[Senate Hearing 108-800]
[From the U.S. Government Publishing Office]
S. Hrg. 108-800
OVERSIGHT HEARING ON PASSENGER SCREENING AND AIRLINE AUTHORITY TO DENY
BOARDING
=======================================================================
HEARING
before a
SUBCOMMITTEE OF THE
COMMITTEE ON APPROPRIATIONS UNITED STATES SENATE
ONE HUNDRED EIGHTH CONGRESS
SECOND SESSION
__________
SPECIAL HEARING
JUNE 24, 2004--WASHINGTON, DC
__________
Printed for the use of the Committee on Appropriations
Available via the World Wide Web: http://www.access.gpo.gov/congress/
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__________
COMMITTEE ON APPROPRIATIONS
TED STEVENS, Alaska, Chairman
THAD COCHRAN, Mississippi ROBERT C. BYRD, West Virginia
ARLEN SPECTER, Pennsylvania DANIEL K. INOUYE, Hawaii
PETE V. DOMENICI, New Mexico ERNEST F. HOLLINGS, South Carolina
CHRISTOPHER S. BOND, Missouri PATRICK J. LEAHY, Vermont
MITCH McCONNELL, Kentucky TOM HARKIN, Iowa
CONRAD BURNS, Montana BARBARA A. MIKULSKI, Maryland
RICHARD C. SHELBY, Alabama HARRY REID, Nevada
JUDD GREGG, New Hampshire HERB KOHL, Wisconsin
ROBERT F. BENNETT, Utah PATTY MURRAY, Washington
BEN NIGHTHORSE CAMPBELL, Colorado BYRON L. DORGAN, North Dakota
LARRY CRAIG, Idaho DIANNE FEINSTEIN, California
KAY BAILEY HUTCHISON, Texas RICHARD J. DURBIN, Illinois
MIKE DeWINE, Ohio TIM JOHNSON, South Dakota
SAM BROWNBACK, Kansas MARY L. LANDRIEU, Louisiana
James W. Morhard, Staff Director
Lisa Sutherland, Deputy Staff Director
Terrence E. Sauvain, Minority Staff Director
------
Subcommittee on Transportation, Treasury and General Government, and
Related Agencies
RICHARD C. SHELBY, Alabama, Chairman
ARLEN SPECTER, Pennsylvania PATTY MURRAY, Washington
CHRISTOPHER S. BOND, Missouri ROBERT C. BYRD, West Virginia
ROBERT F. BENNETT, Utah BARBARA A. MIKULSKI, Maryland
BEN NIGHTHORSE CAMPBELL, Colorado HARRY REID, Nevada
KAY BAILEY HUTCHISON, Texas HERB KOHL, Wisconsin
MIKE DeWINE, Ohio RICHARD J. DURBIN, Illinois
SAM BROWNBACK, Kansas BYRON L. DORGAN, North Dakota
TED STEVENS, Alaska (ex officio)
Professional Staff
Paul Doerrer
Lula Edwards
Alan Hanson
Peter Rogoff (Minority)
Kate Hallahan (Minority)
Diana Gourlay Hamilton (Minority)
Administrative Support
Matthew McCardle
Meaghan L. McCarthy (Minority)
C O N T E N T S
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Page
Opening Statement of Senator Richard C. Shelby................... 1
Commissioner John Lehman......................................... 3
Statement of Jeffrey A. Rosen, General Counsel, Department of
Transportation................................................. 4
Prepared Statement........................................... 5
Statement of Thomas Blank, Assistant Administrator, Office of
Transportation Security Policy, Transportation Security
Administration, Department of Homeland Security................ 8
Prepared Statement........................................... 10
Statement of Senator Patty Murray................................ 12
Federal Policies Affecting Security Screening.................... 14
Basis for Refusals to Transport a Passenger...................... 15
Justice Department Authority..................................... 17
DOT Investigation of Complaints.................................. 18
Statement of Michael Smerconish, Esq., Talk Show Host, Columnist. 24
Prepared Statement........................................... 26
Statement of Peggy E. Sterling, Vice President, Safety, Security,
and Environmental, American Airlines........................... 32
Prepared Statement........................................... 34
Statement of Christy E. Lopez, Esq., Relman and Associates....... 36
Prepared Statement........................................... 38
OVERSIGHT HEARING ON PASSENGER SCREENING AND AIRLINE AUTHORITY TO DENY
BOARDING
----------
THURSDAY, JUNE 24, 2004
U.S. Senate,
Subcommittee on Transportation, Treasury
and
General Government, and Related Agencies,
Committee on Appropriations,
Washington, DC.
The subcommittee met at 2 p.m., in room SD-138, Dirksen
Senate Office Building, Hon. Richard C. Shelby (chairman)
presiding.
Present: Senators Shelby, Specter, Murray, and Kohl.
OPENING STATEMENT OF SENATOR RICHARD C. SHELBY
Senator Shelby. Good afternoon. The subcommittee will come
to order.
Today, the subcommittee is holding an oversight hearing to
examine whether the Federal Government has instituted policies
to limit an airline from denying transport or requiring
additional security screening to individuals who may be unsafe
or dangerous. The Federal Aviation Act allows air carriers the
right of permissive refusal, which is defined as the ability to
refuse to transport a passenger or property the carrier decides
is a potential risk to safety or security. The Federal aviation
regulations authorize the pilot in command of the aircraft to
discharge this right of permissive refusal on behalf of the air
carrier in light of his final authority and responsibility for
the operation and safety of the flight.
Despite this clear authority, however, there seems to be
some question about the ability of an airline to remove
passengers based on a perceived threat. At the January 27,
2004, hearing of the National Commission on Terrorist Attacks
Upon the United States, a former airline executive testified
that, and I will quote, ``most recently, after 9/11, 38 of our
captains denied boarding to people they thought were a threat.
Those people filed complaints with the Department of
Transportation. We, the airline, were sued, and we were asked
not to do it again.''
If this were the case, I am concerned that we may be
jeopardizing aviation security by placing unnecessary
restrictions on pilots and crew to take actions to protect
passengers on the plane. If this Nation has learned anything
since terrorists set their sights on destroying us, it is this:
terrorists will learn a system, identify the weaknesses of that
system, and then exploit the weakness to inflict harm.
I believe that we must balance an individual's civil
liberties with an airline pilot's right to ensure the safety
and security of the flight. But in trying to reach that
balance, I want to ensure that we have not established policies
or practices that will have a chilling effect on the
willingness of the pilot in command to exercise his authority
to safeguard the crew and all of the passengers.
The Transportation Security Administration checkpoint is
not, and should not be, considered the last line of defense to
assure the security of a flight by clearing passengers for
boarding. The pilot and the crew of an aircraft, and even the
passengers, are an important layer in keeping our aviation
system secure. We should not forget that Richard Reid, that
would-be shoe bomber, was thwarted by other passengers and crew
during the flight.
Removal of a passenger must be the final decision, I
believe, of the pilot. The last thing we should do is undermine
the authority of the pilot to deny boarding or require
additional screening to any passenger or group of passengers
who has a reasonable suspicion of a threat to a safe flight.
I want to thank my colleague, and member of the
subcommittee here, Senator Specter, for raising this issue with
me. I believe it is important that we hold this hearing today
to highlight the issue to learn more about it and to provide
clarity on what should be the lines of authority in this
manner.
This afternoon, we have two panels of witnesses. On the
first panel, I would like to welcome Mr. Jeff Rosen, general
counsel of the Department of Transportation, and Mr. Tom Blank,
Associate Administrator for Policy at the Transportation
Security Administration.
On the second panel, we will hear from Mr. Michael
Smerconish, Ms. Peggy Sterling, vice president of American
Airlines, and Ms. Christy Lopez, Relman and Associates.
Senator Specter, do you have an opening statement?
Senator Specter. Well, thank you very much, Mr. Chairman,
and I begin by thanking you, especially, and your staff, for
scheduling this hearing in the midst of very heavy
responsibilities by the Appropriations Committee at this time
to move ahead with our bills and your Subcommittee on
Transportation.
This issue arose when a question was raised by Commissioner
John Lehman of the 9/11 Commission, former Secretary of the
Navy, when he asked National Security Counselor Condoleezza
Rice at a 9/11 hearing, ``Were you aware that it was the
policy, and I believe remains the policy today, to fine
airlines if they have more than two young Arab males in
secondary questioning because that is discriminatory?''
Dr. Rice commented that she did not have any knowledge on
that subject.
And then one of the witnesses on the public record in the
9/11 hearing, Mr. Edmond Soliday, formerly Vice President for
Safety for United Airlines, said, among other things, that ``if
I had more than three people of the same ethnic origin in line
for additional screening, our system would be shut down as
discriminatory.''
I had contacted ranking officials in the Department of
Transportation and the Transportation Security Administration,
who assured me that that was not the case, but it seemed to me
that this issue was of sufficient importance to take a little
time of our subcommittee.
Michael Smerconish, who is a lawyer and a talk show host in
Philadelphia, and in the interest of full disclosure, a long-
term friend of mine, had noted Commissioner Lehman's statement
and had commented on it publicly, and there is an enormous
amount of interest in the Philadelphia region on this subject,
as illustrated by a great many comments which he has had to a
very widely heard program.
And as the chairman has noted, we have very heavy
responsibilities on national security, and we also have
responsibilities not to engage in ethnic and racial profiling,
and there needs to be an element of cause, no matter what a
person looks like, before they are detained.
But this is a matter of critical importance daily. Tens of
thousands of people are boarding airlines every day where this
is of keen security interest, and our Nation prides itself on
elevating civil rights.
COMMISSIONER JOHN LEHMAN
I am sorry that Commissioner Lehman could not be here, but
the leaders of the Commission have urged the commissioners not
to appear on hearings. Frankly, it is a little surprising since
they were on the Sunday talk shows. I tried to reach Chairman
Kean to get a clarification of it, but have not been able to do
so yet. But we have Commissioner Lehman's statement, and have
the essential questions really before the subcommittee.
And the issue really is whether political correctness has
gone too far in the case of aviation security or are we
correctly avoiding the pitfalls of unfairly profiling
individuals based partly on their ethnicity so that these
Senate hearings have a great effect on sensitizing people on
all sense. A lot of people pay attention to what we do here.
Even though we do not have absolute answers, the airing will
make everyone more sensitive, which I think will help security,
and everyone will be more sensitive, which will help an
appropriate recognition of civil rights.
Thank you, Mr. Chairman.
Senator Shelby. Senator Specter, I just want to make sure I
heard this right. For example, let us say I came from somewhere
in the Middle East, and there were ten of us in a group. We
were all huddling together and they would check three of us and
let the other seven go, although there might be a reasonable,
common-sense suspicion of the whole group? In other words, they
have a numerical limit and cannot look at everyone in a group?
I hope that is not what the policy is.
Senator Specter. Well, that is what Mr. Soliday said. ``If
I had more than three people of the same ethnic origin in line
for additional screening, our system would be shut down as
discriminatory.''
Senator Shelby. That is crazy.
Senator Specter. I hasten to add that the Federal
authorities responsible here have said that is not the case,
and that is----
Senator Shelby. We will find out.
Senator Specter. That is why we have hearings.
Senator Shelby. We welcome our panel today. Your written
statements will be made part of the record.
Mr. Rosen, we start with you.
STATEMENT OF JEFFREY A. ROSEN, GENERAL COUNSEL,
DEPARTMENT OF TRANSPORTATION
Mr. Rosen. Thank you, Mr. Chairman.
Mr. Chairman, members of the subcommittee, Senator Specter,
thank you for the opportunity to testify today regarding the
Department of Transportation's policies regarding the ability
of an airline to deny transport or to require subsequent
security screening to an individual who may be deemed unsafe or
dangerous.
As you observed, the Department has submitted a written
statement, and I appreciate that this statement will be
included in the record. So I will keep my oral remarks
comparatively brief.
In that regard, I would first like to go directly to the
question of whether the Department of Transportation has had a
policy to ``fine airlines if they have more than two young Arab
males in secondary questioning because that is
discriminatory,'' as some have claimed. And the answer is that
the Department has never had any such policy.
Senator Shelby. What is the policy? Do you want to explain
that? If that is not the policy, what is the policy?
Mr. Rosen. The DOT's actual policies on nondiscrimination
have been set out in writing and are available on the
Department's website. They fully describe the Department's
approach for the screening process before that responsibility
was transferred to the Transportation Security Administration,
and they do not in any way instruct airlines to refrain from
subjecting multiple individuals of the same ethnicity to
secondary screening. So I would like to start there, that the
purported policy, which was reported in a small number of media
outlets, is simply a myth.
The second point I would like to make today is that
whatever steps the DOT has taken or not taken with regard to
airline screening and transport are based upon applicable
Federal laws and not on any political correctness. Under one
Federal law, 49 U.S. Code Section 44902, a carrier may properly
refuse to transport a passenger that presents a safety or
security risk.
However, any airline decision to refuse to transport must
comply with other laws as well. A number of Federal statutes
specifically prohibit discrimination by air carriers. The most
specific and most recently adopted provision, which is 49 U.S.
Code Section 40127 states, and I will quote, ``An air carrier
or foreign air carrier may not subject a person in air
transportation to discrimination on the basis of race, color,
national origin, religion, sex, or ancestry.''
Within the last year, DOT's Aviation Enforcement Office
concluded investigations generated by a number of complaints by
passengers against four major carriers to resolve allegations
not about secondary screening, but complaints that the
passengers were removed from or denied boarding on certain
flights following the September 11 terrorist attacks because of
their perceived ethnic or religious background. The upshot of
those eventually was that DOT's Aviation Enforcement Office and
the air carriers concluded mutually agreed upon settlements,
whereby the particular carriers did not admit to any
discriminatory conduct, but agreed to refrain from any future
violations of Federal antidiscrimination statutes and to
provide civil rights training to their employees to
appropriately balance the security and civil rights concerns.
What does that mean in terms of the training? That, in
essence, Mr. Chairman, that both sets of laws need to be
adhered to, not just one or not just the other.
Under the settlement agreements, the airlines were not
fined for, nor instructed to refrain from, subjecting multiple
individuals of the same ethnicity to secondary security
screening. There are no quotas. To the contrary, the Aviation
Enforcement Office has never sought to fine an airline for
having more than two young Arab males in secondary questioning,
notwithstanding the fact that a number of complaints raising
this issue have been received by that office.
That brings me to my third and final point, which is this:
there need not be any inconsistency between our Nation's
longstanding civil rights laws and the security of our national
air transportation system which has been and remains a priority
for DOT. President Bush has publicly stated his opposition to
racial profiling and emphasized his ``profound belief that no
American should be judged by appearance, by ethnicity or by
religious faith.''
Only last month, Attorney General Ashcroft publicly stated,
and I will quote, ``Al Qaeda is seeking recruits who can
portray themselves as native Europeans.''
Since the tragic events of September 11, security measures
implemented at airports and by airlines have been greatly
improved. The additional security measures were first
established by the Department of Transportation itself and
subsequently by the Department of Homeland Security's
Transportation Security Administration.
PREPARED STATEMENT
There should be no doubt whatever that Secretary Mineta and
the entire Department of Transportation remain fully committed
to the security measures necessary to protect our country.
That concludes my remarks, and I would be pleased to try to
answer any questions you may have.
[The statement follows:]
Prepared Statement of Jeffrey A. Rosen
My name is Jeffrey A. Rosen, and I am the General Counsel of the
Department of Transportation (DOT). I am pleased to have the
opportunity to testify today about the Department's compliance and
enforcement efforts to ensure that the civil rights of air travelers
are respected by the airlines that we regulate. I understand from
Chairman Shelby's invitation letter that the committee is interested in
examining the Federal Government's policies regarding the ability of an
airline to deny transport or require subsequent security screening to
an individual who may be deemed unsafe or dangerous.
In that regard, I have been told of statements about a purported
policy of DOT ``to fine airlines if they have more than two young Arab
males in secondary questioning because that's discriminatory.'' (This
statement was made by Secretary Lehman of the National Commission on
Terrorist Attacks Upon the United States in questioning Condoleezza
Rice, the National Security Advisor to the President, and was repeated
in certain media articles in the Philadelphia Daily News and
elsewhere.) At the outset, I want to lay that issue to rest once and
for all: the Department of Transportation has never had any such
policy. Likewise, the Department has never fined an airline on the
ground that it subjected multiple individuals of a particular race or
ethnicity to additional security screening.
In discussing this issue, it would be useful first for the
committee to recall the respective roles and responsibilities of the
governmental and private sector entities that play a role in airline
security and related issues. First is the Department of Homeland
Security's Transportation Security Administration (TSA), which Congress
has tasked with developing airline security requirements as well as
hiring, training, deploying, and managing the security screener
workforce at commercial airports across the country, a responsibility
once borne by the air carriers. In addition, TSA's Office of Civil
Rights and the Department of Homeland Security's Office for Civil
Rights and Civil Liberties have authority to investigate discrimination
complaints from passengers who allege they have been discriminated
against by TSA screening personnel. TSA assumed responsibility for
civil aviation security on February 17, 2002.
Second are the airlines, which are responsible for implementing
transportation security procedures mandated by the Federal Government
and continue to be major partners in the effort to improve security.
Under Federal law, 49 U.S.C. 44902, a carrier may properly refuse to
transport a passenger that presents a safety or security risk. Prior to
a passenger boarding an aircraft, the decision to refuse to transport
the passenger because of safety or security reasons may be made by any
airline staff designated by the carrier as having that authority. Under
FAA rules, 14 CFR 91.3, the pilot in command of the aircraft is the
final authority as to the operation of that aircraft, including any
decision to refuse to transport a passenger.
