SAFETY FIRST, PART ONE: The Law Governing Our Borders And Skies

By BARTON ARONSON

Thursday, Sep. 27, 2001

This is Part One of a two-part series by FindLaw columnist Bart Aronson on the security issues raised by the September 11 attacks. Part Two in the series, which will appear on October 8, will address investigative issues — specifically, the increased powers sought by the federal government in the wake of the attacks. — Ed.

"The state," Newsweek commentator Fareed Zakaria wrote in the aftermath of September 11, "is back." On that day, of course, terrorists hijacked four U.S. airliners and murdered over six thousand people on the planes and in the World Trade Center and the Pentagon. In so doing, the terrorists rendered one mainstay of American politics — a certain rhetorical hostility to government — obsolete.

Everyone on the public payroll in New York, from the mayor to the newest trainee firefighter, provided the nation with a new take on Ronald Reagan's famous line: they were all from the government, and they were all there to help.

When we feel secure, we worry about interest rates, violent movies, and whether Michael Jordan is going to play for the Wizards. When we don't feel secure, we worry about that, until the worry goes away. This time, the worry is not going to go away anytime soon.

So the best we can do in this time of crisis — in addition to responding directly to the savagery of the terrorists and their benefactors — is to reorient our political focus to the fundamentals: the safety and security of Americans. Among the security concerns raised by the September 11 attack are two interrelated issues involving the movement of people: security at the border and in the skies.

Using Face-It Technology

When people move from place to place — whether from L.A. to New York, or from Shanghai to Chicago — they do so openly. You can't cross a border or get on a plane in secret. Because you do these things openly, courts had held that you have no legal privacy interest in the fact that you're doing them. One of the cornerstones of Fourth Amendment law is that you have no privacy interest in what you willingly expose in a public place.

These facts present opportunities for improving security without compromising in any way the American conception of civil liberties. For example, when the markets opened the week after the attacks, one of the few bright spots amidst the sell-off was the rise in the stock of companies specializing in facial recognition technologies, sometimes referred to in the industry as "Face-It" technologies.

Developed beginning in the late '80s, these systems use cameras to scan faces, and then use computers to match those faces to those in a database. They have proved extraordinarily reliable both in terms of avoiding false positives and in making correct identifications despite facial changes such as aging or the addition or removal of facial hair.

These systems are presently used in a variety of public settings. The best known is Ybor City in Tampa, Florida, a crowded collection of nightclubs and restaurants which had been a crime center. Tampa has used Face-It technology with some success in policing Ybor City.

Such technology should be employed at every border crossing and every airport in the country. It provides a critical means of detection, especially in places in which forged documents are common and difficult to detect.

Face-It technology is not, as many have claimed in the past weeks, a "virtual line-up." Rather, it is more similar to a police officer standing near a turnstile watching people get on the subway — a type of patrol that should only make us feel safer. It is a way of ensuring that we are able to move freely, and that those whom we seek because they pose a danger cannot.

Coordinating with Consulates

Immigration enforcement has for a long time been (as I wrote in my August 24 column), before September 11, the neglected stepchild of immigration reform. Before the attacks, the debate was largely about who we were going to let in, and how. Now, the debate is about who we are going to keep out, and how.

The problem begins abroad, where U.S. consulates issue visas without access to the full range of intelligence our government has collected. Such access has been provided piecemeal, after negotiations between the Bureau of Consular Affairs and individual law enforcement agencies.

Indeed, two months before the attacks, representatives from the BCA testified on the Hill that the Bureau was in the initial stages of data-sharing agreements with the FBI and Customs. It is unimaginable that those responsible for granting access to our country do not have full and immediate access to our nation's rich store of information on potentially dangerous foreigners.

This information problem needs to be corrected immediately — and might be a good initial agenda item for Tom Ridge, whose Office of Homeland Security will, among other things, help different federal agencies coordinate information about security risks.

Giving the INS Time to Do Its Job

There is a similar problem at the border itself. INS processing for green cards and permanent resident status involves, among other things, fingerprint checks by both the FBI and the CIA. The problem is that the INS operates under legal deadlines that these other agencies can't always meet. And the result is that the INS, to meet its own deadlines, is sometimes forced to do its processing without full information.

In 1999, for example, the INS was sued by a South African couple because it had delayed processing their green card requests. The INS had a good reason for delay: the CIA had not completed its fingerprint analysis. Nevertheless, because of the deadlines, the INS issued the green cards, mooted the lawsuit, and promised to get in touch if the CIA check turned up anything suspicious.

