that is arguably an important security measure. The best outcome was some kind of date certain with consequences for failure to act. The TSA delivered a date certain, which the court has adopted. Leaving the consequences unstated could embolden TSA to more contumacy, but I doubt it.

Once the rulemaking is in place, the strategy I laid out a year ago kicks in.

The TSA will have to exhibit how its risk management supports the installation and use of strip-search machines. How did the TSA do its asset characterization (summarizing the things it is protecting)? What are the vulnerabilities it assessed? How did it model threats and hazards (actors or things animated to do harm)? What are the likelihoods and consequences of various attacks? Risk assessment questions like these are all essential inputs into decisions about what to prioritize and how to respond.

When the insufficiency of its policymaking is shown, the policy will be ripe for review under the Administrative Procedure Act’s “arbitrary and capricious” standard and there will be a record sufficient to justify a Fourth Amendment challenge to the policy of prison-style searches of all American travelers.

Yes, the challenge to this policy is taking a long time, but pressing back on all fronts against the invasive, unneeded security state is a joy even when it requires patience.

It is with delight this week that I see social media pouring derision on mainstream media’s depiction of the world. Specifically, the withering mockery given to Newsweek’s “Muslim Rage” cover.

Gawker helped catalyze things by publishing some early Twitter send-ups of the Muslim rage concept—“Wrestling is fake? #MuslimRage”—and its own spoof: “13 Powerful Images of Muslim Rage.”

My personal favorite came from hijab-wearing ‏@LibyaLiberty, who Tweeted:

I’m having such a good hair day. No one even knows. #MuslimRage

It is not automatic to recognize the personality of souls in other cultures and countries. In a Tweet posted September 12th (now apparently taken down) outgoing Village Voice editor-in-chief Tony Ortega said, “Islam needs to get a [expletive] sense of humor.” I don’t know what one means by anthropomorphizing a religion, but many individual Muslims demonstrably already have one.

AP Photo

On the Wall Street Journal Professional site, Bret Stephens writes about the derision U.S. culture can pour on minority religions other than Islam without eliciting much stir at all, official or otherwise. The unfairness is notable, and it’s worth talking about whether government-issued statements about the bizarre “Innocence of Muslims” video were called for and whether they struck the right notes.

But Stephens says something that has a quality similar to Ortega’s Tweet and Newsweek’s cover, dismissing the individuality of the one billion-plus Muslims around the world who are not rioting, attacking embassies, or doing anything of the sort.

“[T]o watch the images coming out of Benghazi, Cairo, Tunis and Sana’a,” Stephens writes, “is to witness some significant portion of a civilization being transformed into Travis Bickle.” (Travis Bickle was the misfit anti-hero in Martin Scorcese’s movie Taxi Driver, who delivered a young prostitute from New York City back to her mid-western family. Political people remember him as the inspiration for would-be Reagan assassin John Hinckley.)

“Significant portion”? How many Muslims constitute a “significant portion” of the overall number? What infinitesimal percentage of a group so large is “significant”? Stephens might have said “tiny minority” and been more accurate. His implication—hopefully unintended—is that an entire culture is massing at the border of ours, preparing—oh, who knows what—our undoing.

I believe it’s received wisdom in libertarian circles to reject the collectivist mindset that views humans strictly as members of groups rather than individuals. Any believer in individual rights, liberties, and responsibilities should suffer sharp pangs of cognitive dissonance to think of group conflict along the lines I’m reading into Stephens.

So I’m enjoying seeing Muslims express themselves as individuals, putting the lie to their caricature in the mainstream media as a raging undifferentiated mass with spittle on their beards. Especially the women.

Barack Obama pledged to preside over the “most transparent administration in history,” drawing an explicit contrast with the extreme secrecy of his predecessor. The Web site of the Department of Justice highlights that pledge, declaring its commitment to faithfully carry out a presidential directive encouraging such transparency, especially with regards to Freedom of Information Act requests, which are a vital tool for public accountability and informed democratic deliberation about government’s activities. Earlier this summer, I decided I’d put that commitment to what should have been an easy test.

