"Airplane security: Terrorism prevention or racial profiling?"

Wednesday, October 2, 2002

Airplane security: Terrorism prevention or racial profiling?
By Anita Ramasastry
FindLaw Columnist
Special to CNN.com
Cable News Network (CNN)


(FindLaw) -- Dr. Bob Rajcoomar, a 54-year old Florida doctor of Indian
descent and former U.S. Army major, recently took a flight with his wife
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 case 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 toward 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, Greece.
The hijackers -- two Lebanese Shiite Muslims -- 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 also is empowered to make warrantless arrests. The only
requirement 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 believe that a
non-white 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 personnel also have 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 September 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 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.


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