Terror in the sky exposes national security vulnerabilities

Federal criminal charges have been filed against Umar Farouk Abdulmutallab, 23, a Nigerian national, for his attempt to destroy a Northwest Airlines aircraft by detonating an explosive device on board the plane during its final approach to Detroit Metropolitan Airport on December 25, 2009.

Prosecution against Abdulmutallab is being handled by the U.S. Attorney’s Office for the Eastern District of Michigan, with assistance from the Counterterrorism Section of the Justice Department’s National Security Division.

A preliminary FBI analysis found that the suspect's makeshift bomb contained a powder explosive PETN, also known as pentaerythritol.

Powder explosives are difficult to detect with current screening procedures and equipment, and are the main target of the whole body scanners, which can locate non-metallic items concealed beneath passengers' clothes.

Michael Chertoff, who co-authored the Patriot Act and served as former Secretary of the Department of Homeland Security under the Bush administration, now works as a security consultant for companies that make screening devices that can identify explosives hidden under clothing.

Chertoff urged that such machines be deployed more widely. These controversial devices are opposed by the American Civil Liberties Union and privacy advocates.

Father of the suspect in the latest terror plot apparently alerted the American Embassy in October that his son had been "radicalized," and could pose a threat to the U.S. Inexplicably, in spite of American government officials being provided with this information, Abdulmutallab was not added to the No-Fly list and his U.S. travel visa was not revoked.

It should be noted that British authorities revoked Abdulmutallab's visa in 2009. In spite of what President Obama described as a “systemic failure” to prevent another terror attack, heroic actions of the passengers on board of the flight have turned a potential tragedy into the Christmas Day miracle.

As a result of the narrowly averted disaster, the current Threat Level for all domestic and international flights has been elevated to High (Orange).

New airport security measures have been implemented by the TSA, in conjunction with airlines, federal, state and local law enforcement authorities.

Department of Homeland Security Secretary Janet Napolitano stated, "I am grateful to the passengers and crew aboard Northwest Flight 253 who reacted quickly and heroically to an incident that could have had tragic results. The Department of Homeland Security immediately put additional screening measures into place—for all domestic and international flights—to ensure the continued safety of the traveling public. We are also working closely with federal, state and local law enforcement on additional security measures, as well as our international partners on enhanced security at airports and on flights”.

On September 29, 2009 the U.S. Government Accountability Office (GAO) released their aviation security report entitled "A National Strategy and Other Actions Would Strengthen TSA's Efforts to Secure Commercial Airport Perimeters".

GAO concluded that airport security remained largely vulnerable and/or untested, noting that 87 percent of the nation's approximately 450 commercial airports had never actually undergone a risk assessment analysis and therefore “TSA officials said that... they do not know how vulnerable they are to an intentional security breach."

Meanwhile, security breaches steadily increased. According to the GAO report, in FY2004 there were 1,442 airport security breaches. By FY2005 that number had risen to 2,073. By FY2006 it was at 2,258. By FY2007 it was at 2,758. And by FY 2008 it had increased once more to 2,819. GAO report further states, “In March 2007, in response to several incidents of insider criminal activity, TSA directed that ADASP [Aviation Direct Access Screening Program] be conducted at all commercial airports nationwide. For example, on March 5, 2007, two airline employees smuggled 14 firearms and 8 pounds of marijuana on board a commercial airplane at the Orlando International Airport."

White House spokesman Bill Burton stated that drastic changes are being made to the No-Fly lists, “Probably thousands upon thousands upon thousands of names were scrubbed, and probably dozens were moved to different lists.” Congress is planning hearings on the Christmas Day incident, and new airport screening measures are being implemented.

There are three categories of travelers that are subject to additional scrutiny during their air travel – those on the No-Fly list, those on the Automatic Selectee List and those on the Non-Terrorist Selectee List. Individuals on the No-Fly list are prohibited from boarding an aircraft. Individuals on the Automatic Selectee list must undergo additional security screening before they’re permitted to board an aircraft. TSA maintains a list of Non-Terrorist Selectees, who are also subject to additional security screening. Originally created and maintained by the Transportation Security Administration (TSA), No-Fly and Selectee lists are now derived from the consolidated terrorist watch list, which reportedly consists of about 400,000 names and is maintained by the Terrorist Screening Center (TSC).

Under Homeland Security Presidential Directive (HSPD-6), the Terrorist Screening Center (TSC) now provides “one-stop shopping” so that every federal, state and local law enforcement official is using the same terrorist watchlist, contained in the Terrorist Screening Database (TSDB). The TSC allows government agencies to run name checks against the same comprehensive list of known and suspected international and domestic terrorists, which includes any individuals who are known or reasonably suspected to be or have been engaged in conduct constituting, in preparation for, in aid of, or related to terrorism.

U.S. citizens are included in the Terrorist Screening Database if, under HSPD-6, there is a “reasonable suspicion that they are known or reasonably suspected of terrorism.” An individual listed in TSDB may also be a “misidentified person” - someone who is being subjected to additional screening procedures only because they have a similar name to a person on the list of terror suspects. Annually, millions of individuals--from international travelers to visa applicants--are screened for terrorism links against the watch list.

According to the report by the U.S. Government Accountability Office, since the Terrorist Screening Center (TSC) began its operations in December of 2003, various agencies sent tens of thousands of names to the TSC, and about half of them were misidentifications. Misidentifications can lead to delays, intensive questioning and searches, missed flights, or denied entry at the border. Congress has authorized the TSA to maintain a misidentified persons list.

