Airplane security: Terrorism prevention or racial profiling?
By Anita Ramasastry
(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.
Anita Ramasastry, a FindLaw columnist, is an assistant professor of law at the University of Washington School of Law in Seattle and the associate director of the Shidler Center for Law, Commerce & Technology.