Third is DOT's Office of the General Counsel, which has the
responsibility to investigate security-related complaints alleging
discriminatory treatment by air carrier personnel (e.g., pilots, flight
attendants, gate agents or check-in counter personnel) pursuant to the
specific statutory provisions in Title 49 that prohibit discrimination
in air transportation. Whereas generally civil rights matters are
handled by the Justice Department, Congress has conferred upon DOT
administrative authority for civil rights enforcement activities
concerning aviation. Within DOT, the Deputy General Counsel and the
Assistant General Counsel for Aviation Enforcement and Proceedings have
been delegated the authority to investigate and pursue enforcement
cases against airlines, including those involving unlawful
discrimination. To ensure impartiality, the neither the General Counsel
nor the Secretary directly participate in the commencement or
litigation of these administrative proceedings, but pursuant to the
Department's regulations, the General Counsel serves as the legal
advisor to the Secretary in enforcement cases that ultimately may have
to be decided by the Secretary (or his delegate) after an adjudicatory
hearing.
DOT's responsibility in this regard is set out in Federal law.
Although an airline has the legal authority to refuse to transport an
individual that it decides is unsafe, Federal law prohibits any airline
decision to refuse to transport, whether it be the decision of the
pilot or other airline staff such as a gate agent, that is based on the
person's race, color, national origin, religion, ethnicity, or sex. A
number of Federal statutes administered by DOT specifically prohibit
discrimination by air carriers. The most specific and most recently
adopted provision, 49 U.S.C. 40127, states that ``an air carrier or
foreign air carrier may not subject a person in air transportation to
discrimination on the basis of race, color, national origin, religion,
sex, or ancestry.'' That provision was enacted on April 5, 2000, in the
Wendell H. Ford Aviation Investment and Reform Act for the 21st Century
(AIR-21). Another provision that has been in effect for decades and was
originally part of the Civil Aeronautical Board's authority since 1938,
49 U.S.C. 41310, prohibits ``an air carrier or foreign air carrier''
from subjecting anyone to ``unreasonable discrimination'' on flights
between the United States and foreign points. A different long-standing
statute since 1938, 49 U.S.C. 41702, requires that U.S. carriers
provide ``adequate interstate air transportation'', which has been
interpreted within DOT to prohibit invidiously discriminatory practices
on the part of U.S. carriers generally in their interstate operations.
In the months following the September 11, 2001 terrorist attacks,
DOT provided the airline industry with four separate guidance documents
to assist in complying with Federal laws prohibiting discrimination
against individuals because of their race, color, religion, ethnicity,
or national origin. These guidance documents described fully the
Department's policies with respect to nondiscrimination in the
screening process prior to the takeover of that responsibility by TSA.
Nowhere in any of these guidance documents on this subject is an
instruction to airlines to refrain from subjecting multiple individuals
of the same ethnicity to secondary screening. All of the Department's
guidance on this subject is available on the Department's website at
http://airconsumer.ost.dot.gov.
Members of the public who feel they have been the subject of
discriminatory actions or treatment by air carriers potentially may
bring a private civil rights action in the courts for damages and
injunctive relief under 42 U.S.C. 1981 which prohibits discrimination
in the making and enforcement of all contracts, including contracts to
fly on commercial air carriers. In addition, or alternatively, they may
file a complaint with DOT's Aviation Enforcement Office pursuant to the
specific provisions of Title 49 that I discussed earlier.
Between September 11, 2001, and May 30, 2004, the DOT's Aviation
Enforcement Office received 221 complaints involving allegations of
security-related civil rights violations, a significant increase from
prior years. Most of these complaints alleged that an individual was
unlawfully selected for additional security screening prior to boarding
at the security checkpoint or the gate area. Of those 221 complaints,
70 involved allegations that passengers were removed from flights or
denied boarding because, or primarily because, the passengers are, or
were perceived to be, of Arab, Middle Eastern, or South Asian descent
and/or Muslim. In most of the removal and denied boarding cases DOT's
Aviation Enforcement Office received, it determined that a carrier did
not violate the law or that there was insufficient evidence to conclude
that a carrier was in violation of the law. However, the office did
find evidence of what appeared to be civil rights violations in 18
post-September 11 complaints, such as a situation where a passenger was
denied boarding by an airline despite having been approved by a Federal
law enforcement officer for boarding. As a result, the Office
instituted more in-depth investigation of several major air carriers
based on these complaints. Prior to September 11, 2001, there were only
a few complaints filed with the Department asserting that a passenger
was denied boarding or removed from a flight and none of these
incidents involved a violation of the civil rights laws DOT enforces.
Generally, the Department's Aviation Enforcement Office pursues
informal enforcement action (e.g. asks the carrier to change its policy
or procedure or warns the carrier about potential formal enforcement
action if similar complaints continue to be received) when it believes
that an airline policy or procedure unlawfully discriminates or is not
in compliance with the law in other respects. However, if the Office
concludes that informal action would not solve the problem, it may
issue a cease and desist order and assess civil penalties. However, the
Aviation Enforcement Office can only take such action through a
mutually-agreed settlement of a case or after an adjudicatory
proceeding--an oral evidentiary hearing on the record before an
administrative law judge from DOT's Office of Hearings, at which the
airline may present evidence and cross-examine witnesses in order to
defend itself, if it chooses to do so.
Within the last 7 months, the Aviation Enforcement Office has
concluded investigations of numerous complaints by passengers against
four major carriers to resolve allegations that the passengers were
removed from or denied boarding on flights following the September 11,
2001, terrorist attacks because of their perceived ethnic and/or
religious background. In each of the four investigations, the Office
concluded that there was credible evidence that, but for the
passengers' ethnicity or religion or perceived ethnicity or religion,
some passengers would most likely not have been removed. For example,
as I mentioned, in some incidents, Federal law enforcement officers
cleared the passengers before the flight departed, but the flight crew
would not allow the individuals to re-board that flight. Instead, they
placed the individuals on the very next flight without additional
security screening.
DOT's Aviation Enforcement Office concluded its investigations of
the complaints against these four carriers with mutually-agreed
settlements whereby those carriers did not admit any discriminatory
conduct, but agreed to refrain from future violations of Federal anti-
discrimination statutes and to provide civil rights training to their
employees. Under the settlement agreements, the airlines were not
``fined'' for, nor instructed to refrain from, subjecting multiple
individuals of the same ethnicity to secondary security screening. To
the contrary, the Aviation Enforcement Office has never sought to fine
an airline for having ``more than two young Arab males in secondary
questioning,'' notwithstanding the fact that a number of complaints
raising this issue have been received.
The laws that are relevant to these issues are not foolish or
misguided. It has been asserted by some that aviation security is
somehow undermined by screening individuals who are not male, who are
not Middle Eastern, but who may be senior citizens or children. But
within the last 2 months, the Attorney General of the United States and
the Director of the FBI warned Americans in a national press conference
of ``a clear and present danger to America'' by al Qaeda during this
summer. In his remarks, Attorney General John Ashcroft reported that
``al Qaeda attracts Muslim extremists among many nationalities and
ethnicities.'' Attorney General Ashcroft also indicated that ``al Qaeda
is seeking recruits who can portray themselves as native Europeans'',
and who will travel with families to defeat our security measures.
President Bush spoke publicly about ``the unfairness of racial
profiling'', and in September 2002 stated his ``profound belief that no
American should be judged by appearance, by ethnicity, or by religious
faith.'' Secretary Mineta and other administration officials know that
current security practices not only comply with the law, but are in
fact are designed to follow the President's clear and emphatic
directive to his administration--protect the American people from the
threat of terrorism.
There need not be any inconsistency between our Nation's
longstanding civil rights laws and the security of our national air
transportation system, which has been and remains a priority for DOT.
Since the tragic events of September 11, security measures implemented
at airports and by airlines have been greatly improved. DOT initiated
and the Department of Homeland Security has continued and strengthened
a comprehensive, layered strategy for aviation security incorporating
intelligence, screening, regulation, inspection, enforcement, and
education. Secretary Mineta and the entire Department of Transportation
remain fully committed to all the security measures necessary to
protect our country.
Senator Shelby. Mr. Blank.
STATEMENT OF THOMAS BLANK, ASSISTANT ADMINISTRATOR,
OFFICE OF TRANSPORTATION SECURITY POLICY,
TRANSPORTATION SECURITY ADMINISTRATION,
DEPARTMENT OF HOMELAND SECURITY
Mr. Blank. Good afternoon, Mr. Chairman and members of the
subcommittee. I am pleased to appear before you today to
provide some brief remarks concerning TSA's relationship with
the airlines and their flight crews in situations where an
individual who may be considered a security risk is denied
transport.
We understand questions have been raised by the 9/11
Commission concerning situations where an air carrier refused
transportation to individuals who were denied boarding or
removed from a flight due to security concerns. Immediately
following the attacks of 9/11, there were some instances where
individuals or groups of people were removed from flights after
the crew became uncomfortable with or suspicious of their
actions. Following such a traumatic event, some crew members
may have misinterpreted passengers' behavior, resulting in
complaints that individuals were removed from aircraft without
specific reason other than the fact that they made the flight
crew uncomfortable, and the Department of Transportation has
since established a redress process to prevent that from
happening in the future.
As noted by Mr. Rosen, DOT has the sole responsibility for
investigating security-related discrimination complaints
alleging discriminatory treatment by air carrier personnel.
However, TSA's Office of Civil Rights and the Department of
Homeland Security's Office of Civil Rights and Civil Liberties
have authority to investigate discrimination complaints from
passengers who allege that they have been discriminated against
by TSA screening personnel.
TSA, created by the Aviation and Transportation Security
Act, has responsibility for the security of all modes of
transportation. In the aviation sector, we are responsible for
the day-to-day Federal security screening operations for
passengers and baggage at our Nation's airports, as well as
airport physical security and for air carrier security
programs.
We accomplish our mission using a threat-based, risk-
managed approach rooted in analysis of intelligence about
threats to civil aviation security. Let me be clear about this
point. Concerns about security do not justify illegal
discrimination against passengers. TSA security standards are
not based on race or ethnicity, nor do they permit or encourage
racial or ethnic profiling. In June 2003, the Department of
Justice issued its guidance regarding the use of race by
Federal law enforcement agencies, which DHS and TSA have
adopted as policy.
As you heard from my colleague at DOT, the pilot in command
of an aircraft is charged with the final authority for safe
operation of his or her aircraft. Under TSA's mandated air
carrier security program, the pilot in command serves as the
in-flight security coordinator and, as such, TSA recognizes his
or her authority to make decisions regarding on-board security
incidents. In a situation where a member of the crew, be it a
pilot or flight attendant, believes that a passenger may pose a
risk to the safe operation of the aircraft, it is the
responsibility of the pilot in command to determine whether or
not that passenger will be transported. Furthermore, U.S. code
and TSA regulations give air carriers the authority to refuse
to transport a passenger that presents a safety or security
risk.
TSA becomes directly involved in the resolution of
passenger removal incidents, especially those that require
diversion of an aircraft in flight. For example, if the pilot
in command decides that a passenger is acting in a suspicious
manner, the airline may make an operational decision to divert
the flight. TSA receives notice that the aircraft is diverting
through our Transportation Security Operations Center, known as
the TSOC, in Herndon, Virginia. TSOC watch personnel
continually monitor the Domestic Events Network, an open line
of communication managed by the FAA which broadcasts
information on evolving incidents to coordinating agencies in
real time.
After gathering information on the nature of the incident,
current status of the flight and the airport the flight is
diverting to, TSOC personnel contact local TSA officials at the
diversion airport. These officials contact appropriate
personnel and agencies to respond.
In a case where a passenger is removed as a result of a
security incident, TSA officials cooperate with the air
carrier's ground security coordinator, law enforcement agencies
and other Government agencies to determine whether or not the
removed passenger does, in fact, pose a threat to civil
aviation security. TSA's role in clearing a passenger consists
of performing any necessary rescreening of the passenger and
their belongings and a recheck of the passenger's name against
Government watch lists if deemed necessary.
Additionally, information on these incidents is received
within 24 hours at TSA headquarters, where it is reviewed daily
by the Agency's executive leadership. It is determined whether
or not the incident requires additional follow-up actions such
as contact of the air carrier's management by a TSA principal
security inspector to gather more information on the
circumstances of the event, and we routinely review what
behavior concerned the pilot in command and flight crew enough
to divert or refuse to fly an individual. We will contact the
air carrier if we feel the pilot in command's decision was not
warranted.
If the passenger is eventually cleared for transport, it is
the responsibility of the air carrier to arrange for continued
travel. Please keep in mind that even if TSA and other
officials determine the passenger is not a risk to aviation
security, the air carrier still may elect not to transport the
individual. Again, the air carrier does have the authority to
refuse transport to the passenger if they believe the
individual presents a threat to the safety or security of the
flight.
TSA does not have authority to challenge the pilot in
command's decision. If it is determined that the actions of the
pilot in command were improper and a passenger was wrongfully
removed, the responsibility for any disciplinary action against
that individual or other crew or other members of the crew
would rest with the air carrier. As noted by my colleague from
DOT, regulatory oversight of the actions of the air carrier and
its employees, with respect to civil rights complaints against
air carriers, rests with DOT.
TSA considers the pilot in command and crew to be an
important part of a layered security system. Though a passenger
has been cleared by TSA security screening procedures, this
does not overrule the recognized authority of the air carrier
to determine whether someone flies or not. The more layers of
security that are in place to prevent an attack, the more
effective the security will be. As a result, TSA believes the
pilot in command's authority to refuse transportation to a
passenger believed to present a risk to the safety or security
of the flight is sound.
Given the vast responsibilities placed upon the pilot in
command for safe operation of the flight, we do not believe it
would be wise to dilute his or her authority. We do realize
that in a system with thousands of flights and approximately
1.8 million passengers daily, occasionally, complaints will
arise. Again, as a double check, during our daily review of
incidents, TSA's executive leadership does look for instances
of unwarranted responses to incidents so that necessary follow-
up actions can be taken with the air carrier or the information
shared with DOT. In our view, the best way to prevent these
incidents is to continually train crew members to be alert for
security issues from all passengers regardless of appearance or
ethnicity.
PREPARED STATEMENT
Thank you for the opportunity to appear before the
subcommittee today, and I would be pleased to answer any
questions you may have.
[The statement follows:]
Prepared Statement of Thomas Blank
Good afternoon, Mr. Chairman, Senator Murray, and members of the
subcommittee. I am pleased to appear before you today to provide a few
brief remarks concerning TSA's relationship with the airlines and their
flight crews in situations where an individual who may be considered a
security risk is denied transport.
I understand questions have been raised by the 9/11 Commission
concerning situations where an air carrier refused transportation to
individuals who were denied boarding or removed from a flight due to
security concerns. Immediately following the attacks of 9/11, there
were some instances where individuals or groups of people were removed
from flights after the crew became uncomfortable with or suspicious of
their actions. Following such a traumatic event, some crewmembers may
have overreacted to passengers' behavior, resulting in complaints that
individuals were removed from aircraft without specific reason other
than the fact that they made the flight crew uncomfortable--and the
Department of Transportation has since established a redress process to
prevent that from happening in the future.
As noted previously by Mr. Rosen, DOT has the sole responsibility
for investigating security-related discrimination complaints alleging
discriminatory treatment by air carrier personnel. However, TSA's
Office of Civil Rights and the Department of Homeland Security's Office
of Civil Rights and Civil Liberties have authority to investigate
discrimination complaints from passengers who allege they have been
discriminated against by TSA screening personnel.
TSA, created by the Aviation and Transportation Security Act, has
responsibility for the security of all modes of transportation. In the
aviation sector, we are responsible for the day-to-day Federal security
screening operations for passengers and baggage at our Nation's
airports, as well as airport physical security and for air carrier
security programs. We accomplish our mission using a threat-based,
risk-managed approach rooted in analysis of intelligence about threats
to civil aviation security.
Let me be clear about this point--concerns about security do not
justify illegal discrimination against passengers. TSA's security
standards are not based on race or ethnicity, nor do they permit or
encourage racial or ethnic profiling. In June, 2003, the Department of
Justice issued its Guidance Regarding the Use of Race by Federal Law
Enforcement Agencies, which DHS, and TSA adopted as policy.
As you have heard from my colleague at DOT, the pilot-in-command of
an air carrier aircraft is charged with the final authority for safe
operation of his or her aircraft. Under TSA's mandated air carrier
security program, the pilot-in-command serves as the Inflight Security
Coordinator, and as such, TSA recognizes his or her authority to make
decisions regarding onboard security incidents. In a situation where a
member of the crew, be it a pilot or flight attendant, believes that a
passenger may pose a risk to the safe operation of the aircraft, it is
the responsibility of the pilot-in-command to determine whether or not
that passenger will be transported. Furthermore, U.S. Code and TSA
regulations give air carriers the authority to refuse to transport a
passenger that presents a safety or security risk.
TSA becomes directly involved in the resolution of passenger
removal incidents, especially those that require diversion of an
aircraft in flight. For example, if the pilot-in-command decides that a
passenger is acting in a suspicious manner, the airline may make an
operational decision to divert the flight. TSA receives notice that the
aircraft is diverting through our Transportation Security Operations
Center, known as the TSOC, in Herndon, VA.
TSOC watch personnel continuously monitor the Domestic Events
Network, an open line of communication managed by the FAA, which
broadcasts information on evolving incidents to coordinating agencies
in real-time. After gathering information on the nature of the
incident, current status of the flight, and the airport that the flight
is diverting to, TSOC personnel contact local TSA officials at the
diversion airport. These officials contact appropriate personnel and
agencies to respond.
In a case where a passenger is removed as a result of a security
incident, TSA officials cooperate with the air carrier's Ground
Security Coordinator, law enforcement agencies, and other government
agencies to determine whether or not the removed passenger does in fact
pose a threat to civil aviation security. TSA's role in clearing a
passenger consists of performing any necessary re-screening of the
passenger and their belongings, and a re-check of the passenger's name
against government watch lists if deemed necessary. Additionally,
information on these incidents is received within 24 hours at TSA
headquarters, where it is reviewed daily by the agency's executive
leadership. It is determined whether or not the incident requires
additional follow-up actions, such as contact of the air carrier's
management by a TSA Principal Security Inspector to gather more
information on the circumstances of the event. And, we routinely review
what behavior concerned the pilot-in-command and flight crew enough to
divert or refuse to fly an individual. We will contact the air carrier
if we feel the pilot-in-command's decision was not warranted.
