Reform in Airport Security: Panic or Precaution? - Jack H. Daniel Iii

• Publication year: 2002

Comment

Reform in Airport Security: Panic or

Precaution?

"The ship is riding majestically toward us like some great feather, riding as though it was mighty good . . . mighty proud of the place it's playing in the world's aviation .... It burst into flames! Get out of the way! Get out of the way! Get this, Charlie! Get this, Charlie! It's fire and it's crashing! It's crashing terrible! Oh, my! Get out of the way, please! It's burning, bursting into flames and is falling on the mooring mast, and all the folks agree that this is terrible. This is the worst of the worst catastrophes in the world! Oh, it's crashing . . . oh, four or five hundred feet into the sky, and it's a terrific crash, ladies and gentlemen. There's smoke, and there's flames, now, and the frame is crashing to the ground, not quite to the mooring mast.... Oh, the humanity, and all the passengers screaming around here!"¹

These were the words of radio correspondent Herbert Morrison, when he personally witnessed the Hindenburg disaster in 1937. Morrison's last few statements are chillingly similar to what any bystander in New York or television viewer around the globe might have been thinking as they witnessed the terrorist attacks on September 11, 2001 ("September 11th").

Horrific events involving commercial aircraft, like the tragedy on September 11th, are often followed by political measures and legislative reform focused on aviation security. Legislation pertaining to airline security was passed shortly after the Pan Am Flight 103 bombing in December of 1988.² Similarly, after TWA Flight 800 exploded in 1996, regulations concerning airport security checks and airline safety were revamped.³ Now, after the tragic devastation of September 11th, President George W. Bush and Congress are once again taking a hard look at airline security, and legislative reform is well underway.

This Comment focuses on the benefits and burdens caused by increased airline security. In addition, an analysis of the emerging use of technology in airport security and its effect on Fourth Amendment issues are also addressed.

I. Historical Background

A. Aerial Bombings and Aircraft Hijackings: Early Incidents

Since the dawn of air transportation, the threat of catastrophe inherent in mass air travel has been apparent. Indeed, the world experienced tragedy in air transportation before propeller planes became standard and long before jet propulsion, when the Hindenburg exploded in 1937.⁴ The explosion killed thirty-five people onboard the zeppelin. Regardless of what caused the Hindenburg disaster, the potential for massive loss of life in air transportation was realized; the industry has thus become a popular target for hijackers and saboteurs.

An act of terrorism involving an airplane actually occurred before the Hindenburg disaster. The first airplane hijacking noted in history occurred in 1931.⁵ Revolutionaries in Peru took control of an aircraft and used it to scatter pamphlets across the countryside.⁶ Though political motivations remain a major reason for hijacking airplanes, the hijackers no longer have an innocent agenda. Incidents of hijacking frequently end in tragedy: "Worldwide, between 1949 and 1990, there were ninety-five documented explosions aboard commercial aircrafts, resulting in over 2100 deaths."⁷

The first documented bombing of a commercial airline occurred in 1949.⁸ Plotting to kill her husband, a woman had a time-bomb placed on a Philippine airline. The woman hired two ex-convicts to plant the bomb. The plot was a success and the explosion killed her husband along with the other twelve passengers on the flight.⁹

In 1955 a passenger unknowingly boarded a commercial flight with a bomb in his luggage.¹⁰ In a scheme to collect the benefits of his father's insurance policy, the passenger's son planted the bomb. This incident marked the first bombing of a commercial flight in the United States.¹¹

The first hijacking of a United States commercial aircraft occurred in 1961 when a National Airlines flight departing from Key West, Florida was seized and diverted to Cuba.¹² This initial incident in 1961 was followed by a flurry of hijackings, as four more United States commercial flights were hijacked in that same year.¹³

To date, the 1960s stand out as the predominant decade of commercial hijackings. During the late 1960s, in particular, the pinnacle of incidents involving the hijacking of American commercial airliners occurred. There were twenty-two hijacking incidents on United States commercial flights in 1968,¹⁴ and although the number was an all time high, it was surpassed in the following year. In 1969 the quantity nearly doubled; hijacking incidents on United States commercial aircraft occurring in that year reached an astounding total of forty.¹⁵

