[Senate Hearing 108-800]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 108-800

OVERSIGHT HEARING ON PASSENGER SCREENING AND AIRLINE AUTHORITY TO DENY 
                                BOARDING

=======================================================================

                                HEARING

                                before a

                          SUBCOMMITTEE OF THE

            COMMITTEE ON APPROPRIATIONS UNITED STATES SENATE

                      ONE HUNDRED EIGHTH CONGRESS

                             SECOND SESSION

                               __________

                            SPECIAL HEARING

                     JUNE 24, 2004--WASHINGTON, DC

                               __________

         Printed for the use of the Committee on Appropriations


 Available via the World Wide Web: http://www.access.gpo.gov/congress/
                                 senate



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                               __________

                      COMMITTEE ON APPROPRIATIONS

                     TED STEVENS, Alaska, Chairman
THAD COCHRAN, Mississippi            ROBERT C. BYRD, West Virginia
ARLEN SPECTER, Pennsylvania          DANIEL K. INOUYE, Hawaii
PETE V. DOMENICI, New Mexico         ERNEST F. HOLLINGS, South Carolina
CHRISTOPHER S. BOND, Missouri        PATRICK J. LEAHY, Vermont
MITCH McCONNELL, Kentucky            TOM HARKIN, Iowa
CONRAD BURNS, Montana                BARBARA A. MIKULSKI, Maryland
RICHARD C. SHELBY, Alabama           HARRY REID, Nevada
JUDD GREGG, New Hampshire            HERB KOHL, Wisconsin
ROBERT F. BENNETT, Utah              PATTY MURRAY, Washington
BEN NIGHTHORSE CAMPBELL, Colorado    BYRON L. DORGAN, North Dakota
LARRY CRAIG, Idaho                   DIANNE FEINSTEIN, California
KAY BAILEY HUTCHISON, Texas          RICHARD J. DURBIN, Illinois
MIKE DeWINE, Ohio                    TIM JOHNSON, South Dakota
SAM BROWNBACK, Kansas                MARY L. LANDRIEU, Louisiana
                    James W. Morhard, Staff Director
                 Lisa Sutherland, Deputy Staff Director
              Terrence E. Sauvain, Minority Staff Director
                                 ------                                

 Subcommittee on Transportation, Treasury and General Government, and 
                            Related Agencies

                  RICHARD C. SHELBY, Alabama, Chairman
ARLEN SPECTER, Pennsylvania          PATTY MURRAY, Washington
CHRISTOPHER S. BOND, Missouri        ROBERT C. BYRD, West Virginia
ROBERT F. BENNETT, Utah              BARBARA A. MIKULSKI, Maryland
BEN NIGHTHORSE CAMPBELL, Colorado    HARRY REID, Nevada
KAY BAILEY HUTCHISON, Texas          HERB KOHL, Wisconsin
MIKE DeWINE, Ohio                    RICHARD J. DURBIN, Illinois
SAM BROWNBACK, Kansas                BYRON L. DORGAN, North Dakota
TED STEVENS, Alaska (ex officio)

                           Professional Staff

                              Paul Doerrer
                              Lula Edwards
                              Alan Hanson
                        Peter Rogoff (Minority)
                        Kate Hallahan (Minority)
                   Diana Gourlay Hamilton (Minority)

                         Administrative Support

                            Matthew McCardle
                     Meaghan L. McCarthy (Minority)

                            C O N T E N T S

                              ----------                              
                                                                   Page

Opening Statement of Senator Richard C. Shelby...................     1
Commissioner John Lehman.........................................     3
Statement of Jeffrey A. Rosen, General Counsel, Department of 
  Transportation.................................................     4
    Prepared Statement...........................................     5
Statement of Thomas Blank, Assistant Administrator, Office of 
  Transportation Security Policy, Transportation Security 
  Administration, Department of Homeland Security................     8
    Prepared Statement...........................................    10
Statement of Senator Patty Murray................................    12
Federal Policies Affecting Security Screening....................    14
Basis for Refusals to Transport a Passenger......................    15
Justice Department Authority.....................................    17
DOT Investigation of Complaints..................................    18
Statement of Michael Smerconish, Esq., Talk Show Host, Columnist.    24
    Prepared Statement...........................................    26
Statement of Peggy E. Sterling, Vice President, Safety, Security, 
  and Environmental, American Airlines...........................    32
    Prepared Statement...........................................    34
Statement of Christy E. Lopez, Esq., Relman and Associates.......    36
    Prepared Statement...........................................    38

 
OVERSIGHT HEARING ON PASSENGER SCREENING AND AIRLINE AUTHORITY TO DENY 
                                BOARDING

                              ----------                              


                        THURSDAY, JUNE 24, 2004

                           U.S. Senate,    
  Subcommittee on Transportation, Treasury 
                                        and
          General Government, and Related Agencies,
                               Committee on Appropriations,
                                                    Washington, DC.
    The subcommittee met at 2 p.m., in room SD-138, Dirksen 
Senate Office Building, Hon. Richard C. Shelby (chairman) 
presiding.
    Present: Senators Shelby, Specter, Murray, and Kohl.


             OPENING STATEMENT OF SENATOR RICHARD C. SHELBY


    Senator Shelby. Good afternoon. The subcommittee will come 
to order.
    Today, the subcommittee is holding an oversight hearing to 
examine whether the Federal Government has instituted policies 
to limit an airline from denying transport or requiring 
additional security screening to individuals who may be unsafe 
or dangerous. The Federal Aviation Act allows air carriers the 
right of permissive refusal, which is defined as the ability to 
refuse to transport a passenger or property the carrier decides 
is a potential risk to safety or security. The Federal aviation 
regulations authorize the pilot in command of the aircraft to 
discharge this right of permissive refusal on behalf of the air 
carrier in light of his final authority and responsibility for 
the operation and safety of the flight.
    Despite this clear authority, however, there seems to be 
some question about the ability of an airline to remove 
passengers based on a perceived threat. At the January 27, 
2004, hearing of the National Commission on Terrorist Attacks 
Upon the United States, a former airline executive testified 
that, and I will quote, ``most recently, after 9/11, 38 of our 
captains denied boarding to people they thought were a threat. 
Those people filed complaints with the Department of 
Transportation. We, the airline, were sued, and we were asked 
not to do it again.''
    If this were the case, I am concerned that we may be 
jeopardizing aviation security by placing unnecessary 
restrictions on pilots and crew to take actions to protect 
passengers on the plane. If this Nation has learned anything 
since terrorists set their sights on destroying us, it is this: 
terrorists will learn a system, identify the weaknesses of that 
system, and then exploit the weakness to inflict harm.
    I believe that we must balance an individual's civil 
liberties with an airline pilot's right to ensure the safety 
and security of the flight. But in trying to reach that 
balance, I want to ensure that we have not established policies 
or practices that will have a chilling effect on the 
willingness of the pilot in command to exercise his authority 
to safeguard the crew and all of the passengers.
    The Transportation Security Administration checkpoint is 
not, and should not be, considered the last line of defense to 
assure the security of a flight by clearing passengers for 
boarding. The pilot and the crew of an aircraft, and even the 
passengers, are an important layer in keeping our aviation 
system secure. We should not forget that Richard Reid, that 
would-be shoe bomber, was thwarted by other passengers and crew 
during the flight.
    Removal of a passenger must be the final decision, I 
believe, of the pilot. The last thing we should do is undermine 
the authority of the pilot to deny boarding or require 
additional screening to any passenger or group of passengers 
who has a reasonable suspicion of a threat to a safe flight.
    I want to thank my colleague, and member of the 
subcommittee here, Senator Specter, for raising this issue with 
me. I believe it is important that we hold this hearing today 
to highlight the issue to learn more about it and to provide 
clarity on what should be the lines of authority in this 
manner.
    This afternoon, we have two panels of witnesses. On the 
first panel, I would like to welcome Mr. Jeff Rosen, general 
counsel of the Department of Transportation, and Mr. Tom Blank, 
Associate Administrator for Policy at the Transportation 
Security Administration.
    On the second panel, we will hear from Mr. Michael 
Smerconish, Ms. Peggy Sterling, vice president of American 
Airlines, and Ms. Christy Lopez, Relman and Associates.
    Senator Specter, do you have an opening statement?
    Senator Specter. Well, thank you very much, Mr. Chairman, 
and I begin by thanking you, especially, and your staff, for 
scheduling this hearing in the midst of very heavy 
responsibilities by the Appropriations Committee at this time 
to move ahead with our bills and your Subcommittee on 
Transportation.
    This issue arose when a question was raised by Commissioner 
John Lehman of the 9/11 Commission, former Secretary of the 
Navy, when he asked National Security Counselor Condoleezza 
Rice at a 9/11 hearing, ``Were you aware that it was the 
policy, and I believe remains the policy today, to fine 
airlines if they have more than two young Arab males in 
secondary questioning because that is discriminatory?''
    Dr. Rice commented that she did not have any knowledge on 
that subject.
    And then one of the witnesses on the public record in the 
9/11 hearing, Mr. Edmond Soliday, formerly Vice President for 
Safety for United Airlines, said, among other things, that ``if 
I had more than three people of the same ethnic origin in line 
for additional screening, our system would be shut down as 
discriminatory.''
    I had contacted ranking officials in the Department of 
Transportation and the Transportation Security Administration, 
who assured me that that was not the case, but it seemed to me 
that this issue was of sufficient importance to take a little 
time of our subcommittee.
    Michael Smerconish, who is a lawyer and a talk show host in 
Philadelphia, and in the interest of full disclosure, a long-
term friend of mine, had noted Commissioner Lehman's statement 
and had commented on it publicly, and there is an enormous 
amount of interest in the Philadelphia region on this subject, 
as illustrated by a great many comments which he has had to a 
very widely heard program.
    And as the chairman has noted, we have very heavy 
responsibilities on national security, and we also have 
responsibilities not to engage in ethnic and racial profiling, 
and there needs to be an element of cause, no matter what a 
person looks like, before they are detained.
    But this is a matter of critical importance daily. Tens of 
thousands of people are boarding airlines every day where this 
is of keen security interest, and our Nation prides itself on 
elevating civil rights.


                        COMMISSIONER JOHN LEHMAN


    I am sorry that Commissioner Lehman could not be here, but 
the leaders of the Commission have urged the commissioners not 
to appear on hearings. Frankly, it is a little surprising since 
they were on the Sunday talk shows. I tried to reach Chairman 
Kean to get a clarification of it, but have not been able to do 
so yet. But we have Commissioner Lehman's statement, and have 
the essential questions really before the subcommittee.
    And the issue really is whether political correctness has 
gone too far in the case of aviation security or are we 
correctly avoiding the pitfalls of unfairly profiling 
individuals based partly on their ethnicity so that these 
Senate hearings have a great effect on sensitizing people on 
all sense. A lot of people pay attention to what we do here. 
Even though we do not have absolute answers, the airing will 
make everyone more sensitive, which I think will help security, 
and everyone will be more sensitive, which will help an 
appropriate recognition of civil rights.
    Thank you, Mr. Chairman.
    Senator Shelby. Senator Specter, I just want to make sure I 
heard this right. For example, let us say I came from somewhere 
in the Middle East, and there were ten of us in a group. We 
were all huddling together and they would check three of us and 
let the other seven go, although there might be a reasonable, 
common-sense suspicion of the whole group? In other words, they 
have a numerical limit and cannot look at everyone in a group? 
I hope that is not what the policy is.
    Senator Specter. Well, that is what Mr. Soliday said. ``If 
I had more than three people of the same ethnic origin in line 
for additional screening, our system would be shut down as 
discriminatory.''
    Senator Shelby. That is crazy.
    Senator Specter. I hasten to add that the Federal 
authorities responsible here have said that is not the case, 
and that is----
    Senator Shelby. We will find out.
    Senator Specter. That is why we have hearings.
    Senator Shelby. We welcome our panel today. Your written 
statements will be made part of the record.
    Mr. Rosen, we start with you.

STATEMENT OF JEFFREY A. ROSEN, GENERAL COUNSEL, 
            DEPARTMENT OF TRANSPORTATION
    Mr. Rosen. Thank you, Mr. Chairman.
    Mr. Chairman, members of the subcommittee, Senator Specter, 
thank you for the opportunity to testify today regarding the 
Department of Transportation's policies regarding the ability 
of an airline to deny transport or to require subsequent 
security screening to an individual who may be deemed unsafe or 
dangerous.
    As you observed, the Department has submitted a written 
statement, and I appreciate that this statement will be 
included in the record. So I will keep my oral remarks 
comparatively brief.
    In that regard, I would first like to go directly to the 
question of whether the Department of Transportation has had a 
policy to ``fine airlines if they have more than two young Arab 
males in secondary questioning because that is 
discriminatory,'' as some have claimed. And the answer is that 
the Department has never had any such policy.
    Senator Shelby. What is the policy? Do you want to explain 
that? If that is not the policy, what is the policy?
    Mr. Rosen. The DOT's actual policies on nondiscrimination 
have been set out in writing and are available on the 
Department's website. They fully describe the Department's 
approach for the screening process before that responsibility 
was transferred to the Transportation Security Administration, 
and they do not in any way instruct airlines to refrain from 
subjecting multiple individuals of the same ethnicity to 
secondary screening. So I would like to start there, that the 
purported policy, which was reported in a small number of media 
outlets, is simply a myth.
    The second point I would like to make today is that 
whatever steps the DOT has taken or not taken with regard to 
airline screening and transport are based upon applicable 
Federal laws and not on any political correctness. Under one 
Federal law, 49 U.S. Code Section 44902, a carrier may properly 
refuse to transport a passenger that presents a safety or 
security risk.
    However, any airline decision to refuse to transport must 
comply with other laws as well. A number of Federal statutes 
specifically prohibit discrimination by air carriers. The most 
specific and most recently adopted provision, which is 49 U.S. 
Code Section 40127 states, and I will quote, ``An air carrier 
or foreign air carrier may not subject a person in air 
transportation to discrimination on the basis of race, color, 
national origin, religion, sex, or ancestry.''
    Within the last year, DOT's Aviation Enforcement Office 
concluded investigations generated by a number of complaints by 
passengers against four major carriers to resolve allegations 
not about secondary screening, but complaints that the 
passengers were removed from or denied boarding on certain 
flights following the September 11 terrorist attacks because of 
their perceived ethnic or religious background. The upshot of 
those eventually was that DOT's Aviation Enforcement Office and 
the air carriers concluded mutually agreed upon settlements, 
whereby the particular carriers did not admit to any 
discriminatory conduct, but agreed to refrain from any future 
violations of Federal antidiscrimination statutes and to 
provide civil rights training to their employees to 
appropriately balance the security and civil rights concerns.
    What does that mean in terms of the training? That, in 
essence, Mr. Chairman, that both sets of laws need to be 
adhered to, not just one or not just the other.
    Under the settlement agreements, the airlines were not 
fined for, nor instructed to refrain from, subjecting multiple 
individuals of the same ethnicity to secondary security 
screening. There are no quotas. To the contrary, the Aviation 
Enforcement Office has never sought to fine an airline for 
having more than two young Arab males in secondary questioning, 
notwithstanding the fact that a number of complaints raising 
this issue have been received by that office.
    That brings me to my third and final point, which is this: 
there need not be any inconsistency between our Nation's 
longstanding civil rights laws and the security of our national 
air transportation system which has been and remains a priority 
for DOT. President Bush has publicly stated his opposition to 
racial profiling and emphasized his ``profound belief that no 
American should be judged by appearance, by ethnicity or by 
religious faith.''
    Only last month, Attorney General Ashcroft publicly stated, 
and I will quote, ``Al Qaeda is seeking recruits who can 
portray themselves as native Europeans.''
    Since the tragic events of September 11, security measures 
implemented at airports and by airlines have been greatly 
improved. The additional security measures were first 
established by the Department of Transportation itself and 
subsequently by the Department of Homeland Security's 
Transportation Security Administration.