If the passenger is eventually cleared for transport, it is the
responsibility of the air carrier to arrange for continued travel.
Please keep in mind that even if TSA and other officials determine the
passenger is not a risk to aviation security, the air carrier still may
elect not to transport the individual. Again, the air carrier does have
the authority to refuse to transport the passenger if they believe the
individual presents a threat to the safety or security of the flight.
TSA does not have authority to challenge the pilot-in-command's
decision. If it is determined that the actions of the pilot-in-command
were improper and a passenger was wrongfully removed, the
responsibility for any disciplinary action against that individual or
other members of the crew would rest with the air carrier. As noted by
my colleague from DOT, regulatory oversight of the actions of the air
carrier and its employees with respect to civil rights complaints
against air carriers rests with DOT.
TSA considers the pilot-in-command and crew to be an important part
of a layered security system. Though a passenger has been cleared by
TSA security screening procedures, this does not overrule the
recognized authority of the air carrier to determine whether someone
flies or not. The more layers of security that are in place to prevent
an attack, the more effective the security will be. As a result, TSA
believes the pilot-in-command's authority to refuse transportation to a
passenger believed to present a risk to the safety or security of the
flight is sound. Given the vast responsibilities placed upon the pilot-
in-command for safe operation of the flight, we do not believe it would
be wise to dilute his or her authority. We do realize that in a system
with thousands of flights and approximately 1.8 million passengers
daily, occasionally complaints may arise. Again, as a double check,
during our daily review of incidents, TSA's executive leadership does
look for instances of unwarranted responses to incidents so that any
necessary follow-up actions can be taken with the air carrier or the
information shared with DOT. In our view, the best way to prevent these
incidents is to continually train crewmembers to be alert for security
issues from all passengers, regardless of appearance or ethnicity.
Thank you for the opportunity to appear before the subcommittee
today, and I would be pleased to answer any questions you may have.
Senator Shelby. Thank you for your testimony.
We have been joined by Senator Murray, and she has an
opening statement.
STATEMENT OF SENATOR PATTY MURRAY
Senator Murray. Thank you very much, Mr. Chairman, for the
accommodation. I apologize for being late, and I appreciate
your fitting me in at this point.
The topic of today's hearing really goes to the very heart
of the tension that we experience every day between the need
for transportation security and the need to protect our civil
liberties. We face this challenge of protecting all travelers
and all of their rights in modes beyond aviation, including
trains, ferries, buses and automobiles. If we have learned
anything since the attacks on September 11 and the attempted
attack by the shoe bomber, it is that we must have multiple
overlapping systems of security to ensure our safety.
Everyone--the passenger, flight attendant, the gate agent, the
pilot, the air marshals, and most importantly, our TSA
personnel--must keep their eyes open and be alert for any signs
of danger.
I, for one, do not want to take away any security tools
from any person of responsibility, especially pilots, when it
comes to maintaining aviation security. So the question is:
does empowering pilots to exclude certain passengers make us
any safer? Well, I think we have to look at the facts.
Are passengers being excluded because they have ties to
terrorist organizations? To my knowledge, we know of no cases
where a pilot has excluded an individual with known ties to any
terrorist organization.
Are passengers being excluded because of their race or
ethnicity? We do have some data on that. Since September 11,
the DOT has received roughly 70 complaints from individuals who
believe they were wrongly excluded from their flights due to
their race or ethnicity. Of those cases, the DOT has found that
airlines did indeed exclude them solely because of their race
roughly one-third of the time.
What ended up happening to passengers who were removed from
their flights? Well, in a great many cases, the airlines that
excluded those individuals simply booked them on later flights.
In fact, many of the passengers who were rebooked onto later
flights were then seated in the first class cabin, putting them
even closer to the cockpit door than they were on their
original flight. So the captains that first excluded these
individuals did not keep them from flying, they simply kept
them from flying on their flight.
Looking at those facts, it is clear that this is not the
most efficient or effective way to enhance security. The real
solution to this problem is for all people involved--the
pilots, the flight attendants, all airline passengers--to have
a much greater degree of comfort that there are not people on
the plane seeking to do them harm.
So we have to ask: is the Department of Homeland Security
doing an adequate job of ensuring that people who do pose a
risk never get close to the boarding gate in the first place?
And, sadly, the answer is no. Immediately after September 11, I
was chair of the Transportation Subcommittee, when we were
asked to fund the initial investments in the Transportation
Security Administration. At that time, we began to make
significant initial investments in the so-called CAPPS II
Screening Program. CAPPS II was supposed to be the computer-
based filtering system through which the TSA would consult
multiple databases to determine which passengers require
additional scrutiny. This system, we were told, would be
extremely comprehensive, while protecting the privacy rights of
all passengers.
Earlier this year, the General Accounting Office testified
that the Transportation Security Administration is woefully
behind in the development and deployment of the CAPPS II
program. When concerns about this program were brought to the
Homeland Security Subcommittee, on which I serve, language was
inserted in the 2004 appropriations bill to ensure that eight
very reasonable tests would be met before the TSA spent money
to deploy the program.
To date, despite all of the initial encouraging
representations, the program has only met one of these eight
tests, and the development and deployment dates for the CAPPS
II system could not be more certain. Similarly, the TSA has
done a poor job of screening out all potentially dangerous
items at their security checkpoints. As was the case when the
screening function was handled by the FAA, the DHS has teams
that secretly seek to penetrate the security checkpoint at
airports. While I cannot go into the specific findings
resulting from those efforts, here is how the DHS Inspector
General put it:
Federal screening checkpoints and private screening
checkpoints ``performed equally poorly''. Perhaps if the TSA
was doing a better job at its core responsibilities, there
would be less uneasiness over individual passengers who have
cleared those checkpoints. If the TSA was doing a better job,
there would be less of a need to pay attention to the process
by which pilots have, rightly or wrongly, excluded passengers.
I hope, Mr. Chairman, that this hearing shines a light on
the best ways to improve security throughout our aviation
system and to ensure that we are protecting passengers and
protecting their rights at the same time.
Thank you very much, Mr. Chairman.
Senator Shelby. Thank you, Senator.
We have been over some of this ground earlier in our
opening statements and, Mr. Rosen and Mr. Blank, you went over
them, but I am going to go over it again just for clarity.
At the 9/11 hearings, a former senior airline executive
testified, ``If I had more than three people of the same ethnic
origin in line for additional screening, our system would be
shut down.''
FEDERAL POLICIES AFFECTING SECURITY SCREENING
Mr. Rosen, do you know, for the record, if the Department
of Transportation or any other Federal Government entity has
ever implemented a strategy or policy that calls for the use of
a quota system that restricts the number of foreign or ethnic
passengers that could be subjected to secondary screening at
one time?
Mr. Rosen. Mr. Chairman, I am not aware of any Government
agency that has adopted such a policy.
Senator Shelby. First of all, it is not your policy.
Mr. Rosen. I was going to say I can tell you for certain--
--
Senator Shelby. Or it is not the Department of
Transportation's policy.
Mr. Rosen. That is correct.
Senator Shelby. And you are not aware of any other policy.
Mr. Rosen. That is correct, Mr. Chairman.
Senator Shelby. So you are saying, basically, that you are
not aware of a quota system that would limit the number of
individuals that an airline can deny boarding if the pilot
deems those individuals a threat to the security and safety of
the flight.
Mr. Rosen. You are correct, Mr. Chairman.
Senator Shelby. Mr. Rosen, under what circumstances would a
pilot in command of an aircraft be justified in refusing to
transport a passenger he or she decides might be detrimental to
the security of aircraft and its passengers while at the same
time assuring the airline that it will not be subject to
punitive action from the DOT or whomever?
Mr. Rosen. Mr. Chairman, there are a wide variety of
circumstances under which a pilot would be justified in
refusing to transport an individual.
Senator Shelby. Give us several that you can think of.
Mr. Rosen. If a passenger behaves in a suspicious manner or
there is some individualized suspicion to believe that a
passenger is a safety or security risk, then the pilot can deny
boarding to the passenger. Examples include a passenger making
cell phone calls at an airport and overheard making troublesome
comments about airport or airline security, a passenger
bringing something on board an aircraft that would be
inappropriate, and a passenger taking pictures of the plane.
Further, if there is specific intelligence that has been
conveyed, for which there are then matching identifying
characteristics, then the pilot can act based on this
information.
I think it is difficult, in the abstract, to identify all
of the circumstances, but certainly pilots have the discretion
where, if there is a threat to safety or security, that they
can refuse to transport a passenger.
Senator Shelby. Do you believe that the pilot has to have
that discretion?
Mr. Rosen. I think it is important that we have multiple
layers in the system and that the law is set up so that the
pilot has that discretion, and so I am in favor of adhering to
the law.
Senator Shelby. Sure. Do you believe fining the airline for
the pilot's exercise of discretion is detrimental to the
security of the flying public if it was done for something like
this?
Mr. Rosen. Well, Mr. Chairman, I think, as is often the
case, these things come down to the individual circumstances.
There are many instances where the pilot's exercise of
discretion is appropriate and should not be second guessed,
even if he or she is later proven to be mistaken.
Senator Shelby. Yes.
Mr. Rosen. But there are laws that prohibit the decision
from being made on the basis of race, sex, national origin,
color, religion, an ancestry, and I think we would not want
pilots simply saying, ``I do not want to fly anybody of this
particular ethnic group or this particular race.''
Senator Shelby. Sure. Well, neither would we.
Where would you draw the line, Mr. Rosen, between
individual rights and the right of the flying public, us to be
safe and secure? Is that a case-by-case basis or what?
BASIS FOR REFUSALS TO TRANSPORT A PASSENGER
Mr. Rosen. Well, I think, Mr. Chairman, as I alluded to
earlier, there are at least two sets of laws that are in play
here. There are the laws that give the pilot this authority to
make the final decision as to the individuals permitted on the
aircraft, and there are the civil rights laws that are
applicable. And so, on the one hand, you certainly do not want
to have a quota system that would inhibit the pilot from taking
action that was justified simply because the quota had been
exceeded.
Senator Shelby. That is right.
Mr. Rosen. And on the other hand, you do not want to have a
system that amounts to what is just pure racial profiling.
Senator Shelby. Arbitrary racial----
Mr. Rosen. That would be extremely offensive to people. You
hope that people will be treated as individuals and that you
will have individualized suspicion of them through a set of
circumstances, through intelligence or other information
sources, that would let some sort of rational decision be made,
even if it is not ultimately correct. The decision must at
least be rational.
Senator Shelby. Mr. Blank, since the Department of
Transportation Security Administration has been charged with
this responsibility, that is, security, do you know of any
instances where airline passengers are selected on the basis of
any criteria other than randomness or suspicious behavior?
Mr. Blank. No, I do not.
Senator Shelby. Mr. Rosen, has any airline been fined, to
your knowledge, for selecting more than two people of the same
ethnicity for a secondary screening?
Mr. Rosen. Plainly, no.
Senator Shelby. After 9/11, what specific policy or
guidelines did the Department issue with respect to the
screening and treatment of, for example, Arab, Middle Eastern,
South Asian or Muslim passengers that you could identify?
Mr. Rosen. Well, as I mentioned in my prepared remarks, Mr.
Chairman, the Department of Transportation, shortly after
September 11, put out four guidance documents, again, which are
all on the website and all available. This was in the period
before TSA had been created and that responsibility was
transferred. But I think if you look at those guidelines, they
are addressed, in a sense, to different recipients--to
airlines, to the, at that time, to the screeners, as well as an
announcement to the public and particularly concerned civil
rights communities--so that they are overlapping guidances, in
some sense, basically, what the law is and what kinds of
considerations should be taken in effect, similar to what we
have been talking about. Certainly, no quota is identified in
any of those documents.
Senator Shelby. Has the Department issued any written
guidance that would limit the number of passengers of certain
races or ethnicity that an airline can screen or question for
safety or security?
Mr. Rosen. No.
Senator Shelby. Mr. Blank, should airport screeners be
considered as the last line of defense to protect the flying
public against terrorists?
Mr. Blank. No, I do not think so. I would say that they are
a critical layer of defense----
Senator Shelby. Very much.
Mr. Blank [continuing]. In airline and civil aviation
security. But there are many layers out there that begin inside
the cockpit with armed pilots, hardened doors, trained flight
crew, Federal air marshals on board, enhanced airport security
programs, screeners, limited access doors and so forth.
Senator Shelby. Do you believe, Mr. Blank, that the pilot
in command should have the authority to refuse to transport a
passenger he or she decides is or might be detrimental to
safety?
Mr. Blank. Yes, I do. I think that is one additional layer
of security.
Senator Shelby. Senator Murray.
Senator Murray. Thank you very much, Mr. Chairman.
Mr. Rosen, Mr. Blank, you have both been very forthright in
your statements that, contrary to Secretary Lehman's
assertions, your agencies do not have a policy to fine airlines
based on the number of individuals from a certain ethnic group
that are subject to enhanced screening or security measures. As
far as we can tell, a lot of the confusion that surrounds this
assertion emanates from testimony, as was alluded to by Edmond
Soliday, former Vice President of Safety at United Airlines,
before the 9/11 Commission. And as was said, his testimony,
that ``A visitor from the Justice Department told me if I had
more than three people of the same ethnic origin in line for
additional screening, our system would be shut down as
discriminatory.''
Have either of you gentlemen had any contact with the
Justice Department regarding that specific assertion or its
accuracy?
Mr. Blank. No, Senator, I have not.
Senator Shelby. Mr. Rosen.
Mr. Rosen. I have not either, Senator. But I would say that
the Department of Justice has put out its own public statements
against racial profiling.
JUSTICE DEPARTMENT AUTHORITY
Senator Murray. To either of your knowledge, what
authority, if any, does the Justice Department have in this
area?
Mr. Rosen. Well, the Department of Justice, of course,
administers Title II of the Civil Rights Act of 1964, but as to
how that would apply in this area I think would be beyond my
expertise today to address. I do know that with regard to the
authorities that DOT has, the DOT may work with the Department
of Justice to seek injunctive relief in the courts in
appropriate cases. In addition, there is a provision in the
U.S. Code that makes knowing and willful violations of Federal
aviation statutes subject to criminal action by the Department
of Justice. I think, beyond that, I could not say much more
today, Senator.
Senator Murray. Can you answer under what circumstances the
Justice Department would be communicating with an airline on
this matter?
Mr. Rosen. No, I would not be aware of any such
circumstance.
Senator Murray. To either of your knowledge, has anyone
followed up with Mr. Soliday to find out precisely what the
Justice Department official was doing and under what authority?
Mr. Rosen. Not to my knowledge, Senator.
Mr. Blank. Not to my knowledge.
Senator Murray. Let me change subjects, then.
Mr. Blank, as I mentioned in my opening statement, the
flying public has been waiting for your agency to deploy the
so-called CAPPS II program, and I believe that Mr. Smerconish,
who is going to be testifying on the next panel, is going to
point something out that all of us who fly already know, that
the current system for choosing passengers for enhanced
screening does not appear to be very logical or effective.
The CAPPS II system, we were told, was to replace all of
that, and unfortunately the GAO tells us that your agency is
unable to meet seven of the eight basic tests that Congress has
required of you before deploying the system. Can you tell us,
today, what the principal hindrances are that you are
experiencing in getting CAPPS II up and running.
Mr. Blank. Well, there are a number, and I will address it
this way. The CAPPS II program is under review within the
administration. And we have heard the concerns of the privacy
and civil liberty communities and are not going to move forward
with the passenger prescreening program until we have satisfied
those concerns and that we feel that they have been properly
addressed.
But we do believe that a prescreening program is critical
to the layered approach DHS has taken to aviation security, and
we look forward to continuing to work with the Congress and
external stakeholder groups on getting it developed and seeing
if we ultimately want to make any changes in our approach as a
result of this continued review inside the administration.
Senator Murray. Can you give us any estimate of a time-line
when you expect this to happen?
Mr. Blank. I cannot because that would be affected by the
outcome of the review. If we decide to make any changes or
change priorities, that would affect the time line. So I am
afraid I cannot do that.
Senator Murray. So it may be some time. What interim steps
are you taking before that is deployed?
Mr. Blank. Well, I think the interim steps go to the layers
of security, and I listed a number of those. Of course, we do
continue to use the CAPPS I system, but it has been
compromised. We do not think that means that it is of no value
at all. We do have a ``no fly'' list that we compare names to,
as we look forward to the complete stand-up of the Terrorist
Screening Center. The list that we will use to compare
passenger names to will become far more robust.
So, in the interim, we think we have something that is
continuing to improve until we get CAPPS II on-line.
Senator Murray. Thank you very much.
Thank you, Mr. Chairman.
Senator Shelby. Senator Specter.
DOT INVESTIGATION OF COMPLAINTS
Senator Specter. Mr. Rosen, you commented about one matter
where there was a consent decree entered into between the
Department of Transportation and the airline. What were the
essential facts of that matter?
Mr. Rosen. Well, Senator, that is perhaps more complex than
I can fully summarize for you. There were actually four
investigations that the Department's Aviation Enforcement
Office investigated, and they involved multiple incidents and
probably a larger number of complaints.
As I should clarify, the way that office functions, it does
not simply accept that if a person files a complaint that it
must be accurate and valid. It investigates those complaints,
talks to witnesses, talks to the participants and so forth. So
the Department's Aviation Enforcement Office conducted four
investigations that resulted in settlements, although the
settlements are, in many respects similar to one another.
Senator Specter. Four separate investigations involving
four separate airlines.
Mr. Rosen. That is right. But in many ways, the settlements
are similar to one another. They are not identical, but they
are similar. So the underlying facts are varied, since there
are multiple investigations of incidents involved.
Senator Specter. Well, take one of the investigations and
tell us what the underlying facts were.
Mr. Rosen. Well, Senator, I do not mean to be evasive about
this, but because these cases were resolved in mutually agreed-
upon settlements, the facts were not determined through an
administrative law judge or ultimately by the Department or
reviewing courts.
