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CounterPunch
October
8, 2002
Airline Security
Run Amok:
Terrorism Prevention or Racial Profiling?
by
ANITA RAMASASTRY
Dr. Bob Rajcoomar is a 54-year old Florida doctor
of Indian descent and former U.S. Army Major. Recently, Dr. Rajcoomar
and his wife took a flight from Atlanta to Philadelphia, during
which air marshals subdued and restrained an "unruly"
passenger.
The marshals brought the passenger, who
had been sitting in economy class, to first class, where Dr.
Rajcoomar and his wife were seated. Then one of the air marshals
brandished a gun and told all passengers not to leave their seats
until the plane landed. (News reports indicate that the whole
event had a Rambo-like feeling.)
When the plane landed, the unruly passenger
was taken off the flight. So was Dr. Rajcoomar--who was yanked
from his seat, handcuffed, and thrown into jail. The marshals
did not tell his wife what was happening; she wandered around
the airport for hours, not knowing what had become of her husband.
Later reports from the Department of
Transportation Security--the agency that supervises marshals--said
that Dr. Rajcoomar was jailed because he had "watched the
event too closely" or "observed the event too closely."
But it seems hardly surprising that he--and indeed, any other
passenger--would have paid close attention to what was occurring.
After all, their lives seemed to be in danger.
In addition, Dr. Rajcoomar was ex-military,
and gun-wielding marshals had dragged an unruly passenger into
his section of the plane. In other circumstances, his close attention
to what was happening, and his possible subsequent intervention
to aid the marshals, might have led us to call him a hero--not
to throw him in jail.
Why was Dr. Rajcoomar treated this way?
Sadly, the answer appears to be racial profiling, pure and simple.
Dr. Rajcoomar believes this to be the case--and so does the ACLU,
which is representing him.
Worse, Dr. Rajcoomar's is not an isolated
incident. Since September 11, numerous cases have been filed
against major airlines after pilots and other airline personnel
have forced passengers with darker complexions and "foreign-sounding"
names to disembark, or refused them entry to a plane.
In light of these events, Congress should
press for more training for federal air marshals to ensure they
do not engage in racial profiling. It should also mandate the
creation of policies and procedures to guide not only marshals,
but also pilots and other airplane personnel, with respect to
their conduct towards passengers--particularly passengers with
darker skin, "foreign-sounding" names, and/or Middle
Eastern or South Asian appearance.
The History
of the Air Marshal Program
Laws currently govern the conduct of
air marshals, but they are dramatically insufficient under the
circumstances.
The Federal Aviation Administration (FAA)
was originally responsible for the Federal Air Marshal Program--which
began, in 1968, as the Sky Marshal Program. The FAMP continued
through the 1970s and was designed to stop hijackings to and
from Cuba.
Then in 1985, TWA Flight 847 was hijacked
as it departed Athens. The hijackers--two Lebanese Shiite Moslems--diverted
the plane, a Boeing 727, to Beirut, where additional hijackers
joined them. During a two-week standoff, the hijackers demanded
the release of the Shiite prisoners held by Israel. They murdered
a U.S. Navy diver who was a passenger.
After the hijacking, President Ronald
Reagan directed the Secretary of Transportation, in cooperation
with the Secretary of State and the Attorney General, to consider
an expansion of the FAMP program aboard international flights
for U.S. air carriers. And on August 8, 1985, Congress enacted
Public Law 99-83, the International Security and Development
Cooperation Act, which provided the explicit statutory basis
for the Federal Air Marshal program. Still, before September
11, there were as few as 50 air marshals in the skies.
In November 2001, President Bush signed
a new transportation safety law. Among other features, it expanded
funding for the air marshal program--which now may employ as
many as 2000 marshals. It also created a new government agency--The
Transportation Security Agency. The TSA now has oversight of
the FAMP.
The Current
Law Governing Air Marshals, and Why It Is Insufficient
Currently, then, the United States Department
of Transportation has primary authority for airplane security
and law enforcement, and, according to the law, "exclusive"
responsibility for passenger safety. With the approval of the
Attorney General and the Secretary of State, the Secretary of
Transportation may authorize a marshal or other government employee
who carries out air transportation security to carry a gun.
A marshal is also empowered to make warrantless
arrests. The only state of mind that is required, for such an
arrest to be legal, is the marshal's reasonable belief that the
arrestee is committing, or has committed, a federal felony offense,
including an offense against the United States.
What constitutes "reasonable belief"?
That is root of the present controversy.
Apparently at least two air marshals
think that a nonwhite passenger must be committing a crime if
he closely observes another passenger's air rage and subsequent
arrest.
In sum, we now have a small army of air
marshals in the skies, with little, if any, law to constrain
them.
