Straighten Up and Fly Right

[R.A. Hettinga]

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The Wall Street Journal


 December 2, 2004

 COMMENTARY


Straighten Up and Fly Right

By HEATHER MAC DONALD
December 2, 2004; Page A12


One of the highest priorities for whoever succeeds Tom Ridge at Homeland
Security should be to take political correctness and a fear of litigation
out of national security decisions. From immigration enforcement to
intelligence gathering, government officials continue to compromise safety
in order to avoid accusations of "racial profiling" -- and in order to
avoid publicly acknowledging what the 9/11 Commission finally said: that
the enemy is "Islamist terrorism." This blind antidiscrimination reflex is
all the more worrying since radical Islam continues to seek adherents and
plan attacks in the U.S.

The government antidiscrimination hammer has hit the airline industry most
severely. Department of Transportation lawyers have extracted millions in
settlements from four major carriers for alleged discrimination after 9/11,
and they have undermined one of the most crucial elements of air safety: a
pilot's responsibility for his flight. Since the charges against the
airlines were specious but successful, every pilot must worry that his
good-faith effort to protect his passengers will trigger federal
retaliation.

Transportation's action against American Airlines was typical. In the last
four months of 2001, American carried 23 million passengers and asked 10 of
them not to board because they raised security concerns that could not be
resolved in time for departure. For those 10 interventions (and an 11th in
2002), DOT declared American Airlines a civil-rights pariah, whose
discriminatory conduct would "result in irreparable harm to the public" if
not stopped.

On its face, the government's charge that American engaged in
discriminatory conduct was absurd, given how few passenger removals
occurred. But the racism allegation looks all the more unreasonable when
put in the context of the government's own actions. Three times between
9/11 and the end of 2001, public officials warned of an imminent terror
attack. Transportation officials urged the airlines to be especially
vigilant. In such an environment, pilots would have been derelict not to
resolve security questions in favor of caution.

Somehow, DOT lawyers failed to include in their complaint one further
passenger whom American asked not to board in 2001. On Dec. 22, airline
personnel in Paris kept Richard Reid off a flight to Miami. The next day,
French authorities insisted that he be cleared to board. During the flight,
Reid tried to set off a bomb in his shoe, but a stewardess and passengers
foiled him. Had he been kept from flying on both days, he too might have
ended up on the government's roster of discrimination victims.

Jehad Alshrafi is typical of those who were included in the suit against
American. On Nov. 3, 2001, this Jordanian-American was scheduled to fly out
of Boston's Logan Airport (from which two of the hijacked planes --
including American Flight 11 -- departed on 9/11). A federal air marshal
told the pilot that Alshrafi's name resembled one on a terror-watch list --
and that he had been acting suspiciously, had created a disturbance at the
gate, and posed unresolved security issues. The pilot denied him boarding.
Alshrafi was later cleared and given first-class passage on another flight.

According to DOT, the only reason American initially denied Alshrafi
passage was because of his "race, color, national origin, religion, sex or
ancestry." Never mind that there were at least five other passengers of
Arab descent on his original flight, none of whom had been given additional
screening or kept from flying. In fact, on virtually every flight on which
the government claims that American acted out of racial animus, other
passengers of apparent Middle Eastern ancestry flew undisturbed.

If DOT believes that an air marshal's warnings about a passenger's name and
suspicious behavior are insufficient grounds for keeping him off a flight,
it is hard to imagine circumstances that would justify a security hold in
the department's view -- short of someone's declaring his intention to blow
up a plane. Given the information presented to the pilot, the only
conceivable reason to have allowed Alshrafi to board would have been fear
of a lawsuit.

And litigation phobia is precisely the mind-set that DOT is hoping to
cultivate in flight personnel: 10 days after 9/11, the department started
rolling out "guidance" documents on nondiscrimination. While heavy on
platitudes about protecting civil rights, they are useless in advising
airlines how to avoid the government's wrath. The closest the DOT gets to
providing airlines a concrete rule for avoiding litigation is a "but-for"
test: "Ask yourself," advise the guidelines, "But for this person's
perceived race, ethnic heritage or religious orientation, would I have
subjected this individual to additional safety or security scrutiny? If the
answer is 'no,' then the action may violate civil rights laws."

But security decisions are never that clear. A safety officer will consider
many factors in calculating someone's riskiness; any one of them could be
pulled out as a "but-for" element. As American's record makes clear, it is
almost never the case that someone gets additional screening based on his
apparent ethnic heritage or national origin alone; behavior and no-fly-list
matching are key in the assessment. (In fact, about half the complainants
in the government's action were not even Middle Eastern. DOT simply
assumes, without evidence, that American scrutinized the men because of the
mistaken belief that they were Arabs.) A pilot trying to apply the
"but-for" test to his own security judgment will inevitably reduce the test
to an easier calculus: "Deny passage to someone who is or could claim to
look Muslim only under the most extreme circumstances."

In application, the "but-for" test reduces to a "never-ever" rule: Ethnic
heritage, religion, or national origin may play no role in evaluating risk.
But when the threat at issue is Islamic terrorism, it is reckless to ask
officials to disregard the sole ironclad prerequisite for being an Islamic
terrorist: Muslim identity or its proxies -- national origin or ethnic
heritage. (Muslim identity should be at most only one factor in assessing
someone's security risk.)

American contested DOT's action, but fighting the government civil-rights
complex is futile. In February 2004, the airline, while denying guilt,
settled the action for $1.5 million, to be spent on yet more "sensitivity
training." American's pilots were outraged. "Pilots felt: 'How dare they
second-guess our decision?'" says Denis Breslin, a pilots' union official.

Not satisfied with just one scalp, DOT lawyers brought identical suits
against United, Delta and Continental. Those carriers also settled,
pledging more millions for "sensitivity training" -- money much better
spent on security training than on indoctrinating pilots to distrust their
own security judgments. And in the government's wake, the private
civil-rights bar, led by the ACLU, has brought its own airline
discrimination suits. An action against Northwest is seeking government
terror-watch lists, Northwest's boarding procedures, and its cabin-training
manual. If these materials got loose, they would be gold to terrorists
trying to figure out airline-security procedures

The first George W. Bush administration tried mightily not to offend the
antidiscrimination lobby. It's time to give up that game. From now on,
common sense alone should determine security decisions, the only course
which can protect all Americans, Muslims and non-Muslim, alike.

Ms. Mac Donald is a contributing editor at City Journal, from whose latest
issue this is adapted.

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R. A. Hettinga <mailto: rah at ibuc.com>
The Internet Bearer Underwriting Corporation <http://www.ibuc.com/>
44 Farquhar Street, Boston, MA 02131 USA
"... however it may deserve respect for its usefulness and antiquity,
[predicting the end of the world] has not been found agreeable to
experience." -- Edward Gibbon, 'Decline and Fall of the Roman Empire'

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