                           PREPARED STATEMENT


    There should be no doubt whatever that Secretary Mineta and 
the entire Department of Transportation remain fully committed 
to the security measures necessary to protect our country.
    That concludes my remarks, and I would be pleased to try to 
answer any questions you may have.
    [The statement follows:]

                 Prepared Statement of Jeffrey A. Rosen

    My name is Jeffrey A. Rosen, and I am the General Counsel of the 
Department of Transportation (DOT). I am pleased to have the 
opportunity to testify today about the Department's compliance and 
enforcement efforts to ensure that the civil rights of air travelers 
are respected by the airlines that we regulate. I understand from 
Chairman Shelby's invitation letter that the committee is interested in 
examining the Federal Government's policies regarding the ability of an 
airline to deny transport or require subsequent security screening to 
an individual who may be deemed unsafe or dangerous.
    In that regard, I have been told of statements about a purported 
policy of DOT ``to fine airlines if they have more than two young Arab 
males in secondary questioning because that's discriminatory.'' (This 
statement was made by Secretary Lehman of the National Commission on 
Terrorist Attacks Upon the United States in questioning Condoleezza 
Rice, the National Security Advisor to the President, and was repeated 
in certain media articles in the Philadelphia Daily News and 
elsewhere.) At the outset, I want to lay that issue to rest once and 
for all: the Department of Transportation has never had any such 
policy. Likewise, the Department has never fined an airline on the 
ground that it subjected multiple individuals of a particular race or 
ethnicity to additional security screening.
    In discussing this issue, it would be useful first for the 
committee to recall the respective roles and responsibilities of the 
governmental and private sector entities that play a role in airline 
security and related issues. First is the Department of Homeland 
Security's Transportation Security Administration (TSA), which Congress 
has tasked with developing airline security requirements as well as 
hiring, training, deploying, and managing the security screener 
workforce at commercial airports across the country, a responsibility 
once borne by the air carriers. In addition, TSA's Office of Civil 
Rights and the Department of Homeland Security's Office for Civil 
Rights and Civil Liberties have authority to investigate discrimination 
complaints from passengers who allege they have been discriminated 
against by TSA screening personnel. TSA assumed responsibility for 
civil aviation security on February 17, 2002.
    Second are the airlines, which are responsible for implementing 
transportation security procedures mandated by the Federal Government 
and continue to be major partners in the effort to improve security. 
Under Federal law, 49 U.S.C.  44902, a carrier may properly refuse to 
transport a passenger that presents a safety or security risk. Prior to 
a passenger boarding an aircraft, the decision to refuse to transport 
the passenger because of safety or security reasons may be made by any 
airline staff designated by the carrier as having that authority. Under 
FAA rules, 14 CFR 91.3, the pilot in command of the aircraft is the 
final authority as to the operation of that aircraft, including any 
decision to refuse to transport a passenger.
    Third is DOT's Office of the General Counsel, which has the 
responsibility to investigate security-related complaints alleging 
discriminatory treatment by air carrier personnel (e.g., pilots, flight 
attendants, gate agents or check-in counter personnel) pursuant to the 
specific statutory provisions in Title 49 that prohibit discrimination 
in air transportation. Whereas generally civil rights matters are 
handled by the Justice Department, Congress has conferred upon DOT 
administrative authority for civil rights enforcement activities 
concerning aviation. Within DOT, the Deputy General Counsel and the 
Assistant General Counsel for Aviation Enforcement and Proceedings have 
been delegated the authority to investigate and pursue enforcement 
cases against airlines, including those involving unlawful 
discrimination. To ensure impartiality, the neither the General Counsel 
nor the Secretary directly participate in the commencement or 
litigation of these administrative proceedings, but pursuant to the 
Department's regulations, the General Counsel serves as the legal 
advisor to the Secretary in enforcement cases that ultimately may have 
to be decided by the Secretary (or his delegate) after an adjudicatory 
hearing.
    DOT's responsibility in this regard is set out in Federal law. 
Although an airline has the legal authority to refuse to transport an 
individual that it decides is unsafe, Federal law prohibits any airline 
decision to refuse to transport, whether it be the decision of the 
pilot or other airline staff such as a gate agent, that is based on the 
person's race, color, national origin, religion, ethnicity, or sex. A 
number of Federal statutes administered by DOT specifically prohibit 
discrimination by air carriers. The most specific and most recently 
adopted provision, 49 U.S.C.  40127, states that ``an air carrier or 
foreign air carrier may not subject a person in air transportation to 
discrimination on the basis of race, color, national origin, religion, 
sex, or ancestry.'' That provision was enacted on April 5, 2000, in the 
Wendell H. Ford Aviation Investment and Reform Act for the 21st Century 
(AIR-21). Another provision that has been in effect for decades and was 
originally part of the Civil Aeronautical Board's authority since 1938, 
49 U.S.C.  41310, prohibits ``an air carrier or foreign air carrier'' 
from subjecting anyone to ``unreasonable discrimination'' on flights 
between the United States and foreign points. A different long-standing 
statute since 1938, 49 U.S.C.  41702, requires that U.S. carriers 
provide ``adequate interstate air transportation'', which has been 
interpreted within DOT to prohibit invidiously discriminatory practices 
on the part of U.S. carriers generally in their interstate operations.
    In the months following the September 11, 2001 terrorist attacks, 
DOT provided the airline industry with four separate guidance documents 
to assist in complying with Federal laws prohibiting discrimination 
against individuals because of their race, color, religion, ethnicity, 
or national origin. These guidance documents described fully the 
Department's policies with respect to nondiscrimination in the 
screening process prior to the takeover of that responsibility by TSA. 
Nowhere in any of these guidance documents on this subject is an 
instruction to airlines to refrain from subjecting multiple individuals 
of the same ethnicity to secondary screening. All of the Department's 
guidance on this subject is available on the Department's website at 
http://airconsumer.ost.dot.gov.
    Members of the public who feel they have been the subject of 
discriminatory actions or treatment by air carriers potentially may 
bring a private civil rights action in the courts for damages and 
injunctive relief under 42 U.S.C.  1981 which prohibits discrimination 
in the making and enforcement of all contracts, including contracts to 
fly on commercial air carriers. In addition, or alternatively, they may 
file a complaint with DOT's Aviation Enforcement Office pursuant to the 
specific provisions of Title 49 that I discussed earlier.
    Between September 11, 2001, and May 30, 2004, the DOT's Aviation 
Enforcement Office received 221 complaints involving allegations of 
security-related civil rights violations, a significant increase from 
prior years. Most of these complaints alleged that an individual was 
unlawfully selected for additional security screening prior to boarding 
at the security checkpoint or the gate area. Of those 221 complaints, 
70 involved allegations that passengers were removed from flights or 
denied boarding because, or primarily because, the passengers are, or 
were perceived to be, of Arab, Middle Eastern, or South Asian descent 
and/or Muslim. In most of the removal and denied boarding cases DOT's 
Aviation Enforcement Office received, it determined that a carrier did 
not violate the law or that there was insufficient evidence to conclude 
that a carrier was in violation of the law. However, the office did 
find evidence of what appeared to be civil rights violations in 18 
post-September 11 complaints, such as a situation where a passenger was 
denied boarding by an airline despite having been approved by a Federal 
law enforcement officer for boarding. As a result, the Office 
instituted more in-depth investigation of several major air carriers 
based on these complaints. Prior to September 11, 2001, there were only 
a few complaints filed with the Department asserting that a passenger 
was denied boarding or removed from a flight and none of these 
incidents involved a violation of the civil rights laws DOT enforces.
    Generally, the Department's Aviation Enforcement Office pursues 
informal enforcement action (e.g. asks the carrier to change its policy 
or procedure or warns the carrier about potential formal enforcement 
action if similar complaints continue to be received) when it believes 
that an airline policy or procedure unlawfully discriminates or is not 
in compliance with the law in other respects. However, if the Office 
concludes that informal action would not solve the problem, it may 
issue a cease and desist order and assess civil penalties. However, the 
Aviation Enforcement Office can only take such action through a 
mutually-agreed settlement of a case or after an adjudicatory 
proceeding--an oral evidentiary hearing on the record before an 
administrative law judge from DOT's Office of Hearings, at which the 
airline may present evidence and cross-examine witnesses in order to 
defend itself, if it chooses to do so.
    Within the last 7 months, the Aviation Enforcement Office has 
concluded investigations of numerous complaints by passengers against 
four major carriers to resolve allegations that the passengers were 
removed from or denied boarding on flights following the September 11, 
2001, terrorist attacks because of their perceived ethnic and/or 
religious background. In each of the four investigations, the Office 
concluded that there was credible evidence that, but for the 
passengers' ethnicity or religion or perceived ethnicity or religion, 
some passengers would most likely not have been removed. For example, 
as I mentioned, in some incidents, Federal law enforcement officers 
cleared the passengers before the flight departed, but the flight crew 
would not allow the individuals to re-board that flight. Instead, they 
placed the individuals on the very next flight without additional 
security screening.
    DOT's Aviation Enforcement Office concluded its investigations of 
the complaints against these four carriers with mutually-agreed 
settlements whereby those carriers did not admit any discriminatory 
conduct, but agreed to refrain from future violations of Federal anti-
discrimination statutes and to provide civil rights training to their 
employees. Under the settlement agreements, the airlines were not 
``fined'' for, nor instructed to refrain from, subjecting multiple 
individuals of the same ethnicity to secondary security screening. To 
the contrary, the Aviation Enforcement Office has never sought to fine 
an airline for having ``more than two young Arab males in secondary 
questioning,'' notwithstanding the fact that a number of complaints 
raising this issue have been received.
    The laws that are relevant to these issues are not foolish or 
misguided. It has been asserted by some that aviation security is 
somehow undermined by screening individuals who are not male, who are 
not Middle Eastern, but who may be senior citizens or children. But 
within the last 2 months, the Attorney General of the United States and 
the Director of the FBI warned Americans in a national press conference 
of ``a clear and present danger to America'' by al Qaeda during this 
summer. In his remarks, Attorney General John Ashcroft reported that 
``al Qaeda attracts Muslim extremists among many nationalities and 
ethnicities.'' Attorney General Ashcroft also indicated that ``al Qaeda 
is seeking recruits who can portray themselves as native Europeans'', 
and who will travel with families to defeat our security measures. 
President Bush spoke publicly about ``the unfairness of racial 
profiling'', and in September 2002 stated his ``profound belief that no 
American should be judged by appearance, by ethnicity, or by religious 
faith.'' Secretary Mineta and other administration officials know that 
current security practices not only comply with the law, but are in 
fact are designed to follow the President's clear and emphatic 
directive to his administration--protect the American people from the 
threat of terrorism.
    There need not be any inconsistency between our Nation's 
longstanding civil rights laws and the security of our national air 
transportation system, which has been and remains a priority for DOT. 
Since the tragic events of September 11, security measures implemented 
at airports and by airlines have been greatly improved. DOT initiated 
and the Department of Homeland Security has continued and strengthened 
a comprehensive, layered strategy for aviation security incorporating 
intelligence, screening, regulation, inspection, enforcement, and 
education. Secretary Mineta and the entire Department of Transportation 
remain fully committed to all the security measures necessary to 
protect our country.

    Senator Shelby. Mr. Blank.

STATEMENT OF THOMAS BLANK, ASSISTANT ADMINISTRATOR, 
            OFFICE OF TRANSPORTATION SECURITY POLICY, 
            TRANSPORTATION SECURITY ADMINISTRATION, 
            DEPARTMENT OF HOMELAND SECURITY
    Mr. Blank. Good afternoon, Mr. Chairman and members of the 
subcommittee. I am pleased to appear before you today to 
provide some brief remarks concerning TSA's relationship with 
the airlines and their flight crews in situations where an 
individual who may be considered a security risk is denied 
transport.
    We understand questions have been raised by the 9/11 
Commission concerning situations where an air carrier refused 
transportation to individuals who were denied boarding or 
removed from a flight due to security concerns. Immediately 
following the attacks of 9/11, there were some instances where 
individuals or groups of people were removed from flights after 
the crew became uncomfortable with or suspicious of their 
actions. Following such a traumatic event, some crew members 
may have misinterpreted passengers' behavior, resulting in 
complaints that individuals were removed from aircraft without 
specific reason other than the fact that they made the flight 
crew uncomfortable, and the Department of Transportation has 
since established a redress process to prevent that from 
happening in the future.
    As noted by Mr. Rosen, DOT has the sole responsibility for 
investigating security-related discrimination complaints 
alleging discriminatory treatment by air carrier personnel. 
However, TSA's Office of Civil Rights and the Department of 
Homeland Security's Office of Civil Rights and Civil Liberties 
have authority to investigate discrimination complaints from 
passengers who allege that they have been discriminated against 
by TSA screening personnel.
    TSA, created by the Aviation and Transportation Security 
Act, has responsibility for the security of all modes of 
transportation. In the aviation sector, we are responsible for 
the day-to-day Federal security screening operations for 
passengers and baggage at our Nation's airports, as well as 
airport physical security and for air carrier security 
programs.
    We accomplish our mission using a threat-based, risk-
managed approach rooted in analysis of intelligence about 
threats to civil aviation security. Let me be clear about this 
point. Concerns about security do not justify illegal 
discrimination against passengers. TSA security standards are 
not based on race or ethnicity, nor do they permit or encourage 
racial or ethnic profiling. In June 2003, the Department of 
Justice issued its guidance regarding the use of race by 
Federal law enforcement agencies, which DHS and TSA have 
adopted as policy.
    As you heard from my colleague at DOT, the pilot in command 
of an aircraft is charged with the final authority for safe 
operation of his or her aircraft. Under TSA's mandated air 
carrier security program, the pilot in command serves as the 
in-flight security coordinator and, as such, TSA recognizes his 
or her authority to make decisions regarding on-board security 
incidents. In a situation where a member of the crew, be it a 
pilot or flight attendant, believes that a passenger may pose a 
risk to the safe operation of the aircraft, it is the 
responsibility of the pilot in command to determine whether or 
not that passenger will be transported. Furthermore, U.S. code 
and TSA regulations give air carriers the authority to refuse 
to transport a passenger that presents a safety or security 
risk.
    TSA becomes directly involved in the resolution of 
passenger removal incidents, especially those that require 
diversion of an aircraft in flight. For example, if the pilot 
in command decides that a passenger is acting in a suspicious 
manner, the airline may make an operational decision to divert 
the flight. TSA receives notice that the aircraft is diverting 
through our Transportation Security Operations Center, known as 
the TSOC, in Herndon, Virginia. TSOC watch personnel 
continually monitor the Domestic Events Network, an open line 
of communication managed by the FAA which broadcasts 
information on evolving incidents to coordinating agencies in 
real time.
    After gathering information on the nature of the incident, 
current status of the flight and the airport the flight is 
diverting to, TSOC personnel contact local TSA officials at the 
diversion airport. These officials contact appropriate 
personnel and agencies to respond.
    In a case where a passenger is removed as a result of a 
security incident, TSA officials cooperate with the air 
carrier's ground security coordinator, law enforcement agencies 
and other Government agencies to determine whether or not the 
removed passenger does, in fact, pose a threat to civil 
aviation security. TSA's role in clearing a passenger consists 
of performing any necessary rescreening of the passenger and 
their belongings and a recheck of the passenger's name against 
Government watch lists if deemed necessary.
    Additionally, information on these incidents is received 
within 24 hours at TSA headquarters, where it is reviewed daily 
by the Agency's executive leadership. It is determined whether 
or not the incident requires additional follow-up actions such 
as contact of the air carrier's management by a TSA principal 
security inspector to gather more information on the 
circumstances of the event, and we routinely review what 
behavior concerned the pilot in command and flight crew enough 
to divert or refuse to fly an individual. We will contact the 
air carrier if we feel the pilot in command's decision was not 
warranted.
    If the passenger is eventually cleared for transport, it is 
the responsibility of the air carrier to arrange for continued 
travel. Please keep in mind that even if TSA and other 
officials determine the passenger is not a risk to aviation 
security, the air carrier still may elect not to transport the 
individual. Again, the air carrier does have the authority to 
refuse transport to the passenger if they believe the 
individual presents a threat to the safety or security of the 
flight.
    TSA does not have authority to challenge the pilot in 
command's decision. If it is determined that the actions of the 
pilot in command were improper and a passenger was wrongfully 
removed, the responsibility for any disciplinary action against 
that individual or other crew or other members of the crew 
would rest with the air carrier. As noted by my colleague from 
DOT, regulatory oversight of the actions of the air carrier and 
its employees, with respect to civil rights complaints against 
air carriers, rests with DOT.
    TSA considers the pilot in command and crew to be an 
important part of a layered security system. Though a passenger 
has been cleared by TSA security screening procedures, this 
does not overrule the recognized authority of the air carrier 
to determine whether someone flies or not. The more layers of 
security that are in place to prevent an attack, the more 
effective the security will be. As a result, TSA believes the 
pilot in command's authority to refuse transportation to a 
passenger believed to present a risk to the safety or security 
of the flight is sound.
    Given the vast responsibilities placed upon the pilot in 
command for safe operation of the flight, we do not believe it 
would be wise to dilute his or her authority. We do realize 
that in a system with thousands of flights and approximately 
1.8 million passengers daily, occasionally, complaints will 
arise. Again, as a double check, during our daily review of 
incidents, TSA's executive leadership does look for instances 
of unwarranted responses to incidents so that necessary follow-
up actions can be taken with the air carrier or the information 
shared with DOT. In our view, the best way to prevent these 
incidents is to continually train crew members to be alert for 
security issues from all passengers regardless of appearance or 
ethnicity.

