spitfire1940
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here's a rare media story about the TSA "take your license away" ruling that passed in january. Defense Week is a private defense-industry trade newsletter based in Washington DC.
DEFENSE WEEK
March 10, 2003
U.S. Rule On Revoking Pilot Licenses Stirs Fight
BY RON LAURENZO
A little-known ruling by the new Transportation Security Administration has pilots' groups clamoring that a U.S. citizen's constitutional rights to a fair hearing and due process have become the latest casualty in the war against terrorism.
The rule stipulates that the Transportation Security Administration, or TSA, can ask the Federal Aviation Administration to revoke an American citizen's pilot license if the pilot is considered a "security threat" without providing evidence to back up the charge. The regulation also says that appeals can only be made to the agency itself, not an independent body.
The ruling took effect upon its publication in the Federal Register on Jan. 24. The public's period for commenting on the rule, which normally occurs before a rule takes effect, started after this rule became binding.
The chairman of the House Transportation Committee, Don Young (R-Alaska), has called the ruling "unfair and probably unconstitutional" and has said that TSA overstepped its congressionally mandated authority by adopting it.
TSA has defended the ruling as an important measure to prevent terrorists from using aircraft to strike U.S. targets. The agency maintains that the number of pilots that could be affected by the measure is tiny—likely no more than a handful per year. However, the regulation does not put any limits on the number of pilots who can lose their licenses nor does it establish conditions under which such an action is not justified. Nor does the ruling define what is meant by "a security threat."
TSA officials also argue that there is no need to have an outside arbitrator adjudicate these cases, because TSA would be fair.
"To the degree there's a concern about the process, I think the bases are covered very well," said James Loy, head of TSA, at a conference sponsored by Defense Week in February.
But Young, in a Feb. 20 letter to Loy, questioned not only the sweeping nature of the ruling but also why it was necessary in the first place.
"While I am certainly aware that some of the 9/11 hijackers had taken flight training, they boarded the planes as passengers, not as pilots," Young wrote. "It was the failure of our intelligence, immigration and perhaps airport-security systems that allowed them to board those planes. ... This does not justify taking away the rights of U.S.-citizen pilots more than 16 months after the fact."
Young expressed particular concern that a pilot could be deprived of a license without being told why and that the pilot would not have the right to appeal to a third party. Young noted that the FAA already has the power to immediately revoke a pilot's license for safety reasons, and that the accused in that case can appeal to the National Transportation Safety Board, a separate body.
"I suggest you adopt a similar procedure for pilot revocations by TSA," wrote Young. "If not, I will have no alternative but to explore a legislative solution to this problem."
When questioned directly about Young's letter, a TSA spokesman said the agency is still considering the issue.
"We appreciate that he has concerns," said Brian Turmail. "We look forward to working with him to explain our thought process and determine the next best steps."
Pilots outraged
Pilots groups have reacted with outrage to the ruling.
The rule provides "the TSA with unlimited subjective power to eliminate our careers without any real, meaningful, legal recourse," wrote Duane Woerth, president of the Air Line Pilots Association, or ALPA, a Washington-D.C.-based union that represents 66,000 pilots in the United States and Canada.
"It's not the manner in which democracies are supposed to work. We cannot allow this rule to stand," he wrote in ALPA's March newsletter.
"We don't think it was Congress' intent that the government take away our pilot certificates without the constitutional protections of due process," wrote Phil Boyer, president of the Aircraft Owners and Pilots Association, or AOPA, based in Frederick, Md.
With almost 400,000 members, AOPA is the world's largest proponent of general aviation (meaning flying not done by the military or airlines). The group has led efforts to foster cooperation between private pilots and the government to boost security, including the establishment of an airport-watch program to prevent terrorists from using any of the thousands of non-airline airports in the United States.
"TSA is the cop, prosecutor, judge, jury and appeals court ... Clearly, this is a violation of basic constitutional rights," Boyer wrote in AOPA's March magazine. "And just as clearly, AOPA is fighting it."
To that end, Boyer has been telephoning and meeting with members of Congress, including Young, as well as officials from TSA.
The ruling also applies to aircraft mechanics and air-traffic controllers, who like pilots are licensed by the FAA.
TSA sees no problem
TSA officials, for their part, do not seem to understand what all the fuss is about. The ruling, they say, would potentially apply to only a minute proportion of pilots, who themselves make up a tiny fraction of the U.S. population. There are 580,000 active, licensed pilots in the United States, according to the FAA.
TSA was formed in November 2001 within the Department of Transportation but is now part of the Department of Homeland Security. TSA is responsible for the safe movement of people and goods by air, sea and land. One of its most visible roles has been taking over security and baggage screening at the 400-odd U.S. airports served by airlines.
