Protecting U.S. Ports With Layered Security Measures for Container Ships

• Author: Lieutenant Commander (sel) Rachael B. Bralliar
• Pages: 03

MILITARY LAW REVIEW

Volume 185 Fall 2005

PROTECTING U.S. PORTS WITH LAYERED SECURITY MEASURES FOR CONTAINER SHIPS

LIEUTENANT COMMANDER (SEL) RACHAEL B. BRALLIAR*

When it comes to dealing with the new security agenda, Americans need to grow up. We cannot afford to act as though 9/11 was just a freak event. Nor can we expect our government to secure a permanent victory in a war on terrorism . . . Terrorism is simply too cheap, too available, and too tempting ever to be totally eradicated. We must have the maturity both to live with the risk of future attacks and to invest in reasonable measures to rein in that risk. In other words, the best we can do is to keep terrorism within manageable proportions.1

I. Introduction

The maritime transportation system presents tremendous opportunities for terrorists to attack the United States of America. One of the greatest threats to U.S. security is the maritime transportation system-the approximately 25,0002 shipping containers (containers) that enter U.S. ports each day, and then infiltrate the mainland via railways, highways, interstates, and residential roads.3 The consequences of a breach in the security of a single container have the potential to dwarf the devastation felt after the 11 September 2001 terrorist attacks (9/11) in a number of ways. For instance, the detonation of a single nuclear or radiological device smuggled on a container would have a far greater impact upon both global trade and the global economy than did the 9/11 attacks.4 Not only could a port security breach cause mass casualties, but it would necessitate closing U.S. maritime import and export systems, causing maritime trade gridlock, economic collapse of many businesses, and possibly leading to economic losses of $1 trillion.5 By contrast, the

attacks on 9/11 claimed more than 3,000 lives, and led to the loss of approximately $100 billion.6

Part II of this article provides readers with a greater understanding of the multi-tiered domestic and international threat that container ships present to the United States. Additionally, Part II discusses the feasibility of a terrorist exploiting such weaknesses. Drawing upon the vulnerabilities assessed in Part II, Part III presents an overview of the potential consequences resulting from a terrorist act involving a single container.

Based on the multi-tiered threat posed by container ships, experts agree that the best defense is a layered defense with coordinated security measures overseas and nationally.7 Congress and international organizations continue to work to improve the security of maritime transportation post-9/11, with mixed success. As Congress recognizes "[p]ort security legislation can have significant implications for public safety, the war on terrorism, the U.S. and global economy, and federal, state, and local homeland security responsibilities and expenditures."8

While Part III discusses the need for a layered defense in securing container ships, Part IV introduces the international players involved in securing the maritime transportation system. Specifically, Part IV focuses on the International Ship and Port Facility Security Code (ISPS

Code),9 which was created post-9/11 to preserve the integrity of international maritime trade. In addition, Part IV analyzes the ISPS Code to determine if its security measures protect against the threats presented by container ships.

Part V approaches container security from the domestic realm, focusing on the distinct, yet inter-related, roles of the U.S. Coast Guard, the U.S. Customs and Border Protection, and the Transportation Security Administration. Many of the domestic initiatives of the United States are modeled after or initiated to implement international law. In particular, the Maritime Transportation Security Act of 2002 (MTSA)10 implements the ISPS Code. Part V discusses the MTSA in detail and analyzes its effectiveness in creating layered security measures for container ships in conjunction with the Customs-Trade Partnership Against Terrorism (CTPAT),11 and its companion program, the Container Security Initiative (CSI).12 While each of these domestic measures is separate, they function together to provide defensive layers in container ship security: the MTSA deals with security requirements for vessels and port facilities; the C-TPAT deals with the supply chain for goods loaded onto container ships; and the CSI deals with the containers.

