In 2007, the president and CEO of the RAND Corporation, James Thomson, wrote up his impressions of the management at the Department of Homeland Security. “DHS leaders … ‘manage by inbox,’ with the dominant mode of DHS behavior being crisis management,” he wrote. “DHS implements most of its programs with little or no evaluation of their performance.”

If you want proof, look no further than the nation’s airports. Across the United States, the Transportation Security Administration harries American travelers daily, giving them a Hobson’s choice between standing, arms raised, before a nude body scanner or undergoing a prison-style pat-down. It doesn’t have to be this way.

Nearly two years ago, the U.S. Court of Appeals for the D.C. Circuit ordered TSA to do a notice-and-comment rulemaking on its nude body scanning policy. Few rules “impose [as] directly and significantly upon so many members of the public” as the use of body scanning machines, the court said. Its ruling required the agency to publish its policy, take comments from the public, and consider them in formalizing its rules.

The last day to comment on the proposed rules is Monday, June 24th. You can submit your comments until then.

In our comment, Cato senior fellow John Mueller, Mark G. Stewart from the University of Newcastle in Australia, and I take the TSA to task a number of ways. The TSA fails to account for privacy in its proposed policy, even though the lawsuit that required the rulemaking was based on its privacy consequences.

The policy proposal that TSA issued is hopelessly vague. In fact, the court decision requiring the TSA to put its policies on record is more informative about what the rights of travelers and responsibilities of the TSA are.

Instead of placing its risk management work in the docket, TSA claims that its “risk-reduction analysis” is classified. There is almost no basis for treating such work as secret. Indeed, Mueller and Stewart have done a risk assessment of nude body scanners, published it in an article and their book, and spoken about it at public conferences. Their analysis has shown that the nude body scanning policy does not provide cost-effective security. Quite simply, spending money on nude body scanning buys a tiny margin of security at a price that is too dear. If you add non-monetary costs such as privacy and liberty, as well as opportunity costs such as time wasted due to body scanning, the cost-ineffectiveness of body scanners becomes all the more clear.

Travelers wary of TSA mistreatment choose driving over flying for many short or medium-length journeys. Given the far greater danger of driving, this means more injuries and as many as 500 more Americans killed per year on the roads. Outside of war zones, TSA policies visit more death on Americans than Islamist extremist terrorism has worldwide since 9/11.

The National Research Council found in 2010 that the risk models the Department of Homeland Security uses for natural hazards are “near state of the art” and “are based on extensive data, have been validated empirically, and appear well suited to near-term decision needs.” This is not the case with airline security. In fact, the TSA will accept risks of death that are higher than terrorism in order to maintain nude body scanning policies. The original body scanners, which applied x‑ray technology, posed a fatal cancer risk per scan of about one in 60 million. Asked about this on the PBS NewsHour, TSA head John Pistole said this risk was “well, well within all the safety standards that have been set.” The chance of an individual airline passenger being killed by terrorism is much lower: one in 90 million.

TSA’s nude body scanning policies probably cause more deaths than they prevent. For this reason, we recommend in our comment that the TSA suspend the current policies, commence a new rulemaking, and implement a rational policy resulting from an examination of all issues on the public record. After comments close, TSA will issue a final regulation on a schedule it determines, after which the regulation can be challenged in court, and very likely it will.