                           PREPARED STATEMENT

    Thank you for the opportunity to appear before the 
subcommittee today, and I would be pleased to answer any 
questions you may have.
    [The statement follows:]

                   Prepared Statement of Thomas Blank

    Good afternoon, Mr. Chairman, Senator Murray, and members of the 
subcommittee. I am pleased to appear before you today to provide a few 
brief remarks concerning TSA's relationship with the airlines and their 
flight crews in situations where an individual who may be considered a 
security risk is denied transport.
    I understand questions have been raised by the 9/11 Commission 
concerning situations where an air carrier refused transportation to 
individuals who were denied boarding or removed from a flight due to 
security concerns. Immediately following the attacks of 9/11, there 
were some instances where individuals or groups of people were removed 
from flights after the crew became uncomfortable with or suspicious of 
their actions. Following such a traumatic event, some crewmembers may 
have overreacted to passengers' behavior, resulting in complaints that 
individuals were removed from aircraft without specific reason other 
than the fact that they made the flight crew uncomfortable--and the 
Department of Transportation has since established a redress process to 
prevent that from happening in the future.
    As noted previously by Mr. Rosen, DOT has the sole responsibility 
for investigating security-related discrimination complaints alleging 
discriminatory treatment by air carrier personnel. However, TSA's 
Office of Civil Rights and the Department of Homeland Security's Office 
of Civil Rights and Civil Liberties have authority to investigate 
discrimination complaints from passengers who allege they have been 
discriminated against by TSA screening personnel.
    TSA, created by the Aviation and Transportation Security Act, has 
responsibility for the security of all modes of transportation. In the 
aviation sector, we are responsible for the day-to-day Federal security 
screening operations for passengers and baggage at our Nation's 
airports, as well as airport physical security and for air carrier 
security programs. We accomplish our mission using a threat-based, 
risk-managed approach rooted in analysis of intelligence about threats 
to civil aviation security.
    Let me be clear about this point--concerns about security do not 
justify illegal discrimination against passengers. TSA's security 
standards are not based on race or ethnicity, nor do they permit or 
encourage racial or ethnic profiling. In June, 2003, the Department of 
Justice issued its Guidance Regarding the Use of Race by Federal Law 
Enforcement Agencies, which DHS, and TSA adopted as policy.
    As you have heard from my colleague at DOT, the pilot-in-command of 
an air carrier aircraft is charged with the final authority for safe 
operation of his or her aircraft. Under TSA's mandated air carrier 
security program, the pilot-in-command serves as the Inflight Security 
Coordinator, and as such, TSA recognizes his or her authority to make 
decisions regarding onboard security incidents. In a situation where a 
member of the crew, be it a pilot or flight attendant, believes that a 
passenger may pose a risk to the safe operation of the aircraft, it is 
the responsibility of the pilot-in-command to determine whether or not 
that passenger will be transported. Furthermore, U.S. Code and TSA 
regulations give air carriers the authority to refuse to transport a 
passenger that presents a safety or security risk.
    TSA becomes directly involved in the resolution of passenger 
removal incidents, especially those that require diversion of an 
aircraft in flight. For example, if the pilot-in-command decides that a 
passenger is acting in a suspicious manner, the airline may make an 
operational decision to divert the flight. TSA receives notice that the 
aircraft is diverting through our Transportation Security Operations 
Center, known as the TSOC, in Herndon, VA.
    TSOC watch personnel continuously monitor the Domestic Events 
Network, an open line of communication managed by the FAA, which 
broadcasts information on evolving incidents to coordinating agencies 
in real-time. After gathering information on the nature of the 
incident, current status of the flight, and the airport that the flight 
is diverting to, TSOC personnel contact local TSA officials at the 
diversion airport. These officials contact appropriate personnel and 
agencies to respond.
    In a case where a passenger is removed as a result of a security 
incident, TSA officials cooperate with the air carrier's Ground 
Security Coordinator, law enforcement agencies, and other government 
agencies to determine whether or not the removed passenger does in fact 
pose a threat to civil aviation security. TSA's role in clearing a 
passenger consists of performing any necessary re-screening of the 
passenger and their belongings, and a re-check of the passenger's name 
against government watch lists if deemed necessary. Additionally, 
information on these incidents is received within 24 hours at TSA 
headquarters, where it is reviewed daily by the agency's executive 
leadership. It is determined whether or not the incident requires 
additional follow-up actions, such as contact of the air carrier's 
management by a TSA Principal Security Inspector to gather more 
information on the circumstances of the event. And, we routinely review 
what behavior concerned the pilot-in-command and flight crew enough to 
divert or refuse to fly an individual. We will contact the air carrier 
if we feel the pilot-in-command's decision was not warranted.
    If the passenger is eventually cleared for transport, it is the 
responsibility of the air carrier to arrange for continued travel. 
Please keep in mind that even if TSA and other officials determine the 
passenger is not a risk to aviation security, the air carrier still may 
elect not to transport the individual. Again, the air carrier does have 
the authority to refuse to transport the passenger if they believe the 
individual presents a threat to the safety or security of the flight.
    TSA does not have authority to challenge the pilot-in-command's 
decision. If it is determined that the actions of the pilot-in-command 
were improper and a passenger was wrongfully removed, the 
responsibility for any disciplinary action against that individual or 
other members of the crew would rest with the air carrier. As noted by 
my colleague from DOT, regulatory oversight of the actions of the air 
carrier and its employees with respect to civil rights complaints 
against air carriers rests with DOT.
    TSA considers the pilot-in-command and crew to be an important part 
of a layered security system. Though a passenger has been cleared by 
TSA security screening procedures, this does not overrule the 
recognized authority of the air carrier to determine whether someone 
flies or not. The more layers of security that are in place to prevent 
an attack, the more effective the security will be. As a result, TSA 
believes the pilot-in-command's authority to refuse transportation to a 
passenger believed to present a risk to the safety or security of the 
flight is sound. Given the vast responsibilities placed upon the pilot-
in-command for safe operation of the flight, we do not believe it would 
be wise to dilute his or her authority. We do realize that in a system 
with thousands of flights and approximately 1.8 million passengers 
daily, occasionally complaints may arise. Again, as a double check, 
during our daily review of incidents, TSA's executive leadership does 
look for instances of unwarranted responses to incidents so that any 
necessary follow-up actions can be taken with the air carrier or the 
information shared with DOT. In our view, the best way to prevent these 
incidents is to continually train crewmembers to be alert for security 
issues from all passengers, regardless of appearance or ethnicity.
    Thank you for the opportunity to appear before the subcommittee 
today, and I would be pleased to answer any questions you may have.

    Senator Shelby. Thank you for your testimony.
    We have been joined by Senator Murray, and she has an 
opening statement.

                   STATEMENT OF SENATOR PATTY MURRAY

    Senator Murray. Thank you very much, Mr. Chairman, for the 
accommodation. I apologize for being late, and I appreciate 
your fitting me in at this point.
    The topic of today's hearing really goes to the very heart 
of the tension that we experience every day between the need 
for transportation security and the need to protect our civil 
liberties. We face this challenge of protecting all travelers 
and all of their rights in modes beyond aviation, including 
trains, ferries, buses and automobiles. If we have learned 
anything since the attacks on September 11 and the attempted 
attack by the shoe bomber, it is that we must have multiple 
overlapping systems of security to ensure our safety. 
Everyone--the passenger, flight attendant, the gate agent, the 
pilot, the air marshals, and most importantly, our TSA 
personnel--must keep their eyes open and be alert for any signs 
of danger.
    I, for one, do not want to take away any security tools 
from any person of responsibility, especially pilots, when it 
comes to maintaining aviation security. So the question is: 
does empowering pilots to exclude certain passengers make us 
any safer? Well, I think we have to look at the facts.
    Are passengers being excluded because they have ties to 
terrorist organizations? To my knowledge, we know of no cases 
where a pilot has excluded an individual with known ties to any 
terrorist organization.
    Are passengers being excluded because of their race or 
ethnicity? We do have some data on that. Since September 11, 
the DOT has received roughly 70 complaints from individuals who 
believe they were wrongly excluded from their flights due to 
their race or ethnicity. Of those cases, the DOT has found that 
airlines did indeed exclude them solely because of their race 
roughly one-third of the time.
    What ended up happening to passengers who were removed from 
their flights? Well, in a great many cases, the airlines that 
excluded those individuals simply booked them on later flights. 
In fact, many of the passengers who were rebooked onto later 
flights were then seated in the first class cabin, putting them 
even closer to the cockpit door than they were on their 
original flight. So the captains that first excluded these 
individuals did not keep them from flying, they simply kept 
them from flying on their flight.
    Looking at those facts, it is clear that this is not the 
most efficient or effective way to enhance security. The real 
solution to this problem is for all people involved--the 
pilots, the flight attendants, all airline passengers--to have 
a much greater degree of comfort that there are not people on 
the plane seeking to do them harm.
    So we have to ask: is the Department of Homeland Security 
doing an adequate job of ensuring that people who do pose a 
risk never get close to the boarding gate in the first place? 
And, sadly, the answer is no. Immediately after September 11, I 
was chair of the Transportation Subcommittee, when we were 
asked to fund the initial investments in the Transportation 
Security Administration. At that time, we began to make 
significant initial investments in the so-called CAPPS II 
Screening Program. CAPPS II was supposed to be the computer-
based filtering system through which the TSA would consult 
multiple databases to determine which passengers require 
additional scrutiny. This system, we were told, would be 
extremely comprehensive, while protecting the privacy rights of 
all passengers.
    Earlier this year, the General Accounting Office testified 
that the Transportation Security Administration is woefully 
behind in the development and deployment of the CAPPS II 
program. When concerns about this program were brought to the 
Homeland Security Subcommittee, on which I serve, language was 
inserted in the 2004 appropriations bill to ensure that eight 
very reasonable tests would be met before the TSA spent money 
to deploy the program.
    To date, despite all of the initial encouraging 
representations, the program has only met one of these eight 
tests, and the development and deployment dates for the CAPPS 
II system could not be more certain. Similarly, the TSA has 
done a poor job of screening out all potentially dangerous 
items at their security checkpoints. As was the case when the 
screening function was handled by the FAA, the DHS has teams 
that secretly seek to penetrate the security checkpoint at 
airports. While I cannot go into the specific findings 
resulting from those efforts, here is how the DHS Inspector 
General put it:
    Federal screening checkpoints and private screening 
checkpoints ``performed equally poorly''. Perhaps if the TSA 
was doing a better job at its core responsibilities, there 
would be less uneasiness over individual passengers who have 
cleared those checkpoints. If the TSA was doing a better job, 
there would be less of a need to pay attention to the process 
by which pilots have, rightly or wrongly, excluded passengers.
    I hope, Mr. Chairman, that this hearing shines a light on 
the best ways to improve security throughout our aviation 
system and to ensure that we are protecting passengers and 
protecting their rights at the same time.
    Thank you very much, Mr. Chairman.
    Senator Shelby. Thank you, Senator.
    We have been over some of this ground earlier in our 
opening statements and, Mr. Rosen and Mr. Blank, you went over 
them, but I am going to go over it again just for clarity.
    At the 9/11 hearings, a former senior airline executive 
testified, ``If I had more than three people of the same ethnic 
origin in line for additional screening, our system would be 
shut down.''

             FEDERAL POLICIES AFFECTING SECURITY SCREENING

    Mr. Rosen, do you know, for the record, if the Department 
of Transportation or any other Federal Government entity has 
ever implemented a strategy or policy that calls for the use of 
a quota system that restricts the number of foreign or ethnic 
passengers that could be subjected to secondary screening at 
one time?
    Mr. Rosen. Mr. Chairman, I am not aware of any Government 
agency that has adopted such a policy.
    Senator Shelby. First of all, it is not your policy.
    Mr. Rosen. I was going to say I can tell you for certain--
--
    Senator Shelby. Or it is not the Department of 
Transportation's policy.
    Mr. Rosen. That is correct.
    Senator Shelby. And you are not aware of any other policy.
    Mr. Rosen. That is correct, Mr. Chairman.
    Senator Shelby. So you are saying, basically, that you are 
not aware of a quota system that would limit the number of 
individuals that an airline can deny boarding if the pilot 
deems those individuals a threat to the security and safety of 
the flight.
    Mr. Rosen. You are correct, Mr. Chairman.
    Senator Shelby. Mr. Rosen, under what circumstances would a 
pilot in command of an aircraft be justified in refusing to 
transport a passenger he or she decides might be detrimental to 
the security of aircraft and its passengers while at the same 
time assuring the airline that it will not be subject to 
punitive action from the DOT or whomever?
    Mr. Rosen. Mr. Chairman, there are a wide variety of 
circumstances under which a pilot would be justified in 
refusing to transport an individual.
    Senator Shelby. Give us several that you can think of.
    Mr. Rosen. If a passenger behaves in a suspicious manner or 
there is some individualized suspicion to believe that a 
passenger is a safety or security risk, then the pilot can deny 
boarding to the passenger. Examples include a passenger making 
cell phone calls at an airport and overheard making troublesome 
comments about airport or airline security, a passenger 
bringing something on board an aircraft that would be 
inappropriate, and a passenger taking pictures of the plane. 
Further, if there is specific intelligence that has been 
conveyed, for which there are then matching identifying 
characteristics, then the pilot can act based on this 
information.
    I think it is difficult, in the abstract, to identify all 
of the circumstances, but certainly pilots have the discretion 
where, if there is a threat to safety or security, that they 
can refuse to transport a passenger.
    Senator Shelby. Do you believe that the pilot has to have 
that discretion?
    Mr. Rosen. I think it is important that we have multiple 
layers in the system and that the law is set up so that the 
pilot has that discretion, and so I am in favor of adhering to 
the law.
    Senator Shelby. Sure. Do you believe fining the airline for 
the pilot's exercise of discretion is detrimental to the 
security of the flying public if it was done for something like 
this?
    Mr. Rosen. Well, Mr. Chairman, I think, as is often the 
case, these things come down to the individual circumstances. 
There are many instances where the pilot's exercise of 
discretion is appropriate and should not be second guessed, 
even if he or she is later proven to be mistaken.
    Senator Shelby. Yes.
    Mr. Rosen. But there are laws that prohibit the decision 
from being made on the basis of race, sex, national origin, 
color, religion, an ancestry, and I think we would not want 
pilots simply saying, ``I do not want to fly anybody of this 
particular ethnic group or this particular race.''
    Senator Shelby. Sure. Well, neither would we.
    Where would you draw the line, Mr. Rosen, between 
individual rights and the right of the flying public, us to be 
safe and secure? Is that a case-by-case basis or what?

              BASIS FOR REFUSALS TO TRANSPORT A PASSENGER

    Mr. Rosen. Well, I think, Mr. Chairman, as I alluded to 
earlier, there are at least two sets of laws that are in play 
here. There are the laws that give the pilot this authority to 
make the final decision as to the individuals permitted on the 
aircraft, and there are the civil rights laws that are 
applicable. And so, on the one hand, you certainly do not want 
to have a quota system that would inhibit the pilot from taking 
action that was justified simply because the quota had been 
exceeded.
    Senator Shelby. That is right.
    Mr. Rosen. And on the other hand, you do not want to have a 
system that amounts to what is just pure racial profiling.
    Senator Shelby. Arbitrary racial----
    Mr. Rosen. That would be extremely offensive to people. You 
hope that people will be treated as individuals and that you 
will have individualized suspicion of them through a set of 
circumstances, through intelligence or other information 
sources, that would let some sort of rational decision be made, 
even if it is not ultimately correct. The decision must at 
least be rational.
    Senator Shelby. Mr. Blank, since the Department of 
Transportation Security Administration has been charged with 
this responsibility, that is, security, do you know of any 
instances where airline passengers are selected on the basis of 
any criteria other than randomness or suspicious behavior?
    Mr. Blank. No, I do not.
    Senator Shelby. Mr. Rosen, has any airline been fined, to 
your knowledge, for selecting more than two people of the same 
ethnicity for a secondary screening?
    Mr. Rosen. Plainly, no.
    Senator Shelby. After 9/11, what specific policy or 
guidelines did the Department issue with respect to the 
screening and treatment of, for example, Arab, Middle Eastern, 
South Asian or Muslim passengers that you could identify?
    Mr. Rosen. Well, as I mentioned in my prepared remarks, Mr. 
Chairman, the Department of Transportation, shortly after 
September 11, put out four guidance documents, again, which are 
all on the website and all available. This was in the period 
before TSA had been created and that responsibility was 
transferred. But I think if you look at those guidelines, they 
are addressed, in a sense, to different recipients--to 
airlines, to the, at that time, to the screeners, as well as an 
announcement to the public and particularly concerned civil 
rights communities--so that they are overlapping guidances, in 
some sense, basically, what the law is and what kinds of 
considerations should be taken in effect, similar to what we 
have been talking about. Certainly, no quota is identified in 
any of those documents.
    Senator Shelby. Has the Department issued any written 
guidance that would limit the number of passengers of certain 
races or ethnicity that an airline can screen or question for 
safety or security?
    Mr. Rosen. No.
    Senator Shelby. Mr. Blank, should airport screeners be 
considered as the last line of defense to protect the flying 
public against terrorists?
    Mr. Blank. No, I do not think so. I would say that they are 
a critical layer of defense----
    Senator Shelby. Very much.
    Mr. Blank [continuing]. In airline and civil aviation 
security. But there are many layers out there that begin inside 
the cockpit with armed pilots, hardened doors, trained flight 
crew, Federal air marshals on board, enhanced airport security 
programs, screeners, limited access doors and so forth.
    Senator Shelby. Do you believe, Mr. Blank, that the pilot 
in command should have the authority to refuse to transport a 
passenger he or she decides is or might be detrimental to 
safety?
    Mr. Blank. Yes, I do. I think that is one additional layer 
of security.
    Senator Shelby. Senator Murray.
    Senator Murray. Thank you very much, Mr. Chairman.
    Mr. Rosen, Mr. Blank, you have both been very forthright in 
your statements that, contrary to Secretary Lehman's 
assertions, your agencies do not have a policy to fine airlines 
based on the number of individuals from a certain ethnic group 
that are subject to enhanced screening or security measures. As 
far as we can tell, a lot of the confusion that surrounds this 
assertion emanates from testimony, as was alluded to by Edmond 
Soliday, former Vice President of Safety at United Airlines, 
before the 9/11 Commission. And as was said, his testimony, 
that ``A visitor from the Justice Department told me if I had 
more than three people of the same ethnic origin in line for 
additional screening, our system would be shut down as 
discriminatory.''
    Have either of you gentlemen had any contact with the 
Justice Department regarding that specific assertion or its 
accuracy?
    Mr. Blank. No, Senator, I have not.
    Senator Shelby. Mr. Rosen.
    Mr. Rosen. I have not either, Senator. But I would say that 
the Department of Justice has put out its own public statements 
against racial profiling.