Parts IV and V are designed to explain the layered defense in place to protect the United States from the threat of container ships and to show where the vulnerabilities discussed in Part III persist. Regulation of the international maritime transportation system requires a delicate balance between simultaneously protecting the United States and avoiding too many impediments to the flow of maritime commerce. Unfortunately, the international and domestic laws and initiatives do not

adequately address the threats posed by the voluminous contents of the 25,000 containers that enter U.S. ports each day. Individually, and collectively, the security layers are unable to confirm whether goods loaded on containers are legitimate and remain uncompromised during transit.13

While international and domestic laws attempt to focus on enhancing maritime security, they do not provide adequate protections against foreseeable security breaches. As a partial remedy, Part VI recommends the further development of detection devices imbedded within containers to address the remaining gaps in container ship security. According to the report of an independent task force sponsored by the Council on Foreign Relations, "we can transform the calculations of would-be terrorists by elevating the risk that (1) an attack on the United States will fail, and (2) the disruptive consequences of a successful attack will be minimal."14 The development and implementation of smart, tamper-resistant containers with internal detection devices may be a viable and cost-effective final layer in container ship security.

II. Vulnerability of the Maritime Transportation System in the United States and Abroad

Investigations following the attacks on 9/11 highlight continuing concern over the security of the maritime transportation system and, in particular, container ships. Several reports indicate that al Qaeda either owns or controls approximately fifteen cargo ships.15 Reports also state

that al Qaeda terrorists may have smuggled themselves into foreign ports over long distances on ships.16

According to U.S. officials cited in a Washington Post article, al Qaeda's leader, Osama bin Laden, and his aides have owned ships for years.17 More specifically, a New York Times article published three months after the 9/11 attacks reported that "[a]l Qaeda is now said to control at least 20 ships."18 The same article pointed out a possible link between the tramp freighter Seastar, allegedly operated by al Qaeda, and a car bomb in Riyadh that killed several people, including five U.S. government employees in November 1995, which bin Laden extolled as "praiseworthy terrorism."19 Likewise, officials purportedly found a startling link between one of bin Laden's ships and the explosives delivered to al Qaeda operatives and used in the 1998 bombing of two American embassies in Africa.20 In addition, an article in the Washington Post reported an incident in February 2002 when eight Pakistani men jumped off of a freighter at an Italian port after a trip from Cairo.21 According to the report, U.S. officials determined that the men were sent by al Qaeda and gained access to the freighter by fabricating their status as crewmen and using false documents.22 Reports cite other incidents involving alleged crew members onboard vessels bound for foreign ports who knew nothing about seafaring. Upon further investigation, authorities discovered that these individuals had large volumes of cash, false documents, intricate maps of port cities, and evidence tying them to al Qaeda in Europe.23 The threat of al Qaeda or other terrorist operatives is a reality, and the U.S. maritime transportation system's susceptibility makes it a ripe target.

Although international boundaries of the United States include its 361 public ports,24 ports do not provide actual borders in the traditional sense. Instead, ports and borders function as a check-point in the infiltration of people and foreign goods onto the mainland. As Robert C. Bonner,25 the Commissioner of the U.S. Customs and Border Protection, explained to the Senate Committee on Commerce, Science, and Transportation several months after the attacks on 9/11:

We can no longer afford to think of "the border" merely as a physical line separating one nation from another. We must also now think of it in terms of the actions we can undertake with private industry and with our foreign partners to pre-screen people and goods before they reach the U.S. The ultimate aims of "pushing the border outward" are to allow U.S. Customs more time to react to potential threats-to stop threats before they reach us-and to expedite the flow of low-risk commerce across our borders.26

The attacks on 9/11 "highlighted the fact that our borders offer no effective barrier to terrorists [who are] intent on bringing their war to our soil."27 The vulnerability of domestic ports and vessels is inextricably linked to the function of the ports and the tremendously fast-paced economy of the United States, as detailed below.

1. The Breadth of Maritime Transportation in the United States

   United States ports, which include domestic ports located within the interior of the United States, deal with more than ninety-five percent of overseas trade domestically.28 While ninety percent of the cargo tonnage

   passing through domestic ports occurs in the top fifty U.S. ports, twenty-five U.S. ports process nearly ninety-eight percent of all container shipments.29 Furthermore, "[t]he total volume of goods imported and...