TSA VIPR Teams – Increase A Legally Questionable Failing Program?

In the spring of 2004, following the commuter rail bombings in Madrid, the Transportation Security Administration (TSA) began devising a plan to “protect the Nation’s transportation systems and ensure freedom of movement for people and commerce,” for the railroads and mass transit systems in the United States.  The result of the TSA’s efforts to increase their presence, and the overall security of transportation as a whole in the Unite States was the creation of “Visible Intermodal Prevention and Response“(VIPR) teams, which began being deployed in high density transportation facilities in 2005.

 

As the TSA Administrator John Pistole lays out the agency’s 2012 budget, he plans for a 50% expansion of the VIPR program … but what is a 50% expansion of the VIPR program?  The TSA Office of Strategic Communications state earlier this year that the TSA deploys roughly 50 VIPR teams each week to conduct random security screening through the nation’s varied transit systems … however Administrator Pistole recently testified before the U.S. Senate that the “TSA conducted more than 8,000 VIPR operations in the past 12 months, including more than 3,700 operations in mass-transit and passenger-railroad venues.”  The TSA’s numbers have rarely been consistent when testifying before the House, Senate or the Government Accountability Office, however the difference here is between the TSA having conducted a total of approximately 2,600 operations total vs more 8,000 … much less 3,700 operations alone in “mass-transit and passenger-railroad venues.”

 

Now … if you’re wondering where TSA VIPR teams would conduct operations outside of “mass-transit and passenger-railroad venues,” the answer borders on absurd and ineffective.   TSA VIPR teams have been known to operate in the middle of the night at truck stops; search truckers operating their own trucks, and an estimated 45% of VIPR operations are conducted in the aviation security domain … which is to say they are conducted at airports.

 

The TSA’s deployment of VIPR operations at airports overlaps with their already significant presence at airports, as well as overlapping with the duties of airport security and law enforcement.  The allocation of 45% of VIPR’s human assets, which reportedly consist Transportation Security Officers (TSO), Behaviour Detection Officers (BDO), Surface Transportation Security Inspectors (STSI), K9 Explosives Teams and Federal Air Marshals (FAM).

 

The make up of VIPR teams is interesting in the members they are comprised of, but the allocation of members is problematic. With only 100 STSIs, operating from 18 field offices, nationwide, responsible for covering the Nation’s largest rail and mass transit networks, removing STSIs from their already spread thin tasks leaves potential gaps in their daily duties of working with law enforcement and transit police throughout the United States.  The only members of a VIPR team that are Law Enforcement are Federal Air Marshals, however many FAMs already work an overloaded schedule and reallocating FAMs to handle surface security is outside the realm of their operational duties and a waste of their specialized skills.

 

Putting human assets, costs, inaccurate internal statistics and logistics aside … since the inception of TSA VIPR teams, these teams have yet to identify a single threat to the Nation’s surface transportation, they pose problems for commuters and rigid travel schedules where passengers aren’t prepared for the delay and their operations appear to be outside the TSA ‘immunity’ from the Fourth Amendment.

 

VIPR Teams operating in areas such as truck stops and highway rest stops are outside the TSA’s ‘immunity’ of the Fourth Amendment. The TSA is able to perform searches of passengers in airports, and other major transportation centers, due to the 1973 the 9th Circuit Court ruling on  U.S. vs Davis, 482 F.2d 893, 908.  The TSA cities these two passages of U.S. vs Davis “noting that airport screenings are considered to be administrative searches because they are conducted as part of a general regulatory scheme, where the essential administrative purpose is to prevent the carrying of weapons or explosives aboard aircraft,” and  “[an administrative search is allowed if] no more intrusive or intensive than necessary, in light of current technology, to detect weapons or explosives, confined in good faith to that purpose, and passengers may avoid the search by electing not to fly.”

 

The TSA has found further legal footing for its searches in airports, and expanded presence into major transportation centers in the 1986 9th Circuit Court ruling on  U.S. vs Pulido-Baquerizo, 800 F.2d 899, 901 which states “To judge reasonableness, it is necessary to balance the right to be free of intrusion with society’s interest in safe air travel.”

 

While both these rulings pertain specifically to airports, the TSA has reasonably asserted they can apply to train stations, ferry terminals and bus stations … however these assertions have not been challenged in court as of yet … that said … these rulings have no bearing on truck stops and highway rest stops. The TSA has no legal standing to engage travelers in their own vehicles, operating their own vehicles or in areas where they cannot reasonably secure a sterile area for screened and unscreened travelers.

 

Yes, the TSA can ask truckers to participate in the “See Something, Say Something” campaign, but these truckers can’t be causally interviewed by a member of a TSA VIPR team or referred for further review.   The TSA is stepping outside its bounds in terms of manpower, reasonable expectation to intercept a threat and moving beyond the US Court rulings they use as justification for their actions.