The Aviation Enforcement Office presented the facts in one
instance in a complaint and then in the other instances in
discussions with the carriers, and the carriers, in some
instances, did not agree with those facts, but ultimately there
was agreement as to a resolution.
In terms of the individual facts, I am not sure that it is
easy, in a forum like this, to try to re-litigate them, nor
have I prepared at the level of being able to discuss the
particulars of the cases.
Senator Specter. Mr. Rosen, I do not understand your
response. We want to know what kind of a situation led to an
investigation and an assertion by the Department that there was
inappropriate conduct. I know it was denied by the defendants,
and it was settled without a concession on liability. Did any
of those cases involve a situation where there was someone with
a Muslim or Arab appearance?
Mr. Rosen. Well, yes, and they also involved complaints, in
some instances, of individuals who had been denied boarding
because they were perceived to be of Arab descent or Muslim but
were actually individuals who were of Hispanic or Indian
descent or, in one instance, I think, Italian.
Senator Specter. Well, were there factors which led the
airlines to exclude the individual beyond their ethnic
appearance?
Mr. Rosen. Well, the----
Senator Specter. Mr. Rosen, could you provide the details
for us in writing. It seems to me that this is a pretty
fundamental question, when you have only a few cases, for you
to be prepared to answer specifically. And I do not want to
take any more of the subcommittee's time here, but I would like
to know what the facts were which led you to an investigation
and to assert that there was inappropriate conduct which
required some settlement, albeit with a denial of liability.
Mr. Rosen. All right, Senator. I mean, as I think would be
implicit, the Aviation Enforcement Office believed that there
was credible evidence of discrimination in some number of the
incidents that it was investigating.
Senator Specter. Well, Mr. Rosen, it is not implicit, and
credible is a matter of evaluation, and we would like to know
what the facts were--what were the facts as you saw them. That
way we can come to a determination as to whether there was the
appearance of racial profiling. We would like to know that.
Mr. Rosen. Senator, if you would like to know more detailed
information about the particular incidents that were being
investigated, of course, we can provide that to you. I am just
not able, today, to walk through each incident and discuss the
evidence.
Senator Specter. Okay. I will accept that. Just provide us
with what the facts were.
[The information follows:]
The Enforcement Complaint that DOT's Office of the Assistant
General Counsel for Aviation Enforcement and Proceedings (Enforcement
Office) filed against American Airlines (American) on April 25, 2003,
provides specific examples of incidents which led the U.S. Department
of Transportation (DOT) to believe that passengers were removed from or
denied boarding on flights following the September 11, 2001, terrorist
attacks because of their perceived ethnic and/or religious background.
That complaint, which is being provided for the record of this hearing,
includes sworn declarations from 10 passengers alleging civil rights
violations by American Airlines in 11 incidents. These sworn
declarations provide detailed information of the specific incidents
upon which DOT's Enforcement Office relied to file the formal complaint
against American.
Two examples of American's alleged discriminatory conduct involve
Mr. Praneet Kataria, a citizen of India and a permanent resident of
Canada who wears a turban in accordance with his Sikh faith, and Mr.
Henry Castellanos, a U.S. citizen of Hispanic descent with a dark
complexion and a pilot for Miami Air. On December 25, 2001, Mr. Kataria
was a scheduled passenger on American flight 1197 from Toronto to
Chicago with a connection in Chicago on American flight 1893 to San
Francisco. When approaching the jetway to board flight 1893 to San
Francisco, Mr. Kataria was asked to step aside and undergo an
additional security search. Mr. Kataria cooperated and the search was
completed. However, the pilot of flight 1893 deplaned and advised the
American agents not to allow Mr. Kataria to board the aircraft despite
Mr. Kataria having been cleared by security. Mr. Kataria was rebooked
and traveled on the next American flight without additional security
screening. The Enforcement Office could detect no reason for American's
actions from the evidence requested or provided by American except for
Mr. Kataria's appearance that is likely to lead some to believe he is
an Arab and/or Muslim.
In the case of Mr. Castellanos, he was a scheduled passenger on an
American flight from Tucson to Miami, with a connecting flight at
Dallas/Fort Worth Airport on September 19, 2001. He was traveling with
two of his colleagues, Mr. David Caviness (a flight engineer also of
dark complexion) and Mr. Bill Louis (a Caucasian pilot). About five
minutes after Mr. Castellanos boarded his flight to Miami at Dallas/
Fort Worth Airport, an American employee asked Mr. Castellanos for his
identification and explained to him that the captain of the flight
wanted to review his identification. Mr. Castellanos provided the
American employee his driver's license and his Miami Air badge. A few
minutes later, Mr. Castellanos and Mr. Caviness were deplaned but Mr.
Castellanos' white colleague Bill Louis was not asked to leave the
plane. The captain explained to Mr. Castellanos that a flight attendant
was uncomfortable having Mr. Castellanos and Mr. Caviness on board as
passengers after the events of September 11, 2001. Mr. Castellanos
offered his commercial pilot's license to reassure the flight attendant
that he posed no safety risk and the American captain talked to the
flight attendant to no avail. The night attendant gave the captain an
ultimatum that he either remove Mr. Castellanos and Mr. Caviness or she
would not fly. Mr. Castellanos and Mr. Caviness were removed and the
flight departed without them. Again, based on all the evidence
available to the Enforcement Office, including the fact that American
did not provide a plausible explanation for the actions of its
employees, it was convinced that American's treatment of Mr.
Castellanos was based on discriminatory factors.
Senator Shelby. That goes to the core questions we are
trying to answer. Senator Specter, I believe, is right.
Do you have more questions?
Senator Specter. A couple for Mr. Blank.
Mr. Blank, when you say that the pilot has the authority to
remove a passenger for acting in suspicious manner, is there
any more specificity as to what constitutes a suspicious
manner?
Mr. Blank. No, there is not, but the pilot would be
questioned. In the instance that a boarded passenger, having
been screened by TSA, was to be deplaned or removed because the
pilot wanted, two things would happen:
The TSA representative would show up at the gate and law
enforcement would show up at the gate, and the pilot, and law
enforcement, and TSA would have a conversation about, well, why
are you doing this. And while the pilot in command would
ultimately win the debate, if there was one, there are
instances where the law enforcement office and the TSA
representative are able to say that this suspicious behavior
you detected does not rise to the level of deplaning this
individual.
In addition--in addition--when every one of these incidents
happens, within 24 hours, it is going to be brought to the
attention of the senior leadership of TSA. We go over every
incident every morning, and we are going to ask that question
at our headquarters: Why was this individual deplaned? What was
the suspicious behavior? And if it is not there in our records
where we can discuss inside a skiff, we will go back to that
air carrier and say----
Senator Specter. Are you saying that the pilot has to be
able to specify the suspicious activity?
Mr. Blank. What we are trying to get to is we ask them to
do that, but if a push comes to shove, the pilot in command has
the authority to say this person does not fly. But that does
not mean that we cannot work with our partners in the airport
and go back to a carrier and say, ``We are not convinced that
this was a proper judgment.''
Senator Specter. Have you ever taken action against a pilot
or an airline because you concluded there was not a sufficient
basis for a conclusion that there was suspicion?
Mr. Blank. We have not, and I do not believe we have the
authority to do so.
I will tell you, Senator, this does not happen very often.
Senator Specter. Well, with all due respect, it does not
matter how often it happens, we are trying to figure out what
the standards are. And it appears, at least to me, that you do
not have any discernible standards.
You said, if the individual is not a risk, the captain may
still refuse, and TSA cannot challenge the captain; is that
correct?
Mr. Blank. That is correct, both in law and in regulations.
Senator Specter. So it is totally the subjective
determination by the captain, which cannot be challenged by
TSA.
Mr. Blank. That is correct, Senator.
Senator Specter. Well, I think it would be useful to try to
work out a little more specificity as to what constitutes
suspicion. In the law, there are all degrees of cause: one
level of probable cause for warrant of arrest, another level of
probable cause for a search warrant, and still a third level of
cause for a stop and frisk, and still a fourth level of cause
to the Supreme Court case this week for asking a person's name.
And it seems to me that the captains ought to have some little
more objective guidelines as to what is meant.
Mr. Blank. As of right now, Senator, our purpose in
reviewing those incidents and bringing them to the attention of
airline corporate management would be to allow them the option
to take some disciplinary action against that pilot if the
suspicion was not founded on any basis in fact.
Senator Specter. Well, that leaves it entirely up to the
airlines and does not have a real appropriate or enforcement or
tough role for TSA.
Thank you, Mr. Chairman.
Senator Shelby. Senator Kohl.
Senator Kohl. Thank you, Mr. Chairman.
Mr. Blank, Congress and TSA have long struggled, as we
know, with the issue of targeting passengers as security risks.
The core of the debate is balancing passengers' privacy rights
with the needs of national security. Most recently, today's
Washington Post discusses the sharing of personal information
between airlines in the Transportation Security Administration.
The article highlights both the difficulties with sharing
private information and the shortcomings of the Nation's risk
assessment program CAPPS.
TSA has argued that without this personal information, the
Agency would not be able to enact CAPPS II which, as we know,
is the updated screening program. Glitches in this system have
been well-publicized, and the GAO report published in February
highlighted its many shortcomings.
Mr. Blank, how does TSA intend to develop a screening
system based on personal private information that will
adequately shield passengers' privacy rights?
Mr. Blank. Well, first of all, with regard to the incident
reported this morning, the Department's review of the matter is
ongoing as to precisely what happened. CAPPS II is mentioned in
that, so it was a priority, along with many of the other things
that we have been working on since the Agency was created.
And this particular instance related to some R&D work that
was being done so that we could get a concept of how we might
build our CAPPS II system. So the PNR data that was provided
and was used in this R&D effort with some contractors relates
to that R&D and the foundation that we were trying to build.
There was no actual checking of passengers' data being done.
But, clearly, the issues surrounding privacy in CAPPS II
are critical ones. We recognize that. We have done two Privacy
Act notices to engage the public fully in advising what we are
going to do and how we would go about protecting that. A
significant piece of it is information technology solutions--
walls so that the data cannot be hacked into--and we do not
retain the data once a flight is or we do not propose to retain
it once a flight is completed. But we do have work to do on
that, and we will not use CAPPS II until such time as we are
assured that we can properly maintain the privacy of the
information we receive.
Senator Kohl. All right. Mr. Blank, according to testimony
by Admiral Stone, TSA and FAA have entered into a cooperative
agreement with four private firms to develop a model to assess
the security risk posed by a passenger. TSA plans to evaluate
these prototypes as candidates for further use as a component
of CAPPS II. These four private firms will have access to
passenger name records, which can include full names,
addresses, credit card numbers, e-mail addresses, and even meal
preferences.
So what efforts are being made at TSA to ensure that
passengers' personal information and their risk assessment
information is secure in the hands of these private companies?
Mr. Blank. As of now, we are not receiving any PNR data at
TSA. The data that the Washington Post refers to and the
incidents that we are talking about is a historical project. It
was given in the summer of 2003, I believe it was, where some
PNR data came to TSA. It was a one-time instance of PNR data
being shared, and then it went out to the contractor. So those
projects are over and completed. There are no continuing
projects relative to CAPPS II using PNR data at this time.
And what we recently did, under the direction of the DHS
privacy officer, was essentially conduct a very thorough
records review to see what PNR data may have been provided to
the Agency. We have completed that report, and we have provided
it to the DHS privacy officer who is reviewing it for further
potential action.
Senator Kohl. All right. Finally, Mr. Blank, this fall,
airports can apply to the TSA to return to private security
screeners. The Washington Post reports that as many as 100
airports around the country may be interested in dropping TSA
screeners in favor of a private workforce. Though some think
this will result in improved screening procedures, a recent
report conducted by the Department of Transportation Inspector
General found indications of poor performance in both TSA and
private screeners.
So how is TSA working to improve the security screening
process at our Nation's airports and, in your opinion, should
Congress be taking any action to help move this process
forward?
Mr. Blank. Well, we are doing a number of things.
First of all, we are seeing consistent improvement. We
think that some of the comparisons to the FAA system, where the
airlines did the screening, and the system that we have today,
we do not think that is fair or gives an accurate picture of
what is going on out there.
Today, we have a highly qualified and well-trained screener
workforce. And one of the things that we have had to do as a
result of not getting the grades, if you will, that we want is
improve our training. One way that we have done that is to take
a library of threat image projections, which are software that
shows the screener, for test purposes, an improvised explosive
device in a bag, a gun or a prohibited item to see how often
the screener can find those. In the days of the FAA, that
library was 400 images. Today, it is 2,400.
In addition to that, we have finally gotten the
connectivity at the airport so that the Federal security
director can know how well his screener workforce is doing on
those tests, so he or she can identify, I have a weak-
performing screener, I have a weak checkpoint, and they can
begin to take remedial actions because of better connectivity.
We put an on-line learning center so that we can do more
training in the context of the airport.
Now, without using specifics, what we have seen is a 70-
percent improvement from where we were at the time of that IG
and GAO covert testing. So we are getting better. There is work
to be done. We are not there yet.
And just as a final note, one of the things we have also
done is permit local covert testing. So, for a time, a Federal
security director could not test his or her own system. Now,
they can.
Senator Kohl. You are saying there is a very active program
of oversight and a very active program in terms of improving
the performance level.
Mr. Blank. Yes, Senator.
Senator Kohl. I thank you.
Thank you, Mr. Chairman.
Senator Shelby. I asked Senator Specter if he had any more
questions, and he said, no.
I want to thank you both for your appearance here today.
You are going to furnish specific information to the
subcommittee in response to our questions.
Thank you very much.
We will call up the second panel now. Senator Specter is
going to take over for me.
Senator Specter [presiding]. We will proceed now with the
second panel, and the opening statements will be on the 5-
minute rule.
Our first witness is Michael Smerconish, Esquire, a Phi
Beta Kappa graduate of Lehigh, a law degree from the University
of Pennsylvania, experienced trial lawyer, a daily talk show on
a radio program in Philadelphia, a big talker of daily
political commentary for KYW News Radio, a columnist for the
Philadelphia Daily News. And earlier in his career, President
Bush, the first, appointed Mr. Smerconish to be regional
administrator of the Department of Housing and Urban
Development. Married with four children.
Mr. Smerconish, I have already, in the interest of full
disclosure, identified you as a longstanding friend, and we
look forward to your testimony. Your full statement will,
without objection, be made a part of the formal record of this
subcommittee.
STATEMENT OF MICHAEL SMERCONISH, ESQ., TALK SHOW HOST,
COLUMNIST
Mr. Smerconish. Thank you very much, Senator Specter, and
thank you for this privilege. I will limit my comments,
hopefully, to 5 minutes of general summary of my thoughts.
Unlike the other witnesses, I come without portfolio. To
the extent that I represent anyone or anything, I guess you
could say that I represent the American traveling public in a
post-9/11 world. Three months ago, my wife and I flew with our
four children from Atlantic City to Fort Meyers, Florida. We
had e-tickets.
At the counter, a pleasant woman asked for our
identification and then wanted to know which one is Michael,
Jr. I pointed to my 8-year-old, and she said, ``Oh, that won't
work.'' She then explained that he had been designated for
secondary screening, meaning that he would be subjected to more
of a search than just the usual taking off of the shoes. I told
her I would gladly take his place, and she obliged. And the
fact that I could so easily negotiate someone else out of
secondary screening was itself insightful.
I did not complain about the inconvenience. Instead, I
cursed bin Laden under my breath, and I considered this to be
my small part to play in the post-9/11 world. Well, I no longer
believe that to be the case.
I have come to Washington today to say that I am concerned
about the role of political correctness when it comes to
airline security. My ears perked up during that 9/11 Commission
hearing when John Lehman asked the question of Condoleezza Rice
that has been referred to already here this afternoon. The
implication of the question was stunning. So, two days later, I
asked John Lehman, ``What were you talking about?''
And he said to me, ``The fact is that our enemy is the
violent Islamic extremists, and the overwhelming number of
people that one need to worry about are young Arab males and to
ask them a couple of extra questions seems to me to be common
sense.''
Well, I wrote what Secretary Lehman had told me, and the
Department of Transportation issued a written statement saying
that he was wrong, and I was wrong for writing it. But by
happenstance, I then found myself in the company of Herb
Kelleher, the legendary chairman and founder of Southwest
Airlines. And I relayed to Mr. Kelleher that which John Lehman
had told me about the role of political correctness in airline
security, and he confirmed those thoughts.
I then found buried in that 9/11 Commission transcript the
reference made to the testimony of Edmond Soliday, the former
security chief of United. He is the individual who said that
they ran the risk of being shut down as operating a
discriminatory operation if they had more than three
individuals of the same ethnic stripe in a line for secondary
screening at one time.
Here is the bottom line. To this day, I do not know if
there has ever been a quota system, per se, but I do believe
John Lehman and Herb Kelleher are accurate in saying that the
PC movement has intruded on safety concerns. And I am worried,
Senator Specter, about the big picture and not just the quota
question.
Frankly, sir, I cannot understand how we can purposely
ignore the race, the ethnicity, the appearance and the religion
of travelers whom we are screening when, in fact, all 19
hijackers on 9/11 had those characteristics in common.
Let me be clear. I am not saying that all individuals of
Arab descent should be singled out. However, I do believe that
a combination of similarities with those who wreaked havoc on
this country and continue to try to wreak havoc on this country
needs to be given ample consideration. Instead, not only will
the DOT and the TSA not look at those factors that I have
enumerated, but they fine airlines that they believe do give
such consideration.
In the aftermath of 9/11, the DOT pursued enforcement
actions against American and United Airlines, who lost a
combined 33 employees and four airplanes on 9/11 for their
alleged noncompliance with Federal statutes. This overlooked
the airlines' mandated responsibility to refuse to transport a
passenger who was believed to be inimical to safety.
