Straighten Up and Fly Right
December 2, 2004
By Heather Mac Donald
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.
©2004 Wall Street Journal
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