Department of Justice, Texas Battle Over "No Pat-Down" Law

May 30, 2011 — -- In a showdown with national implications for travelers, the Department of Justice has threatened to cancel flights to and from Texas if the state's legislators enact a law forbidding security pat-downs that include private parts.

John Murphy, U.S. Attorney for the western district of Texas, wrote a letter to leaders of the Texas state legislature indicating that if the bill is enacted, the TSA would "likely be required to cancel any flight … for which it could not ensure the safety of passengers and crew."

House bill 1937, passed unanimously by the Texas House this month, forbids Transportation Security Administration officials from intentionally touching the private parts of another person. The bill had passed through a Senate committee unanimously before Murphy sent the letter this week.

"As you no doubt are aware, the bill makes it a crime for a federal Transportation Security Official (TSO) to perform the security screening that he or she is authorized and required by federal law to perform," Murphy wrote.

In response to Murphy's threat, Texas state representative David Simpson wrote a response correcting alleged "inaccuracies" in the attorney general's letter and saying that the federal government is "attempting to deprive the citizens of Texas of their constitutional rights."

"The attorney general's letter claims we are stopping all searches. The bill just says you can't touch privates without probable cause," Simpson told ABC News. "This bill was supported unanimously by Democrats and Republicans, liberals and conservatives."

"Meanwhile, our wives, our children, our mothers and grandmothers, will be rudely violated by federal employees out of control," Simpson wrote in his letter.

Simpson said the bill states that a TSA official commits an offense if "without probable cause performs a search for the purpose of granting access to a publicly accessible building or form of transportation and intentionally, knowingly, or recklessly touches the anus, sexual organ, buttocks or breasts of the other person."

"You can't go to third base without giving us a reason," Simpson said.

The TSA, which operates under the Department of Homeland Security, has been under fire since last November for rolling out controversial body scanners and pat-down procedures.

Simpson told ABC News the body scanners are "ineffective security theater."

Simpson said if only 3 percent of air travelers in the U.S. undergo pat-downs, as cited previously by the TSA, then flights to Texas could be shut down "because TSA would not be able to ensure the safety of passengers and crew if agents could not touch the genitals of 3 percent."

TSA spokesman Greg Soule told ABC News that the agency has procedures in place to resolve security threats and screen passengers who decline to be screened by mechanical devices.

"Aviation security agencies worldwide have relied on pat-downs since long before TSA was created, and we have adjusted our pat-down procedures based on what we have learned from intelligence and the tactics used by our adversaries," Soule said in a statement.

Simpson said the Texas bill grants a defense to prosecution if the TSA official acts with explicit federal statutory authority consistent with the Constitution because the TSA has no "statutory authority for a government agent to touch the breasts, anus, sexual organs, or buttocks of a traveler."

"So, if there is actually statutory authority consistent with the Constitution, all an agent must do is bring that statute to the attention of the court. In other words, Texas needs to tell the Department of Justice, "You show me yours (statutory authority) and I'll show you mine (privates)," Simpson wrote.