It is mind-boggling to me, sir, that our Government, in the
aftermath of 9/11, forced American and United to each pay $1.5
million towards civil rights training, and this week, Senator
Specter, it was announced that now Delta has been on the
receiving end of a similar enforcement action and will be
paying $900,000. I fear that the net effect of our policies is
to place law enforcement in handcuffs.
And I find it a bit ironic that arguably we have the type
of logic on which I am relying to thank for the fact that the
White House and the Capitol were not struck by Flight 93 on 9/
11. But for the work of Jose Melendez-Perez, a U.S. Customs and
Border Protection inspector at Orlando International Airport,
things could have been different. You see, sir, on August 4,
2001, he refused to let into this country the 20th hijacker,
Mohammed Kahtani, a Saudi national whom Mohamed Atta had come
to pick up at the airport. Presumably, this is why Flight 93
had four terrorists, while the other airplanes had five.
How did he do it? I do not want to use the dreaded ``P''
word. Suffice it to say that he took a long hard look at the
man who he said ``gave him the creeps.''
PREPARED STATEMENT
Here is my final thought:
In 1955, the Israeli philosopher Yishavayahu Leibowitz,
complained in a letter to Ben-Gurion, Israel's first prime
minister, about Palestinians killed in Israeli operations. ``I
received your letter, and I do not agree with you,'' Ben-Gurion
replied. ``Were all the human ideals to be given to me on the
one hand and Israeli security on the other, I would choose
Israeli security because while it is good that there be a world
full of peace, fraternity, justice, and honesty, it is even
more important that we be in it.''
Thank you, Senator Specter.
[The statement follows:]
Prepared Statement of Michael Smerconish
Thank you very much for allowing me to speak on an issue of great
interest to my radio listeners, and to myself. We are very concerned
about the role political correctness plays in protecting airline
security in a post-9/11 world. Time permits me to briefly provide an
overview of some of the milestones that have marked my review of this
issue.
Three months ago, my wife and I flew with our four children from
Atlantic City to Ft. Meyers, Florida. We had E-tickets. At the counter,
a pleasant woman asked for our identification, and then wanted to know
``which one is Michael, Jr.?'' I pointed to my 8-year-old. ``Oh, that
won't work,'' she said. She then explained that he'd been designated
for secondary screening, meaning he would be subjected to more of a
search than just taking off his shoes and walking through the metal
detector. I told her I would gladly take his place and she obliged.
(The fact that I could so easily negotiate someone else out of
secondary screening was itself insightful.)
I didn't complain about the inconvenience. Instead, I cursed bin
Laden under my breath, and considered this to be my small part to play
in the post-9/11 world. Well, I no longer believe that to be the case.
On the return trip, I had a similar experience. Once again, my son
was selected for secondary screening, and again I took his place.
Enter Secretary John Lehman. Two weeks after our return from
Florida, I watched Condoleezza Rice testify before the 9/11 Commission.
The media attention that day was focused upon the President's Daily
Briefing (PDB) of August 6, 2001, about a month before 9/11. I was more
interested in something I heard Secretary Lehman ask Dr. Rice:
``Were you aware that it was the policy . . . to fine airlines if
they have more than two young Arab males in secondary questioning
because that's discriminatory?''
Her reply, that she did not know the ``kind of inside arrangements
for the FAA,'' was inconsequential. Still, I wondered what in the world
he was referring to. Here is what he told me:
``We had testimony a couple of months ago from the past president
of United, and current president of American Airlines that kind of
shocked us all. They said under oath that, indeed, the Department of
Transportation continued to fine any airline that was caught having
more than two people of the same ethnic persuasion in a secondary line
for questioning, including, and especially, two Arabs.''
I then asked him about the role of political correctness, and he
said:
``That is really the source, because of this political correctness
that became so entrenched in the 1990's, and continues in [the] current
Administration. No one approves of racial profiling, that is not the
issue. The fact is that Norwegian women are not, and 85-year-old ladies
with aluminum walkers are not, the source of the terrorist threat. The
fact is that our enemy is the violent Islamic extremists, and the
overwhelming number of people that one need to worry about are young
Arab males, and to ask them a couple of extra questions seems to me to
be common sense, yet if an airline does that in numbers that are more
than proportionate to their number in a particular line, then they get
fined and that is why you see so many blue-haired old ladies and people
that are clearly not of Middle Eastern extraction being hauled out in
such numbers because otherwise they get fined.''
I reported what Secretary Lehman told me in a lengthy story in the
Philadelphia Daily News on April 12, 2004. That same day, I saw you,
Senator Specter, at the Phillies home opener. I reported on Secretary
Lehman's interview. You promised to look into the matter, and reported
back soon thereafter that your staff had made inquiries about such an
alleged quota at the Department of Transportation, and had received a
denial. Indeed, the DOT issued a written statement, although I did not
immediately learn of it, nor did anyone at the Daily News. It said:
``In a recent column, a member of the 9/11 Commission was incorrect
in telling your newspaper that the Federal Aviation Administration used
a quota restricting the number of foreign passengers that could be
subjected to secondary screening at one time. Despite the testimony
from current and former airline executives cited in your column,
secondary screening of passengers is random or behavior based. It is
not now, nor has ever been based on ethnicity, religion or appearance.
``Your readers should know that the federal government has and will
continue to put in place the strongest possible security screening
procedures while protecting the civil rights of all passengers in our
aviation system.''
I noted the words: ``. . . secondary screening of passengers is
random or behavior based. It is not now, nor has ever been based on
ethnicity, religion or appearance.''
That concerned me. After all, the 19 hijackers on 9/11 had
ethnicity, religion, and appearance in common. Why wouldn't we take
those factors into account, I wondered?
The week of my interview with Secretary Lehman, I was in the
company of Herb Kelleher, the legendary founder and chairman of
Southwest Airlines. I told him about my conversation with Secretary
Lehman. He confirmed that political correctness was playing a role in
decisions as to who would be stopped for heightened scrutiny at
airports. Herb Kelleher told me:
``As a matter of fact, it goes back to the Clinton Administration
when the Justice Department said they were concerned about equality of
treatment with respect to screening, and my understanding is that's why
the random element was put in, in other words, where you just choose
people at random as opposed to picking them out for some particular
reason, and that of course caused a great many more people to be
screened.''
Mr. Kelleher's comments fueled my interest in knowing the extent to
which political correctness was compromising airline security. When I
say political correctness, let me be clear that I am not limiting my
interest to the presence of a quota for Arab males. I am more broadly
talking about a conscious decision not to provide a heightened
screening of individuals with matters in common with the 19 known
hijackers.
I wondered about the basis for Secretary Lehman's questioning of
Dr. Rice, and decided to review the transcripts of airline executives
before the 9/11 Commission.
I found that on January 27, 2004, the Commission heard from a panel
of witnesses: Edmond Soliday, former security chief for United
Airlines, Andrew Studdert, former COO of United, and Gerard Arpey, CEO
for American. Their testimony received no media attention. Instead, the
spotlight that day was on a stunning audiotape of the voice of Betty
Ong who was an attendant aboard AA Flight 11.
In his testimony, security expert Soliday told the Commission:
``Quite frankly, if you look at the record, we tested numerous
things long before they were mandated. Immediately after TWA 800, we,
as a company, talked with the FAA and said that we are prepared to move
forward with some security measures to ramp up because we don't know
what caused this. The problem is--and you can make light of it, if you
like--a citizen does not have the right to search and seize. There are
privacy issues and, for example, as a company who was prepared to roll
CAPPS out and did roll it out long before any other company, a visitor
from the Justice Department told me that if I had more than three
people of the same ethnic origin in line for additional screening, our
system would be shut down as discriminatory.''
Similarly, Arpey, the CEO of American, told the 9/11 Commission
that when crew members had been uncomfortable with passengers on
airplanes and asked that they be removed, the DOT brought an
enforcement action against the airline! (``But if I could share some
history with you, how that law has been applied to us is that when we
have tried to deny boarding--most recently after 9/11, 38 of our
captains denied boarding to people they thought were a threat. Those
people filed complaints with the DOT, we were sued, and we were asked
not to do it again.'') Mr. Studdert, the former COO of United, told the
9/11 Commission that he believed United had just been fined for similar
behavior.
I noted that Senator Bob Kerrey, in the midst of the testimony to
which I have been referring, said this:
``There's a couple of relatively simple things that could be done
prior to people getting on airplanes and I think, for political
reasons, we don't want to do it. And I think the American people want
you to tell us what are those simple things. And if the politicians are
afraid--the elected politicians, are afraid, we need to give them some
room and give them permission to do it because I mean I see a lot of
stuff being done here . . . You've got to figure out how to keep people
off planes that are willing to die in the act of killing passengers and
killing other people on the ground, because I think--I personally feel
that unless you provide us with that information, it is not likely to
come from anybody else.''
I must point out that James M. Loy, the Deputy Secretary of the
Department of Homeland Security testified this same day before the 9/11
Commission. Secretary Lehman, in reference to the testimony I have just
recounted said, ``Tell me it ain't true,'' to which Admiral Loy
responded ``It ain't true, sir . . .''
Still, I wondered what Messrs. Soliday, Arpey and Studdert were
referring to. This caused me to do some legal research, and I was
aghast at what I found.
I found that there were at least three enforcement actions
initiated by the DOT's Airline Enforcement Office in the aftermath of
9/11. On the receiving end were Continental, American, and United. On
9/11, Americans Airlines lost 17 of its personnel; on 9/11 United lost
16 of its personnel. For our DOT to pursue claims against those two
airlines, I figured they must have exhibited some real egregious
conduct. That was not the case.
And yet, millions of dollars were paid as a result of the actions.
Each of the three airlines denied any culpability, but agreed to
resolve the claims by paying money toward civil rights training. In the
case of Continental, it was $500,000.00. From United, it was
$1,500,000.00. As for American, the total was $1,500,000.00.
So what was the conduct on the part of the two airlines that
suffered incalculable losses on 9/11 that caused our DOT to essentially
``fine'' them? I wanted to know.
They were accused of ``noncompliance with Federal statutes
prohibiting air carriers for subjecting any air traveler to
discrimination on the basis of race, color, national origin, religion,
sex, or ancestry.'' The DOT's AEO contended that some airline
passengers were treated in a manner inconsistent with statutes
prohibiting discrimination.
What was the legal basis for the pursuit of the claims?
The DOT maintained that Federal law states: An airline cannot
refuse passage to an individual because of that person's race, color,
national origin, religion, sex, or ancestry. 49 U.S.C. 40127(a).
Similarly, 49 U.S.C. 41310 prohibits air carriers and foreign air
carriers from engaging in unreasonable discrimination against
individuals on flights between the United States and foreign points; 49
U.S.C. 41702 requires that U.S. carriers provide safe and adequate
transportation; and 49 U.S.C. 41712 prohibits unfair and deceptive
practices and, therefore, prohibits invidiously discriminatory
practices on the part of U.S. carriers.
The airlines responded by saying that no passengers were removed
from a flight or denied boarding under circumstances amounting to a
status-based discrimination (i.e. based on a passenger's ethnic
background or national origin). And, they said that they were obligated
by Federal law to ``refuse to transport a passenger or property the
carrier decides is, or might be, inimical to safety,'' citing 49 U.S.C.
44902(b), 14 CFR 91.3 and 49 CFR 1544.2 15(c). In addition, American
asserted that the pilot-in-command must make that decision based upon
the facts and circumstances presented to him or her at that time,
taking into account the time constraints under which the decision must
be made and the general security climate in which the events unfold.
American opined that the pilot-in-command may rely without further
inquiry upon the representations of other crewmembers or other
responsible authorities with respect to safety and security.
Consider the case of Jehad Alshafri, a self-described ``32 year-old
Arab American.'' Mr. Alshrafi is a naturalized American citizen of
Jordanian birth. According to his Declaration, which accompanied the
DOT/AEO's Complaint, he works for a defense contractor helping to build
missiles for the military, and possessed a secret-level security
clearance. On November 3, 2001, he was refused entry while trying to
board an American airline from Boston to Los Angeles. (Several of the
enforcement cases involved travel from Boston's Logan Airport, the
point of origin of two of the 9/11 flights). In the Complaint against
American, it states that Mr. Alshrafi was denied boarding after
responding to a page and reporting to an American counter. There, he
was greeted by an American employee and U.S. Marshall. He was told that
the pilot had denied him boarding on that flight. Mr. Alsharafi
informed the American employee that he had a ``secret level'' security
clearance from the U.S. Department of Defense. He was nevertheless told
he was being denied passage. (``I was calmly contesting the pilot's
decision when a state trooper arrived and asked me to move along and to
deal with him. I was humiliated to be confronted by a state trooper in
full view of the crowded boarding area.'') Mr. Alshafri missed his
flight, but was upgraded to First Class on a later flight that day.
American's answer suggests that there was more to the story in the
eyes of the pilot at the time. First, American states, ``at least one
other passenger had reported what appeared to be his suspicious
behavior to an American gate agent.'' Additionally, American admitted,
``the Federal Air Marshall advised the pilot-in-command that the
passenger had been acting suspiciously and had created some kind of
disturbance and that his name was similar to a name on the federal
watch list.''
So, here is what was known to the pilot as he prepared to depart:
(1) he was 2 months removed from the worst act of terrorism ever
initiated against the United States; (2) that terrorism victimized his
employer--men doing exactly what he was now doing lost their lives when
their airplanes were used as weapons; (3) the point of origin of those
flights was Boston's Logan Airport, where he now sat; (4) the
destination for those flights on 9/11 was Los Angeles, which is exactly
where this plane was headed; (5) the hijackers on 9/11 were, to a
person, young Arab males; (6) there is at least one passenger who is
ill-at-ease with another passenger who is acting in what passenger No.
1 believes to be a suspicious manner; (7) the Federal Air Marshal has
advised you that the passenger at issue has been acting suspiciously
and has created some kind of disturbance; (8) this passenger has a name
similar to one on the Federal watch list, and (9) yes, let's not be
afraid to say it, he probably resembled the 9/11 hijackers in his
appearance.
Did this pilot act unreasonably in denying boarding? Hardly. It
would seem to me that a pilot who is presented with those details and
chooses to fly is derelict in his duty. Instead, the DOT decided this
conduct was worthy of legal action--legal action against a company that
paid the ultimate price on 9/11.
Secretary Norman Mineta has made clear his refusal to factor in the
common characteristics of the 9/11 hijackers in looking for those who
would seek to emulate them. Consider his words with CBS' Steve Kroft on
60 Minutes, December 2, 2001:
``Kroft: Are you saying, at security screening desks, that a 70-
year-old white woman from Vero Beach, Florida, would receive the same
level of scrutiny as a--a--a Muslim young man from Jersey City?
``Mineta: Basically, I would hope so.''
(Steve Kroft had begun the interview by stating that at the time,
all 22 people on the FBI's Most Wanted Terrorist list are Muslims! And
more than half of them have the name Mohammed.)
The 60 Minutes speech was no aberration. Time and again Secretary
Mineta has made clear his refusal to consider personal characteristics
in the war on terrorism. In particular, I note his Statement to the
U.S. Commission on Civil Rights on October 12, 2001, and his speech in
Rochester, New York on that same date. Secretary Mineta was active in
the aftermath of 9/11 in dictating to the airlines his view of the
world. In the months after 9/11, the DOT issued several memos to the
airlines, warning them against ``profiling'' passengers. Consider that
on October 12, 2001, the DOT issued a memo titled ``Carrying Out
Transportation Inspection and Safety Responsibilities in a
Nondiscriminatory Manner.'' It read, in part:
``Use the `but/for' test to help determine the justification for
your actions. Ask yourself, `But for this person's perceived race,
ethnic heritage or religious orientation, would I have subjected this
individual to additional security scrutiny?' If the answer is `no,'
then the action may violate civil rights laws.''
I believe that test jeopardizes airline safety. And I point to an
American hero named Jose Melendez-Perez for support of my view. This
man engaged in what some would deride as ``profiling'', and probably
saved either the White House or U.S. Capitol Building in the process.
Let me explain.
Three of the four aircraft involved in the hijackings on 9/11 had
five hijackers aboard. But United Airlines Flight No. 93, a Boeing 757
that departed from Newark bound for San Francisco at 8:42 a.m., and
crashed in a field in Stony Creek Township, Pennsylvania, at 10:03
a.m., had only four. Surely that was not its intended target.
Presumably, it was headed for Washington, DC. Perhaps being one man shy
of the other planes hijacker population is the reason why this airplane
crashed. And for that, we can probably thank Jose E. Melendez-Perez.
On August 4, 2001, Melendez-Perez was a U.S. Customs and Border
Protection Inspector at Orlando International Airport, Orlando,
Florida. Reflecting before the 9/11 Commission on his role that day, he
said:
``. . . I note that another inspector on duty that day made a
comment that I was going to get into trouble for refusing a Saudi
national. I replied that I have to do my job, and I cannot do my work
with dignity if I base my recommendations on refusals/admissions on
someone's nationality.''
At approximately 1735 hours, he was assigned the case of a Saudi
national who had arrived on Virgin Atlantic No. 15 from London, Gatwick
Airport. As Saudis coming through Orlando to travel to Disney World are
common, he had plenty of line experience with Saudis. In this
particular case, the subject was referred to secondary inspection
because the primary inspector could not communicate with him and his
arrival/departure form (I-94) and Customs Declaration (C-6059B) were
not properly completed.
Melendez-Perez sized up the situation by noting the individual's
nationality (Saudi), his grooming, dress, height, and shape. He figured
the man to be military. And, he thought he was cocky. Dare I say it, he
was profiling. And thank goodness he did. Keep in mind this was pre-9/
11. If such an assessment occurred post-9/11, you would say, ``well, of
course'' this is how it should be handled. But this was before those
horrific events. Melendez Perez told the 9/11 Commission that the man
``gave him the creeps''. The man was put on a flight out of the United
States.