Though the magnitude of the catastrophe on September 11th is unprecedented, the number of hijacking incidents involving commercial aircrafts has actually decreased in recent years. Including the four airplanes that were hijacked on September 11th, there have been only seven aerial hijacking incidents in which one or more passengers died between 1996 and 2001.¹⁶ There were eighty-seven commercial aircraft explosions due to bombings recorded in the period between 1949 and 1985.¹⁷

Commercial passengers arguably had more to fear in the past because between 1949 and 1985, "airline passengers endured 498 hijackings and 281 attempted hijackings."¹⁸ However, the loss of life on September 11th exceeds the amount of all eighty-nine commercial aircraft explosions between 1949 and 1985. While less than two thousand people were killed in the aircraft explosions during those thirty-six years,¹⁹ approximately three thousand people were killed in the suicide plane crashes on September 11th.²⁰

Despite the fact that most of the casualties on September 11th occurred inside the Trade Center buildings, terrorist hijackers are capable of inflicting more harm in modern times. Larger commercial airplanes and higher travel volume have raised the potential for greater human casualties. Although the risk of detection may be higher today, in the eyes of a terrorist, the pay off may have increased as well.

B. Terrorism and Aviation

"Terrorism" is a term that has been given a variety of definitions over the last few decades. In 1986, Vice President George Bush described terrorism as "the unlawful use or threat of violence against persons or property to further political or social objectives. It is usually intended to intimidate or coerce a government, individuals, or groups or to modify their behavior or policies."²¹ Another viewpoint defines "terrorism" as a violent act committed for a psychological effect on the public at large and not just a particular government.²² Perhaps the United States Department of State has given "terrorism" the broadest meaning, defining it as '"premeditated, politically motivated violence perpetrated against noncombatant targets by subnational groups or clandestine agents usually intended to influence an audience.'"²³ Despite the various definitions, authorities on the subject agree terrorists use violence as a platform for their cause.²⁴

Due to its political and economic status, the United States is widely resented abroad,²⁵ making it a primary target for terrorist activity. United States citizens were the targets in forty percent of the world's terrorist acts in 1992.²⁶ Incidents like the bombing of Pan Am Flight 103 on December 21, 1988, and the suicide hijackings of the four commercial flights on September 11th, illustrate how attractive the commercial airline industry is as a target for terrorists who desire a large audience and are indifferent to the means by which they obtain one.²⁷ The need for sound security procedures in America's airports becomes glaringly obvious after pondering the terrorist viewpoint: '"Today, we were unlucky. But remember, we only have to be lucky once. You will have to be lucky always.'"²⁸

C. The Government Response to the Problem

1. The Federal Aviation Administration. In 1958, the Federal Aviation Administration ("FAA") was established when President Eisenhower signed the Federal Aviation Act into law.²⁹ Serving as both a quasi-legislative and executive agency, the FAA was tasked with the responsibility of creating safety guidelines for commercial aviation and enforcing those guidelines by regulating all air carriers operating in the United States.³⁰ The FAA was an independent agency until 1966, when the Department of Transportation ("DOT") was designated as the FAA's supervising body.³¹ Despite the structural change, the FAA has retained its regulatory power over airline safety. The FAA has the duty of'"promoting safe air travel and enforcing security measures affecting aircraft and air terminals.'"³² Under federal law, the administrator of the FAA has the authority to carry out the powers and duties of the Secretary of Transportation regarding aviation security and safety.³³

2. The FAA and Profiling. Through the years the FAA has attempted to implement procedures in response to terrorist attacks in the airline industry. In reaction to the numerous hijacking incidents in the 1960's, the FAA established profiling procedures in an attempt to identify terrorists.³⁴ The FAA, along with other agencies, compiled information on known terrorists and hijackers and used the information to develop a list of personal characteristics that distinguish terrorists from ordinary airline travelers. Profiling has been highly criticized by legal commentators. The FAA has refused to disclose specifics about the profiling criteria because making the information public would alert terrorists as to what traits draw attention and thus, thwart the profile's very purpose.³⁵ Commentators argue this gives the FAA a license to violate equal protection rights because those who are singled out do not know whether the profile used is one based on legally permissible criteria.³⁶ Another major...