Mary F Schiavo
IMPLEMENTING THE RECOMMENDATIONS OF THE 9/11 COMMISSION ACT OF
The disparity between the inspection requirements for passenger checked baggage and air cargo, which both end up in the cargo hulls of passenger aircraft, led to the enactment of H.R. 1, the Implementing Recommen- dations of the 9/11 Commission Act of 2007, which was signed into law on August 3, 2007. This law requires that air cargo loaded onto passenger airplanes be subjected to security screening equivalent to that for checked baggage. A system for 100 percent inspection of cargo is to be phased in over a three-year period. Astonishingly, the bill was opposed by the airline industry as too costly—the same objection the airline industry made before September 11, 2001. 46
The bill was also not originally supported by TSA offi cials, who argued that different screening requirements for air cargo are justifi ed on the grounds that background checks of air cargo employees and systems such as the Known Shipper Program are suffi cient to ensure security. In addition, the TSA ar- gued that resources would be diverted unnecessarily and safety ultimately re- duced. 47
This new law, which requires the development of a full inspection program for air cargo, is being interpreted by the TSA in a way that does not require X-ray screening or physical inspection, as with checked baggage. Under the Known Shipper Program, companies whose identity has been verifi ed are merely registered with the TSA. Now, the TSA is considering a “certifi ed shipper” program, under which a shipper must be certifi ed as safe. According
to a TSA spokesperson, cargo would be considered “inherently screened” if it is packed and sealed by a certifi ed shipper at a government-certifi ed facility. The law’s main supporter, Congressman Edward J. Markey of Massachusetts, was “outraged that the Bush Administration and the airline industry would even think that they could get away with anything less than a full physical screening of all cargo that goes onto passenger planes.” 48 Such incremental
approaches to the urgent issue of improving cargo security illustrate not only the formidable task of bringing about fundamental reform in the face of in- dustry opposition but the piecemeal approach that to date has left many threat vectors open to terrorists.
CONCLUSION
In spite of bureaucratic inertia and a lack of fundamental change in aviation security structures overall since September 11, as well as the general erosion of the legal responsibility of those responsible for lax security or negligent in their duties, some modest progress has been made in efforts to protect the fl ying public and those on the ground over whom they fl y. One needed and overdue reform was the establishment of a federalized screener program under the TSA, with better pay and benefi ts than the airlines had offered and employees who must be U.S. citizens or U.S. nationals and speak English. Although still underfunded and understaffed, and with TSA screeners turn- ing in weak performances, the program is nonetheless a positive step toward ensuring passenger safety. In addition, the fact that a terrorist contemplating a future hijacking might encounter an armed and well-trained federal air mar- shal seated inconspicuously among aircraft passengers would add an element of uncertainty to the terrorist operation. 49 Flight decks with reinforced doors
and armed volunteer fl ight deck offi cers also enhance the security of passenger aircraft operations. Nevertheless, security technologies and procedures must continue to improve and expand. Our air cargo system remains unacceptably vulnerable as the airline industry and its supporters in government resist ef- forts to implement programs for the full inspection of air cargo due to cost considerations. Formidable challenges in improving aviation security remain but will never be overcome without the full accountability of those respon- sible for our nation’s aviation safety and security. Bold new laws and legislative requirements can be a force for safer skies, but provisions embedded in such laws to allow security failures to go unpunished and negligent performers to escape responsibility will render impotent the best of intentions.
Prohibiting judicial redress of the failure, whether negligent or intentional, of our nation’s security laws means that the most powerful tool proven to enhance security performance is missing—accountability. Accountability for performance has time and time again been found by the Offi ce of Inspector General and the Government Accountability Offi ce to be the key to success- ful security systems and performance. The legal system has been and should continue to be a strong ally of accountability.
Aviation Security and the Legal Environment 139
NOTES
1. In 2001, airlines were subject to security directives and guidelines issued by the FAA under CFR Title 14, Section 108.5, revised January 1, 2001. Section 108.5 required that “[e]ach certifi cate holder shall adopt and carry out a security program that meets the requirements of Sec. 108.7,” where a certifi cate holder was defi ned as “a person holding an FAA operating certifi cate when that person engages in scheduled passenger or public charter passenger operations or both.”