To support their argument, TSA officials, from Loy down, are fond of citing how after 9/11 they compared lists of possible terror suspects from the FBI to a list of around 100,000 foreign pilots who hold U.S. licenses. That action was done under a previous rule that covers foreign pilots under a similar process.
During the review, they found 11 potential threats and revoked their licenses. Of those, three appealed and got their licenses back, four appealed and lost, and four did not appeal.
"The bottom line is: If you're not a terrorist, you don't need to worry about this," said Turmail, the TSA spokesman. "And we have put in place a process that does have a review process. And for those who would say it's not fair, well, clearly the fact that we've reviewed this and decided that we made the wrong call on three folks I think is a pretty clear-cut sign that we've created an impartial system here," he said.
But many pilots are dubious. One of them is Dennis Dolan, an ALPA first vice president and chairman of its Security Task Force. Now a Delta airlines pilot, Dolan is a former Marine who flew 333 combat missions in an F-4 Phantom in Vietnam.
"It's nice to say, `trust me,' but that's not how our legal system works," he said in an interview. "That's why we have had an enduring process for well over 200 years that addresses issues like this. And there's no reason why this one can't be the same way."
Jonathan Turley, professor of public-interest law at the George Washington University Law School in Washington, D.C., agreed.
"The question is not how challenges have concluded, but how they're handled," said Turley, a specialist in constitutional law and criminal procedure.
"And the mere fact that the first three cases happened to be favorable doesn't change the constitutional analysis," said Turley.
He stopped short of calling the ruling unconstitutional, saying instead that it raises "serious questions about due process" that are guaranteed in the Constitution.
As far as not presenting a pilot with information about why a license had been pulled, Turmail said that is the only way to protect intelligence sources.
"The information we use to make these determinations is sensitive information and in most cases very classified intelligence," he said. "And we couldn't establish an appropriate way to create a review process outside the TSA that would allow folks to appeal in a way that they could actually have access to their case."
But Turley said there are ways to guarantee the defendant's rights without compromising classified information, including the government presenting evidence in redacted form or even granting the defense lawyer a clearance to view it.
"I've handled national-security cases that dealt with all of these options," he said. "The denial of access to evidence is supposed to be the final, not the first, response of the government."
While it is a big issue for ALPA, Dolan said the union would work with Congress to change the ruling instead of taking more dramatic action such as seeking an injunction.
Dolan noted that, so far, no pilots have been affected, and that he's hoping nobody will have their livelihood endangered in the meantime.
"But who knows what's going to happen when the war starts? Who knows what's going to happen when we tighten further down on the security?" he said, "It's a little too wide open right now."
DEFENSE WEEK
March 10, 2003
U.S. Rule On Revoking Pilot Licenses Stirs Fight
BY RON LAURENZO
A little-known ruling by the new Transportation Security Administration has pilots' groups clamoring that a U.S. citizen's constitutional rights to a fair hearing and due process have become the latest casualty in the war against terrorism.
The rule stipulates that the Transportation Security Administration, or TSA, can ask the Federal Aviation Administration to revoke an American citizen's pilot license if the pilot is considered a "security threat" without providing evidence to back up the charge. The regulation also says that appeals can only be made to the agency itself, not an independent body.
The ruling took effect upon its publication in the Federal Register on Jan. 24. The public's period for commenting on the rule, which normally occurs before a rule takes effect, started after this rule became binding.
The chairman of the House Transportation Committee, Don Young (R-Alaska), has called the ruling "unfair and probably unconstitutional" and has said that TSA overstepped its congressionally mandated authority by adopting it.
TSA has defended the ruling as an important measure to prevent terrorists from using aircraft to strike U.S. targets. The agency maintains that the number of pilots that could be affected by the measure is tiny—likely no more than a handful per year. However, the regulation does not put any limits on the number of pilots who can lose their licenses nor does it establish conditions under which such an action is not justified. Nor does the ruling define what is meant by "a security threat."
TSA officials also argue that there is no need to have an outside arbitrator adjudicate these cases, because TSA would be fair.
"To the degree there's a concern about the process, I think the bases are covered very well," said James Loy, head of TSA, at a conference sponsored by Defense Week in February.
But Young, in a Feb. 20 letter to Loy, questioned not only the sweeping nature of the ruling but also why it was necessary in the first place.
"While I am certainly aware that some of the 9/11 hijackers had taken flight training, they boarded the planes as passengers, not as pilots," Young wrote. "It was the failure of our intelligence, immigration and perhaps airport-security systems that allowed them to board those planes. ... This does not justify taking away the rights of U.S.-citizen pilots more than 16 months after the fact."
Young expressed particular concern that a pilot could be deprived of a license without being told why and that the pilot would not have the right to appeal to a third party. Young noted that the FAA already has the power to immediately revoke a pilot's license for safety reasons, and that the accused in that case can appeal to the National Transportation Safety Board, a separate body.