So who was the man and what was he doing? This became clear when
Melendez-Perez was questioned by Richard Ben-Veniste. It turns out that
while Melendez-Perez was performing his duties at Orlando Airport on
August 4, 2001, and screening a man named Mohammed Kahtani, there was
someone else present at that very airport: Mohamed Atta, the presumed
ringleader of the operation. Coincidence? Hardly. According to Ben-
Veniste, while Melendez-Perez was questioning Mohammed Kahtani, and
while Kahtani was claiming that someone was upstairs to meet him,
Mohamed Atta made a telephone call from that location to a telephone
number associated with the 9/11 plot. In other words, the good work of
Melendez-Perez kept out of the United States the presumed 20th
hijacker.
As I uncovered details like this about airport screening, I shared
them with my radio audience. I also wondered aloud whether my 8-year-
old son was marked for heightened scrutiny as a means of not offending
those who are more appropriate for secondary screening. Meanwhile, my
radio audience began supplying me with hundreds of emails telling me
detailed anecdotes about their own flying experiences. Elderly women
being scrutinized. Military men in uniform and with papers being
scrutinized. There appeared to be no rhyme or reason to the random
screening.
Here is just one, of many:
``I have been listening to your fight with the DOT. If I may tell
you the story of what happened to me and my reserve unit. I am a Naval
Reservist whose unit was recalled for the War on Terror. Upon our
return, we flew a Delta flight into Atlanta to make a connecting flight
to the Norfolk Naval Base in Virginia to be released from active duty .
. .
Once I was done in Norfolk, I had a US Airways flight to
Philadelphia. Again, I was pulled aside by the TSA to have myself and
my carry-on bags searched. Again, I had my military id, orders, and a
Government ticket.''
Beyond my radio show, I have been speaking out publicly about my
concern that political correctness is compromising airline security. I
have published in the Philadelphia Daily News, the National Review
Online and NY Post. And, I have appeared on the CNBC program Kudlow and
Cramer.
The DOT has not been kind in commenting on things I have had to
say. In fact, the DOT issued a strident denial of things I said on
Kudlow and Cramer, and then refused to supply me with a copy of what
they gave the network, regardless of the fact that it had been read on
national TV. Actually, the DOT refused to share the written statement
about me, with me, unless I would agree to share with the DOT future
columns in advance of publication. I reminded my point of contact with
the DOT that I do not work for TASS. And all it did was further
heighten my suspicion about the ways in which the DOT was compromised
by political correctness.
``Michael Smerconish's recent column has not received much coverage
because it is wildly incorrect. There is absolutely no ambiguity about
the Federal Aviation Administration's policy on airport security
screening before September 11. The secondary screening of airline
passengers has always been random or behavior based. The bottom line is
the airlines, which were responsible for passenger screening on
September 11, were never told to limit screening of passengers based on
any criteria.
``Even more troubling is that Mr. Smerconish himself admits he was
never told such a quota ever existed. He instead has apparently
misunderstood complaints expressed about civil rights violations when
some air carriers denied service--not screening--to passengers based on
their ethnicity. How any legitimate journalist could translate that
into a mythical federal government screening quota is hard to fathom.''
The DOT was hung up on the quota aspect of Secretary Lehman's
questioning of Condoleezza Rice. Me, I was thinking bigger picture. I
don't know if there was ever a quota system for young Arab males. But I
do know that we have a policy in this country of ignoring
characteristics shared by the 19 known hijackers on 9/11, and that seem
to me to be illogical.
In the aftermath of 9/11, the Nation was on pins and needles,
grieving the losses sustained from the hijacking of two American jets
and two United jets, and yet, our DOT was going after those airlines in
the name of political correctness. That thinking, first on the part of
the DOT, and now through the Transportation Safety Administration (TSA)
continues today. I recently asked a TSA representative how the TSA
determines who gets pulled out of line for secondary questioning. He
told me this:
``TSA: Well, the secondary screening process is based on a couple
of different things. If an alarm goes off when an individual goes
through the security checkpoint they could be selected to go through
secondary screening be able to resolve the alarm. For instance, in many
cases we've heard people talking about shoes. A lot of people don't
want to take their shoes off--understandably--but a lot of shoes have
metal in them. So when they walk through the metal detector and the
alarm goes off we have to resolve that alarm to find out what the
metallic object is that is setting off our alarms. So people like that
can be subject to secondary screening. There is a separate group of
people who are selected for secondary screening based on other things
such as when did they buy their ticket, did they buy it right before
the flight, or did they pay cash for their ticket, or was it a one-way
ticket so there are a couple of things that come into play in secondary
screening.''
I specifically asked about factoring in the appearance of the
traveler himself or herself:
``TSA: Appearance doesn't come into play--that would get into the
whole profiling issue--we don't profile--our job is to find prohibited
items. It doesn't matter size, shape, color, or what you're wearing--we
just want to make sure that the traveling public remains secure.
``MAS: In other words you don't care whether a person appears to be
of Middle Eastern extraction versus someone who appears to be
Norwegian?
``TSA: No, no, it doesn't come into play. That's not our job. Our
job is to look for prohibited items at the security checkpoint.''
I wanted to share my concerns about this policy with the Congress.
So, prior to coming here today, my Congressman, James Gerlach, made it
possible for me to speak with Rep. John Mica (R-FL) who is the Chairman
of the House Subcommittee on Aviation. He confirmed for me the role of
political correctness in airline security post-9/11:
``MICA: Well let me say this, we had the inspector general of the
Department of Homeland Security test both systems and we found that, in
his words, both were performing equally poorly. In fact, we have been
concentrating on being politically correct. We don't have deployed
technology that would give us sort of an instantaneous look at people
who were carrying explosives or dangerous weapons that's a great
concern. The performance of this TSA operation after spending billions
of dollars isn't really much better than what we had pre-Sept 11. Now
we do have secured cockpit doors, we have air marshals, we have pilots
being armed, but we've been concentrating on screening as you pointed
out in those comments of little old ladies, millions of passengers who
pose no threat and not going after bad guys.
``MAS: Is there anything wrong with saying that you know good
police work demands that we look for folks who resemble the 19
hijackers on September 11?
``MICA: Well absolutely there is no reason we cannot profile, and
do it without discrimination and some of the do-gooders and others
who've stopped progress on those projects actually have done us great
harm . . . Even as of yesterday, talking with the Secretary, Admiral
Lloyd, and now Admiral Stone who's in charge of the TSA--we're far
behind in development of those programs that really will detect bad
people, the inability to do that does cause us to harass everyone
else.''
I share Congressman Mica's assessment of the problem. He correctly
told me that with regard to the characteristics in common among the 19
hijackers on 9/11: ``Well if you took just one of those characteristics
you may be discriminating. If, in fact, you use a number of those in
concert, I don't think you are.'' This is precisely my view.
I am grateful for the opportunity the opportunity to be here today
and I ask you to take a long, hard look at the criteria we are using as
we look for those who seek to destroy our Nation. I leave you with this
thought:
In 1955, the Israeli philosopher Yishavayahu Leibowitz, complained
in a letter to Ben-Gurion, Israel's first prime minister, about
innocent Palestinians killed in Israeli operations. ``I received your
letter and I do not agree with you,'' Ben-Gurion replied. ``Were all
the human ideals to be given to me on the one hand and Israeli security
on the other, I would choose Israeli security because while it is good
that there be a world full of peace, fraternity, justice, and honesty,
it is even more important that we be in it.''
Senator Specter. Thank you very much, Mr. Smerconish.
We turn now to Ms. Peggy Sterling, vice president of
Safety, Security and Environment for American Airlines since
2002, September. A 34-year veteran of American, she previously
served as vice president of American's largest hub. A native of
Arizona, she attended the University of Arizona and North
Virginia.
We welcome you, Ms. Sterling, and look forward to your
testimony.
STATEMENT OF PEGGY E. STERLING, VICE PRESIDENT, SAFETY,
SECURITY, AND ENVIRONMENTAL, AMERICAN
AIRLINES
Ms. Sterling. Good afternoon, and thank you, Senator
Specter. I thank the committee for this opportunity to
represent American Airlines here today and to address the issue
of aviation security in the post-9/11 world.
To give some context to my statement, I would like to share
with the committee a few statistics about the scope of American
Airlines' operations. Every day, American Airlines, American
Eagle and AmericanConnection regional carries serve more than
290,000 passengers daily on more than 4,200 flights to 230
cities in over 40 countries. In 2003, American Airlines,
American Eagle, and AmericanConnection transported more than
100 million people. It is against these numbers that aviation
security issues must be considered.
In today's climate, it would be unthinkable for a captain
of a commercial airline flight to ignore a pre-take-off report
of suspicious or threatening behavior by a passenger. The
security issues associated with air travel are unique, and
there is no room for error in assessing and dealing with
potential threats. The concern with safety and security in the
aftermath of 9/11 is particularly acute at American Airlines.
More than 20 members of the American Airlines family were lost
on 9/11, and the pain and the sadness of that event endures at
American Airlines to this day, as well as to the rest of the
country.
Just a few months later, an American flight crew was again
faced with the reality of the threat of terrorism when it
heroically averted a disaster over the Atlantic by thwarting a
``shoe bomber.''
American, and particularly its flight crews, have been
impacted by the terrorism threats against the aviation industry
more than any other carrier in the world. The security
challenges facing American Airlines and the industry are
uniquely apparent to our pilots, our flight attendants and our
front-line employees. They know that while all passengers must
pass through airport security before they board, preboard
screening is simply one aspect of a layered security system.
Flight crew observations of passengers are an important
part of the overall redundant approach to security, and flight
attendants in particular are attuned to any unusual behavior.
Flight crews are literally the last line of defense. As a
result of the vigilance of our flight attendants, Richard Reid
was prevented from igniting explosives in his shoes. In his
State of the Union Address, President Bush praised the
vigilance of American Airlines flight attendants who thwarted
Reid. President Bush remarked that ``As Government works to
better secure our homeland, America will continue to depend on
the eyes and the ears of alert citizens.''
Notwithstanding heightened security concerns, September 11
did not lessen American's commitment to diversity and tolerance
of all cultures; it intensified it. We are keenly aware that
our airline brings people and cultures together from around the
world. ``AAers'' have always taken great pride in our diverse
workforce. Our personnel interact with their colleagues and
customers of various nationalities and cultures daily. We enjoy
serving our customers, while respecting and celebrating their
differences. Our policies of nondiscrimination and respect for
cultural differences have been reiterated to our employees
since September 11. These efforts have been particularly
directed to ensure that American Airlines' Middle Eastern and
Muslim passengers and employees are treated with respect and
dignity.
Just as importantly, however, we have also emphasized to
our flight crews that their primary concern is, and must be,
the safety of those on board and that perceived security issues
must be resolved before takeoff. There is simply no room for
error in this regard. We have supported our captains in making
difficult decisions, including decisions to deny travel so that
security issues can be resolved, and we will continue to do so.
While I am not an attorney, and do not purport to know the
intricacies of the laws in this area, I can tell you that
American Airlines believes that our efforts to put safety first
are fully supported by the law. Congress has established a
statutory framework that recognizes and mandates that a
commercial airline captain is responsible for the safety and
well-being of everyone on board the aircraft. This reflects the
painful reality that once the aircraft takes off, it is likely
more difficult to prevent a terrorist attack or a safety issue
from escalating.
We certainly believe that a carrier may properly refuse to
transport an individual if, under circumstances presented at
the time and based upon facts as then known, it rationally and
reasonably believes the passenger might pose a threat to the
safety of other passengers and crew. We firmly believe that it
is bad public policy to allow a carrier's decision to remove a
passenger so that security concerns can be resolved to be
second-guessed in the relative calm of a courtroom or of a
Government office, after the fact and by those who are not
responsible for the lives of everyone on board an aircraft.
Unfortunately, though perhaps not surprisingly, our efforts
to ensure security have not been universally accepted. A
handful of civil lawsuits alleging ethnic or religious
discrimination have been filed against American Airlines out of
incidents where passengers were denied travel or subjected to
additional security measures so that potential security issues
could be resolved.
Additionally, in April of 2003, DOT's Aviation Enforcement
Office filed a formal enforcement complaint against American
Airlines. The complaint alleged that American unlawfully
discriminated against passengers on 11 occasions by denying
them boarding or removing them from flights because they were
or were perceived to be of Arab, Middle Eastern or South Asian
descent or a Muslim. Ten of the eleven incidents occurred
during the fall--during the fall--of 2001, an unprecedented
period of heightened security concern for American Airlines and
the United States.
We believe that in these incidents our pilots were doing
exactly what they were taught to do and being instructed to do
by the President of the United States, Attorney General
Ashcroft, the FAA and TSA, and the traveling public. Our pilots
made difficult, time-sensitive decisions----
Senator Specter. Ms. Sterling, your time is 3 minutes over.
Could you summarize, please?
Ms. Sterling. Yes, I certainly can.
With all due respect to the DOT, we think its decision to
pursue an enforcement action against American exemplified the
exact type of second-guessing that should be avoided.
I would also like to say one other thing, and that relates
to the comment that was made earlier. I would like to address
the point that I understand the committee is concerned with. We
understand there is some testimony before the Kean Commission,
the 9/11 Kean Commission, to the effect that the Department of
Justice had indicated to another carrier that if two or more
individuals from a particular ethnic group were made selectees
for a particular flight, the carrier would be deemed to have
acted in a discriminatory manner. We have not heard or seen
anything of this nature from the DOJ, the DOT, the TSA, the
Department of Homeland Security or any other Government agency.
PREPARED STATEMENT
Our policies and procedures are not based on the
proposition that there are any ethnically driven limits on how
many passengers from a particular flight can be subjected to
heightened security scrutiny.
Thank you for the opportunity to address you.
[The statement follows:]
Prepared Statement of Peggy E. Sterling
Good afternoon, Mr. Chairman and members of the committee. My name
is Peggy Sterling and I am Vice President, Safety, Security, and
Environmental of American Airlines. I thank the committee for this
opportunity to represent American here today and to address the issue
of aviation security in the post-9/11 world.
To give some context to my statement, I would like to share with
the committee a few statistics about the scope of American's
operations. Every day, American Airlines, American Eagle, and
AmericanConnection regional carriers serve more than 290,000 passengers
on more than 4,200 flights to 230 cities in over 40 countries. In 2003,
American Airlines, American Eagle, and AmericanConnection transported
more than 100 million people. It is against these numbers that aviation
security issues, must be considered.
In today's climate, it would be unthinkable for the captain of a
commercial airline flight to ignore a pre-takeoff report of suspicious
or threatening behavior by a passenger. The security issues associated
with air travel are unique, and there is no room for error in assessing
and dealing with potential threats. The concern with safety and
security in the aftermath of 9/11 is particularly acute at American.
More than 20 members of the American Airlines family were lost on 9/11,
and the pain and sadness of that event endures at American to this day.
Just a few months later, an American flight crew was again faced with
the reality of the threat of terrorism when it heroically averted a
disaster over the Atlantic by thwarting the ``shoe bomber.''
American, and particularly its flight crews, has been impacted by
the terrorism threats against the aviation industry more than any other
carrier in the world. The security challenges facing AA and the
industry are uniquely apparent to our pilots, flight attendants and our
other front-line employees. They know that while all passengers pass
through airport security before they board, pre-boarding security is
simply one aspect of a layered security system. Flight crew
observations of passengers are an important part of the overall
redundant approach to security, and flight attendants in particular are
attuned to any unusual behavior. Flight crews are literally the last
line of defense. As a result of the vigilance of our flight attendants,
Richard Reid was prevented from igniting explosives in his shoe. In his
State of the Union Address, President Bush praised the vigilance of the
American Airlines flight attendants who thwarted Reid. President Bush
remarked that: ``As government works to better secure our homeland,
America will continue to depend on the eyes and ears of alert
citizens.''
Notwithstanding heightened security concerns, September 11 did not
lessen American's commitment to diversity and tolerance of all
cultures; it intensified it. We are keenly aware that our airline
brings people and cultures together from around the world. Our
personnel interact with individuals of various nationalities and
cultures daily. We serve our customers while respecting and celebrating
their differences. Our policies of non-discrimination and respect for
cultural differences have been reiterated to our employees since
September 11. These efforts have been particularly directed to ensure
that American Airlines' Middle Eastern and Muslim passengers and
employees are treated with respect and dignity.
Just as importantly, however, we have also emphasized to our flight
crews that their primary concern is, and must be, the safety of those
on board, and that perceived security issues must be resolved before
takeoff. There is simply no room for error in this regard. We have
supported our captains in making difficult decisions, including
decisions to deny travel so that security issues can be resolved, and
we will continue to do so.
While I am not an attorney and do not purport to know the
intricacies of the law in this area, I can tell you that American
believes that our efforts to put safety first are fully supported by
the law. Congress has established a statutory framework that recognizes
and mandates that a commercial airline captain is responsible for the
safety and well-being of everyone on board the aircraft. This reflects
the painful reality that once the aircraft takes off, it is likely more
difficult to prevent a terrorist attack or a safety issue from
escalating.
We certainly believe that a carrier may properly refuse to
transport an individual if, under the circumstances presented at the
time and based upon the facts as then known, it rationally and
reasonably believes the passenger might pose a threat to the safety of
the other passengers and crew. We firmly believe that it is bad public
policy to allow a carrier's decision to remove a passenger so that
security concerns can be resolved to be second-guessed in the relative
calm of a courtroom or a government office, after the fact, by those
who are not responsible for the lives of everyone onboard an aircraft.
Unfortunately, though perhaps not surprisingly, our efforts to
ensure security have not been universally accepted. A handful of civil
lawsuits alleging ethnic or religious discrimination have been filed
against American arising out of incidents where passengers were denied
travel or subjected to additional security measures so that potential
security issues could be resolved. Additionally, in April of 2003,
DOT's Aviation Enforcement Office filed a formal enforcement complaint
against American Airlines. The complaint alleged that American
unlawfully discriminated against certain passengers on 11 occasions by
denying them boarding or removing them from flights because they
``were, or were perceived to be, of Arab, Middle Eastern, or South
Asian descent and/or Muslim.'' Ten of the eleven incidents occurred
during the fall of 2001, an unprecedented period of heightened security
concern for American Airlines and the United States.