2. See CFR Title 14, Section 108.7, revised January 1, 2001.
3. Under CFR Title 14, Section 107.3, revised January 1, 2001, “[n]o airport operator may operate an airport subject to this part unless it adopts and carries out a security program.”
4. Federal Register 66, no. 137 ( July 17, 2001): 37353.
5. U.S. Government Accountability Offi ce, Aviation Security: Vulnerabilities Still Exist in the Aviation Security System (GAO-00–142, 2000), 3.
6. The 9/11 Commission Report: Final Report of the National Commission on Ter- rorist Attacks upon the United States (New York: W.W. Norton & Company, Inc., 2004), 339.
7. Air Transportation Safety and System Stabilization Act of 2001, Public Law 107– 42, U.S. Statutes at Large 115 (2001): 230.
8. Leslie Wayne and Michael Moss, “A Nation Challenged: The Airlines; Bailout for Airlines Showed the Weight of a Mighty Lobby,” New York Times, October 10, 2001, http://query.nytimes.com/gst/fullpage.html?res=9F07EEDC1F3CF933A2575 3C1A9679C8B63.
9. Securicor PLC, Preliminary Results Announcement for the Year Ended Sep- tember 30, 2003.
10. See CFR Title 28, Part 104, September 11th Victim Compensation Fund of 2001, March 13, 2002.
11. Aviation and Transportation Security Act, Public Law 107–71, U.S. Statutes at Large 115 (2001): 597.
12. “Air Marshals Taught to Be Risk Averse,” CNN.com, December 7, 2005, http:// www.cnn.com/2005/US/12/07/air.marshal/index.html.
13. Congressional Research Service, CRS Report for Congress: Air Cargo Security (RL32022, updated July 30, 2007), i.
14. Homeland Security Act of 2002, Public Law 107–296, U.S. Statutes at Large 116 (2002): 2135.
15. Other than the defunct Argenbright Security.
16. The federal fl ight deck offi cer program, created by Section 1402 of the Home- land Security Act of 2002, was designed to “deputize volunteer pilots of air carriers providing passenger air transportation or intrastate passenger air transportation as Federal law enforcement offi cers to defend the fl ight decks of aircraft of such air car- riers against acts of criminal violence or air piracy.”
17. Section 865 defi nes the term “qualifi ed anti-terrorism technology” to mean “any product, equipment, service (including support services), device, or technology (including information technology) designed, developed, modifi ed, or procured for the specifi c purpose of preventing, detecting, identifying, or deterring acts of terror- ism or limiting the harm such acts might otherwise cause, that is designated as such by the Secretary.”
19. Intelligence Reform and Terrorism Prevention Act of 2004, Public Law 108–458, U.S. Statutes at Large 118 (2004): 3638.
20. 9/11 Commission Report, 393.
21. U.S. Government Accountability Offi ce, Aviation Security: Efforts to Strengthen International Passenger Prescreening Are Under Way, but Planning and Implementation Is- sues Remain (GAO-07–346, May 2007), 5.
22. In one high-profi le incident in September 2004, a United Airlines fl ight en route from London to Washington, DC, carrying Yusuf Islam, the pop singer formerly known as Cat Stevens, was diverted to Bangor, Maine. After departure, U.S. Customs agents discovered that Yusuf Islam was on government watch lists due to suspected terrorist connections. See Sara Kehaulani Goo, “Cat Stevens Leaves U.S. after Entry Denied,” Washington Post, September 23, 2004, http://www.washingtonpost.com/ wp-dyn/articles/A43282–2004Sep22.html.
23. The IAP is a pilot program begun in 2004 to identify and target high-risk pas- sengers for behavioral assessment and enhanced security screening.
24. U.S. Government Accountability Offi ce, Aviation Security: Enhancements Made in Passenger and Checked Baggage Screening, but Challenges Remain (GAO-06–371T, 2006). 25. Jeanne Meserve, “Airport Screeners Failed to Find Most Fake Bombs, TSA Says,” CNN.com, October 18, 2007, http://www.cnn.com/2007/TRAVEL/10/18/ airport.screeners/.
26. U.S. Government Accountability Offi ce, Aviation Security: Long-Standing Prob- lems Impair Airport Screeners ’ Performance (GAO/RCED-00–75, 2000), 37.
27. Ibid., 24.
28. Transportation Security Administration press release, “TSA Releases Perfor- mance Report on Contract Screeners at Five U.S. Airports,” April 22, 2004.