When Congress passed the controversial FISA Amendments Act of 2008, granting the NSA broad power to conduct sweeping electronic surveillance of Americans’ international communications without individualized search warrants, it wisely required the Justice Department to issue semi-annual reports to Congress on the government’s implementation of the law, evaluating compliance with the various rules, guidelines, and procedures in place to reduce the risk of civil liberties abuses. While these reports are classified, redacted versions of several previous installments have been released to the public in response to Freedom of Information Act requests. The most recent is from May of 2010, which means that by now there are three or four further reports on the government’s use of its new spying powers which haven’t been seen by the public.

Since the FAA is set to expire at the end of this year, and Congress is rapidly steamrolling toward reauthorizing the law for another five years, it seems like now would be a good time to let the public see the latest versions of these reports—with any specific references to operational details removed, of course. That’s especially true given that we’ve recently learned that at least one ruling by the secretive FISA Court found some surveillance under the FAA had violated the Fourth Amendment. The latest reports, even in redacted form, might give us further insight into the scale and seriousness of this violation of Americans’ constitutional rights. If, on the other hand, we find no mention of this in the official reports, it would be powerful evidence that Congress is getting a whitewashed account, and that internal oversight may not provide adequate protection for our privacy and liberties. Again, the government has already released several previous installments of this report—though the ACLU ultimately had to file a lawsuit before they agreed to do so—so there should be no doubt now as to whether these are documents they’re obligated to release.

On June 26, therefore, I sent a FOIA request to the Justice Department asking for the release of the newer installments of this important report—specifically asking for expedited review, given the importance of informing the public about the use of the law before Congress renews it. On July 6, I got a response acknowledging that my request had been received and forwarded to the FOIA office of the DOJ’s National Security Division. Federal law requires agencies to reply to these requests within 20 business days. I was still waiting when, a few days ago, a bill extending FAA spying authority was scheduled for consideration before the House of Representatives this week. I did, however, have a brief phone conversation with the NSD’s FOIA officer confirming that she was evaluating my request, and that she understood clearly exactly which reports I was requesting.

This morning, September 10—more than two months after acknowledging receipt of my request for these three or four documents—I finally got a reply (my emphasis added), denying my request with the following unhelpful boilerplate:

The Office of Intelligence (OI) maintains operational files which consist of copies of all FISA applications, as well as requests for approval of various foreign intelligence and counterintelligence collection techniques such as physical searches.  We did not search these records in response to your request because the existence or nonexistence of such records on specific persons or organizations is properly classified under Executive Order 13526.  To confirm or deny the existence of such materials in each case would tend to reveal which persons or organizations are the subjects of such requests.  Accordingly, we can neither confirm nor deny the existence of records in these files responsive to your request pursuant to 5 U.S.C. §552(b) (1).

This is, in a word, ridiculous. The “existence” of the reports I asked for is required by federal law. To the extent they contain passing references to any specific persons or organizations under investigation, these can easily be redacted, and have been redacted for previous public releases of the same documents. No reasonable person could believe that this reply is applicable to my request. If it had been sent immediately, you could at least put it down to sloppiness or inattention, but remember, it took them two months to send out a denial based on the preposterous claim that it is classified information whether a report mandated by federal statute even exists.

I can appeal—and of course, I intend to—but since that’s likely to drag out the process for at least another month or two, the reports are likely to come too late to be relevant to the debate over FAA reauthorization. Try as I might, it’s almost impossible for me to see this as a good faith response to my request. Instead, it looks an awful lot like a stalling tactic calculated to drag out the process until it’s too late for the documents to be relevant to the debate over the FAA. I suppose this shouldn’t be terribly surprising: DOJ’s modus operandi, at least when it comes to anything controversial or potentially embarrassing to the government, seems to be to force FOIA requesters to waste time, energy, and money going to court even when it’s painfully obvious there’s no legitimate legal basis for sustaining a denial. That this is routine enough to be predictable, however, shouldn’t make it any more acceptable in a democracy.