We firmly believe that in these incidents our pilots were doing
exactly what they were being instructed to do by President Bush,
Attorney General Ashcroft, the FAA and TSA, and the traveling public.
Our pilots made difficult, time-sensitive decisions on the basis of the
facts and circumstances known to them at that moment, at all times
erring on the side of safety. With all due respect to the DOT, we think
its decision to pursue an enforcement action against American
exemplified the exact type of second-guessing that should be avoided.
Fortunately, we were able to agree to settle the enforcement case, with
no admission of liability or wrongdoing on our part and no payment of
any monetary fine, by agreeing to implement enhanced security training
for our pilots, flight attendants, and passenger service agents.
American will continue to support our crew members who in good
faith exercise their judgment to protect the safety of our passengers
and other crew members. We urge the government to strike a consistent
balance between the priorities of improved security and individual
civil rights. All key government agencies--DHS, DOT, TSA, and DOJ--
should adopt a consistent voice regarding the government's approach to
security.
American urges the committee and Congress to support it and the
entire industry in our efforts to ensure security. It is bad public
policy to impose upon airlines anything more than an obligation of good
faith for its efforts to protect the safety of their passenger and
crews, or to allow the second-guessing of security decisions. If every
decision of a pilot to require further screening of a passenger in the
interest of safety could give rise to unpredictable liability or
governmental investigation based on shifting notions of what is
objectively reasonable, then the natural tendency would be for pilots
to try to avoid being second guessed by removing a passenger for safety
concerns in only the most clear-cut cases. Terrorists can act in subtle
and surreptitious ways that defy clear categorization, and be intuitive
reactions by crew members to behavior that is in some way unusual,
different, or abnormal should not be discounted or ignored. We must
guard against tying the hands of the pilots and other airline personnel
who are charged with the awesome responsibility of maintaining safety
in the air.
Finally, I would like to address a particular point that I
understand the committee is concerned with. We understand that there
was some testimony before the Kean 9/11 Commission to the effect that
the Department of Justice had indicated to another carrier that if two
or more individuals from a particular ethnic group were made
``selectees'' for a particular flight, the carrier would be deemed to
have acted in a discriminatory manner. We have not heard or seen
anything of this nature from the DOJ, DOT, TSA, DHS, or any other
governmental agency. Our policies and procedures are not based on the
proposition that there are any ethnically driven limits on how many
passengers from a particular flight can be subjected to heightened
security scrutiny.
Thank you again for the opportunity to be here today.
Senator Specter. Thank you, Ms. Sterling.
We now turn to Ms. Christy Lopez of Relman and Associates,
had been senior trial attorney in the Civil Rights Division of
the Department of Justice, clerked for the Supreme Court of
Alaska, Justice Robert Eastaugh, a graduate of the University
of California, and a law degree from Yale Law School.
Thank you for joining us, Ms. Lopez, and we look forward to
your testimony.
STATEMENT OF CHRISTY E. LOPEZ, ESQ., RELMAN AND
ASSOCIATES
Ms. Lopez. Thank you, Senator. My name is Christy Lopez. I
am an attorney here in Washington, DC, and I have submitted
written testimony, which I will summarize here, and I ask that
my written testimony be made part of the record.
Senator Specter. Your full testimony will be made a part of
the record.
Ms. Lopez. Thank you, Senator.
Since September 11, I and my firm have represented a number
of individuals who have been refused transportation by a
variety of airlines because of their race or ethnicity. This
violates a prohibition against race-based decision-making that
stems from Federal civil rights law dating back 150 years and
that has been affirmed since 9/11 by a series of airline
discrimination cases and DOT statements.
Upon conclusion of my remarks, Senator, I would be happy to
talk more specifically about that law, including the issue you
brought up with the first panel regarding objective guidelines
for pilots. I assure you there are very objective guidelines,
and they provide a lot of, I think, valuable guidance that the
airlines should be taking more advantage of.
This long and continuing line of case law reflects our
Nation's fundamental commitment to equality regardless of race,
color or creed. Many of us believe that our commitment to
equality is one of the best things America has to offer the
world and also the glue that holds this big, sometimes
cacophonous country together. This tent of equality is
routinely attacked in times of war and fear, and we are here
today because it is once again being questioned.
Especially because ethnic profiling by airlines would be in
direct contradiction to this core American value of equality
and would create a de facto second-class citizenry, I think we
can all agree that it is imperative that our consideration of
this issue be based not on misinformation and fear, but on the
facts. And the fact is, as the cases in which I have been
involved demonstrate, far from there being a tension between
civil rights law and safety, adherence to civil rights laws can
improve airline security.
What do I mean by this? Currently, too many refusals to
transport are based on irrational discriminatory bias rather
than legitimate security reasons. Pilots have ordered Arab-
American passengers deplaned because of crew discomfort, while
letting the deplaned persons checked luggage remain on the
flight. There are many examples of airlines deplaning
passengers because of their ethnicity only to let them board
the next flight or fly on another airline without any further
questioning or further searching of them or their belongings.
Many of the examples I will talk about are the basis of the
DOT investigations, which you also asked about, Senator.
There have been many instances where airline employees have
refused to transport Latinos, Indians and African-Americans
because they believe they are Arab. It is equally likely that
they are ignoring Arab passengers because they appear white. In
the dozens of discriminatory removals of which I am aware,
rarely is there even an allegation that the person had done
anything suspicious or threatening.
For example, in the case of Tony Zohrehvandi, our Iranian-
American client whose case is publicly cited by the DOT in its
complaint against American Airlines, the airline told him that
he had done nothing suspicious, and he was being refused
transport solely because the crew did not want to fly with him.
The fact that he was a 12-year American Airlines employee made
no difference.
Just 2 months ago, three Asian employees of a large IT
company were taken off their American Airlines flight after
being told the crew was uncomfortable with them. American put
them on a United flight instead.
Surprisingly, few, if any, airlines even require that their
pilots consult with any security professional before deciding
to refuse transport. In some instances, as in the case of our
client, Arshad Chowdhury, individuals are personally cleared by
the FBI on the scene, but airline employees are allowed to
trump the FBI security decision even though they cannot
articulate any legitimate security rationale for doing so. Many
pilots say they feel uncomfortable making decisions for which
they have not been adequately trained, and they feel pressured
to make too quick decisions because of concerns about on-time
departures.
These examples, and countless others I could cite, indicate
that a focus on ethnicity distracts attention from more
effective security measures, which is exactly why air security
experts will tell you that ethnic profiling is unsafe, as Mr.
Blank and Mr. Rosen did here earlier today.
The fact is we are asking our pilots and their flight crews
to make difficult and critically important decisions without
providing them appropriate guidance or instruction. As a
result, some of them succumb at times to illegal and
unnecessary ethnic stereotyping, making decisions that are
irrational from a security perspective and can be devastating
to those unfairly removed.
So what I mean when I say that civil rights can help make
air travel safer is that the same steps necessary to decrease
this tendency to discriminate will improve security. I have set
out several such recommendations more fully in my written
testimony. So I will mention only a few here. The measures are
simple and common-sense things, but things that the airlines
are not doing; for example, communicating a consistent message
that ethnic profiling is not required by safety and will not be
tolerated, requiring that airline employees, including pilots,
consult with security professionals before deciding to refuse
transportation, and requiring that flight crews or passengers
be able to articulate a legitimate security concern before
airlines will agree to refuse transportation to someone.
PREPARED STATEMENT
While profiling may be a critical component of airline
security, ethnic profiling is not necessary. It is illegal and
is destructive to us as a Nation. It is time to move beyond
questions borne of fear and misinformation and begin properly
preparing airline employees to make decisions based on
legitimate security criteria rather than upon ethnic bias. Once
we do this, we will make our airline safer, and we will
decrease incidents of discrimination.
[The statement follows:]
Prepared Statement of Christy E. Lopez
Good afternoon, Mr. Chairman and ranking member Murray. My name is
Christy Lopez and I am an attorney with the Washington, DC civil rights
law firm of Relman & Associates. Previously, I was an attorney in the
United States Department of Justice's Civil Rights Division.
Since September 11, I and my firm have represented a number of
individuals who have been refused transportation by a variety of
airlines because of their race or ethnicity. This prohibition against
ethnic-based decision making in airline transportation stems from civil
rights law dating back 150 years and has been affirmed since 9/11 in a
series of airline discrimination cases across the country, as well as
in official statements of the Federal Government.
The central legal standard in these cases is that race, color, and
other status protected by civil rights laws (e.g. gender, ethnicity,
religion, national origin, or indicia thereof) may not be a motivating
factor in the carrier's decision to refuse transportation, either alone
or in conjunction with other factors. See, e.g., Ninth Circuit Model
Civil Jury Instructions: Introductory Comment (``In order to prevail
under a 1981 claim for race discrimination, the plaintiff must prove
that race was a ``motivating factor . . . .''); Ninth Circuit Model
Civil Jury Instruction 12.1 (``The [Civil Rights Act of 1991] further
clarified that a defendant is liable if the plaintiff shows that the
discrimination was a ``motivating factor'' in the challenged decision
or action, ``even though other factors also motivated'' the challenged
action or decision and regardless of whether the case was one of
``pretext'' or ``mixed motive,'') (citing, 42 U.S.C. 2000e-2(m));
Dasrath v. Continental Airlines, Inc., 228 F.Supp.2d 531, 540 (D.N.J.
2002) (``Even if some of the facts alleged could lend support to an
inference that the removal decision was motivated by safety concerns,
the complaints nevertheless allege clearly and specifically that the
motivating factor was in fact not safety but race . . .''). See also,
Department of Transportation Guidance for Screeners and Other Security
Personnel (``If the answer [to the ``but for'' test] is ``no'' then the
action is likely to be unjustified and violate civil rights laws.'');
Hampton v. Dillard Department Stores, 247 F.3d 1091,1111 (10th Cir.
2001) (approving 1981 jury instruction providing: `` `motivating'
factor means that but for its unlawful motive, defendant would not have
denied plaintiff the right to enjoy the benefits and privileges of her
purchase. In other words, you must find that race was at least one of
the factors which motivated [defendant's conduct]. A motivating factor
need not be the sole or exclusive reason, however, for [defendant's]
actions.'').\1\
---------------------------------------------------------------------------
\1\ Courts are likely to evaluate plaintiffs' claims under 42
U.S.C. 1981 rather than under 49 U.S.C. 44902(b)'s ``arbitrary and
capricious'' standard. While many courts have evaluated unfair
treatment claims against air carriers using this standard, those cases,
with rare exception, did not involve claims of discrimination brought
under 1981 or other laws prohibiting race discrimination. There is no
reason to expect courts to deviate from the long line of cases
established in every Circuit and affirmed by the Supreme Court, that
1981 claims are evaluated, via the Burdine burden-shifting structure or
otherwise, to determine whether the defendant's decision was motivated
by the plaintiff's race, ethnicity, etc. See, e.g., Simmons v. American
Airlines, 2002 WL 869930 *576 (9th Cir. 2002) (applying Burdine burden-
shifting structure and overturning summary judgment in favor of airline
because airline failed to provide sufficient evidence that it removed
plaintiff pursuant to its own safety policy).
Another court very recently considered this issue directly and
rejected the air carrier's argument that 44902's ``arbitrary and
capricious'' standard is an essential element of a claim for
discrimination, stating instead that if plaintiff ``could prove by a
preponderance of the evidence that he was denied boarding on the basis
of his national origin, race, or religion, then [defendant] could not
avail themselves of the discretion extended to them under 44902(b)
and no review under the ``arbitrary and capricious'' standard would be
required.'' Alshrafi v. American Airlines, Inc. et al., Slip. Op. No.
03-10212-WGY at 24, 28-30 (D. Mass. June 8, 2004).
It is likely that the distinction between the tests under 44902
and 1981 is largely academic anyway. Most courts appear to recognize
that illegal discrimination is an ``arbitrary and capricious'' rather
than ``reasonable'' basis for removal. See, e.g., Alshrafi at 24
(``actions motivated by racial or religious animus are necessarily
arbitrary and capricious, and therefore beyond the scope of the
discretion granted by Section 44902'') (citing Dasrath at 540 n.12)).
Accordingly, if plaintiffs prevail on their 1981 claims, they will by
definition defeat any argument that the airlines' decision to refuse
transport were reasonable rather than arbitrary and capricious.
Moreover, as at least one circuit has made clear, as with the
determination of discriminatory intent under 1981, the trier of fact
decides whether the air carrier's refusal to transport was arbitrary
and capricious or reasonable. See Cordero v. CIA Mexicana De Aviacion,
S.A., 681 F.2d 669 (9th Cir. 1982).
---------------------------------------------------------------------------
The government and numerous courts have reiterated the continuing
vitality of this principle post 9/11. See, e.g., Department of
Transportation Guidance for Screeners and Other Security Personnel
(``It is illegal under federal law for an air carrier or its employees
to discriminate on the basis of race, color, national origin, religion,
sex, or ancestry.''); FAA Fact Sheet (``None of the new security
measures decrease the responsibility of airports and airlines to
enforce: (1) Title VI of the Civil Rights Act of 1964 and the
implementing regulations, 49 CFR Part 21 and 14 CFR 271.9 and (2) 49
U.S.C. 40127, 41310 and 41702, regarding discrimination. Federal civil
rights laws prohibit discrimination on the basis of a person's race,
color, national origin, religion, or sex.''); Bayaa v. United Airlines,
Inc. et al., 249 F.Supp.2d 1198, 1205 (C.D. Cal. 2002) (rejecting
airline's argument that State and Federal civil rights laws conflict
with 49 U.S.C. 44902 and stating that defendants' duty under 49 U.S.C.
44902 ``does not grant them a license to discriminate.''); Chowdhury
v. Northwest Airlines Corp. et al., 238 F.Supp.2d 1153, 1154 (N.D. Cal.
2002) (rejecting airline's argument that more recent statutes
specifically addressing airline safety trump Federal civil rights
statutes and stating ``there is no apparent conflict between the
federal statutes prohibiting racial discrimination and the federal law
giving air carriers the discretion to refuse to carry passengers for
safety reasons.'').
This long and continuing line of case law reflects our Nation's
fundamental commitment to equality regardless of race, color, or creed.
Many of us believe that our commitment to equality is one of the best
offerings America has for the world and that it is also the glue that
holds this big, sometimes cacophonous country together. This tenet of
equality is routinely attacked in times of war and fear, and we are
here today because it is once again being questioned.
Especially because ethnic profiling by airlines would be in direct
contradiction to this core American value of equality and would create
a de facto second-class citizenry, I think we can all agree that it is
imperative that our consideration of the issue be based not on
misinformation and fear, but on facts. And the fact is, as the cases in
which I have been involved demonstrate, far from there being a tension
between civil rights laws and safety, adherence to civil rights laws
can actually improve airline security.
What do I mean by this? Currently, too many refusals to transport
are based on irrational discriminatory bias rather than legitimate
security reasons. Pilots have ordered Arab-American passengers deplaned
because of crew discomfort, while letting the deplaned person's checked
luggage remain on the flight. There are many examples of airlines
deplaning passengers because of their ethnicity only to let them board
the next flight or a flight on another airline without any further
questioning or further searching of them or their belongings. I am
aware of many instances where airline employees have refused transport
to Latinos, Indians, and African-Americans because they believe they
are Arab, it is equally likely that they have ignored Arab passengers
because they appear white. In the dozens of discriminatory removals of
which I am aware, rarely is there even an allegation that the person
had done anything suspicious or threatening. For example, in the case
of Tony Zohrehvandi, our Iranian-American client whose case is cited by
the DOT in its complaint against American Airlines, the airline told
him that he had done nothing suspicious and was being refused transport
solely because the crew did not want to fly with him. The fact that he
was a 12-year American Airlines employee made no difference. Two months
ago, three Asian employees of a large IT company were taken off their
American Airlines flight after being told the crew was uncomfortable
with them. They were put on a United flight instead. Currently, few if
any airlines require that their pilots consult with security
professionals before deciding to refuse transport. In some instances,
as in the case of our client Arshad Chowdhury, individuals are
personally cleared by the FBI on the scene, but airline employees are
allowed to trump the FBI's security decision even though they cannot
articulate any legitimate security rationale for doing so. Many pilots
say they feel uncomfortable making decisions for which they have not
been trained and that they feel pressured to make too-quick decisions
because of concerns about on-time departures.
These examples and countless others indicate that a focus on
ethnicity distracts attention from more effective security measures,
which is exactly why air security experts will tell you that ethnic
profiling is unsafe.
The fact is, we are asking pilots and their flight crews to make
difficult and critically important decisions without providing them
appropriate guidance or instruction. It is no wonder that some of them
succumb at times to illegal and unnecessary ethnic stereotyping, making
decisions that are irrational from a security perspective.
So what I mean when I say that Civil Rights can help make air
travel safer is that the same steps necessary to decrease this tendency
to discriminate will improve security. The following steps are examples
of what airlines and the government should be considering:
--Establish clear policy reflecting the long standing legal tenet
that ethnicity may not be the motivating factor in a refusal to
transport.
--Establish clear policy that if the carrier/decision maker believes
that the concerns of another passenger or employee are
illegitimate (e.g., motivated by impermissible discriminatory
bias rather than by legitimate safety concern), the carrier/
decision maker may not refuse transportation to the individual
in question based on the concerns of the passenger or employee.
See, e.g., Fernandez v. Wynn Oil Co., 653 F.2d 1273, 1276-77
(9th Cir. 1981) (holding that stereotyped customer preference
cannot justify gender discrimination); Wilson v. Southwest
Airlines Co., 517 F. Supp. 292, 298-99 (N.D. Tex. 1981)
(holding that customer preference for female flight attendants
did not justify gender discrimination in hiring and quoting
EEOC decision rejecting defense that customer confidence in
company's ability to provide security justified a male-only
hiring policy: ``this argument is, in law, without merit, since
it presumes that customers' desires may be accommodated even at
the price of rendering nugatory the will of Congress.'').