29. A TSA press release dated June 22, 2007, announced the selection of Trinity Technology Group, Inc., as the private screening company for the Charles M. Schulz- Sonoma County (CA) Airport. In addition to the original fi ve airports, the only other SPP participants are Joe Foss Field in Sioux Falls (SD), Key West International Airport, Florida Keys Marathon Airport, and the East 34th Street Heliport in New York City.
30. Aviation and Transportation Security Act, Public Law 107–71, U.S. Statutes at Large 115 (2001): 597.
31. The Montgolfi er brothers undertook the fi rst manned balloon fl ight in 1783, and in 1784 manned fl ight was already being regulated by French police because of dangers to persons on the ground.
32. Lee v. International Soc. for Krishna Consciousness, Inc. , 505 U.S. 830 (1992). 33. A CBS Sixty Minutes segment in 2006 reported that among the names that had turned up on the U.S. government’s No-Fly List were those of 14 of the 19 September 11 hijackers, the president of Ecuador, and an assortment of other dead and otherwise unlikely persons.
34. H.R. 1401, the Rail and Public Transportation Security Act of 2007, which passed the House on March 27, 2007, and is awaiting action in the U.S. Senate, con- tained language granting citizens who report suspicious activity relating to terrorism immunity from lawsuits.
35. Aviation and Transportation Security Act, Public Law 107–71, U.S. Statutes at Large 115 (2001): 597, §44941.
36. Libby Sander, “6 Imams Removed from Flight for Behavior Deemed Suspi- cious,” New York Times, November 22, 2006, http://www.nytimes.com/2006/11/22/ us/22muslim.html.
Aviation Security and the Legal Environment 141 37. Alan Levin, “Woman Wins $27.5 Million in Suit against Southwest Airlines,” USATODAY.com, April 12, 2006, http://www.usatoday.com/travel/fl ights/2006–04– 11-swa-lawsuit_x.htm.
38. Austin Considine, “Will New Airport X-Rays Invade Privacy?” New York Times, October 9, 2005, http://travel.nytimes.com/2005/10/09/travel/09xray.html.
39. Carol Cratty, “TSA Trying New Airline Passenger Screening Machines,” CNN. com, October 12, 2007, http://www.cnn.com/2007/TRAVEL/10/11/airport.screening/. 40. Federal Aviation Administration, FAA Aerospace Forecasts Fiscal Years 2005–2016 (FAA-APO-04–1, 2004), I-28.
41. Offi ce of the Inspector General, Department of Homeland Security , Trans- portation Security Administration ’ s Oversight of Passenger Aircraft Cargo Faces Signifi cant Challenges (OIG-07–57, 2007), 3.
42. U.S. Government Accountability Offi ce, Aviation Security: Federal Action Needed to Strengthen Domestic Air Cargo Security (GAO-06–76, 2005), 1.
43. Roy Rowan, “Pan Am 103: Why Did They Die?” Time, April 27, 1992, http:// www.time.com/time/magazine/article/0,9171,975399,00.html.
44. Department of Homeland Security, National Strategy for Aviation Security, March 26, 2006.
45. Offi ce of the Inspector General, Department of Homeland Security , Trans- portation Security Administration ’ s Oversight of Passenger Aircraft Cargo Faces Signifi cant Challenges (OIG-07–57, 2007), 6.
46. Federal Register 66, no. 137 ( July 17, 2001): 37341.
47. Eric Lipton, “U.S. Security Debate Centers on Inspections of Air Cargo,” In- ternational Herald Tribune, February 8, 2007, http://www.iht.com/articles/2007/02/08/ america/web.0208security.php.
48. Charlie Savage, “No Checks for Bombs in Certifi ed Air Cargo,” Boston Globe, August 24, 2007, http://www.boston.com/news/nation/articles/2007/08/24/no_ checks_ for_bombs_in_certifi ed_air_cargo/.
49. At Miami International Airport in 2005, an American Airlines passenger was fatally shot by federal air marshals when he suddenly bolted from an airplane while claiming to have a bomb. See Thomas Frank, Mimi Hall and Alan Levin, “Air Mar- shals Thrust into Spotlight,” USATODAY.com, December 8, 2005, http://www.usato day.com/news/nation/2005–12–07-air-marshals_x.htm.