The attacks of September 11 have had both an immediate and a long-term impact on global aviation. In the short term we have been overwhelmed by the loss of life, the systemic disruption of flying, and the international war on terrorism. But there is also a delayed impact, like that of a Jurassic meteor strike, in which the long-term impact was not a function of the local devastation but a changed environment, one that slowly starved out even the largest of species. We are witnessing a second order effect: an industrial "Armageddon," (1) with traffic cut from 9 to 7.5 million passengers a week, (2) airline revenue down by more than one-third, (3) 400,000 aviation employees around the world laid off, (4) over 10 percent of the U.S. commercial fleet grounded, (5) international airlines hemorrhaging on the brink of bankruptcy, (6) and a ripple effect throughout major sectors of an interdependent worldwide transportation economy. (7)
A fully fueled large passenger jet represents awesome destructive power -- it carries more explosive power than the smallest nuclear weapon -- but what was diabolically innovative in the attack on the World Trade Center was the creation of "second-order effects" in the release of potential energy in the structural collapse of the Twin Towers. (8) And part of the horror of September 11 was not just that the attacks were larger and more successful than previous terrorist incidents, but that they redefined commercial aviation from a target of terrorism to a weapon of evildoers. We have dramatically entered an era on which both travelers and unsuspecting civilians on the ground are endangered by "new and emerging threats" from the "civil aircraft as a weapon of destruction." (9)
Even before the most recent attack, the global aviation system was having difficulty. (10) How we react over the next year may place many more species (airlines) on the endangered list and in the process fundamentally alter the future of global aviation. (11) The national sense of shock and danger has led to an unprecedented body of remedial legislation with unusual agreement on the diagnosis of the problem, (12) but unexpected controversy over the method and timing of implementation.
Although motivated by a dual imperative to increase actual security and restore public confidence, a narrow preoccupation with rules to "stop the bad men" can constipate a system that is supposed to promote the general good by facilitating the flow of an interconnected global society. (13) The argument I present here is that rules not only regulate behavior but also define and constitute a system of interaction, (14) that a combination of altered rules focused on individual problems can produce a radically changed system even when not intended, (15) and that, however well motivated the individual regulations are, we need to keep in mind what we value in public aviation and to think more consciously about it as a global system. Conversely, when rules are neither observed nor enforced, the system of interaction that is constituted on the assumption of their effectiveness is in danger of collapse.
This Article takes a "constructivist" approach to normative theory to look at the broader systemic implications for the "constitution" of global aviation by the recent events and the "regulation" they have inspired. (16) This regulatory/constitutive tension is addressed from three levels: (17) hardening aircraft against terrorist takeover, increasing the security of the broader aerial environment, and planning for the future of aviation as a global institution. Before addressing these issues, it is worth reexamining the threat to which we are reacting and reassessing our preconceived notions about how to deal with it.
