The Transportation Security Administration (TSA) has frequently found itself pushing the boundaries of its original mission and facing criticism for its actions. A few days ago however the TSA pushed a new boundary … that of publicly stating it was ignoring an Act of Congress.
To make matters more complex, TSA Administrator John Pistole is publicly thumbing his nose at the Act of Congress that created the Transportation Security Administration.
On the 19th of November 2001 Public Law 107-71, the Aviation and Transportation Security Act, was enacted as an Act of Congress, and signed into law by President George W. Bush “to improve aviation security.”
Under the Aviation and Transportation Security Act the Transportation Security Administration was created and other standards for airport and aviation security were made into the law of the land. These laws may not be ignored by appointed administrators who disagree with them …
… last week TSA Administrator Pistole, a former attorney, seems to have forgotten how laws work and that in his position he cannot override an Act of Congress simply before he disagrees with it. Following the TSA’s rejection of Springfield-Branson National Airport’s (SGF) request to “opt out” of TSA passenger screening under the Screening Partnership Program, Administrator Pistole issued this statement:
“Shortly after beginning as TSA Administrator, I directed a full review of TSA policies with the goal of helping the agency evolve into a more agile, high-performing organization that can meet the security threats of today and the future. As part of that review, I examined the contractor screening program and decided not to expand the program beyond the current 16 airports, as I do not see any clear or substantial advantage to do so at this time. The airports that currently use contractor screening will continue to be regulated by TSA and required to meet our high security standards.”
While a TSA Administrator has the discretion to deny an airport’s request to participate in the Screening Partnership Program, the Administrator cannot preemptively refuse to review each airport’s request to participate in the Screening Partnership Program. Administrator Pistole may not see “any clear or substantial advantage” to expanding the Screening Partnership Program, however the United States Congress created a law that allows airports the right to opt out and his inability to see “any clear or substantial advantage” is problematic and the sign of someone who is not looking at all the angles of the Screening Partnership Program.
Regardless of whether of not Administrator Pistole sees “any clear or substantial advantage” he might want to dust off his copy of the Aviation and Transportation Security Act and turn to Page 16. On page 16 of Public Law 107-71 he will find § 44920 – Security screening opt-out program. §44920 of Public Law 107-71 details an airports ability to opt-out and the guidelines for a private security company to handle airport security duties.
The details of §44920 read as follows:
‘§ 44920. Security screening opt-out program
‘‘(a) IN GENERAL.—On or after the last day of the 2-year period beginning on the date on which the Under Secretary transmits to Congress the certification required by section 110(c) of the Aviation and Transportation Security Act, an operator of an airport may submit to the Under Secretary an application to have the screening of passengers and property at the airport under section 44901 to be carried out by the screening personnel of a qualified private screening company under a contract entered into with the Under Secretary.
‘‘(b) APPROVAL OF APPLICATIONS.—The Under Secretary may approve any application submitted under subsection (a).
‘‘(c) QUALIFIED PRIVATE SCREENING COMPANY.—A private screening company is qualified to provide screening services at an airport under this section if the company will only employ individuals to provide such services who meet all the requirements of this chapter applicable to Federal Government personnel who perform screening services at airports under this chapter and will provide compensation and other benefits to such individuals that are not less than the level of compensation and other benefits provided to such Federal Government personnel in accordance with this chapter.
‘‘(d) STANDARDS FOR PRIVATE SCREENING COMPANIES.—The Under Secretary may enter into a contract with a private screening company to provide screening at an airport under this section only if the Under Secretary determines and certifies to Congress that—
‘‘(1) the level of screening services and protection provided at the airport under the contract will be equal to or greater than the level that would be provided at the airport by Federal Government personnel under this chapter; and
‘‘(2) the private screening company is owned and controlled by a citizen of the United States, to the extent that the Under Secretary determines that there are private screening companies owned and controlled by such citizens. ‘‘(e) SUPERVISION OF SCREENED PERSONNEL.—The Under Secretary shall provide Federal Government supervisors to oversee all screening at each airport at which screening services are pro- vided under this section and provide Federal Government law enforcement officers at the airport pursuant to this chapter.
‘‘(f) TERMINATION OF CONTRACTS.—The Under Secretary may terminate any contract entered into with a private screening company to provide screening services at an airport under this section if the Under Secretary finds that the company has failed repeatedly to comply with any standard, regulation, directive, order, law, or contract applicable to the hiring or training of personnel to provide such services or to the provision of screening at the airport.’’
(b) CLERICAL AMENDMENT.—The analysis for such subchapter is amended by adding after the item relating to section 44918 the following:
‘‘44919. Security screening pilot program.
‘‘44920. Security screening opt-out program.’
There have been many times when the TSA has faced public and political wrath for their actions. To date, the TSA’s actions, while questionable, have been legal … however this action does not appear to be legal. In the United States we have law and those sworn to protect them must uphold these laws. As a former attorney and former Deputy Director of the Federal Bureau of Investigation I would expect that TSA Administrator Pistole has a personal ethical duty to see that he laws of the United States are upheld and that the agency he is charged with leading does not deviate from the law.
Aviation security in the United States is going in the wrong direction, being reactionary, rather than visionary. The lack of recourse from airports regarding problems in TSA security is problematic. The lack of options in choosing a better airport security procedure and experience impacts the security of the aviation industry and the revenue of airports and airlines, an industry with millions of employees in the United States. The TSA needs an open mind, not a closed mind … and it needs to follow the law just like everyone else.