                      JUSTICE DEPARTMENT AUTHORITY

    Senator Murray. To either of your knowledge, what 
authority, if any, does the Justice Department have in this 
area?
    Mr. Rosen. Well, the Department of Justice, of course, 
administers Title II of the Civil Rights Act of 1964, but as to 
how that would apply in this area I think would be beyond my 
expertise today to address. I do know that with regard to the 
authorities that DOT has, the DOT may work with the Department 
of Justice to seek injunctive relief in the courts in 
appropriate cases. In addition, there is a provision in the 
U.S. Code that makes knowing and willful violations of Federal 
aviation statutes subject to criminal action by the Department 
of Justice. I think, beyond that, I could not say much more 
today, Senator.
    Senator Murray. Can you answer under what circumstances the 
Justice Department would be communicating with an airline on 
this matter?
    Mr. Rosen. No, I would not be aware of any such 
circumstance.
    Senator Murray. To either of your knowledge, has anyone 
followed up with Mr. Soliday to find out precisely what the 
Justice Department official was doing and under what authority?
    Mr. Rosen. Not to my knowledge, Senator.
    Mr. Blank. Not to my knowledge.
    Senator Murray. Let me change subjects, then.
    Mr. Blank, as I mentioned in my opening statement, the 
flying public has been waiting for your agency to deploy the 
so-called CAPPS II program, and I believe that Mr. Smerconish, 
who is going to be testifying on the next panel, is going to 
point something out that all of us who fly already know, that 
the current system for choosing passengers for enhanced 
screening does not appear to be very logical or effective.
    The CAPPS II system, we were told, was to replace all of 
that, and unfortunately the GAO tells us that your agency is 
unable to meet seven of the eight basic tests that Congress has 
required of you before deploying the system. Can you tell us, 
today, what the principal hindrances are that you are 
experiencing in getting CAPPS II up and running.
    Mr. Blank. Well, there are a number, and I will address it 
this way. The CAPPS II program is under review within the 
administration. And we have heard the concerns of the privacy 
and civil liberty communities and are not going to move forward 
with the passenger prescreening program until we have satisfied 
those concerns and that we feel that they have been properly 
addressed.
    But we do believe that a prescreening program is critical 
to the layered approach DHS has taken to aviation security, and 
we look forward to continuing to work with the Congress and 
external stakeholder groups on getting it developed and seeing 
if we ultimately want to make any changes in our approach as a 
result of this continued review inside the administration.
    Senator Murray. Can you give us any estimate of a time-line 
when you expect this to happen?
    Mr. Blank. I cannot because that would be affected by the 
outcome of the review. If we decide to make any changes or 
change priorities, that would affect the time line. So I am 
afraid I cannot do that.
    Senator Murray. So it may be some time. What interim steps 
are you taking before that is deployed?
    Mr. Blank. Well, I think the interim steps go to the layers 
of security, and I listed a number of those. Of course, we do 
continue to use the CAPPS I system, but it has been 
compromised. We do not think that means that it is of no value 
at all. We do have a ``no fly'' list that we compare names to, 
as we look forward to the complete stand-up of the Terrorist 
Screening Center. The list that we will use to compare 
passenger names to will become far more robust.
    So, in the interim, we think we have something that is 
continuing to improve until we get CAPPS II on-line.
    Senator Murray. Thank you very much.
    Thank you, Mr. Chairman.
    Senator Shelby. Senator Specter.

                    DOT INVESTIGATION OF COMPLAINTS

    Senator Specter. Mr. Rosen, you commented about one matter 
where there was a consent decree entered into between the 
Department of Transportation and the airline. What were the 
essential facts of that matter?
    Mr. Rosen. Well, Senator, that is perhaps more complex than 
I can fully summarize for you. There were actually four 
investigations that the Department's Aviation Enforcement 
Office investigated, and they involved multiple incidents and 
probably a larger number of complaints.
    As I should clarify, the way that office functions, it does 
not simply accept that if a person files a complaint that it 
must be accurate and valid. It investigates those complaints, 
talks to witnesses, talks to the participants and so forth. So 
the Department's Aviation Enforcement Office conducted four 
investigations that resulted in settlements, although the 
settlements are, in many respects similar to one another.
    Senator Specter. Four separate investigations involving 
four separate airlines.
    Mr. Rosen. That is right. But in many ways, the settlements 
are similar to one another. They are not identical, but they 
are similar. So the underlying facts are varied, since there 
are multiple investigations of incidents involved.
    Senator Specter. Well, take one of the investigations and 
tell us what the underlying facts were.
    Mr. Rosen. Well, Senator, I do not mean to be evasive about 
this, but because these cases were resolved in mutually agreed-
upon settlements, the facts were not determined through an 
administrative law judge or ultimately by the Department or 
reviewing courts.
    The Aviation Enforcement Office presented the facts in one 
instance in a complaint and then in the other instances in 
discussions with the carriers, and the carriers, in some 
instances, did not agree with those facts, but ultimately there 
was agreement as to a resolution.
    In terms of the individual facts, I am not sure that it is 
easy, in a forum like this, to try to re-litigate them, nor 
have I prepared at the level of being able to discuss the 
particulars of the cases.
    Senator Specter. Mr. Rosen, I do not understand your 
response. We want to know what kind of a situation led to an 
investigation and an assertion by the Department that there was 
inappropriate conduct. I know it was denied by the defendants, 
and it was settled without a concession on liability. Did any 
of those cases involve a situation where there was someone with 
a Muslim or Arab appearance?
    Mr. Rosen. Well, yes, and they also involved complaints, in 
some instances, of individuals who had been denied boarding 
because they were perceived to be of Arab descent or Muslim but 
were actually individuals who were of Hispanic or Indian 
descent or, in one instance, I think, Italian.
    Senator Specter. Well, were there factors which led the 
airlines to exclude the individual beyond their ethnic 
appearance?
    Mr. Rosen. Well, the----
    Senator Specter. Mr. Rosen, could you provide the details 
for us in writing. It seems to me that this is a pretty 
fundamental question, when you have only a few cases, for you 
to be prepared to answer specifically. And I do not want to 
take any more of the subcommittee's time here, but I would like 
to know what the facts were which led you to an investigation 
and to assert that there was inappropriate conduct which 
required some settlement, albeit with a denial of liability.
    Mr. Rosen. All right, Senator. I mean, as I think would be 
implicit, the Aviation Enforcement Office believed that there 
was credible evidence of discrimination in some number of the 
incidents that it was investigating.
    Senator Specter. Well, Mr. Rosen, it is not implicit, and 
credible is a matter of evaluation, and we would like to know 
what the facts were--what were the facts as you saw them. That 
way we can come to a determination as to whether there was the 
appearance of racial profiling. We would like to know that.
    Mr. Rosen. Senator, if you would like to know more detailed 
information about the particular incidents that were being 
investigated, of course, we can provide that to you. I am just 
not able, today, to walk through each incident and discuss the 
evidence.
    Senator Specter. Okay. I will accept that. Just provide us 
with what the facts were.
    [The information follows:]

    The Enforcement Complaint that DOT's Office of the Assistant 
General Counsel for Aviation Enforcement and Proceedings (Enforcement 
Office) filed against American Airlines (American) on April 25, 2003, 
provides specific examples of incidents which led the U.S. Department 
of Transportation (DOT) to believe that passengers were removed from or 
denied boarding on flights following the September 11, 2001, terrorist 
attacks because of their perceived ethnic and/or religious background. 
That complaint, which is being provided for the record of this hearing, 
includes sworn declarations from 10 passengers alleging civil rights 
violations by American Airlines in 11 incidents. These sworn 
declarations provide detailed information of the specific incidents 
upon which DOT's Enforcement Office relied to file the formal complaint 
against American.
    Two examples of American's alleged discriminatory conduct involve 
Mr. Praneet Kataria, a citizen of India and a permanent resident of 
Canada who wears a turban in accordance with his Sikh faith, and Mr. 
Henry Castellanos, a U.S. citizen of Hispanic descent with a dark 
complexion and a pilot for Miami Air. On December 25, 2001, Mr. Kataria 
was a scheduled passenger on American flight 1197 from Toronto to 
Chicago with a connection in Chicago on American flight 1893 to San 
Francisco. When approaching the jetway to board flight 1893 to San 
Francisco, Mr. Kataria was asked to step aside and undergo an 
additional security search. Mr. Kataria cooperated and the search was 
completed. However, the pilot of flight 1893 deplaned and advised the 
American agents not to allow Mr. Kataria to board the aircraft despite 
Mr. Kataria having been cleared by security. Mr. Kataria was rebooked 
and traveled on the next American flight without additional security 
screening. The Enforcement Office could detect no reason for American's 
actions from the evidence requested or provided by American except for 
Mr. Kataria's appearance that is likely to lead some to believe he is 
an Arab and/or Muslim.
    In the case of Mr. Castellanos, he was a scheduled passenger on an 
American flight from Tucson to Miami, with a connecting flight at 
Dallas/Fort Worth Airport on September 19, 2001. He was traveling with 
two of his colleagues, Mr. David Caviness (a flight engineer also of 
dark complexion) and Mr. Bill Louis (a Caucasian pilot). About five 
minutes after Mr. Castellanos boarded his flight to Miami at Dallas/
Fort Worth Airport, an American employee asked Mr. Castellanos for his 
identification and explained to him that the captain of the flight 
wanted to review his identification. Mr. Castellanos provided the 
American employee his driver's license and his Miami Air badge. A few 
minutes later, Mr. Castellanos and Mr. Caviness were deplaned but Mr. 
Castellanos' white colleague Bill Louis was not asked to leave the 
plane. The captain explained to Mr. Castellanos that a flight attendant 
was uncomfortable having Mr. Castellanos and Mr. Caviness on board as 
passengers after the events of September 11, 2001. Mr. Castellanos 
offered his commercial pilot's license to reassure the flight attendant 
that he posed no safety risk and the American captain talked to the 
flight attendant to no avail. The night attendant gave the captain an 
ultimatum that he either remove Mr. Castellanos and Mr. Caviness or she 
would not fly. Mr. Castellanos and Mr. Caviness were removed and the 
flight departed without them. Again, based on all the evidence 
available to the Enforcement Office, including the fact that American 
did not provide a plausible explanation for the actions of its 
employees, it was convinced that American's treatment of Mr. 
Castellanos was based on discriminatory factors.

