Rainy Day Miscellany

March 21, 2006

A miscellaneous roundup of stuff to keep one entertained on a rainy Tuesday:

Judge Brinkema was scheduled to interview the seven allegedly coached witnesses and the TSA lawyer, Carla Martin, who allegedly did the coaching today. The judge has excused Martin, who has not been able to retain an attorney to assist her yet (remember this all went down yesterday) and will question her, I presume, at a later date. Meanwhile, the court’s proceeding with the FAA witnesses. I’ve assembled some links to MSM sources on this developing story below – links are current as of today but that might change at some future date.

More facts are coming out as the day progresses. Martin appears to have been concerned about the opening statement made by the prosecution and warned the witnesses that the statement together with the prosecution’s examination of its first witness had "created a credibility gap the defense can drive a truck through." The email went on to attempt to "head off" future defense attacks by shaping the testimony of the witnesses. Until recently, the CNN article reports, Martin was the government attorney assigned to assist the FAA witnesses.

ed. note: The NY Times article (link below) seems meatier than the AP reports; it also contains some excerpts from the emails (one sent as recently as last Wednesday) that aren’t carried in other sources. Partricularly interesting is this graf:

In one of Ms. Martin’s e-mail messages, dated last Wednesday, she told Lynne Osmus, who was the Federal Aviation Administration’s head of security on Sept. 11, to be careful about her testimony about allowing passengers with short-bladed knives aboard airliners before the attacks. Prosecutors have argued that the F.A.A. might have stopped people with boarding airliners if they had short knives, which they did not do before Sept. 11. Saying that the prosecutors created a wide credibility gap, she told Ms. Osmus, "There is no way that anyone could say that the carriers could have prevented all short-bladed knives from going through." She said the prosecutor "must elicit that from you and the witnesses on direct and not allow the defense to cut your credibility on cross."

Further Updates: There’s an equally detailed followup at NY Times now, describing Ms. Martin’s appearance before Judge Brinkema today: "… like a mourner at a funeral having trouble keeping her composure…" I’ll post my thoughts on this development a little later in the week. Remember: opinions are like … You know.

Read More:

Breaking News: The judge in the Zacarias Moussaoui case has called a break in the death-penalty trial over certain actions by an FAA TSA lawyer acknowledged by the prosecutor to be "horrendously wrong." The female lawyer, who isn’t is now named in this MSNBC piece as Carla Martin, apparently attended a classified procedures hearing, and then later coached a witness for the prosecution using those classified proceedings, reading part of the opening statements, and even discussing other witnesses’ testimony with the coached witness. Judge Brinkema was described as "angry" and, outside the presence of the jury, stated: “This is the second significant error by the government affecting the constitutional rights of the defendant and the criminal justice system in this country in the context of a death case.” Brinkema established a rule in the beginning of these death penalty proceedings that no witness would have access to any other witness’s testimony prior to testifying; she is said to be considering whether to take the death penalty off the table as a consequence of the FAA  TSA lawyer’s actions.

More updates as they become available. Like, when they get the agency right. And give us the attorney’s name.

H.R. 4439 (the Transportation Security Administration Reorganization Act of 2005) was discussed by the House Subcommittee on Economic Security, Infrastructure Protection and Cybersecurity (a subcommittee of the Homeland Security Committee) yesterday (AAAE link requires membership to view). See the subcommittee’s press notice about the Act here.

No action was taken on the bill itself at yesterday’s meeting, although the members approved an amendment to the Act offered by the Subcommittee’s chair (and the Act’s sponsor) Dan Lungren (R-CA) which is summarized here (also an AAAE link, requiring membership). I’ve also taken a stab at a summary of Title I of the bill after the jump.

Read the rest of this entry »

Transportation Security Administration Secretary Kip Hawley reported to the Senate Commerce Committee that concerns over security and a pending audit have prompted the government to put a freeze on plans for the Secure Flight program, whereby PAX names would be checked by TSA in lieu of the airlines, as is current practice. More here from MSNBC.com.

The Transportation Security Administration has announced changes in its security procedures that will, it avers, add "an element of unpredictability to the security strategy in order to deter terrorist attacks on commercial aircraft" and simultaneously allow its Security Officers "to focus on areas that pose the greatest risk." What this translates to: small tools and scissors are OK, but in exchange for that relative freedom, you’ll see more random "enhanced screenings" at the security checkpoints in airport passenger terminals.