The Department of Homeland Security’s Report Assessing the Impact of the Automatic Selectee and No Fly Lists on Privacy and Civil Liberties states that “to perform matching with reasonable quality and to correct mistakes, the entities that now use watch lists must collect personal information from everyone who travels by air or passenger ship, raising concerns that this information might be used inappropriately, particularly if adequate safeguards are not in place. Further, individuals who are mistakenly put on watch lists or who are misidentified as being on these lists can potentially face consequences ranging from inconvenience and delay to loss of liberty.”

Some of the most controversial cases of the No-Fly list abuses, misidentified individuals and false positives include Nelson Mandela (who was on the No-Fly list until July 2008 along with other members of the African National Congress, which former U.S. Secretary of State Condoleezza Rice called "rather embarrassing"), numerous children under the age of five, dead terrorists involved in the 9/11 attack, a United States Marine Daniel Brown (prevented from boarding the plane in returning to the US from Iraq), Senator Ted Kennedy (who said it had taken him three weeks of appeals directly to Homeland Security Secretary Tom Ridge to be removed from the list), ACLU attorney David Fathi, U.S. Representative John Lewis (D-GA) (widely known for his civil rights advocacy), Robert J. Johnson (a surgeon and a former lieutenant colonel in the U.S. Army who publicly opposed the Iraq War), Jesselyn Radack (a former United States Department of Justice ethics adviser who argued that John Walker Lindh was entitled to an attorney), David Nelson (the actor best known for his role on The Adventures of Ozzie and Harriet), U.S. Representative Don Young (R-AK) (the 3rd-most senior Republican in the House), Canadian journalist Patrick Martin, Walter F. Murphy (Professor of Jurisprudence at Princeton, who had given a lecture at Princeton, televised and put on the web, highly critical of George Bush for constitutional violations), some members of the Federal Air Marshal Service (denied boarding on flights that they were assigned to protect because their names matched those of persons on the No-Fly list).
Additionally, in October 2008, it was revealed that Maryland State Police classified 53 nonviolent political activists as terrorists, and entered their names and personal information into state and federal databases, with labels indicating that they were terror suspects (the protest groups were also entered as terrorist organizations because of a surveillance operation that targeted opponents of the death penalty and the Iraq war). In April 2009, TSA refused to allow an Air France flight from Paris to Mexico to cross U.S. airspace because it was carrying Colombian journalist Hernando Calvo Ospina, who publicly criticized U.S. foreign policy.

The contents of the list are not available to anyone outside of the law enforcement – for example, there is no way for civilians to confirm whether their names appear in the Terrorist Screening Database. This presents an alarming potential for abuse, since certain individuals may be singled out for additional screening based on their political views, affiliations or public statements criticizing the government. It should be noted that the public is not informed of the manner in which the lists of No-Fly, Terrorist and Non-Terrorist Selectees are compiled, which is clearly a highly subjective process subject to enormous discretion by invisible, unaccountable government personnel.

Redress and quality assurance staff of the Terrorist Screening Center conducts reviews of the terrorist database records, which to date has resulted in the correction or removal of hundreds of records. Seeking redress is especially problematic due to the fact that the TSC cannot confirm or deny whether an individual is on the terror list. The Department of Homeland Security Traveler Redress Inquiry Program (DHS TRIP) provides a way for travelers to express concern when they believe they have been incorrectly delayed, denied boarding, identified for additional screening, or have otherwise experienced difficulties when traveling or seeking entry into the United States. DHS TRIP allows travelers to file a complaint about being incorrectly included on a No-Fly list by submitting it electronically through its website:
DHS TRIP WEBSITE TO SUBMIT TRAVELER COMPLAINT

DHS TRIP works with the U.S. Customs and Border Protection, the Transportation Security Administration, the Department of State and the TSC to address complaints from travelers. DHS TRIP privacy warning states that information contained in a complaint may be shared for reasons not related to the redress process and may result in the commencement of additional investigations. In addition, information relevant to litigation involving the federal government may be shared with other government agencies.

A Justice Department Inspector General report in May of 2009 (Audit Report 09-25) found that the FBI was mishandling the terrorist watch list and was failing to add legitimate suspects currently under terrorist investigation, while at the same time failing to properly update and remove from the list records of the people who were cleared of suspicion, subjecting U.S. citizens to unwarranted scrutiny (including at least one person who has remained on the terrorist watch list for nearly five years after his case was closed). OIG report noted, “Although FBI policy generally requires FBI agents to remove subjects from the terrorist watchlist when the associated cases are closed, we found the FBI did not do so in eight percent of cases we reviewed. Moreover, we found that the FBI was untimely in its removal of the subjects in 72 percent of the cases we reviewed… As a result of the FBI’s failure to remove the names in a timely manner, these subjects could be delayed unnecessarily by screeners or law enforcement personnel when they travel into or around the United States.”

Problems plaguing the system further emphasize that criteria and standards for inclusion on the No-Fly, Terror and Non-Terror Selectee lists must be strong, consistently applied and subject to independent oversight to assure civil liberties of the traveling public, to ensure that our government resources and manpower are not used as the means of discrimination or retaliation and to improve the accuracy and the adequacy of screening mechanisms. Viable intelligence information pertaining to terrorist threats must be promptly and properly entered into appropriate systems to ensure the safety of the traveling public worldwide.