    Senator Shelby. That goes to the core questions we are 
trying to answer. Senator Specter, I believe, is right.
    Do you have more questions?
    Senator Specter. A couple for Mr. Blank.
    Mr. Blank, when you say that the pilot has the authority to 
remove a passenger for acting in suspicious manner, is there 
any more specificity as to what constitutes a suspicious 
manner?
    Mr. Blank. No, there is not, but the pilot would be 
questioned. In the instance that a boarded passenger, having 
been screened by TSA, was to be deplaned or removed because the 
pilot wanted, two things would happen:
    The TSA representative would show up at the gate and law 
enforcement would show up at the gate, and the pilot, and law 
enforcement, and TSA would have a conversation about, well, why 
are you doing this. And while the pilot in command would 
ultimately win the debate, if there was one, there are 
instances where the law enforcement office and the TSA 
representative are able to say that this suspicious behavior 
you detected does not rise to the level of deplaning this 
individual.
    In addition--in addition--when every one of these incidents 
happens, within 24 hours, it is going to be brought to the 
attention of the senior leadership of TSA. We go over every 
incident every morning, and we are going to ask that question 
at our headquarters: Why was this individual deplaned? What was 
the suspicious behavior? And if it is not there in our records 
where we can discuss inside a skiff, we will go back to that 
air carrier and say----
    Senator Specter. Are you saying that the pilot has to be 
able to specify the suspicious activity?
    Mr. Blank. What we are trying to get to is we ask them to 
do that, but if a push comes to shove, the pilot in command has 
the authority to say this person does not fly. But that does 
not mean that we cannot work with our partners in the airport 
and go back to a carrier and say, ``We are not convinced that 
this was a proper judgment.''
    Senator Specter. Have you ever taken action against a pilot 
or an airline because you concluded there was not a sufficient 
basis for a conclusion that there was suspicion?
    Mr. Blank. We have not, and I do not believe we have the 
authority to do so.
    I will tell you, Senator, this does not happen very often.
    Senator Specter. Well, with all due respect, it does not 
matter how often it happens, we are trying to figure out what 
the standards are. And it appears, at least to me, that you do 
not have any discernible standards.
    You said, if the individual is not a risk, the captain may 
still refuse, and TSA cannot challenge the captain; is that 
correct?
    Mr. Blank. That is correct, both in law and in regulations.
    Senator Specter. So it is totally the subjective 
determination by the captain, which cannot be challenged by 
TSA.
    Mr. Blank. That is correct, Senator.
    Senator Specter. Well, I think it would be useful to try to 
work out a little more specificity as to what constitutes 
suspicion. In the law, there are all degrees of cause: one 
level of probable cause for warrant of arrest, another level of 
probable cause for a search warrant, and still a third level of 
cause for a stop and frisk, and still a fourth level of cause 
to the Supreme Court case this week for asking a person's name. 
And it seems to me that the captains ought to have some little 
more objective guidelines as to what is meant.
    Mr. Blank. As of right now, Senator, our purpose in 
reviewing those incidents and bringing them to the attention of 
airline corporate management would be to allow them the option 
to take some disciplinary action against that pilot if the 
suspicion was not founded on any basis in fact.
    Senator Specter. Well, that leaves it entirely up to the 
airlines and does not have a real appropriate or enforcement or 
tough role for TSA.
    Thank you, Mr. Chairman.
    Senator Shelby. Senator Kohl.
    Senator Kohl. Thank you, Mr. Chairman.
    Mr. Blank, Congress and TSA have long struggled, as we 
know, with the issue of targeting passengers as security risks. 
The core of the debate is balancing passengers' privacy rights 
with the needs of national security. Most recently, today's 
Washington Post discusses the sharing of personal information 
between airlines in the Transportation Security Administration. 
The article highlights both the difficulties with sharing 
private information and the shortcomings of the Nation's risk 
assessment program CAPPS.
    TSA has argued that without this personal information, the 
Agency would not be able to enact CAPPS II which, as we know, 
is the updated screening program. Glitches in this system have 
been well-publicized, and the GAO report published in February 
highlighted its many shortcomings.
    Mr. Blank, how does TSA intend to develop a screening 
system based on personal private information that will 
adequately shield passengers' privacy rights?
    Mr. Blank. Well, first of all, with regard to the incident 
reported this morning, the Department's review of the matter is 
ongoing as to precisely what happened. CAPPS II is mentioned in 
that, so it was a priority, along with many of the other things 
that we have been working on since the Agency was created.
    And this particular instance related to some R&D work that 
was being done so that we could get a concept of how we might 
build our CAPPS II system. So the PNR data that was provided 
and was used in this R&D effort with some contractors relates 
to that R&D and the foundation that we were trying to build. 
There was no actual checking of passengers' data being done.
    But, clearly, the issues surrounding privacy in CAPPS II 
are critical ones. We recognize that. We have done two Privacy 
Act notices to engage the public fully in advising what we are 
going to do and how we would go about protecting that. A 
significant piece of it is information technology solutions--
walls so that the data cannot be hacked into--and we do not 
retain the data once a flight is or we do not propose to retain 
it once a flight is completed. But we do have work to do on 
that, and we will not use CAPPS II until such time as we are 
assured that we can properly maintain the privacy of the 
information we receive.
    Senator Kohl. All right. Mr. Blank, according to testimony 
by Admiral Stone, TSA and FAA have entered into a cooperative 
agreement with four private firms to develop a model to assess 
the security risk posed by a passenger. TSA plans to evaluate 
these prototypes as candidates for further use as a component 
of CAPPS II. These four private firms will have access to 
passenger name records, which can include full names, 
addresses, credit card numbers, e-mail addresses, and even meal 
preferences.
    So what efforts are being made at TSA to ensure that 
passengers' personal information and their risk assessment 
information is secure in the hands of these private companies?
    Mr. Blank. As of now, we are not receiving any PNR data at 
TSA. The data that the Washington Post refers to and the 
incidents that we are talking about is a historical project. It 
was given in the summer of 2003, I believe it was, where some 
PNR data came to TSA. It was a one-time instance of PNR data 
being shared, and then it went out to the contractor. So those 
projects are over and completed. There are no continuing 
projects relative to CAPPS II using PNR data at this time.
    And what we recently did, under the direction of the DHS 
privacy officer, was essentially conduct a very thorough 
records review to see what PNR data may have been provided to 
the Agency. We have completed that report, and we have provided 
it to the DHS privacy officer who is reviewing it for further 
potential action.
    Senator Kohl. All right. Finally, Mr. Blank, this fall, 
airports can apply to the TSA to return to private security 
screeners. The Washington Post reports that as many as 100 
airports around the country may be interested in dropping TSA 
screeners in favor of a private workforce. Though some think 
this will result in improved screening procedures, a recent 
report conducted by the Department of Transportation Inspector 
General found indications of poor performance in both TSA and 
private screeners.
    So how is TSA working to improve the security screening 
process at our Nation's airports and, in your opinion, should 
Congress be taking any action to help move this process 
forward?
    Mr. Blank. Well, we are doing a number of things.
    First of all, we are seeing consistent improvement. We 
think that some of the comparisons to the FAA system, where the 
airlines did the screening, and the system that we have today, 
we do not think that is fair or gives an accurate picture of 
what is going on out there.
    Today, we have a highly qualified and well-trained screener 
workforce. And one of the things that we have had to do as a 
result of not getting the grades, if you will, that we want is 
improve our training. One way that we have done that is to take 
a library of threat image projections, which are software that 
shows the screener, for test purposes, an improvised explosive 
device in a bag, a gun or a prohibited item to see how often 
the screener can find those. In the days of the FAA, that 
library was 400 images. Today, it is 2,400.
    In addition to that, we have finally gotten the 
connectivity at the airport so that the Federal security 
director can know how well his screener workforce is doing on 
those tests, so he or she can identify, I have a weak-
performing screener, I have a weak checkpoint, and they can 
begin to take remedial actions because of better connectivity. 
We put an on-line learning center so that we can do more 
training in the context of the airport.
    Now, without using specifics, what we have seen is a 70-
percent improvement from where we were at the time of that IG 
and GAO covert testing. So we are getting better. There is work 
to be done. We are not there yet.
    And just as a final note, one of the things we have also 
done is permit local covert testing. So, for a time, a Federal 
security director could not test his or her own system. Now, 
they can.
    Senator Kohl. You are saying there is a very active program 
of oversight and a very active program in terms of improving 
the performance level.
    Mr. Blank. Yes, Senator.
    Senator Kohl. I thank you.
    Thank you, Mr. Chairman.
    Senator Shelby. I asked Senator Specter if he had any more 
questions, and he said, no.
    I want to thank you both for your appearance here today. 
You are going to furnish specific information to the 
subcommittee in response to our questions.
    Thank you very much.
    We will call up the second panel now. Senator Specter is 
going to take over for me.
    Senator Specter [presiding]. We will proceed now with the 
second panel, and the opening statements will be on the 5-
minute rule.
    Our first witness is Michael Smerconish, Esquire, a Phi 
Beta Kappa graduate of Lehigh, a law degree from the University 
of Pennsylvania, experienced trial lawyer, a daily talk show on 
a radio program in Philadelphia, a big talker of daily 
political commentary for KYW News Radio, a columnist for the 
Philadelphia Daily News. And earlier in his career, President 
Bush, the first, appointed Mr. Smerconish to be regional 
administrator of the Department of Housing and Urban 
Development. Married with four children.
    Mr. Smerconish, I have already, in the interest of full 
disclosure, identified you as a longstanding friend, and we 
look forward to your testimony. Your full statement will, 
without objection, be made a part of the formal record of this 
subcommittee.

STATEMENT OF MICHAEL SMERCONISH, ESQ., TALK SHOW HOST, 
            COLUMNIST
    Mr. Smerconish. Thank you very much, Senator Specter, and 
thank you for this privilege. I will limit my comments, 
hopefully, to 5 minutes of general summary of my thoughts.
    Unlike the other witnesses, I come without portfolio. To 
the extent that I represent anyone or anything, I guess you 
could say that I represent the American traveling public in a 
post-9/11 world. Three months ago, my wife and I flew with our 
four children from Atlantic City to Fort Meyers, Florida. We 
had e-tickets.
    At the counter, a pleasant woman asked for our 
identification and then wanted to know which one is Michael, 
Jr. I pointed to my 8-year-old, and she said, ``Oh, that won't 
work.'' She then explained that he had been designated for 
secondary screening, meaning that he would be subjected to more 
of a search than just the usual taking off of the shoes. I told 
her I would gladly take his place, and she obliged. And the 
fact that I could so easily negotiate someone else out of 
secondary screening was itself insightful.
    I did not complain about the inconvenience. Instead, I 
cursed bin Laden under my breath, and I considered this to be 
my small part to play in the post-9/11 world. Well, I no longer 
believe that to be the case.
    I have come to Washington today to say that I am concerned 
about the role of political correctness when it comes to 
airline security. My ears perked up during that 9/11 Commission 
hearing when John Lehman asked the question of Condoleezza Rice 
that has been referred to already here this afternoon. The 
implication of the question was stunning. So, two days later, I 
asked John Lehman, ``What were you talking about?''
    And he said to me, ``The fact is that our enemy is the 
violent Islamic extremists, and the overwhelming number of 
people that one need to worry about are young Arab males and to 
ask them a couple of extra questions seems to me to be common 
sense.''
    Well, I wrote what Secretary Lehman had told me, and the 
Department of Transportation issued a written statement saying 
that he was wrong, and I was wrong for writing it. But by 
happenstance, I then found myself in the company of Herb 
Kelleher, the legendary chairman and founder of Southwest 
Airlines. And I relayed to Mr. Kelleher that which John Lehman 
had told me about the role of political correctness in airline 
security, and he confirmed those thoughts.
    I then found buried in that 9/11 Commission transcript the 
reference made to the testimony of Edmond Soliday, the former 
security chief of United. He is the individual who said that 
they ran the risk of being shut down as operating a 
discriminatory operation if they had more than three 
individuals of the same ethnic stripe in a line for secondary 
screening at one time.
    Here is the bottom line. To this day, I do not know if 
there has ever been a quota system, per se, but I do believe 
John Lehman and Herb Kelleher are accurate in saying that the 
PC movement has intruded on safety concerns. And I am worried, 
Senator Specter, about the big picture and not just the quota 
question.
    Frankly, sir, I cannot understand how we can purposely 
ignore the race, the ethnicity, the appearance and the religion 
of travelers whom we are screening when, in fact, all 19 
hijackers on 9/11 had those characteristics in common.
    Let me be clear. I am not saying that all individuals of 
Arab descent should be singled out. However, I do believe that 
a combination of similarities with those who wreaked havoc on 
this country and continue to try to wreak havoc on this country 
needs to be given ample consideration. Instead, not only will 
the DOT and the TSA not look at those factors that I have 
enumerated, but they fine airlines that they believe do give 
such consideration.
    In the aftermath of 9/11, the DOT pursued enforcement 
actions against American and United Airlines, who lost a 
combined 33 employees and four airplanes on 9/11 for their 
alleged noncompliance with Federal statutes. This overlooked 
the airlines' mandated responsibility to refuse to transport a 
passenger who was believed to be inimical to safety.
    It is mind-boggling to me, sir, that our Government, in the 
aftermath of 9/11, forced American and United to each pay $1.5 
million towards civil rights training, and this week, Senator 
Specter, it was announced that now Delta has been on the 
receiving end of a similar enforcement action and will be 
paying $900,000. I fear that the net effect of our policies is 
to place law enforcement in handcuffs.
    And I find it a bit ironic that arguably we have the type 
of logic on which I am relying to thank for the fact that the 
White House and the Capitol were not struck by Flight 93 on 9/
11. But for the work of Jose Melendez-Perez, a U.S. Customs and 
Border Protection inspector at Orlando International Airport, 
things could have been different. You see, sir, on August 4, 
2001, he refused to let into this country the 20th hijacker, 
Mohammed Kahtani, a Saudi national whom Mohamed Atta had come 
to pick up at the airport. Presumably, this is why Flight 93 
had four terrorists, while the other airplanes had five.
    How did he do it? I do not want to use the dreaded ``P'' 
word. Suffice it to say that he took a long hard look at the 
man who he said ``gave him the creeps.''

                           PREPARED STATEMENT

    Here is my final thought:
    In 1955, the Israeli philosopher Yishavayahu Leibowitz, 
complained in a letter to Ben-Gurion, Israel's first prime 
minister, about Palestinians killed in Israeli operations. ``I 
received your letter, and I do not agree with you,'' Ben-Gurion 
replied. ``Were all the human ideals to be given to me on the 
one hand and Israeli security on the other, I would choose 
Israeli security because while it is good that there be a world 
full of peace, fraternity, justice, and honesty, it is even 
more important that we be in it.''
    Thank you, Senator Specter.
    [The statement follows:]

                Prepared Statement of Michael Smerconish

    Thank you very much for allowing me to speak on an issue of great 
interest to my radio listeners, and to myself. We are very concerned 
about the role political correctness plays in protecting airline 
security in a post-9/11 world. Time permits me to briefly provide an 
overview of some of the milestones that have marked my review of this 
issue.
    Three months ago, my wife and I flew with our four children from 
Atlantic City to Ft. Meyers, Florida. We had E-tickets. At the counter, 
a pleasant woman asked for our identification, and then wanted to know 
``which one is Michael, Jr.?'' I pointed to my 8-year-old. ``Oh, that 
won't work,'' she said. She then explained that he'd been designated 
for secondary screening, meaning he would be subjected to more of a 
search than just taking off his shoes and walking through the metal 
detector. I told her I would gladly take his place and she obliged. 
(The fact that I could so easily negotiate someone else out of 
secondary screening was itself insightful.)
    I didn't complain about the inconvenience. Instead, I cursed bin 
Laden under my breath, and considered this to be my small part to play 
in the post-9/11 world. Well, I no longer believe that to be the case.
    On the return trip, I had a similar experience. Once again, my son 
was selected for secondary screening, and again I took his place.
    Enter Secretary John Lehman. Two weeks after our return from 
Florida, I watched Condoleezza Rice testify before the 9/11 Commission. 
The media attention that day was focused upon the President's Daily 
Briefing (PDB) of August 6, 2001, about a month before 9/11. I was more 
interested in something I heard Secretary Lehman ask Dr. Rice:

    ``Were you aware that it was the policy . . . to fine airlines if 
they have more than two young Arab males in secondary questioning 
because that's discriminatory?''

    Her reply, that she did not know the ``kind of inside arrangements 
for the FAA,'' was inconsequential. Still, I wondered what in the world 
he was referring to. Here is what he told me:

    ``We had testimony a couple of months ago from the past president 
of United, and current president of American Airlines that kind of 
shocked us all. They said under oath that, indeed, the Department of 
Transportation continued to fine any airline that was caught having 
more than two people of the same ethnic persuasion in a secondary line 
for questioning, including, and especially, two Arabs.''

    I then asked him about the role of political correctness, and he 
said:

    ``That is really the source, because of this political correctness 
that became so entrenched in the 1990's, and continues in [the] current 
Administration. No one approves of racial profiling, that is not the 
issue. The fact is that Norwegian women are not, and 85-year-old ladies 
with aluminum walkers are not, the source of the terrorist threat. The 
fact is that our enemy is the violent Islamic extremists, and the 
overwhelming number of people that one need to worry about are young 
Arab males, and to ask them a couple of extra questions seems to me to 
be common sense, yet if an airline does that in numbers that are more 
than proportionate to their number in a particular line, then they get 
fined and that is why you see so many blue-haired old ladies and people 
that are clearly not of Middle Eastern extraction being hauled out in 
such numbers because otherwise they get fined.''

    I reported what Secretary Lehman told me in a lengthy story in the 
Philadelphia Daily News on April 12, 2004. That same day, I saw you, 
Senator Specter, at the Phillies home opener. I reported on Secretary 
Lehman's interview. You promised to look into the matter, and reported 
back soon thereafter that your staff had made inquiries about such an 
alleged quota at the Department of Transportation, and had received a 
denial. Indeed, the DOT issued a written statement, although I did not 
immediately learn of it, nor did anyone at the Daily News. It said:

    ``In a recent column, a member of the 9/11 Commission was incorrect 
in telling your newspaper that the Federal Aviation Administration used 
a quota restricting the number of foreign passengers that could be 
subjected to secondary screening at one time. Despite the testimony 
from current and former airline executives cited in your column, 
secondary screening of passengers is random or behavior based. It is 
not now, nor has ever been based on ethnicity, religion or appearance.
    ``Your readers should know that the federal government has and will 
continue to put in place the strongest possible security screening 
procedures while protecting the civil rights of all passengers in our 
aviation system.''

    I noted the words: ``. . . secondary screening of passengers is 
random or behavior based. It is not now, nor has ever been based on 
ethnicity, religion or appearance.''
    That concerned me. After all, the 19 hijackers on 9/11 had 
ethnicity, religion, and appearance in common. Why wouldn't we take 
those factors into account, I wondered?
    The week of my interview with Secretary Lehman, I was in the 
company of Herb Kelleher, the legendary founder and chairman of 
Southwest Airlines. I told him about my conversation with Secretary 
Lehman. He confirmed that political correctness was playing a role in 
decisions as to who would be stopped for heightened scrutiny at 
airports. Herb Kelleher told me:

    ``As a matter of fact, it goes back to the Clinton Administration 
when the Justice Department said they were concerned about equality of 
treatment with respect to screening, and my understanding is that's why 
the random element was put in, in other words, where you just choose 
people at random as opposed to picking them out for some particular 
reason, and that of course caused a great many more people to be 
screened.''

    Mr. Kelleher's comments fueled my interest in knowing the extent to 
which political correctness was compromising airline security. When I 
say political correctness, let me be clear that I am not limiting my 
interest to the presence of a quota for Arab males. I am more broadly 
talking about a conscious decision not to provide a heightened 
screening of individuals with matters in common with the 19 known 
hijackers.
    I wondered about the basis for Secretary Lehman's questioning of 
Dr. Rice, and decided to review the transcripts of airline executives 
before the 9/11 Commission.
    I found that on January 27, 2004, the Commission heard from a panel 
of witnesses: Edmond Soliday, former security chief for United 
Airlines, Andrew Studdert, former COO of United, and Gerard Arpey, CEO 
for American. Their testimony received no media attention. Instead, the 
spotlight that day was on a stunning audiotape of the voice of Betty 
Ong who was an attendant aboard AA Flight 11.
    In his testimony, security expert Soliday told the Commission:

    ``Quite frankly, if you look at the record, we tested numerous 
things long before they were mandated. Immediately after TWA 800, we, 
as a company, talked with the FAA and said that we are prepared to move 
forward with some security measures to ramp up because we don't know 
what caused this. The problem is--and you can make light of it, if you 
like--a citizen does not have the right to search and seize. There are 
privacy issues and, for example, as a company who was prepared to roll 
CAPPS out and did roll it out long before any other company, a visitor 
from the Justice Department told me that if I had more than three 
people of the same ethnic origin in line for additional screening, our 
system would be shut down as discriminatory.''

