Legal Commentary

?Security Theater? and the Change in Administrations

By Orin Kerr

One possible way to gauge if U.S. air security measures are only ?security theater? is to look for changes or criticisms after the Executive branch switched from Republican to Democrat in January 2009. It?s not a perfect measure, of course, but it?s one worth watching. Here?s my thinking. If some of the security measures under the Bush Administration were just ?security theater,? the Obama Administration would presumably want to score political points by rejecting those measures. Conversely, if new measures under the Obama Administration are just ?security theater,? presumably there are Bush Administration officials formerly responsible for these issues who would be happy to score political points by criticizing Obama?s new rules. So here?s the question: What Bush-era security measures did the new Administration repeal, and what Obama-era security measures have former Bush officials criticized?

UPDATE: Some commenters seem to misunderstand the post, so let me try to clarify a bit. My idea is that if no decisionmakers have criticized the security decisions of their political opponents, the lack of partisan criticism is worth noting: It?s the dog that didn?t bark, and it?s worth asking why it didn?t bark. DC is a partisan town, and if there is a political point to score, someone will try to score it. Some commenters suggest that imposing more restrictions is always good politics, so a new administration would never repeal old restrictions even if they thought the old restrictions were silly. But if that?s accurate, why didn?t the new Administration promptly announce new restrictions in early 2009 to slam the weak efforts of the Bush Administration? If new restrictions are always good politics, merits aside, I don?t know why they would just maintain the status quo for almost a year, waiting until a new attack before announcing any changes ? and then only temporary changes on international flights coming into the U.S.

Full post as published by The Volokh Conspiracy on December 28, 2009 (boomark / email).