Statement of Michael A. Smerconish, Esq., before the U.S. Senate Appropriations Subcommittee on Transportation, Treasury and General Government June 24, 2004
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 U.S. and foreign points; 49 U.S.C. 41702 requires that US. carriers provide safe and adequate transportation; and 49 U.S.C. § 41 712 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 3rd, 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 two 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 Croft 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 #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, D.C. 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 #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.”
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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 11th. 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 11th, 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 11th. 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 11th?
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.” End.