Problems with Air Marshals: Lack of Training
and Too-Quick Hiring
Air marshals historically have been viewed
as an elite corps of undercover officers, keeping the skies safe
by preventing hijackings on commercial flights. Today, precipitous
hiring and a lowering of training requirements may have rendered
this image a thing of the past.
The FAA claims that it "sets a premium
on the selection, training and discipline of this elite corps
of employees." But critics strongly disagree. For instance,
the ACLU, in a letter to Congress, has urged lawmakers to immediately
begin an investigation of the training and conduct of air marshals
aboard civilian aircrafts.
The ACLU notes: "There is reason
to believe that given the rapid expansion of the air marshal
program, the [TSA] is hiring persons who are truly not qualified
to fulfill such critical responsibilities. Moreover, once hired,
it would appear that the future air marshals are not receiving
appropriate or sufficient training."
In May 2002, when the Senate held hearings
on airline security, the skills of air marshals were the subject
of debate and discussion. The TSA was accused, for instance,
of lowering its standards in order to hire quickly, so it could
increase the numbers of air marshals.
Meanwhile, the TSA was also accused of
cutting marshals' training, and putting new hires on flights
despite their lack of advanced marksmanship skills. And the TSA
itself acknowledged that it no longer requires the more difficult
shooting test as a condition of employment.
Criticism is coming from both inside
and outside the program. In an August 2002 statement prepared
by the Federation of Government Employees, AFL-CIO, air marshals
themselves confirmed their lack of training--reporting that,
with thousands of new marshals hired, the program operates like
"security guard training at a mall."
Marshals have also mentioned "overworked
marshals falling asleep on the job, a shortage of ammunition
for training, incomplete background checks, 50-plus hour workweeks
with no overtime, and marshals so poorly trained they have discharged
their weapons by accident--one of them in a bathroom on a flight
from Washington to Vegas."
Obviously, there are serious problems
with the existing air marshals program, and especially with marshals'
training. Leaving marshals wide discretion, under the law, as
to their conduct and deportment only aggravates the problems:
Not only do they have little training, they also have little
legal guidance as to when a suspicion can become an arrest. No
wonder some marshals have become loose cannons--and racial profilers,
as well.
Airline Pilots
and Personnel Have Also Been Charged with Racial Profiling
Air marshals are not the only persons
to come under scrutiny. The conduct of pilots and airline personnel
has also been criticized in the wake of September 11. The ACLU
is currently involved in five federal court lawsuits (in L.A.,
San Francisco, Maryland and New Jersey) charging four airlines
(American, United, Continental, and Northwest) with race discrimination.
Under a federal statute, airlines (meaning,
in practice, the pilot and other personnel) have the authority
to require a passenger to disembark from a flight if they believe
him to be a safety risk. But another statute also prohibits airlines
from discriminating based on race, ethnic origin or religion.
The plaintiffs in the ACLU suits alleged
that they were either ordered off planes, or not allowed to board
in the first place, despite clearing security checkpoints at
airports between October and December 2001. Two are of Arab descent;
four are U.S. citizens and the fifth is a permanent U.S. resident.
The plaintiffs ask for a declaration
that the alleged airline practices are illegal. And the ACLU
is also asking the airlines, the Department of Transportation
and the pilots union to establish guidelines to prevent further
discrimination.
Meanwhile, the DOT is investigating at
least 31 complaints from people who have been prevented from
flying since Sept. 11, and 111 complaints from passengers who
said they were singled out at security screenings because of
their appearance. .
In sum, the fact that racial profiling
is a problem--and a widespread problem--is more than evident
at this point. So is the fact that the problem is not confined
to air marshals alone, and nor can the solution be.
What's at Stake:
Unchecked Discretion to Racially Profile
At present, air marshals and airline
personnel can force a person to leave a plane, or even arrest
him, merely because a passenger or a crew member feels uncomfortable
with his flying. Inevitably, the passengers affected are those
with darker skin, and Middle Eastern or South Asian appearance.
Like Dr. Rajcoomar, they may have done nothing at all objectionable,
yet still may be punished as a result of racial profiling.
More specific standards and criteria
need to be developed in order to temper the discretion currently
afforded to airlines--and specifically to pilots, marshals, and
others. Congress also needs to intensify its oversight of the
air marshal program. Marshals need training that will enable
them to distinguish between the acts of a potential terrorist
and those of an Indian doctor merely sitting in his seat.
Anita Ramasastry
is an Assistant Professor of Law at the University of Washington
School of Law in Seattle and the Associate Director of the Shidler
Center for Law, Commerce & Technology.
This article originally appeared in FindLaw's Writ/Commentary.
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