It’s always good to see the folks from TSA headquarters and find out the latest and greatest. Last week they were at the American Association of Airport Executives Annual Conference, in Atlanta. Several of the usual suspects were on hand, along with, at one point, TSA Administrator John Pistole.
The hottest issue on everyone’s mind was the one that did not get addressed – the ongoing issue of law enforcement response to suspicious individuals. The question at hand is this: when a TSA Behavior Detection Officer feels that they have identified an passenger as suspicious and local law enforcement is called, what legal standing does the police officer have to ask questions and possibly even conduct a search of the individual, if that individual refuses to cooperate? That question was asked to Francine Kerner, Chief Counsel at the Transportation Security Administration. She provided a great lesson on the 4th Amendment to the Constitution, but unfortunately, not the answer to the question.
Upon being asked about this issue, Ms. Kerner launched into an explanation of what legal standing law enforcement officers have when an AIT (i.e. body imager) detects an anomaly on an individual. She articulated how, when an individual subjects themselves to a screening process, they are required to continue the entire process and cannot decide to stop and walk away. She dramatically repeated that we cannot allow a terrorist to walk away at the point of inspection, which, by the way, no rational individual disagrees with, and, was not the question on the table.
We’re talking about suspicious individuals (or those deemed as suspicious by a BDO) or those individuals that refuse to be searched prior to the screening checkpoint, but after passing a sign placed by TSA that essentially says, “beyond this point you may be subject to screening.” These are the two issues at hand.
The Constitution says that when a police officer stops an individual they must have reasonable suspicion that the person has been, is, or is about to be engaged in criminal activity. They must have “specific and articulable facts,” beyond just a hunch. This is what’s known as a “Terry stop,” a name taken from Terry v. Ohio, the landmark case upon with the premise of reasonable suspicion is based.
So what happens when a BDO asks a passenger, or meeter-and-greeter who is walking through the public terminal area to submit to a series of questions and the person either (a) refuses to talk to the BDO, or (b) red flags on some of the BDO behaviors and the BDO summons a police officer? Does either case constitute reasonable suspicion? Depends on the circumstances, but what about when a police officer disagrees with the BDO and allows the individual to continue to the screening checkpoint? Can TSA deny the individual access to an aircraft. Can TSA detain the individual if a police officer does not?
This is the question that went unanswered and for over a year, continues to go unanswered. However, Ms. Kerner did clarify a point on where screening begins. Previously, she has inferred that screening begins wherever TSA says so. Now it seems that location is at least the location of the Travel Document Check or the beginning of the screening queue line – just depends on which definition you like at the time. Actually, what we heard was “when you pass a sign that says screening begins, that’s helpful to the courts.”
Okay, well, we’ll run with that for now.
By the way, she also lamented that there was a provision within the Aviation and Transportation Security Act of 2001 for police at screening checkpoints and at airports to be federalized. That would have required about another 100,000 plus employees to be hired and sent to Glynco, Georgia to become federal agents to provide law enforcement support and coverage to U.S. airports – this would have been a complete waste of money since local law enforcement officers have provided this coverage for decades.
One point Ms. Kerner did make is that the recent efforts in Texas by the state legislature to outlaw the aggressive pat-down is a mistake. State law cannot supersede Federal law (check the 10th amendment). However, Texas’ attempt here does make the point that people are still unhappy with the pat downs.
What will hopefully help the pat down controversy are the new K-9’s that are being trained to sniff out explosives on people instead of inanimate objects. Apparently, due to some trademark issues, the term Vapor Wake Detection is not available, but the latest name for this program is called “people-sniffing dogs,” which is not only grammatically incorrect but sounds really bad. TSA is working on a new name, but in the meantime the program is thankfully, moving forward.
As I’ve said before, the last thing a bad guy wants to see is a dog. Dogs not only provide better security and add an element of randomness, they can also be used at the screening checkpoint to reconcile many alarms, instead of the aggressive pat downs. Maybe we can quit having screeners inappropriately touching children, and the elderly. Recently, at several screening checkpoints, I’ve noticed an inordinate amount of senior citizens receiving pat downs – and in one case (on my way to Atlanta) an elderly woman who was so feeble, another screener had to hold her arms up while she was being patted down. Obviously, it’s not beyond imagination to think that grandma or grandpa has been radicalized by al Qaeda and wants to go out with a bang, but let’s use some common sense. Trusted Traveler can’t get here fast enough.