    Similarly, Arpey, the CEO of American, told the 9/11 Commission 
that when crew members had been uncomfortable with passengers on 
airplanes and asked that they be removed, the DOT brought an 
enforcement action against the airline! (``But if I could share some 
history with you, how that law has been applied to us is that when we 
have tried to deny boarding--most recently after 9/11, 38 of our 
captains denied boarding to people they thought were a threat. Those 
people filed complaints with the DOT, we were sued, and we were asked 
not to do it again.'') Mr. Studdert, the former COO of United, told the 
9/11 Commission that he believed United had just been fined for similar 
behavior.
    I noted that Senator Bob Kerrey, in the midst of the testimony to 
which I have been referring, said this:

    ``There's a couple of relatively simple things that could be done 
prior to people getting on airplanes and I think, for political 
reasons, we don't want to do it. And I think the American people want 
you to tell us what are those simple things. And if the politicians are 
afraid--the elected politicians, are afraid, we need to give them some 
room and give them permission to do it because I mean I see a lot of 
stuff being done here . . . You've got to figure out how to keep people 
off planes that are willing to die in the act of killing passengers and 
killing other people on the ground, because I think--I personally feel 
that unless you provide us with that information, it is not likely to 
come from anybody else.''

    I must point out that James M. Loy, the Deputy Secretary of the 
Department of Homeland Security testified this same day before the 9/11 
Commission. Secretary Lehman, in reference to the testimony I have just 
recounted said, ``Tell me it ain't true,'' to which Admiral Loy 
responded ``It ain't true, sir . . .''
    Still, I wondered what Messrs. Soliday, Arpey and Studdert were 
referring to. This caused me to do some legal research, and I was 
aghast at what I found.
    I found that there were at least three enforcement actions 
initiated by the DOT's Airline Enforcement Office in the aftermath of 
9/11. On the receiving end were Continental, American, and United. On 
9/11, Americans Airlines lost 17 of its personnel; on 9/11 United lost 
16 of its personnel. For our DOT to pursue claims against those two 
airlines, I figured they must have exhibited some real egregious 
conduct. That was not the case.
    And yet, millions of dollars were paid as a result of the actions. 
Each of the three airlines denied any culpability, but agreed to 
resolve the claims by paying money toward civil rights training. In the 
case of Continental, it was $500,000.00. From United, it was 
$1,500,000.00. As for American, the total was $1,500,000.00.
    So what was the conduct on the part of the two airlines that 
suffered incalculable losses on 9/11 that caused our DOT to essentially 
``fine'' them? I wanted to know.
    They were accused of ``noncompliance with Federal statutes 
prohibiting air carriers for subjecting any air traveler to 
discrimination on the basis of race, color, national origin, religion, 
sex, or ancestry.'' The DOT's AEO contended that some airline 
passengers were treated in a manner inconsistent with statutes 
prohibiting discrimination.
    What was the legal basis for the pursuit of the claims?
    The DOT maintained that Federal law states: An airline cannot 
refuse passage to an individual because of that person's race, color, 
national origin, religion, sex, or ancestry. 49 U.S.C. 40127(a). 
Similarly, 49 U.S.C. 41310 prohibits air carriers and foreign air 
carriers from engaging in unreasonable discrimination against 
individuals on flights between the United States and foreign points; 49 
U.S.C. 41702 requires that U.S. carriers provide safe and adequate 
transportation; and 49 U.S.C. 41712 prohibits unfair and deceptive 
practices and, therefore, prohibits invidiously discriminatory 
practices on the part of U.S. carriers.
    The airlines responded by saying that no passengers were removed 
from a flight or denied boarding under circumstances amounting to a 
status-based discrimination (i.e. based on a passenger's ethnic 
background or national origin). And, they said that they were obligated 
by Federal law to ``refuse to transport a passenger or property the 
carrier decides is, or might be, inimical to safety,'' citing 49 U.S.C. 
44902(b), 14 CFR 91.3 and 49 CFR 1544.2 15(c). In addition, American 
asserted that the pilot-in-command must make that decision based upon 
the facts and circumstances presented to him or her at that time, 
taking into account the time constraints under which the decision must 
be made and the general security climate in which the events unfold. 
American opined that the pilot-in-command may rely without further 
inquiry upon the representations of other crewmembers or other 
responsible authorities with respect to safety and security.
    Consider the case of Jehad Alshafri, a self-described ``32 year-old 
Arab American.'' Mr. Alshrafi is a naturalized American citizen of 
Jordanian birth. According to his Declaration, which accompanied the 
DOT/AEO's Complaint, he works for a defense contractor helping to build 
missiles for the military, and possessed a secret-level security 
clearance. On November 3, 2001, he was refused entry while trying to 
board an American airline from Boston to Los Angeles. (Several of the 
enforcement cases involved travel from Boston's Logan Airport, the 
point of origin of two of the 9/11 flights). In the Complaint against 
American, it states that Mr. Alshrafi was denied boarding after 
responding to a page and reporting to an American counter. There, he 
was greeted by an American employee and U.S. Marshall. He was told that 
the pilot had denied him boarding on that flight. Mr. Alsharafi 
informed the American employee that he had a ``secret level'' security 
clearance from the U.S. Department of Defense. He was nevertheless told 
he was being denied passage. (``I was calmly contesting the pilot's 
decision when a state trooper arrived and asked me to move along and to 
deal with him. I was humiliated to be confronted by a state trooper in 
full view of the crowded boarding area.'') Mr. Alshafri missed his 
flight, but was upgraded to First Class on a later flight that day.
    American's answer suggests that there was more to the story in the 
eyes of the pilot at the time. First, American states, ``at least one 
other passenger had reported what appeared to be his suspicious 
behavior to an American gate agent.'' Additionally, American admitted, 
``the Federal Air Marshall advised the pilot-in-command that the 
passenger had been acting suspiciously and had created some kind of 
disturbance and that his name was similar to a name on the federal 
watch list.''
    So, here is what was known to the pilot as he prepared to depart: 
(1) he was 2 months removed from the worst act of terrorism ever 
initiated against the United States; (2) that terrorism victimized his 
employer--men doing exactly what he was now doing lost their lives when 
their airplanes were used as weapons; (3) the point of origin of those 
flights was Boston's Logan Airport, where he now sat; (4) the 
destination for those flights on 9/11 was Los Angeles, which is exactly 
where this plane was headed; (5) the hijackers on 9/11 were, to a 
person, young Arab males; (6) there is at least one passenger who is 
ill-at-ease with another passenger who is acting in what passenger No. 
1 believes to be a suspicious manner; (7) the Federal Air Marshal has 
advised you that the passenger at issue has been acting suspiciously 
and has created some kind of disturbance; (8) this passenger has a name 
similar to one on the Federal watch list, and (9) yes, let's not be 
afraid to say it, he probably resembled the 9/11 hijackers in his 
appearance.
    Did this pilot act unreasonably in denying boarding? Hardly. It 
would seem to me that a pilot who is presented with those details and 
chooses to fly is derelict in his duty. Instead, the DOT decided this 
conduct was worthy of legal action--legal action against a company that 
paid the ultimate price on 9/11.
    Secretary Norman Mineta has made clear his refusal to factor in the 
common characteristics of the 9/11 hijackers in looking for those who 
would seek to emulate them. Consider his words with CBS' Steve Kroft on 
60 Minutes, December 2, 2001:

    ``Kroft: Are you saying, at security screening desks, that a 70-
year-old white woman from Vero Beach, Florida, would receive the same 
level of scrutiny as a--a--a Muslim young man from Jersey City?
    ``Mineta: Basically, I would hope so.''

    (Steve Kroft had begun the interview by stating that at the time, 
all 22 people on the FBI's Most Wanted Terrorist list are Muslims! And 
more than half of them have the name Mohammed.)
    The 60 Minutes speech was no aberration. Time and again Secretary 
Mineta has made clear his refusal to consider personal characteristics 
in the war on terrorism. In particular, I note his Statement to the 
U.S. Commission on Civil Rights on October 12, 2001, and his speech in 
Rochester, New York on that same date. Secretary Mineta was active in 
the aftermath of 9/11 in dictating to the airlines his view of the 
world. In the months after 9/11, the DOT issued several memos to the 
airlines, warning them against ``profiling'' passengers. Consider that 
on October 12, 2001, the DOT issued a memo titled ``Carrying Out 
Transportation Inspection and Safety Responsibilities in a 
Nondiscriminatory Manner.'' It read, in part:

    ``Use the `but/for' test to help determine the justification for 
your actions. Ask yourself, `But for this person's perceived race, 
ethnic heritage or religious orientation, would I have subjected this 
individual to additional security scrutiny?' If the answer is `no,' 
then the action may violate civil rights laws.''

    I believe that test jeopardizes airline safety. And I point to an 
American hero named Jose Melendez-Perez for support of my view. This 
man engaged in what some would deride as ``profiling'', and probably 
saved either the White House or U.S. Capitol Building in the process. 
Let me explain.
    Three of the four aircraft involved in the hijackings on 9/11 had 
five hijackers aboard. But United Airlines Flight No. 93, a Boeing 757 
that departed from Newark bound for San Francisco at 8:42 a.m., and 
crashed in a field in Stony Creek Township, Pennsylvania, at 10:03 
a.m., had only four. Surely that was not its intended target. 
Presumably, it was headed for Washington, DC. Perhaps being one man shy 
of the other planes hijacker population is the reason why this airplane 
crashed. And for that, we can probably thank Jose E. Melendez-Perez.
    On August 4, 2001, Melendez-Perez was a U.S. Customs and Border 
Protection Inspector at Orlando International Airport, Orlando, 
Florida. Reflecting before the 9/11 Commission on his role that day, he 
said:

    ``. . . I note that another inspector on duty that day made a 
comment that I was going to get into trouble for refusing a Saudi 
national. I replied that I have to do my job, and I cannot do my work 
with dignity if I base my recommendations on refusals/admissions on 
someone's nationality.''

    At approximately 1735 hours, he was assigned the case of a Saudi 
national who had arrived on Virgin Atlantic No. 15 from London, Gatwick 
Airport. As Saudis coming through Orlando to travel to Disney World are 
common, he had plenty of line experience with Saudis. In this 
particular case, the subject was referred to secondary inspection 
because the primary inspector could not communicate with him and his 
arrival/departure form (I-94) and Customs Declaration (C-6059B) were 
not properly completed.
     Melendez-Perez sized up the situation by noting the individual's 
nationality (Saudi), his grooming, dress, height, and shape. He figured 
the man to be military. And, he thought he was cocky. Dare I say it, he 
was profiling. And thank goodness he did. Keep in mind this was pre-9/
11. If such an assessment occurred post-9/11, you would say, ``well, of 
course'' this is how it should be handled. But this was before those 
horrific events. Melendez Perez told the 9/11 Commission that the man 
``gave him the creeps''. The man was put on a flight out of the United 
States.
    So who was the man and what was he doing? This became clear when 
Melendez-Perez was questioned by Richard Ben-Veniste. It turns out that 
while Melendez-Perez was performing his duties at Orlando Airport on 
August 4, 2001, and screening a man named Mohammed Kahtani, there was 
someone else present at that very airport: Mohamed Atta, the presumed 
ringleader of the operation. Coincidence? Hardly. According to Ben-
Veniste, while Melendez-Perez was questioning Mohammed Kahtani, and 
while Kahtani was claiming that someone was upstairs to meet him, 
Mohamed Atta made a telephone call from that location to a telephone 
number associated with the 9/11 plot. In other words, the good work of 
Melendez-Perez kept out of the United States the presumed 20th 
hijacker.
    As I uncovered details like this about airport screening, I shared 
them with my radio audience. I also wondered aloud whether my 8-year-
old son was marked for heightened scrutiny as a means of not offending 
those who are more appropriate for secondary screening. Meanwhile, my 
radio audience began supplying me with hundreds of emails telling me 
detailed anecdotes about their own flying experiences. Elderly women 
being scrutinized. Military men in uniform and with papers being 
scrutinized. There appeared to be no rhyme or reason to the random 
screening.
    Here is just one, of many:

    ``I have been listening to your fight with the DOT. If I may tell 
you the story of what happened to me and my reserve unit. I am a Naval 
Reservist whose unit was recalled for the War on Terror. Upon our 
return, we flew a Delta flight into Atlanta to make a connecting flight 
to the Norfolk Naval Base in Virginia to be released from active duty . 
. .
    Once I was done in Norfolk, I had a US Airways flight to 
Philadelphia. Again, I was pulled aside by the TSA to have myself and 
my carry-on bags searched. Again, I had my military id, orders, and a 
Government ticket.''

    Beyond my radio show, I have been speaking out publicly about my 
concern that political correctness is compromising airline security. I 
have published in the Philadelphia Daily News, the National Review 
Online and NY Post. And, I have appeared on the CNBC program Kudlow and 
Cramer.
    The DOT has not been kind in commenting on things I have had to 
say. In fact, the DOT issued a strident denial of things I said on 
Kudlow and Cramer, and then refused to supply me with a copy of what 
they gave the network, regardless of the fact that it had been read on 
national TV. Actually, the DOT refused to share the written statement 
about me, with me, unless I would agree to share with the DOT future 
columns in advance of publication. I reminded my point of contact with 
the DOT that I do not work for TASS. And all it did was further 
heighten my suspicion about the ways in which the DOT was compromised 
by political correctness.

    ``Michael Smerconish's recent column has not received much coverage 
because it is wildly incorrect. There is absolutely no ambiguity about 
the Federal Aviation Administration's policy on airport security 
screening before September 11. The secondary screening of airline 
passengers has always been random or behavior based. The bottom line is 
the airlines, which were responsible for passenger screening on 
September 11, were never told to limit screening of passengers based on 
any criteria.
    ``Even more troubling is that Mr. Smerconish himself admits he was 
never told such a quota ever existed. He instead has apparently 
misunderstood complaints expressed about civil rights violations when 
some air carriers denied service--not screening--to passengers based on 
their ethnicity. How any legitimate journalist could translate that 
into a mythical federal government screening quota is hard to fathom.''

    The DOT was hung up on the quota aspect of Secretary Lehman's 
questioning of Condoleezza Rice. Me, I was thinking bigger picture. I 
don't know if there was ever a quota system for young Arab males. But I 
do know that we have a policy in this country of ignoring 
characteristics shared by the 19 known hijackers on 9/11, and that seem 
to me to be illogical.
    In the aftermath of 9/11, the Nation was on pins and needles, 
grieving the losses sustained from the hijacking of two American jets 
and two United jets, and yet, our DOT was going after those airlines in 
the name of political correctness. That thinking, first on the part of 
the DOT, and now through the Transportation Safety Administration (TSA) 
continues today. I recently asked a TSA representative how the TSA 
determines who gets pulled out of line for secondary questioning. He 
told me this:

    ``TSA: Well, the secondary screening process is based on a couple 
of different things. If an alarm goes off when an individual goes 
through the security checkpoint they could be selected to go through 
secondary screening be able to resolve the alarm. For instance, in many 
cases we've heard people talking about shoes. A lot of people don't 
want to take their shoes off--understandably--but a lot of shoes have 
metal in them. So when they walk through the metal detector and the 
alarm goes off we have to resolve that alarm to find out what the 
metallic object is that is setting off our alarms. So people like that 
can be subject to secondary screening. There is a separate group of 
people who are selected for secondary screening based on other things 
such as when did they buy their ticket, did they buy it right before 
the flight, or did they pay cash for their ticket, or was it a one-way 
ticket so there are a couple of things that come into play in secondary 
screening.''

    I specifically asked about factoring in the appearance of the 
traveler himself or herself:

    ``TSA: Appearance doesn't come into play--that would get into the 
whole profiling issue--we don't profile--our job is to find prohibited 
items. It doesn't matter size, shape, color, or what you're wearing--we 
just want to make sure that the traveling public remains secure.
    ``MAS: In other words you don't care whether a person appears to be 
of Middle Eastern extraction versus someone who appears to be 
Norwegian?
    ``TSA: No, no, it doesn't come into play. That's not our job. Our 
job is to look for prohibited items at the security checkpoint.''

    I wanted to share my concerns about this policy with the Congress. 
So, prior to coming here today, my Congressman, James Gerlach, made it 
possible for me to speak with Rep. John Mica (R-FL) who is the Chairman 
of the House Subcommittee on Aviation. He confirmed for me the role of 
political correctness in airline security post-9/11:

    ``MICA: Well let me say this, we had the inspector general of the 
Department of Homeland Security test both systems and we found that, in 
his words, both were performing equally poorly. In fact, we have been 
concentrating on being politically correct. We don't have deployed 
technology that would give us sort of an instantaneous look at people 
who were carrying explosives or dangerous weapons that's a great 
concern. The performance of this TSA operation after spending billions 
of dollars isn't really much better than what we had pre-Sept 11. Now 
we do have secured cockpit doors, we have air marshals, we have pilots 
being armed, but we've been concentrating on screening as you pointed 
out in those comments of little old ladies, millions of passengers who 
pose no threat and not going after bad guys.
    ``MAS: Is there anything wrong with saying that you know good 
police work demands that we look for folks who resemble the 19 
hijackers on September 11?
    ``MICA: Well absolutely there is no reason we cannot profile, and 
do it without discrimination and some of the do-gooders and others 
who've stopped progress on those projects actually have done us great 
harm . . . Even as of yesterday, talking with the Secretary, Admiral 
Lloyd, and now Admiral Stone who's in charge of the TSA--we're far 
behind in development of those programs that really will detect bad 
people, the inability to do that does cause us to harass everyone 
else.''