This, of course, is insanity. We cannot address our immigration problems by shortchanging national security. Doing background checks on immigrants is not a favor the CIA does the INS; it is a vital national security function. INS and CIA budgets, resources, and deadlines must reflect these facts.

Improving Tracking of Non-Citizens

Another problem in patrolling the borders comes from the INS' current lack of capacity for tracking people who are only here for a limited period of time. Because of the lack of tracking ability, non-citizens' overstaying their visas is a chronic, widely-publicized problem.

No longer can we treat this problem as hopelessly insoluble. Rather, the INS must find a way to track the whereabouts of those who hold visas, and to enforce visa limits.

Several potential steps, including requiring employers and, potentially, schools to report on the status of their non-citizens, would help. As long as we continue to demand that people enter the country for a stated purpose, we have the right to monitor whether, in fact, they're doing what they said they would. Otherwise, what was the point of asking in the first place?

Taking Over Airline Security As a Government Function

Our current debate about the costs of airline security makes little sense to those who live in other countries. Abroad, airline security has always been handled like any other police function: that is, by the state. Perhaps we should always have handled it that way, too. In any event, we should certainly do so now — as the government has already acknowledged.

In an extraordinary demonstration of how times have changed, Treasury Secretary Paul O'Neill said after the September 11 attacks that aviation security may have to be "socialized." Indeed it does.

No one but the government is in a position to ensure airline security. Individuals can't do it, of course. The airlines themselves, on increasingly shaky financial ground, are in no position to add the new and large costs of beefed-up security to their balance sheets. The semi-private authorities that actually run many of our airports are similarly in no position to come up with the needed billions. And, in a time when the public is already anxious about flying, simply passing the cost of security onto them in the form of much higher ticket prices might cripple the aviation industry completely.

In other words, there is no well-functioning market for aviation security. Indeed, that is a huge understatement. The largest private contractor providing screeners to American airports, Argenbright, pled guilty last year to criminal charges stemming from its employment of the untrained and the criminally convicted; International Total Services, another contractor, is in bankruptcy.

Security jobs, too, are not treated as the positions of important responsibility that they are. In the U.S., passenger and baggage screening is a dead-end, low wage job with no benefits — in sharp contrast with the European system, in which such jobs are desirable and decently paid. Current employees have a turnover rate in excess of 100% every year, and this alone presents a security problem. Whether or not the hijackings were an "inside job," as some have claimed, the mere fact that this theory is plausible shows how much we need change.

The entire airport security system should be federalized: baggage screening and handling and everything else. The federal government needs to handle background checks, training, salaries and benefits, and career tracks, so that the security of our nation's aviation is in the hands of motivated professionals who like their jobs and stay in them for a period of years.

Air Marshals and Other In-Flight Precautions

A number of the necessary changes for the airline industry will cause little inconvenience. For example, all U.S. carriers should follow Israel's lead and put their pilots on the other side of two bulletproof doors that cannot both be opened. There is simply no way for a hijacker to get into the cockpit of an El Al plane, or to disable an El Al pilot.

Similarly, air marshals belong on every passenger jet (another feature of El Al). Putting marshals on some flights makes little sense: the goal is not to deter terrorists but to stop them. Terrorists prepared to die are not going to be deterred by the possibility that, if they hijack four planes, one might have a marshal on board that will foil their plans.

A policy of a marshal on every plane is far preferable to arming pilots: we want them flying the plane, not facing down hijackers. Sealing off and ensuring the security of the cockpit is incompatible with arming the pilots so they can keep order in the cabin.

Security, But Without Discrimination

In the last few weeks, airline passengers of Middle Eastern descent have been forced off of airplanes by frightened pilots, crew, and passengers. It is these actual encounters with discrimination — not facial identification scans, not identity checks at borders, not the requirement that non-citizens check in with the INS — that ought to concern us going forward.

The real American tradition of civil liberties is not simply an unqualified right of every citizen of the world to be left alone, shielded from view, and untrackable the moment they come within sight of our borders. The real tradition is a right to lead a legal life in both peace and security.


Barton Aronson is currently a prosecutor in Washington, D.C. Prior to that, he was in private practice in Washington, D.C. and an Assistant District Attorney in Massachusetts. The opinions expressed in this article are his own.

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