In other news, expect the Expedited Access for Uniformed Crew Members program (aka Crew Pass) to progress. This program allows certain uniformed flight crew members (not flight attendants yet) to bypass certain screening processes, away from their home airport. At their home airport, most pilots have a local airport identification badge which allows them to bypass screening, but at other airports, they must go through a TSA checkpoint. Crew Pass is biometric based identification to ensure that the pilot who has been issued the credential, is really who they say they are.
Flight attendants, stay tuned. If the program is successful for the pilots, you’re likely next. As for passengers, we kept hearing about the Trusted Traveler concept coming back and TSA Administrator Pistole continued to promote that TT is being looked at and that we want to move to that concept, but so far everything is still in the study phases.
During the TSA Roundtable, several TSA personnel were asked what they would change if they could. I liked the answer given by John Sammon Assistant Administrator for Transportation Sector Network Management. Sammon said that he wishes to not have everything be so public. He cited Police Commissioner Ray Kelly’s innovations in New York City. Using deception and tactical surges of law enforcement personnel, and programs like Operation Nexus, a network of businesses and enterprises joined in an effort to prevent terrorist attacks, Kelly’s innovations are credited with preventing terrorist attacks and reducing crime.
When I bumped into Sammon later he and I discussed this issue for a few moments. I ride the thin line between providing too much information and there not being enough information out there for airport and airline operators to provide effective security. The fact is, most airport and airline operators have little to no security backgrounds or experience. There needs to be a baseline education – just as a police officer will come to your home and tell you the basics of protecting your house against burglary, or you can buy any number of books about it off the Internet, our industry professionals need to be provided with the basics of aviation security. However, you always stop short of providing too much information and therein lies the rub.
Part of the problem with TSA is still credibility. After 9/11, TSA came on like the new sheriff in town, dismissing the work and the expertise that had been in the industry before and tried to impose their own way of thinking – on a world they didn’t totally understand. Over the past 10 years however, most of the knuckle-draggers have moved on and TSA’s upper ranks has filled up with a lot of high quality professionals – people who are motivated by the same things those of us at airports and airlines are and many TSA personnel now come directly from the aviation industry. Unfortunately, it’s the initial credibility black eye that has yet to heal.
John Sanders, Deputy Assistant Administrator, Security Technology for TSA, had the best answer on what he would like to see changed – Sanders desires to accelerate the cycle of evolving to threats and put technologies on the street faster as the threats are identified. On that note, note to airport operators, all those EDS machines are coming up on their maximum service life and need to be replaced. Keep an eye on changes and expenses here.
While the TSA staff was good to hear from, they did defer many questions to John Pistole’s upcoming presentation, which finally occurred on Wednesday, during the last day luncheon.
Pistole said that the death of bin Laden marks a significant achievement in the fight against terrorism, but not the end and others continue to pursue attacks against the United States, which I completely agree with. Pistole said that the TSA is the last line of defense, which I disagree with. Beyond the screening checkpoint, there are numerous other layers of security that are reliant on airport and airline operators. But, if a TSA TSO believes that the buck stops with them, then I’m fine with that level of vigilance.
Pistole made another important point, that so far, most TSA Administrator’s have been afraid to admit: he says we are not in the risk elimination business, but instead in the risk mitigation business. While we want to have 100% security, it’s not achievable. However, you usually don’t get elected to office (or appointed) by saying, “yes, we will make sure that most terrorist attacks are not successful,” even though that’s the best outcome you can hope for.
In over 50 years of aviation we still haven’t made flying (or driving for that matter) perfectly safe, yet we’ve reduced the risk to what most people feel are acceptable levels.
Pistole talked about advances in the Secure Flight program, which now allows TSA to have a better understanding of who is boarding commercial airliners, before they get on the plane.
Continuing with the trusted traveler concept, Pistole says that future screening checkpoints will focus on streamlining the passenger experience for low risk passengers, while not trying to establish a legend that the terrorist can figure out. While future trusted travelers will likely receive less screening, there will always be random screening throughout all of the screening processes – whether you’re trusted or not.
Pistole said that he sees partnerships moving forward between TSA and industry, provided that any change strengthens, and doesn’t weaken security. Unfortunately, at the end of his comments, there was not much chance to hear from the “partners” as he quickly left the podium and did not take any questions.