"I suggest you adopt a similar procedure for pilot revocations by TSA," wrote Young. "If not, I will have no alternative but to explore a legislative solution to this problem."
When questioned directly about Young's letter, a TSA spokesman said the agency is still considering the issue.
"We appreciate that he has concerns," said Brian Turmail. "We look forward to working with him to explain our thought process and determine the next best steps."
Pilots outraged
Pilots groups have reacted with outrage to the ruling.
The rule provides "the TSA with unlimited subjective power to eliminate our careers without any real, meaningful, legal recourse," wrote Duane Woerth, president of the Air Line Pilots Association, or ALPA, a Washington-D.C.-based union that represents 66,000 pilots in the United States and Canada.
"It's not the manner in which democracies are supposed to work. We cannot allow this rule to stand," he wrote in ALPA's March newsletter.
"We don't think it was Congress' intent that the government take away our pilot certificates without the constitutional protections of due process," wrote Phil Boyer, president of the Aircraft Owners and Pilots Association, or AOPA, based in Frederick, Md.
With almost 400,000 members, AOPA is the world's largest proponent of general aviation (meaning flying not done by the military or airlines). The group has led efforts to foster cooperation between private pilots and the government to boost security, including the establishment of an airport-watch program to prevent terrorists from using any of the thousands of non-airline airports in the United States.
"TSA is the cop, prosecutor, judge, jury and appeals court ... Clearly, this is a violation of basic constitutional rights," Boyer wrote in AOPA's March magazine. "And just as clearly, AOPA is fighting it."
To that end, Boyer has been telephoning and meeting with members of Congress, including Young, as well as officials from TSA.
The ruling also applies to aircraft mechanics and air-traffic controllers, who like pilots are licensed by the FAA.
TSA sees no problem
TSA officials, for their part, do not seem to understand what all the fuss is about. The ruling, they say, would potentially apply to only a minute proportion of pilots, who themselves make up a tiny fraction of the U.S. population. There are 580,000 active, licensed pilots in the United States, according to the FAA.
TSA was formed in November 2001 within the Department of Transportation but is now part of the Department of Homeland Security. TSA is responsible for the safe movement of people and goods by air, sea and land. One of its most visible roles has been taking over security and baggage screening at the 400-odd U.S. airports served by airlines.
To support their argument, TSA officials, from Loy down, are fond of citing how after 9/11 they compared lists of possible terror suspects from the FBI to a list of around 100,000 foreign pilots who hold U.S. licenses. That action was done under a previous rule that covers foreign pilots under a similar process.
During the review, they found 11 potential threats and revoked their licenses. Of those, three appealed and got their licenses back, four appealed and lost, and four did not appeal.
"The bottom line is: If you're not a terrorist, you don't need to worry about this," said Turmail, the TSA spokesman. "And we have put in place a process that does have a review process. And for those who would say it's not fair, well, clearly the fact that we've reviewed this and decided that we made the wrong call on three folks I think is a pretty clear-cut sign that we've created an impartial system here," he said.
But many pilots are dubious. One of them is Dennis Dolan, an ALPA first vice president and chairman of its Security Task Force. Now a Delta airlines pilot, Dolan is a former Marine who flew 333 combat missions in an F-4 Phantom in Vietnam.
"It's nice to say, `trust me,' but that's not how our legal system works," he said in an interview. "That's why we have had an enduring process for well over 200 years that addresses issues like this. And there's no reason why this one can't be the same way."
Jonathan Turley, professor of public-interest law at the George Washington University Law School in Washington, D.C., agreed.
"The question is not how challenges have concluded, but how they're handled," said Turley, a specialist in constitutional law and criminal procedure.
"And the mere fact that the first three cases happened to be favorable doesn't change the constitutional analysis," said Turley.
He stopped short of calling the ruling unconstitutional, saying instead that it raises "serious questions about due process" that are guaranteed in the Constitution.
As far as not presenting a pilot with information about why a license had been pulled, Turmail said that is the only way to protect intelligence sources.
"The information we use to make these determinations is sensitive information and in most cases very classified intelligence," he said. "And we couldn't establish an appropriate way to create a review process outside the TSA that would allow folks to appeal in a way that they could actually have access to their case."
But Turley said there are ways to guarantee the defendant's rights without compromising classified information, including the government presenting evidence in redacted form or even granting the defense lawyer a clearance to view it.
"I've handled national-security cases that dealt with all of these options," he said. "The denial of access to evidence is supposed to be the final, not the first, response of the government."
While it is a big issue for ALPA, Dolan said the union would work with Congress to change the ruling instead of taking more dramatic action such as seeking an injunction.
Dolan noted that, so far, no pilots have been affected, and that he's hoping nobody will have their livelihood endangered in the meantime.
"But who knows what's going to happen when the war starts? Who knows what's going to happen when we tighten further down on the security?" he said, "It's a little too wide open right now."