While some aviation professionals and frequent fliers welcome the news, one group that isn’t too happy about the changes is flight attendants. Says Thom McDaniel, president of the Southwest Airlines flight attendants’ union: "I have not spoken to a flight attendant at any airline that isn’t outraged by this." (Article by EarthTimes.org). Further quotes from Mr. McDaniel in a press release:

This is beyond words — every flight attendant has a gut reaction to this TSA plan. The reversal of airline security standards is simply deplorable. For the TSA to even consider allowing potential weapons aboard commercial aircraft, the traveling public must ask whether the agency is truly concerned with providing security for the passengers and flight attendants behind the cockpit door. This administration likes to remind the American public of 9-11 whenever it suits their political agenda, but this week they ask us to forget the promise of enhanced airline security made in the wake of our national tragedy four years ago. There are better ways to save money and speed travelers through the airport screening process without lowering standards of security for airline passengers. The American traveling public should strongly oppose any changes in TSA procedures that lower the bar on cabin security.

But as Secretary Kip Hawley points out, in a field like commercial aircraft security, uniform security rules are not your friend:

“It is paramount to the security of our aviation system that terrorists not be able to know with certainty what screening procedures they will encounter at airports around the nation,” said Kip Hawley, Assistant Secretary.  “By incorporating unpredictability into our procedures and eliminating low-threat items, we can better focus our efforts on stopping individuals that wish to do us harm.”

Interesting debate – I can see the validity of Mr. Hawley’s points, and a frequent point of criticism has been that TSA seems to spread its attention too thin, instead of focusing on the areas that cause the biggest concerns to the general public. On the other hand, 9/11’s horrific events were made possible, not through handguns, but through box cutters – relatively everyday, insignificant tools (at the time) that I daresay not many would have considered "extremely dangerous" (again, at the time). Can the same be said of small scissors today?

I’m all for common sense but the reality is that we no longer have the luxury of assuming that any ordinary implement does not pose a potential threat when placed in the hands of a person committed to malice. I fear, though, that in this field we may always to some degree be playing catch-up – legislating after the fact to prevent yesterday’s attack.

What I’d like to see is a comprehensive approach to cargo, frankly.

Breaking news: MSNBC.com is reporting shots fired on an American Airlines jet at Miami. No other details as of yet, so it’s unclear (a) how reliable this is, (b) whether it was a gun smuggled past security, or (c) whether it was an LEO or TSO or air marshal holding the gun … I’m looking for more info and will update when I get it.

UPDATE: CNN.com’s scroll is reporting it was, in fact, an air marshal firing the gun "on the plane" (which I take to mean, he’s on the plane and fired the gun at someone or something also on the plane – inartfully phrased).

UPDATE 2: From MSNBC.com (man, they’re fast):

Shots were fired on an airplane about to leave Miami International Airport on Wednesday, government sources told NBC News. After a passenger claimed he had a bomb and started to get off the American Airlines airplane, air marshals went after him, the sources said. The man then turned around, started after the air marshals and shots were fired. Miami-Dade fire rescue officials confirmed the shooting. It was not immediately clear who fired.

Further bulletins as events warrant …

UPDATE 3: The flight was apparently en route via a stopover from Medellin to Orlando, due for a 2:18 PM takeoff. (via CNN.com) CNN’s reporting the shooter was the marshal. MSNBC.com is reporting one injury, and the plane as being surrounded by a SWAT team; terminal’s concourse has been evacuated and shut down.

FINAL UPDATE: CNN’s now reporting the injured person was the same man who claimed to have a bomb in his carryon luggage. If there are any further significant updates this afternoon, you can catch them at either MSNBC.com or CNN.com. I may post about this later on when we have a better sense of context, but for now, I’m done playing Walter Cronkite.

Rendon v. Transportation Security Administration, No. 04-4229 (6th Cir., filed 9/22/2005) (link to court’s own site, PDF file format), holds that 49 CFR §1540.109 is not impermissibly vague or overbroad, and thus does not fail Constitutional muster, nor did it in this case violate the petitioner’s First Amendment rights to cuss like a sailor.