    I share Congressman Mica's assessment of the problem. He correctly 
told me that with regard to the characteristics in common among the 19 
hijackers on 9/11: ``Well if you took just one of those characteristics 
you may be discriminating. If, in fact, you use a number of those in 
concert, I don't think you are.'' This is precisely my view.
    I am grateful for the opportunity the opportunity to be here today 
and I ask you to take a long, hard look at the criteria we are using as 
we look for those who seek to destroy our Nation. I leave you with this 
thought:
    In 1955, the Israeli philosopher Yishavayahu Leibowitz, complained 
in a letter to Ben-Gurion, Israel's first prime minister, about 
innocent Palestinians killed in Israeli operations. ``I received your 
letter and I do not agree with you,'' Ben-Gurion replied. ``Were all 
the human ideals to be given to me on the one hand and Israeli security 
on the other, I would choose Israeli security because while it is good 
that there be a world full of peace, fraternity, justice, and honesty, 
it is even more important that we be in it.''

    Senator Specter. Thank you very much, Mr. Smerconish.
    We turn now to Ms. Peggy Sterling, vice president of 
Safety, Security and Environment for American Airlines since 
2002, September. A 34-year veteran of American, she previously 
served as vice president of American's largest hub. A native of 
Arizona, she attended the University of Arizona and North 
Virginia.
    We welcome you, Ms. Sterling, and look forward to your 
testimony.

STATEMENT OF PEGGY E. STERLING, VICE PRESIDENT, SAFETY, 
            SECURITY, AND ENVIRONMENTAL, AMERICAN 
            AIRLINES
    Ms. Sterling. Good afternoon, and thank you, Senator 
Specter. I thank the committee for this opportunity to 
represent American Airlines here today and to address the issue 
of aviation security in the post-9/11 world.
    To give some context to my statement, I would like to share 
with the committee a few statistics about the scope of American 
Airlines' operations. Every day, American Airlines, American 
Eagle and AmericanConnection regional carries serve more than 
290,000 passengers daily on more than 4,200 flights to 230 
cities in over 40 countries. In 2003, American Airlines, 
American Eagle, and AmericanConnection transported more than 
100 million people. It is against these numbers that aviation 
security issues must be considered.
    In today's climate, it would be unthinkable for a captain 
of a commercial airline flight to ignore a pre-take-off report 
of suspicious or threatening behavior by a passenger. The 
security issues associated with air travel are unique, and 
there is no room for error in assessing and dealing with 
potential threats. The concern with safety and security in the 
aftermath of 9/11 is particularly acute at American Airlines. 
More than 20 members of the American Airlines family were lost 
on 9/11, and the pain and the sadness of that event endures at 
American Airlines to this day, as well as to the rest of the 
country.
    Just a few months later, an American flight crew was again 
faced with the reality of the threat of terrorism when it 
heroically averted a disaster over the Atlantic by thwarting a 
``shoe bomber.''
    American, and particularly its flight crews, have been 
impacted by the terrorism threats against the aviation industry 
more than any other carrier in the world. The security 
challenges facing American Airlines and the industry are 
uniquely apparent to our pilots, our flight attendants and our 
front-line employees. They know that while all passengers must 
pass through airport security before they board, preboard 
screening is simply one aspect of a layered security system.
    Flight crew observations of passengers are an important 
part of the overall redundant approach to security, and flight 
attendants in particular are attuned to any unusual behavior. 
Flight crews are literally the last line of defense. As a 
result of the vigilance of our flight attendants, Richard Reid 
was prevented from igniting explosives in his shoes. In his 
State of the Union Address, President Bush praised the 
vigilance of American Airlines flight attendants who thwarted 
Reid. President Bush remarked that ``As Government works to 
better secure our homeland, America will continue to depend on 
the eyes and the ears of alert citizens.''
    Notwithstanding heightened security concerns, September 11 
did not lessen American's commitment to diversity and tolerance 
of all cultures; it intensified it. We are keenly aware that 
our airline brings people and cultures together from around the 
world. ``AAers'' have always taken great pride in our diverse 
workforce. Our personnel interact with their colleagues and 
customers of various nationalities and cultures daily. We enjoy 
serving our customers, while respecting and celebrating their 
differences. Our policies of nondiscrimination and respect for 
cultural differences have been reiterated to our employees 
since September 11. These efforts have been particularly 
directed to ensure that American Airlines' Middle Eastern and 
Muslim passengers and employees are treated with respect and 
dignity.
    Just as importantly, however, we have also emphasized to 
our flight crews that their primary concern is, and must be, 
the safety of those on board and that perceived security issues 
must be resolved before takeoff. There is simply no room for 
error in this regard. We have supported our captains in making 
difficult decisions, including decisions to deny travel so that 
security issues can be resolved, and we will continue to do so.
    While I am not an attorney, and do not purport to know the 
intricacies of the laws in this area, I can tell you that 
American Airlines believes that our efforts to put safety first 
are fully supported by the law. Congress has established a 
statutory framework that recognizes and mandates that a 
commercial airline captain is responsible for the safety and 
well-being of everyone on board the aircraft. This reflects the 
painful reality that once the aircraft takes off, it is likely 
more difficult to prevent a terrorist attack or a safety issue 
from escalating.
    We certainly believe that a carrier may properly refuse to 
transport an individual if, under circumstances presented at 
the time and based upon facts as then known, it rationally and 
reasonably believes the passenger might pose a threat to the 
safety of other passengers and crew. We firmly believe that it 
is bad public policy to allow a carrier's decision to remove a 
passenger so that security concerns can be resolved to be 
second-guessed in the relative calm of a courtroom or of a 
Government office, after the fact and by those who are not 
responsible for the lives of everyone on board an aircraft.
    Unfortunately, though perhaps not surprisingly, our efforts 
to ensure security have not been universally accepted. A 
handful of civil lawsuits alleging ethnic or religious 
discrimination have been filed against American Airlines out of 
incidents where passengers were denied travel or subjected to 
additional security measures so that potential security issues 
could be resolved.
    Additionally, in April of 2003, DOT's Aviation Enforcement 
Office filed a formal enforcement complaint against American 
Airlines. The complaint alleged that American unlawfully 
discriminated against passengers on 11 occasions by denying 
them boarding or removing them from flights because they were 
or were perceived to be of Arab, Middle Eastern or South Asian 
descent or a Muslim. Ten of the eleven incidents occurred 
during the fall--during the fall--of 2001, an unprecedented 
period of heightened security concern for American Airlines and 
the United States.
    We believe that in these incidents our pilots were doing 
exactly what they were taught to do and being instructed to do 
by the President of the United States, Attorney General 
Ashcroft, the FAA and TSA, and the traveling public. Our pilots 
made difficult, time-sensitive decisions----
    Senator Specter. Ms. Sterling, your time is 3 minutes over. 
Could you summarize, please?
    Ms. Sterling. Yes, I certainly can.
    With all due respect to the DOT, we think its decision to 
pursue an enforcement action against American exemplified the 
exact type of second-guessing that should be avoided.
    I would also like to say one other thing, and that relates 
to the comment that was made earlier. I would like to address 
the point that I understand the committee is concerned with. We 
understand there is some testimony before the Kean Commission, 
the 9/11 Kean Commission, to the effect that the Department of 
Justice had indicated to another carrier that if two or more 
individuals from a particular ethnic group were made selectees 
for a particular flight, the carrier would be deemed to have 
acted in a discriminatory manner. We have not heard or seen 
anything of this nature from the DOJ, the DOT, the TSA, the 
Department of Homeland Security or any other Government agency.

                           PREPARED STATEMENT

    Our policies and procedures are not based on the 
proposition that there are any ethnically driven limits on how 
many passengers from a particular flight can be subjected to 
heightened security scrutiny.
    Thank you for the opportunity to address you.
    [The statement follows:]

                Prepared Statement of Peggy E. Sterling

    Good afternoon, Mr. Chairman and members of the committee. My name 
is Peggy Sterling and I am Vice President, Safety, Security, and 
Environmental of American Airlines. I thank the committee for this 
opportunity to represent American here today and to address the issue 
of aviation security in the post-9/11 world.
    To give some context to my statement, I would like to share with 
the committee a few statistics about the scope of American's 
operations. Every day, American Airlines, American Eagle, and 
AmericanConnection regional carriers serve more than 290,000 passengers 
on more than 4,200 flights to 230 cities in over 40 countries. In 2003, 
American Airlines, American Eagle, and AmericanConnection transported 
more than 100 million people. It is against these numbers that aviation 
security issues, must be considered.
    In today's climate, it would be unthinkable for the captain of a 
commercial airline flight to ignore a pre-takeoff report of suspicious 
or threatening behavior by a passenger. The security issues associated 
with air travel are unique, and there is no room for error in assessing 
and dealing with potential threats. The concern with safety and 
security in the aftermath of 9/11 is particularly acute at American. 
More than 20 members of the American Airlines family were lost on 9/11, 
and the pain and sadness of that event endures at American to this day. 
Just a few months later, an American flight crew was again faced with 
the reality of the threat of terrorism when it heroically averted a 
disaster over the Atlantic by thwarting the ``shoe bomber.''
    American, and particularly its flight crews, has been impacted by 
the terrorism threats against the aviation industry more than any other 
carrier in the world. The security challenges facing AA and the 
industry are uniquely apparent to our pilots, flight attendants and our 
other front-line employees. They know that while all passengers pass 
through airport security before they board, pre-boarding security is 
simply one aspect of a layered security system. Flight crew 
observations of passengers are an important part of the overall 
redundant approach to security, and flight attendants in particular are 
attuned to any unusual behavior. Flight crews are literally the last 
line of defense. As a result of the vigilance of our flight attendants, 
Richard Reid was prevented from igniting explosives in his shoe. In his 
State of the Union Address, President Bush praised the vigilance of the 
American Airlines flight attendants who thwarted Reid. President Bush 
remarked that: ``As government works to better secure our homeland, 
America will continue to depend on the eyes and ears of alert 
citizens.''
    Notwithstanding heightened security concerns, September 11 did not 
lessen American's commitment to diversity and tolerance of all 
cultures; it intensified it. We are keenly aware that our airline 
brings people and cultures together from around the world. Our 
personnel interact with individuals of various nationalities and 
cultures daily. We serve our customers while respecting and celebrating 
their differences. Our policies of non-discrimination and respect for 
cultural differences have been reiterated to our employees since 
September 11. These efforts have been particularly directed to ensure 
that American Airlines' Middle Eastern and Muslim passengers and 
employees are treated with respect and dignity.
    Just as importantly, however, we have also emphasized to our flight 
crews that their primary concern is, and must be, the safety of those 
on board, and that perceived security issues must be resolved before 
takeoff. There is simply no room for error in this regard. We have 
supported our captains in making difficult decisions, including 
decisions to deny travel so that security issues can be resolved, and 
we will continue to do so.
    While I am not an attorney and do not purport to know the 
intricacies of the law in this area, I can tell you that American 
believes that our efforts to put safety first are fully supported by 
the law. Congress has established a statutory framework that recognizes 
and mandates that a commercial airline captain is responsible for the 
safety and well-being of everyone on board the aircraft. This reflects 
the painful reality that once the aircraft takes off, it is likely more 
difficult to prevent a terrorist attack or a safety issue from 
escalating.
    We certainly believe that a carrier may properly refuse to 
transport an individual if, under the circumstances presented at the 
time and based upon the facts as then known, it rationally and 
reasonably believes the passenger might pose a threat to the safety of 
the other passengers and crew. We firmly believe that it is bad public 
policy to allow a carrier's decision to remove a passenger so that 
security concerns can be resolved to be second-guessed in the relative 
calm of a courtroom or a government office, after the fact, by those 
who are not responsible for the lives of everyone onboard an aircraft.
    Unfortunately, though perhaps not surprisingly, our efforts to 
ensure security have not been universally accepted. A handful of civil 
lawsuits alleging ethnic or religious discrimination have been filed 
against American arising out of incidents where passengers were denied 
travel or subjected to additional security measures so that potential 
security issues could be resolved. Additionally, in April of 2003, 
DOT's Aviation Enforcement Office filed a formal enforcement complaint 
against American Airlines. The complaint alleged that American 
unlawfully discriminated against certain passengers on 11 occasions by 
denying them boarding or removing them from flights because they 
``were, or were perceived to be, of Arab, Middle Eastern, or South 
Asian descent and/or Muslim.'' Ten of the eleven incidents occurred 
during the fall of 2001, an unprecedented period of heightened security 
concern for American Airlines and the United States.
    We firmly believe that in these incidents our pilots were doing 
exactly what they were being instructed to do by President Bush, 
Attorney General Ashcroft, the FAA and TSA, and the traveling public. 
Our pilots made difficult, time-sensitive decisions on the basis of the 
facts and circumstances known to them at that moment, at all times 
erring on the side of safety. With all due respect to the DOT, we think 
its decision to pursue an enforcement action against American 
exemplified the exact type of second-guessing that should be avoided. 
Fortunately, we were able to agree to settle the enforcement case, with 
no admission of liability or wrongdoing on our part and no payment of 
any monetary fine, by agreeing to implement enhanced security training 
for our pilots, flight attendants, and passenger service agents.
    American will continue to support our crew members who in good 
faith exercise their judgment to protect the safety of our passengers 
and other crew members. We urge the government to strike a consistent 
balance between the priorities of improved security and individual 
civil rights. All key government agencies--DHS, DOT, TSA, and DOJ--
should adopt a consistent voice regarding the government's approach to 
security.
    American urges the committee and Congress to support it and the 
entire industry in our efforts to ensure security. It is bad public 
policy to impose upon airlines anything more than an obligation of good 
faith for its efforts to protect the safety of their passenger and 
crews, or to allow the second-guessing of security decisions. If every 
decision of a pilot to require further screening of a passenger in the 
interest of safety could give rise to unpredictable liability or 
governmental investigation based on shifting notions of what is 
objectively reasonable, then the natural tendency would be for pilots 
to try to avoid being second guessed by removing a passenger for safety 
concerns in only the most clear-cut cases. Terrorists can act in subtle 
and surreptitious ways that defy clear categorization, and be intuitive 
reactions by crew members to behavior that is in some way unusual, 
different, or abnormal should not be discounted or ignored. We must 
guard against tying the hands of the pilots and other airline personnel 
who are charged with the awesome responsibility of maintaining safety 
in the air.
    Finally, I would like to address a particular point that I 
understand the committee is concerned with. We understand that there 
was some testimony before the Kean 9/11 Commission to the effect that 
the Department of Justice had indicated to another carrier that if two 
or more individuals from a particular ethnic group were made 
``selectees'' for a particular flight, the carrier would be deemed to 
have acted in a discriminatory manner. We have not heard or seen 
anything of this nature from the DOJ, DOT, TSA, DHS, or any other 
governmental agency. Our policies and procedures are not based on the 
proposition that there are any ethnically driven limits on how many 
passengers from a particular flight can be subjected to heightened 
security scrutiny.
    Thank you again for the opportunity to be here today.

    Senator Specter. Thank you, Ms. Sterling.
    We now turn to Ms. Christy Lopez of Relman and Associates, 
had been senior trial attorney in the Civil Rights Division of 
the Department of Justice, clerked for the Supreme Court of 
Alaska, Justice Robert Eastaugh, a graduate of the University 
of California, and a law degree from Yale Law School.
    Thank you for joining us, Ms. Lopez, and we look forward to 
your testimony.