THE CHANGING TERRORIST THREAT TO AVIATION
Illicit aircraft seizure has existed almost as long as commercial aviation. The first recorded incident of aerial piracy was "international," occurring in 1931 when local revolutionaries hijacked a Pan American flight flown by a U.S. pilot. (18) However, it was not until the early 1960s, when a plague of hijackers in the U.S. used aircraft as vehicles to escape to Cuba, that the vulnerability of civil aviation became a popular magnet for both political activists and unstable personalities. (19) Over the next two decades, the domestic threat to aviation was primarily in the form of hijacking, in which the hostage plane and passengers were often traded for a change in flight destination, (20) prisoner release, (21) a financial payoff, (22) or the broadcast of a political communication. (23) Because of Western governments' unwillingness to sacrifice hostage passengers, (24) or even put them at risk, it was believed that the incidents were best dealt with by rational negotiation, emphasizing compromise rather than confrontation on the flight deck, even if it rewarded the perpetrators (25) or set a bad precedent. (26)
The politics of the Middle East have been associated with the most frequent and most salient terrorist acts involving passenger airliners. (27) The first attack on an Israeli airliner was in 1968, (28) and as the industry responded with increased security for the aircraft, the terrorists broadened their aviation targeting to terminal infrastructure. (29) With regard to U.S. domestic incidents, the presumption of an instrumental motivation was consistent with experience. Those who had the desire to produce mass casualties lacked the organization to mount and sustain an offensive; those with the resource base and capability to conduct sophisticated campaigns lacked the motivation. (30) Internationally, however, the aircraft was increasingly viewed as a symbol the destruction of which demonstrated Western vulnerability and the perpetrators' skill in bringing attention to their cause and adulation from their constituencies. (31)
Terrorism has long been viewed not merely as another method of producing material destruction, but as a form of violence that achieves its significance as a "communicative event." (32) One way of demonstrating the relation of these motivations is by contrasting two dimensions: the degree of symbolic impact sought and the level of destruction intended. (33) In the 1980s, there was a noticeable shift in both directions: toward acts designed with more symbolic significance and involving more physical destruction. (34) Although this was more typical of groups with an international motivation and a greater interest in demonstration than negotiation, they were still inhibited by their own mortality and tended to rely on the surreptitious introduction and remote detonation of explosives. (35) The 1988 bombing of Pan Am flight 103 is the paradigmatic example. (36)
The relationship between terrorism as a means of political communication and the politics of the movement it serves is often complex, but it carries an underlying logic, an indifference curve between salience of violent expression and organizational vulnerability. (37) Terrorism is often called "the weapon of the weak," not because its effects are necessarily limited or ineffectual in the amount of pain they can cause but because there are inherent limits on a terrorist organization's ability to convert its symbolic capital into positive political achievement. (38) To maintain symbolic impact, there is a natural motivation for continued escalation. (39) As manipulators of the public media, terrorists depend upon the media's insatiable appetite for newness (40) but they risk becoming "conventional" players with all the traditional vulnerabilities of a quasi-nation state. (41)
In the 1990s, destructive potential was combined with target salience, the goal being to maximize the "other's" pain while demonstrating one's own moral superiority through a martyr's death. (42) The 1993 bombing of the World Trade Center represented a dramatic change in this direction, but the rag-tag nature of the group and its failure to succeed in bringing down the buildings made it easy to dismiss as an aberration. Nevertheless, the target list of bin Laden's accomplice and "evil genius" operational planner, Ramzi Yousef, (43) and of several others associated with this group, was a serious portent of things to come. Their plans included:
* Targeting skyscrapers, including the Sears Tower in Chicago and the Pan American building in San Francisco;
* Targeting the United Nations with a fuel truck bomb in June 1993; (44)
* A simultaneous attack on the Holland and Lincoln tunnels in New York in the fall of 1993;
* An attack on the Central Intelligence Agency with biological or chemical aerosol;
* Simultaneous sabotage of eleven U.S. airliners while on flights across the Pacific in the spring of 1995. (45)
The first attempt to convert a hijacked aircraft into a flying bomb targeted on a symbol of international salience, and the only known prequel to September 11, was the Christmas Eve 1994 hijacking of a French Airbus by a four-man team from the Algerian terrorist movement GIA, who wanted to crash the plane into the Eiffel Tower. (46)
Experts recognized that aviation was still high on the terrorist priority list (47) and that groups with the motivation and resources were now interested in inflicting mass casualty attacks. However, because no U.S. aircraft had been hijacked for fourteen years, the growing perception of a "new" type of threat (48) tended to focus attention increasingly on unconventional weapons of mass destruction, while the political and economic cost of remedial countermeasures merely reinforced inertia. As illustrated in Figure 1, in contrast to a decade-long decline in hijacking frequency, the September 11 casualties are off the chart. (49) In retrospect, the escalatory steps in Al Qaeda targeting, the use of stored fuel to enhance explosive effect, (50) the coordination of simultaneous attacks in building semiotic significance, (51) and the demonstration effect of cheerful martyrs putting one over on...