Facts: In July 2002, the petitioner was attempting to pass through screening at Cleveland’s Hopkins International Airport. The screener, an employee of a privately contracted company (nb: this was during the period of time preceding TSA’s takeover of airport security screening as a federal function with its own workforce), noted that Mr. Rendon had set off the metal detector. Mr. Rendon mused aloud that his watch had probably been the culprit. He took off the watch and attempted to walk back through. However, the screener informed Mr. Rendon that traveling back through the detector was not permitted – Mr. Rendon would have to be hand-wanded to pass screening. Mr. Rendon became agitated, and questioned the rule. Upon being informed it was the policy of the airport and the company providing the screening, Mr. Rendon pronounced that this was "bullshit." While waiting for the employee with the hand-held wand to process him, he grew anxious about missing his flight, and, according to the court:

also more belligerent toward the screener, Pindroh. For instance, Rendon admits exclaiming, while Pindroh attempted to continue screening those walking through the metal detector, “shit, man, can’t you get someone over here.” The government introduced three witnesses who all testified that Rendon loudly exclaimed, after being informed that he could not walk back through the metal-detector and while he was waiting to be hand-wanded, that “this was fucking bullshit.” Pindroh replied, “Mr. Rendon, you do not have to use profanity towards me.” Rendon then told Pindroh that if profanity bothered him, he was in the wrong line of work and that he should consider living in a bubble. Moreover, testimony was introduced that Rendon loudly replied to Pindroh that he had a First Amendment right to say what he wanted.

Rendon, page 2. The screener then had to close his line and get his supervisor to assist him. Thereafter, a law enforcement officer removed Mr. Rendon from the area.

Procedural Posture of Case: Rendon was served a Notice of Proposed Civil Penalty by TSA about one year later. The penalty was $700, and was attributed to a violation of 49 CFR §1540.109 (interfering with screening personnel – click here for TOC page with formats in TXT and PDF). The determination was fought at the ALJ level, and Rendon appealed to a TSA Decision Maker, who concurred with the ALJ’s upholding of the penalty assessment. Mr. Rendon’s appeal to the Sixth Circuit followed.

Sixth Circuit’s Analysis: Rendon claimed that §1540.109, as applied to him, was an impermissible content-based restriction on protected speech. He based this claim on the following logic: "Good-faith" questions are specifically allowed to be asked of screening personnel by passengers (under 67 Fed. Reg. 8340, 8344 (2/22/02) – to access, go here, click on "Page Number" under "1994 through 2005" heading, select 2002 and enter 8340, then "submit" – phew), but such questioning will likewise require the screener’s attention be diverted from his or her functions to respond. Whereas his cursing will lead to an assessed penalty, the questioner asking a "good faith" question gets no penalty, though the effect – diversion of attention – is the same. Therefore, he is being penalized solely on account of the content of his speech (his choice of profanities).

The court correctly notes (eventually) that Mr. Rendon was not, in fact, assessed a penalty because he preferred the use of profanities related to excrement. Rather, the penalty flowed from the ever-increasing disturbance he caused. In other words (my own), he could have stood to the side and led the crowd in halftime cheers complete with splits and pompoms; if the effect was the same – the screener has to close the line and get help – then the penalty flows.  Ergo, no content-awareness. Ergo, no Constitutional infirmity.

The Court did note an (in my humble opinion) erroneous point in regards to Rendon’s "good faith questioner" comparison. The Court stated that the good-faith questioner, essentially, is per se not interfering, because of the explicit permission in the final rule. But it’s not too hard to imagine an instance in which an annoyingly upbeat and excited individual could present "good faith" question after "good faith" question, and interfere with the screener’s duties. The exception is not worded as an exclusionary definition, but rather states "this rule does not prevent …" I think the result is correct, in the final analysis – the screeners and their functions are protected, and the smooth flow of passengers through your terminal is enhanced – but I’m not swayed by this distinction.

Other case law of note: Ward v. Rock Against Racism, 491 U.S. 781 (1989), holding that "a content-neutral regulation that has an incidental effet on speech is upheld so long as it is narrowly tailored to advance a substantial government interest."