Magana Cathcart & McCarthy

Airport and in-flight security: Who’s responsible?

By William H. Wimsatt

The September 11, 2001 air tragedies involving four airliners which were hijacked and then used as human bombs on the Trade Center buildings and Pentagon will cause all of us to re-think air travel security. The people in a position to bear this responsibility most effectively are those both on the ground and in the air. Government plays a role in providing advance warning, which is sometimes available and sometimes not. The agencies in the government most concerned are the Department of Transportation (DOT), which includes the Federal Aviation Administration (FAA), our National Security Agency (NSA), Central Intelligence Agency (CIA) and the Federal Bureau of Investigation (FBI). All of these governmental agencies have a role to play in the prevention of in-flight hijacking and bombing.

Others who also play a preventive role are the airport authorities, states, counties and municipalities, which operate airports for commercial air travel. Air travelers have grown familiar with the metal screening devices, the x-ray machines, random luggage checks and explosive sniffing dogs. None of the security in place prior to September 11th, however, was effective in deterring or preventing the four aircrashes that ensued from the terrorist hijacking of four airliners.

Heightened attention to this fact will result in analysis, study, recommendations and implementation of new procedures to secure the safe air travel of people in commerce within and outside the United States. The analysis begins with an understanding of how the terrorists gained access to and control of the airplanes which were then turned into human bombs directed at two of our nations most obvious symbols.

As events become more clear in the following days, there will certainly be additional information. What seems to be known presently is that three to five hijackers per airliner, armed with crude but effective weapons which may not have been shaped like knives o r cutting objects as they were carried on the aircraft, and without the need of any explosives, overpowered the cabin crew and cockpit crews, removing, incapacitating or killing them in a rapid rush through the cabin toward the cockpit and through the door between the cabin area and the cockpit, which was never designed to stop anything other than impolite interference or nuisance. The speed with which the takeover of the airplanes occurred confirms the number of terrorists likely onboard each airliner, a minimum of two and possibly as many as five. The terrorists having commandeered the aircraft immediately installed their own pilot or person sufficiently trained to operate in the air the aircraft. It is surprisingly simple how easily an airplane, no matter the size, can be steered toward objects on the ground in clear skies. Of course, the "terrorist pilots" did not even need to know how to land the airplane or take it off. We may never know whether these were qualified pilots in service of the terrorists or simply people who trained on a personal computer using flight simulation to gain a knowledge of how an airplane is controlled, the use of the instrumentation and how the avionics may be used to navigate the airplane to the target. It is clear that these people knew enough to locate the transponder on the instrument panel of the airplane and simply turn it off.

At this point in the hijacking neither the government through any of its agencies, nor the airport security personnel, nor the port authorities, nor the cabin or flight crews onboard the airplanes were trained or even capable of changing the course of events. Indeed the flight crew may no longer have even been alive. As more information becomes clear this analysis can grow and more lessons learned, but for now, a couple of things are immediately clear:

1. We need to protect the cockpit flight crew from terrorists; and,

2. Train and make more capable our commercial air crews to combat the kind of direct and rapid assault that occurred shortly after take-off while these airplanes contained enough fuel to damage huge structures and cause untold millions or billions of dollars worth of carnage.

Do you remember when there was a spate of initial hijackings experienced in the United States during the 1970s? Recall that these hijackings were initially occurring outside the United States, but then suddenly there were hijackers who wanted to go to Cuba or some other location, happening within the United States. The immediate solution was to implement air marshals whereby armed security was placed on the airplanes to protect the flight crews and hopefully remove the threat of a hostage crisis. Also, it was the hostage scenario that was being pursued by the terrorists at that time, which in itself is a serious problem. Now, however, it is the human bomb scenario, which as we have all seen from yesterday’s catastrophes, is a much more severe threat.

Why weren’t the air marshals still onboard the airplanes in this day and age? Were they too expensive? Was some better alternative implemented? After awhile, the air marshals were taken off of the airplanes when it appeared no one was making further hijack attempts after a time. At the same time, it was thought that our airport security had improved with the implementation of metal detection and x-ray devices to protect against weapons and bombs being carried on the airplane. Some profiling and survey of passengers that might match up with known or suspected terrorist activity has been performed . Explosive sniffing dogs have been used along with full luggage searches and body searches on a random and rare basis.

Have the implementation of these security measures by the airport authorities been financed by the taxpayer? By the passengers? By the airlines? Who has borne the financial responsibility for these ground security operations? Have they been effective or even adequate? It immediately appears worth considering whether the level of education, training, immediate supervision and oversight of our ground security has been anywhere near close to an acceptable level of competence. Whether ground security alone could have deterred or prevented the four hijackings that occurred September 11th will only be determined satisfactorily after additional information is learned about what led up to the events which stunned us all. The possibility seems real that no amount of ground security may have been able to detect, deter or prevent the human bomb scenario that resulted. Which highlights an essential point. Effective security must once again be placed onboard the commercial air carrier, as presently the only effective means likely to prevent what has occurred. But it also seems clear that our ground security, as well as the flight security provided by the air marshals, must be improved and made more effective.

In Re Lockerbie Aircrash was the lawsuit which resulted from the crash of Pan Am Flight 103 over Scotland as the result of a terrorist bombing in 1988. The passengers onboard that airplane were engaged in international air travel and the families who lost their loved ones were eventually compensated within the legal system pursuant to the Warsaw Convention, as then modified. While some of the passengers onboard the four airplanes on September 11th may also have been engaged in international air travel, these were domestic flights within the United States and most of the passengers were likely engaged only in domestic air travel. The Warsaw Convention as currently modified by the IATA Accords will not play a role in determining the legal resolution of this matter on behalf of most families who have now been forced to suffer the brunt of the present catastrophe. While it is possible that the United States government through one of its agencies may be sued, it seems unlikely that any such lawsuit would be successful, given the exceptions under the Federal Tort Claims Act (FTCA) of discretionary function, misrepresentation and the war clause. The most likely people to be sued as a result of the four airlines crashes, by people and property both on the ground and in the air, are those who provided or failed to adequately provide the ground security and the in-flight security to detect, deter or prevent these four aircrashes. Claims will likely be necessary against the airport authorities which are governmental or quasi-governmental entities, and require compliance with administrative claim statutes before suit is filed. Basically the airport authorities and the airlines are those in the best position to prevent such harm occurring again. They will, hopefully, have effective assistance from the Department of Transportation by way of the Federal Aviation Administration.

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