 

When it comes to TSA VIPR Team effectiveness, the program leaves many gaps and wholly ineffective.  TSA VIPR Teams are visible, and intentionally visible, which would allow any terrorist seeking to do harm to bus, subway or train the time to back out the station or never enter the situation and go unnoticed.   Additionally, since a train or bus is not searched at every station, should someone seek to carry out a terrorist action, there are ample opportunities to evade a TSA VIPR Team.

 

Assuming the TSA is allowed to operate in Amtrak Stations, given that an incident at an Amtrak Station in Savannah, GA, caused Amtrak’s Chief of Police John O’Connor to make the TSA persona non grata until a defined agreement between Amtrak and the TSA can be instituted that is not contrary to Amtrak policy … should a terrorist seek out an Amtrak as target at a station that had TSA VIPR team on site there are many ways to avoid being searched.

 

The first major problem with how the TSA VIPR teams conduct passenger screening at many stations, commuter rail or Amtrak (when they were allowed at Amtrak stations) , is they leave significant gaps in coverage.   TSA VIPR agents tend to screen passengers in the station, allowing passengers to simply bypass the station and head straight for the platform.

 

Another problem is that not everyone on a train is screened, should a terrorist, for example, show up at the New London, CT, train station and spot a TSA VIPR team in action, rather than risk bypassing the station and walking straight to the platform, they could hit the gas, get in I-95 and beat the train to the Old Saybook station and board there, where a TSA VIPR Team wouldn’t be in place.

 

At bus stations, anyone seeking to carry out an act of terrorism could easily spot a VIPR Team, blend it, back out and exit the premises.  TSA VIPR Teams, even if a BDO spots someone acting suspicious, canon give chase, they must contact law enforcement and give them reason why they should chase someone who by the time the potential threat was communicate to the police could be in a car and out of sight.

 

For subway stations, in many cities a station has multiple entrances, when a TSA VIPR Team typically enters a subway station, they do not have the manpower to handle all the possible entrances in some stations, so they focus on stations that have one or two entrances, or entrances convening in a common area … thus allowing a potential terrorist to see the problem directly in front of them, exit the station and move onto a station that does not a TSA VIPR Team screening travelers.

 

OK … let’s forget the gaping holes in the effectiveness of TSA VIPR Teams, much less then TSA’s desire to increase them by 50% … lets look at the TSA VIPR Teams from the point of view of impacting the “freedom of movement for people and commerce” which the TSA’s Mission Statement says they are charged with ensuring … when people travel by airplane they know they need to arrive at the airport early to undergo security screening, however when people travel by bus, train, mass transit, they do not leave themselves time to be security screened and railroad, bus and ferry companies do not have the luxury of delaying departure times to accommodate the TSA’s VIPR Teams.

 

For Amtrak trains, many regular travelers arrive at the station maybe five minutes before a train is to depart. My local station, Old Saybrook, at a peak morning hour generally as about 15-20 people boarding for trains head south. Figure each passenger needs at a minimum 60 to 90 seconds to be screened, the TSA VIPR Teams will either cause people to miss their train or cause Amtrak to delay a train.

 

For morning rush hour commuters on the Long Island Rail Road (LIRR), a likely high density target, one the TSA VIPR Teams view as a threat  … say the TSA has three people screening on the Valley Stream platform for the 8:03AM train to Penn Station and 45 people are waiting to board this peak train … does the TSA cause two dozen people running for the train to miss the train or do they require the LIRR to delay the train, which then delays the 8:16am and 8:28am trains?

 

If a terrorist really wanted to attack an LIRR train headed to New York City and spotted TSA VIPR Teams screening passengers, they would hit the gas and take the five minute drive to the Rosedale station, boarding there, bypassing the TSA VIPR Team, still achieving their goal with no hassle of evading security.

 

The scenarios are endless … but none of these touches on a major issue of TSA VIPR Teams.  TSA VIPR Teams are not law enforcement. At times TSA VIPR Team searches catch people traveling with drugs, or an unregistered firearm, or other illegal items that pose no genuine threat to transportation security. What these TSA Agents uncover are items that fall under law enforcement jurisdiction … something TSA TSOs and BDOs, those actually doing the hands on screening … are not charge with enforcing.   Using the TSA’s ‘immunity’ from the Fourth Amendment only goes so far, and the TSA’s searches outside of airport, or major transit centers with the TSA can argue are similar to an airport in terms of environment (although it likely may not hold up in court should it get there) would simply get any case made against those stopped, searched and arrested for contraband items thrown out, as these items would have been revealed during an illegal search.

 

 

Given all the logistical, technical and legal issues TSA VIPR Teams face are they used by the agency as a jack-of-all-trades, but a master of none?

 

With the TSA’s 2012 Budget not yet set in stone I hope the funding for the VIPR Teams is examined closed and the agency is forced to justify its existence in a meaningful way.

 

Happy Flying!

@flyingwithfish