--Clarify process for refusing transportation of reasons of security/
safety as follows:
--Clearly delineate the appropriate lines of communication and
decision making in such incidents. For example: (i.)
require that one individual, such as the ground security
coordinator, take charge of coordinating the decision
process; (ii.) require that airline security departments,
as well as its central dispatchers, be consulted prior to
any decision to refuse transport; (iii.) specify which
airline employees should and may be informed of the
situation and under what circumstances; (iv.) specify who
finally determines whether to refuse transportation (e.g.
dispatcher in conjunction with Captain).
--Clearly state carrier's obligation to attempt to determine
whether a passenger's or employee's concerns are based on
legitimate security concerns or discriminatory bias. In
some instances it may be difficult to determine whether the
passenger or employee has a legitimate basis for believing
the subject passenger is inimical to safety. In many
instances, however, even a cursory inquiry will reveal that
the passenger clearly is not a threat. The policy should
clarify that carriers have an obligation to make this
inquiry and provide guidance regarding who should conduct
the inquiry. See, e.g., Cordero v. CIA Mexicana De
Aviacion, S.A., 681 F.2d 669, 672 (9th Cir. 1982)
(reversing summary judgment in favor of defendant and
finding, ``[t]here is ample evidence in the trial record
from which the jury might have concluded that [air carrier]
acted unreasonably in excluding [plaintiff] without even
the most cursory inquiry into the complaint against
him.'').
--Provide further guidance for how to proceed once the appropriate
security/law enforcement officials have cleared a
``suspicious'' individual. Currently, the policy properly
states that a passenger should be permitted to fly once
cleared by appropriate authorities ``unless clear,
nondiscriminatory reasons justify refusal to transport.''
The policy should clarify that airline employees must take
reasonable steps to verify whether a person has been
cleared and employees' obligation to permit reasonable time
for a customer to be cleared.
--Provide appropriate guidance regarding how to proceed where a
passenger or employee continues to refuse to fly with
another passenger even though the carrier has determined
that the individual poses no threat. Where a carrier has
determined, either via inquiry or clearance by law
enforcement, that an initially ``suspicious'' passenger is
not a safety threat, there is no legal justification to
refuse transportation to the individual. The policy should
inform airline employees of the proper process to follow in
such situations. For example, it should explain when it is
appropriate to offer the complaining passenger a seat on
another flight rather than refusing to transport the
falsely accused passenger and the options available when a
crew member refuses to fly with a falsely accused
passenger. Similarly, airline employees should be
instructed that a discriminatory removal is not remedied by
providing the passenger comparable service on another
flight. Alasady v. Northwest Airlines Corp., 2003 WL
1565944 *11 (D. Minn. 2003) (no showing that carrier can
avoid liability under 1981 by making arrangements for ``a
service similar to that which the defendant refused to
provide'').
--Training on Modified Policy: In order to be effective, airlines
must train relevant employees in the policy and procedure
modifications discussed above. This training must:
--Effectively and accurately convey airline's nondiscrimination
policies and procedures, as modified, to all relevant
employees in a timely manner. In furtherance of this
critical element, the airline should provide training as
follows: (i.) Captains & First Officers: The modified
nondiscrimination training should be incorporated into
Captains' semiannual training. First Officers would have
this training incorporated into their annual training;
(ii.) Dispatchers: Given dispatchers' central role in this
process, they should be trained in it. In order to
facilitate communication between dispatchers and airlines'
security departments, security department staff and
dispatcher supervisors/directors should receive training
together; (iii.) Security Department Directors and Staff:
In order to affirm the security department's central role
in these decisions, security department staff should
receive this training and, as noted above, it should be
conducted in conjunction with dispatcher training to
facilitate communication between these two groups; (iv.)
Station Personnel & Flight Attendants: Station personnel,
including Ground Security Coordinators, In-flight
Supervisors, and Customer Service Supervisors, should
receive ``train-the-trainer'' instruction in the modified
nondiscrimination training in conjunction with other
training received throughout the year. Supervisors should
provide training to their subordinates (i.e. customer
service agents and flight attendants).
--Directly address concerns that adherence to civil rights laws can
undermine security by discussing how the modified policies
and procedures will improve the security process. Safety
and security are of paramount importance to airline
employees and, to be effective, civil rights training must
address this issue straightforwardly. For example, airlines
can provide the principles of CAPPS and CAPPS II so that
employees understand that the CAPPS ``profiling'' systems
are effective despite their lack of reliance on race,
ethnicity, or other protected factors. Airlines should
expand their efforts to explain that terrorists, including
al Qaeda, have and are expected to continue to rely on
stereotyped biases in planning attacks.\2\ In addition,
employees should be instructed to consult with security
personnel to assist in transportation decisions to ensure
that employees know that security professionals are
available to affirm the safety of any decision to
transport.
---------------------------------------------------------------------------
\2\ See e.g., Transcript of May 26, 2004, News Conference by U.S.
Attorney General John Ashcroft and FBI Director Robert Mueller,
explaining that ``the face of al Qaeda may be changing,'' so that
operatives are seeking recruits who are or look ``European,'' are ``of
any nationality inside target countries,'' and who ``may travel with
families to lower their profile.'' Transcript available at http://
www.cnn.com/2004/US/05/26/terror.threat.transcript.
---------------------------------------------------------------------------
--Directly address particular scenarios that occur repeatedly or
are especially difficult to resolve. To be effective,
training should provide concrete instruction on dealing
with recurrent problems such as passengers who express
discomfort with brown-skinned passengers for reasons that
appear irrational and discriminatory, or passengers who
claim they are being discriminated against even where the
passenger is being refused transportation for legitimate,
nondiscriminatory reasons.
--Effectively convey the harmful impact of this type of
discrimination. A more acute understanding of the human
cost of discriminatory refusals to transport may encourage
many employees to take the required steps to ensure that
they and others do not discriminate against their
customers. This understanding can be provided in many ways.
Community organizations active in this area may be able to
assist. In-person or videotaped presentations by persons
who have been discriminated against can be presented.
--Be presented by a person or team of persons that: (a) can speak
credibly to security concerns; (b) can provide insight on
how to effectively interact with frightened passengers and
employees in these situations; (c) can present the
perspective of individuals who have been discriminated
against by airlines. Experts in aviation security may be in
the best position to ally fears that nondiscrimination laws
undermine security. Experts with psychological training may
be better at explaining how to defuse incidents at an early
stage. As noted above, groups or individuals who have
experience with discriminatory refusals to transport may be
an effective way to convey the importance of adherence to
civil rights laws.
--Complaint Tracking & Investigation. Airlines should document,
track, investigate and evaluate refusals to transport.
Evaluations should be used to identify problem areas and modify
policies and procedures where appropriate. Similarly, airlines
should document, track, investigate and evaluate complaints of
discrimination by customers to identify and respond to any
problem areas.
While profiling may be a critical component of airline security,
ethnic profiling is not necessary, it is illegal and it is destructive
to us as a nation. It is time to move beyond questions born of fear and
misinformation and to begin properly preparing airline employees to
make decisions based on legitimate security criteria rather than upon
ethnic bias. Once we do this, we will both make our airlines safer and
decrease incidents of discrimination.
Thank you.
Senator Specter. Thank you very much, Ms. Lopez.
Mr. Smerconish, you cite the case of the rejection of an
individual who ``gave him,'' referring to the airline
personnel, ``the creeps.'' Was there anything more by way of
specification beyond that statement that he gave him the
creeps?
Mr. Smerconish. Well, yes, sir. Mr. Jose Melendez-Perez is
the individual to whom you refer. He testified in front of the
9/11 Commission about an interaction that he had on August 4,
approximately one month before 9/11. He was requested to
perform secondary screening on a Saudi national at that time
that we now know to be Mohammed Kahtani, and he sized him up.
He sized him up in terms of his appearance, his demeanor, his
physical stature. He used his street smarts I think for a lack
of a better way to describe how he went about his task, and the
net effect of him sizing this individual up was to decide that
he was cocky, that he was probably militarily trained, that he
might be a hitman, and that he ``gave him the creeps,'' and he
slowed down the process of allowing that individual to gain
process into the country.
We only learned later, when there was an analysis of
Mohamed Atta's telephone records, that he was at the Orlando
airport at the exact same time upstairs, presumably to pick
this man up to be Hijacker No. 20.
And I am not advocating that an individual who is an Arab
automatically gets cast aside and subject to some kind of a
secondary screening, but I think that we are asking our
individuals who were charged with protecting our borders to
operate with less than all of the information if we do not
permit them to at least permit ethnicity, and appearance, and
religion, to the extent they know it, and country of one's
origin to be factored into the equation. It seems to me, sir,
that it is an ostrich approach given that we are 19 for 19 on
9/11 with all of those common denominators.
Senator Specter. Ms. Lopez, what do you think of the
description which Mr. Smerconish has given? Demeanor, stature,
sizing them up, appearance, general sense of giving them the
creeps, is that enough, in your opinion?
Ms. Lopez. I think the important distinction there is that
in that instance it was a trained law enforcement professional.
They have received the training to know how to size somebody up
based on those criteria. Our airline employees, quite properly,
it has been decided that they do not receive that training,
which is why we simply think they should consult with the
people who have received that training when they do have those
sorts of concerns.
Senator Specter. So you think the TSA people have had the
training to be able to make a judgment based upon what Mr.
Smerconish has said, but the pilots do not?
Ms. Lopez. I think it is much more likely that they have.
And, in fact, airlines themselves employ security professionals
that are always available 24/7, and there is no reason that
pilots cannot be at least required to talk with them. It would
at least ensure that you do not have pilots who have no reason
to be making these decisions.
Senator Specter. So your point is that the pilot would
consult with those security people, and the security people
backed up the pilot, that that would be an adequate test?
Ms. Lopez. I think it would still be subject to review
later, but I think that the main goal here, which is to prevent
discrimination and increase airline security, would be served
because those security people would be able to ask the
questions that would draw out whether there was a real security
problem, and they would also be able to make sure that the
pilot did not do things like take the person off, but leave
their bags on or take the person off and then put them on the
next flight without any more searching. It would make the
system more rational, and it would I think give airline
employees much more comfort, which is really the root I believe
of these discriminatory decisions. They do not trust the
system, and if there was more security involvement, I believe
they would trust it more.
Senator Specter. Ms. Sterling, I am looking at a document
marked as a consent order involving American Airlines. And on
Page 3 one of the lines is, ``The enforcement officer believes
that some passengers were denied boarding or even removed from
flights because of, because or principally because of the
passengers' ethnic background.''
Are you familiar, at least in a general way, with this
finding and determination?
Ms. Sterling. I am certainly familiar with the consent
order. I would say that, based on the, and again in my earlier
testimony, I believe that the removal of the passengers had
nothing to do with their ethnicity. It had everything to do
with what was observed to be in terms of a suspicion behavior.
Mr. Smerconish. Senator Specter, may I speak to that, sir?
Senator Specter. Sure.
Mr. Smerconish. You had asked earlier Mr. Rosen to speak
with specificity about any one of the cases. I have read the
litigation files, to the extent that they are publicly
available, and I have read those 11 different complaints.
I can tell you about one of them, and I think that it
displays some of the problems, and I have detailed this in my
statement. It is the case of Jehad al-Shafri, a self-described
32-year-old Arab American, a naturalized American citizen of
Jordanian birth. According to his declaration, which
accompanied the complaint, he worked for a defense contractor
helping to build missiles for the military and possessed a
secret-level security clearance. November 3, 2001--so it is the
fall of 2001--he was refused entry while trying to board an
American Airline flight from Boston to Los Angeles. I took note
of the fact that in the litigation files there were a large
number of flights from Boston to Los Angeles which were subject
to the enforcement action. Well, that is the same path as one
of the flights on 9/11.
In the complaint against American, it states that Mr. al-
Shafri was denied boarding after responding to a page and
reporting to an American counter. There, he was greeted by an
American employee and a U.S. marshal. He was told that the
pilot had denied him boarding on the flight. He informed the
American employee that he had a secret-level clearance. He was
nevertheless told he was being denied passage.
``I was calmly contesting the pilot's decision when a State
trooper arrived and asked me to move along and to deal with
him. I was humiliated to be confronted by a State trooper in
full view of the crowded boarding area.'' He missed his flight.
He was upgraded to first class on the next plane.
Well, that is the perspective of the complaint filed by the
DOT against American. Now, here is what American said, and I
think it suggests that there is more to the story. American
said that at least one other passenger had reported what
appeared to be this man's suspicious behavior to an American
gate agent. Unfortunately, that is not defined what was
suspicious. Additionally, American said that the Federal air
marshal advised the pilot in command that the passenger had
been acting suspiciously, had created some kind of a
disturbance and that his name was similar to a name on the
Federal watch list.
So here is what was known to the pilot at the moment that
he had to make this determination:
No. 1, he was 2 months removed from the worst act of
terrorism against the United States ever;
No. 2, that that terrorism had victimized his own employer,
American Airlines;
No. 3, that the point of origin of those flights was this
same airport where he now sat, Logan;
No. 4, the destination of the flights on 9/11 was L.A.,
which is where he was headed;
No. 5, the hijackers were, to a person, young Arab males;
No. 6, there was at least one passenger who was ill-at-ease
with this man and who was acting in what was described to the
pilot as a ``suspicious manner'';
No. 7, that the Federal air marshal advised that the
passenger at issue had been acting suspiciously;
No. 8, that the passenger had a name similar to one on the
Federal watch list;
And, yes, No. 9, let us not be afraid to say it, that he
probably resembled the appearance of some of the 9/11
hijackers.
And the question becomes, when faced with those nine
criteria, was it appropriate for the Department of
Transportation to come down on American Airlines with an
enforcement action, to question the judgment of the pilot who,
after all, not only has to be protective of security, but to
get off the ground and fly that plane? And I suggest that it
was not.
Senator Specter. Ms. Lopez, at American Airlines, did the
pilot act appropriately under the circumstances which Mr.
Smerconish has noted, in your opinion?
Ms. Lopez. If he was acting upon the first eight factors,
yes. If he included the ninth, no. And that is why there is no
tension between civil rights and air safety in this case.
You asked earlier what the standards are. The standard is
perhaps best explained in the ``but for'' test, what is called
the ``but for'' test that DOT has included in its post-9/11
statements. And they ask airline employees to question
themselves, ``Would I be making this decision but for this
person's ethnicity?'' And so all of those first eight things
that the pilot thought made this person suspicious, if that is
what really is at play there, that is fine.
But I think the goal here is that you do not have two
people who are equally suspicious, but you only pay attention
to one because he appears to be Arab, and you do not pay
attention to the other one because he or she appears to be
white. That would be a dangerous situation. You need to be
looking for suspicious behavior.
And as Senator Shelby said earlier, terrorists will exploit
any weakness they see in the system. As Mr. Smerconish said, he
was concerned at how easy it was to negotiate his way out of
being checked. We need to be checking people based on behavior
not because they are good talkers, because of how they look or
because of what we think their race or religion is.
Senator Specter. So you think the action would have been
appropriate if they had relied on just the first eight
indicators, but not the ninth?
Ms. Lopez. If they relied on his behavior rather than his
ethnicity, yes, or the other circumstances that----
Senator Specter. Well, they relied on eight factors, which
you think were appropriate, but one which you think
inappropriate.
Ms. Lopez. I want to make sure I recall exactly what the
eight factors were, but assuming that there was nothing
illegitimate about those eight factors, I think that would be
fine.
Senator Specter. Ms. Sterling, this may be carrying coals
to New Castle, but do you think American Airlines acted
properly?
Ms. Sterling. I am sorry?
Senator Specter. Did your company act properly?
Ms. Sterling. Absolutely.
Senator Specter. I thought you would say that.
We are due to have a vote shortly, so we are going to have
to conclude the hearing. It has been very informative, and I
thank you all for coming.
I would be glad to give you a last comment, Ms. Lopez. We
will go for the ladies first and then give Mr. Smerconish the
last word.
Ms. Lopez. I guess I would just say that when balancing
this equation, civil liberties versus airline security, it is
important not only to hear from security experts and airline
CEOs, but also from the people who are affected by this. We did
not have any of those people here today. This sort of
inconvenience should not be disregarded. Sitting at the back of
the bus is not an inconvenience. Being asked to move to the
back of the plane, which people have been, is not an
inconvenience. Being told you have a different set of rights
because of the color of your skin is not an inconvenience.
Our clients have changed their names, they have changed
their jobs so they travel less, they have cut their hair to
look less Arab, they have cancelled vacation plans. This has a
devastating effect on a large community that is a vibrant part
of our country, and we need to make sure that we fully consider
that when we are considering these issues of airline security.
Thank you.
Senator Specter. Ms. Sterling.
Ms. Sterling. Yes, I would just like to say that at
American Airlines we have a policy not to discriminate. We hire
a diverse workforce and pride ourselves in not placing judgment
on another due to gender, race, religion or sexual preference.
This goes for employees and passengers alike.
We scrutinize everyone when it comes to security and
safety. I guess I do not need to bring up Timothy McVeigh, John
Walker, Terry Nichols, do I? If we were to profile our
passengers on their race, we would miss the terrorists
disguised as the brainwashed college student from Kentucky.
Terrorism is faceless and nameless. Eradicating Osama bin
Laden will only make a small dent in the fight on terrorism.
Thank you very much.
Senator Specter. Mr. Smerconish.
Mr. Smerconish. Thank you for the privilege of being here.
It is time for all of us to acknowledge the fact that the 19
hijackers on 9/11 had many commonalities. The world will be a
safer place when we face those facts.
In closing, may I please enter into the record hundreds of
e-mails that I have received from my radio listeners and my
readers at the Daily News on this issue?
Senator Specter. Yes, they will be made a part of the
record, without objection.
[Clerk's Note.--The information referred to has been
retained in Committee files.]
CONCLUSION OF HEARING
Mr. Smerconish. Thank you, sir.
Senator Specter. Thank you all very much.
[Whereupon, at 3:35 p.m., Thursday, June 24, the hearing
was concluded, and the subcommittee was recessed, to reconvene
subject to the call of the Chair.]