STATEMENT OF CHRISTY E. LOPEZ, ESQ., RELMAN AND 
            ASSOCIATES
    Ms. Lopez. Thank you, Senator. My name is Christy Lopez. I 
am an attorney here in Washington, DC, and I have submitted 
written testimony, which I will summarize here, and I ask that 
my written testimony be made part of the record.
    Senator Specter. Your full testimony will be made a part of 
the record.
    Ms. Lopez. Thank you, Senator.
    Since September 11, I and my firm have represented a number 
of individuals who have been refused transportation by a 
variety of airlines because of their race or ethnicity. This 
violates a prohibition against race-based decision-making that 
stems from Federal civil rights law dating back 150 years and 
that has been affirmed since 9/11 by a series of airline 
discrimination cases and DOT statements.
    Upon conclusion of my remarks, Senator, I would be happy to 
talk more specifically about that law, including the issue you 
brought up with the first panel regarding objective guidelines 
for pilots. I assure you there are very objective guidelines, 
and they provide a lot of, I think, valuable guidance that the 
airlines should be taking more advantage of.
    This long and continuing line of case law reflects our 
Nation's fundamental commitment to equality regardless of race, 
color or creed. Many of us believe that our commitment to 
equality is one of the best things America has to offer the 
world and also the glue that holds this big, sometimes 
cacophonous country together. This tent of equality is 
routinely attacked in times of war and fear, and we are here 
today because it is once again being questioned.
    Especially because ethnic profiling by airlines would be in 
direct contradiction to this core American value of equality 
and would create a de facto second-class citizenry, I think we 
can all agree that it is imperative that our consideration of 
this issue be based not on misinformation and fear, but on the 
facts. And the fact is, as the cases in which I have been 
involved demonstrate, far from there being a tension between 
civil rights law and safety, adherence to civil rights laws can 
improve airline security.
    What do I mean by this? Currently, too many refusals to 
transport are based on irrational discriminatory bias rather 
than legitimate security reasons. Pilots have ordered Arab-
American passengers deplaned because of crew discomfort, while 
letting the deplaned persons checked luggage remain on the 
flight. There are many examples of airlines deplaning 
passengers because of their ethnicity only to let them board 
the next flight or fly on another airline without any further 
questioning or further searching of them or their belongings.
    Many of the examples I will talk about are the basis of the 
DOT investigations, which you also asked about, Senator.
    There have been many instances where airline employees have 
refused to transport Latinos, Indians and African-Americans 
because they believe they are Arab. It is equally likely that 
they are ignoring Arab passengers because they appear white. In 
the dozens of discriminatory removals of which I am aware, 
rarely is there even an allegation that the person had done 
anything suspicious or threatening.
    For example, in the case of Tony Zohrehvandi, our Iranian-
American client whose case is publicly cited by the DOT in its 
complaint against American Airlines, the airline told him that 
he had done nothing suspicious, and he was being refused 
transport solely because the crew did not want to fly with him. 
The fact that he was a 12-year American Airlines employee made 
no difference.
    Just 2 months ago, three Asian employees of a large IT 
company were taken off their American Airlines flight after 
being told the crew was uncomfortable with them. American put 
them on a United flight instead.
    Surprisingly, few, if any, airlines even require that their 
pilots consult with any security professional before deciding 
to refuse transport. In some instances, as in the case of our 
client, Arshad Chowdhury, individuals are personally cleared by 
the FBI on the scene, but airline employees are allowed to 
trump the FBI security decision even though they cannot 
articulate any legitimate security rationale for doing so. Many 
pilots say they feel uncomfortable making decisions for which 
they have not been adequately trained, and they feel pressured 
to make too quick decisions because of concerns about on-time 
departures.
    These examples, and countless others I could cite, indicate 
that a focus on ethnicity distracts attention from more 
effective security measures, which is exactly why air security 
experts will tell you that ethnic profiling is unsafe, as Mr. 
Blank and Mr. Rosen did here earlier today.
    The fact is we are asking our pilots and their flight crews 
to make difficult and critically important decisions without 
providing them appropriate guidance or instruction. As a 
result, some of them succumb at times to illegal and 
unnecessary ethnic stereotyping, making decisions that are 
irrational from a security perspective and can be devastating 
to those unfairly removed.
    So what I mean when I say that civil rights can help make 
air travel safer is that the same steps necessary to decrease 
this tendency to discriminate will improve security. I have set 
out several such recommendations more fully in my written 
testimony. So I will mention only a few here. The measures are 
simple and common-sense things, but things that the airlines 
are not doing; for example, communicating a consistent message 
that ethnic profiling is not required by safety and will not be 
tolerated, requiring that airline employees, including pilots, 
consult with security professionals before deciding to refuse 
transportation, and requiring that flight crews or passengers 
be able to articulate a legitimate security concern before 
airlines will agree to refuse transportation to someone.

                           PREPARED STATEMENT

    While profiling may be a critical component of airline 
security, ethnic profiling is not necessary. It is illegal and 
is destructive to us as a Nation. It is time to move beyond 
questions borne of fear and misinformation and begin properly 
preparing airline employees to make decisions based on 
legitimate security criteria rather than upon ethnic bias. Once 
we do this, we will make our airline safer, and we will 
decrease incidents of discrimination.
    [The statement follows:]

                 Prepared Statement of Christy E. Lopez

    Good afternoon, Mr. Chairman and ranking member Murray. My name is 
Christy Lopez and I am an attorney with the Washington, DC civil rights 
law firm of Relman & Associates. Previously, I was an attorney in the 
United States Department of Justice's Civil Rights Division.
    Since September 11, I and my firm have represented a number of 
individuals who have been refused transportation by a variety of 
airlines because of their race or ethnicity. This prohibition against 
ethnic-based decision making in airline transportation stems from civil 
rights law dating back 150 years and has been affirmed since 9/11 in a 
series of airline discrimination cases across the country, as well as 
in official statements of the Federal Government.
    The central legal standard in these cases is that race, color, and 
other status protected by civil rights laws (e.g. gender, ethnicity, 
religion, national origin, or indicia thereof) may not be a motivating 
factor in the carrier's decision to refuse transportation, either alone 
or in conjunction with other factors. See, e.g., Ninth Circuit Model 
Civil Jury Instructions: Introductory Comment (``In order to prevail 
under a  1981 claim for race discrimination, the plaintiff must prove 
that race was a ``motivating factor . . . .''); Ninth Circuit Model 
Civil Jury Instruction 12.1 (``The [Civil Rights Act of 1991] further 
clarified that a defendant is liable if the plaintiff shows that the 
discrimination was a ``motivating factor'' in the challenged decision 
or action, ``even though other factors also motivated'' the challenged 
action or decision and regardless of whether the case was one of 
``pretext'' or ``mixed motive,'') (citing, 42 U.S.C.  2000e-2(m)); 
Dasrath v. Continental Airlines, Inc., 228 F.Supp.2d 531, 540 (D.N.J. 
2002) (``Even if some of the facts alleged could lend support to an 
inference that the removal decision was motivated by safety concerns, 
the complaints nevertheless allege clearly and specifically that the 
motivating factor was in fact not safety but race . . .''). See also, 
Department of Transportation Guidance for Screeners and Other Security 
Personnel (``If the answer [to the ``but for'' test] is ``no'' then the 
action is likely to be unjustified and violate civil rights laws.''); 
Hampton v. Dillard Department Stores, 247 F.3d 1091,1111 (10th Cir. 
2001) (approving  1981 jury instruction providing: `` `motivating' 
factor means that but for its unlawful motive, defendant would not have 
denied plaintiff the right to enjoy the benefits and privileges of her 
purchase. In other words, you must find that race was at least one of 
the factors which motivated [defendant's conduct]. A motivating factor 
need not be the sole or exclusive reason, however, for [defendant's] 
actions.'').\1\
---------------------------------------------------------------------------
    \1\ Courts are likely to evaluate plaintiffs' claims under 42 
U.S.C.  1981 rather than under 49 U.S.C.  44902(b)'s ``arbitrary and 
capricious'' standard. While many courts have evaluated unfair 
treatment claims against air carriers using this standard, those cases, 
with rare exception, did not involve claims of discrimination brought 
under  1981 or other laws prohibiting race discrimination. There is no 
reason to expect courts to deviate from the long line of cases 
established in every Circuit and affirmed by the Supreme Court, that  
1981 claims are evaluated, via the Burdine burden-shifting structure or 
otherwise, to determine whether the defendant's decision was motivated 
by the plaintiff's race, ethnicity, etc. See, e.g., Simmons v. American 
Airlines, 2002 WL 869930 *576 (9th Cir. 2002) (applying Burdine burden-
shifting structure and overturning summary judgment in favor of airline 
because airline failed to provide sufficient evidence that it removed 
plaintiff pursuant to its own safety policy).
    Another court very recently considered this issue directly and 
rejected the air carrier's argument that  44902's ``arbitrary and 
capricious'' standard is an essential element of a claim for 
discrimination, stating instead that if plaintiff ``could prove by a 
preponderance of the evidence that he was denied boarding on the basis 
of his national origin, race, or religion, then [defendant] could not 
avail themselves of the discretion extended to them under  44902(b) 
and no review under the ``arbitrary and capricious'' standard would be 
required.'' Alshrafi v. American Airlines, Inc. et al., Slip. Op. No. 
03-10212-WGY at 24, 28-30 (D. Mass. June 8, 2004).
    It is likely that the distinction between the tests under  44902 
and  1981 is largely academic anyway. Most courts appear to recognize 
that illegal discrimination is an ``arbitrary and capricious'' rather 
than ``reasonable'' basis for removal. See, e.g., Alshrafi at 24 
(``actions motivated by racial or religious animus are necessarily 
arbitrary and capricious, and therefore beyond the scope of the 
discretion granted by Section 44902'') (citing Dasrath at 540 n.12)). 
Accordingly, if plaintiffs prevail on their  1981 claims, they will by 
definition defeat any argument that the airlines' decision to refuse 
transport were reasonable rather than arbitrary and capricious. 
Moreover, as at least one circuit has made clear, as with the 
determination of discriminatory intent under  1981, the trier of fact 
decides whether the air carrier's refusal to transport was arbitrary 
and capricious or reasonable. See Cordero v. CIA Mexicana De Aviacion, 
S.A., 681 F.2d 669 (9th Cir. 1982).
---------------------------------------------------------------------------
    The government and numerous courts have reiterated the continuing 
vitality of this principle post 9/11. See, e.g., Department of 
Transportation Guidance for Screeners and Other Security Personnel 
(``It is illegal under federal law for an air carrier or its employees 
to discriminate on the basis of race, color, national origin, religion, 
sex, or ancestry.''); FAA Fact Sheet (``None of the new security 
measures decrease the responsibility of airports and airlines to 
enforce: (1) Title VI of the Civil Rights Act of 1964 and the 
implementing regulations, 49 CFR Part 21 and 14 CFR 271.9 and (2) 49 
U.S.C. 40127, 41310 and 41702, regarding discrimination. Federal civil 
rights laws prohibit discrimination on the basis of a person's race, 
color, national origin, religion, or sex.''); Bayaa v. United Airlines, 
Inc. et al., 249 F.Supp.2d 1198, 1205 (C.D. Cal. 2002) (rejecting 
airline's argument that State and Federal civil rights laws conflict 
with 49 U.S.C. 44902 and stating that defendants' duty under 49 U.S.C. 
 44902 ``does not grant them a license to discriminate.''); Chowdhury 
v. Northwest Airlines Corp. et al., 238 F.Supp.2d 1153, 1154 (N.D. Cal. 
2002) (rejecting airline's argument that more recent statutes 
specifically addressing airline safety trump Federal civil rights 
statutes and stating ``there is no apparent conflict between the 
federal statutes prohibiting racial discrimination and the federal law 
giving air carriers the discretion to refuse to carry passengers for 
safety reasons.'').
    This long and continuing line of case law reflects our Nation's 
fundamental commitment to equality regardless of race, color, or creed. 
Many of us believe that our commitment to equality is one of the best 
offerings America has for the world and that it is also the glue that 
holds this big, sometimes cacophonous country together. This tenet of 
equality is routinely attacked in times of war and fear, and we are 
here today because it is once again being questioned.
    Especially because ethnic profiling by airlines would be in direct 
contradiction to this core American value of equality and would create 
a de facto second-class citizenry, I think we can all agree that it is 
imperative that our consideration of the issue be based not on 
misinformation and fear, but on facts. And the fact is, as the cases in 
which I have been involved demonstrate, far from there being a tension 
between civil rights laws and safety, adherence to civil rights laws 
can actually improve airline security.
    What do I mean by this? Currently, too many refusals to transport 
are based on irrational discriminatory bias rather than legitimate 
security reasons. Pilots have ordered Arab-American passengers deplaned 
because of crew discomfort, while letting the deplaned person's checked 
luggage remain on the flight. There are many examples of airlines 
deplaning passengers because of their ethnicity only to let them board 
the next flight or a flight on another airline without any further 
questioning or further searching of them or their belongings. I am 
aware of many instances where airline employees have refused transport 
to Latinos, Indians, and African-Americans because they believe they 
are Arab, it is equally likely that they have ignored Arab passengers 
because they appear white. In the dozens of discriminatory removals of 
which I am aware, rarely is there even an allegation that the person 
had done anything suspicious or threatening. For example, in the case 
of Tony Zohrehvandi, our Iranian-American client whose case is cited by 
the DOT in its complaint against American Airlines, the airline told 
him that he had done nothing suspicious and was being refused transport 
solely because the crew did not want to fly with him. The fact that he 
was a 12-year American Airlines employee made no difference. Two months 
ago, three Asian employees of a large IT company were taken off their 
American Airlines flight after being told the crew was uncomfortable 
with them. They were put on a United flight instead. Currently, few if 
any airlines require that their pilots consult with security 
professionals before deciding to refuse transport. In some instances, 
as in the case of our client Arshad Chowdhury, individuals are 
personally cleared by the FBI on the scene, but airline employees are 
allowed to trump the FBI's security decision even though they cannot 
articulate any legitimate security rationale for doing so. Many pilots 
say they feel uncomfortable making decisions for which they have not 
been trained and that they feel pressured to make too-quick decisions 
because of concerns about on-time departures.
    These examples and countless others indicate that a focus on 
ethnicity distracts attention from more effective security measures, 
which is exactly why air security experts will tell you that ethnic 
profiling is unsafe.
    The fact is, we are asking pilots and their flight crews to make 
difficult and critically important decisions without providing them 
appropriate guidance or instruction. It is no wonder that some of them 
succumb at times to illegal and unnecessary ethnic stereotyping, making 
decisions that are irrational from a security perspective.
    So what I mean when I say that Civil Rights can help make air 
travel safer is that the same steps necessary to decrease this tendency 
to discriminate will improve security. The following steps are examples 
of what airlines and the government should be considering:
  --Establish clear policy reflecting the long standing legal tenet 
        that ethnicity may not be the motivating factor in a refusal to 
        transport.
  --Establish clear policy that if the carrier/decision maker believes 
        that the concerns of another passenger or employee are 
        illegitimate (e.g., motivated by impermissible discriminatory 
        bias rather than by legitimate safety concern), the carrier/
        decision maker may not refuse transportation to the individual 
        in question based on the concerns of the passenger or employee. 
        See, e.g., Fernandez v. Wynn Oil Co., 653 F.2d 1273, 1276-77 
        (9th Cir. 1981) (holding that stereotyped customer preference 
        cannot justify gender discrimination); Wilson v. Southwest 
        Airlines Co., 517 F. Supp. 292, 298-99 (N.D. Tex. 1981) 
        (holding that customer preference for female flight attendants 
        did not justify gender discrimination in hiring and quoting 
        EEOC decision rejecting defense that customer confidence in 
        company's ability to provide security justified a male-only 
        hiring policy: ``this argument is, in law, without merit, since 
        it presumes that customers' desires may be accommodated even at 
        the price of rendering nugatory the will of Congress.'').
  --Clarify process for refusing transportation of reasons of security/
        safety as follows:
    --Clearly delineate the appropriate lines of communication and 
            decision making in such incidents. For example: (i.) 
            require that one individual, such as the ground security 
            coordinator, take charge of coordinating the decision 
            process; (ii.) require that airline security departments, 
            as well as its central dispatchers, be consulted prior to 
            any decision to refuse transport; (iii.) specify which 
            airline employees should and may be informed of the 
            situation and under what circumstances; (iv.) specify who 
            finally determines whether to refuse transportation (e.g. 
            dispatcher in conjunction with Captain).
    --Clearly state carrier's obligation to attempt to determine 
            whether a passenger's or employee's concerns are based on 
            legitimate security concerns or discriminatory bias. In 
            some instances it may be difficult to determine whether the 
            passenger or employee has a legitimate basis for believing 
            the subject passenger is inimical to safety. In many 
            instances, however, even a cursory inquiry will reveal that 
            the passenger clearly is not a threat. The policy should 
            clarify that carriers have an obligation to make this 
            inquiry and provide guidance regarding who should conduct 
            the inquiry. See, e.g., Cordero v. CIA Mexicana De 
            Aviacion, S.A., 681 F.2d 669, 672 (9th Cir. 1982) 
            (reversing summary judgment in favor of defendant and 
            finding, ``[t]here is ample evidence in the trial record 
            from which the jury might have concluded that [air carrier] 
            acted unreasonably in excluding [plaintiff] without even 
            the most cursory inquiry into the complaint against 
            him.'').
    --Provide further guidance for how to proceed once the appropriate 
            security/law enforcement officials have cleared a 
            ``suspicious'' individual. Currently, the policy properly 
            states that a passenger should be permitted to fly once 
            cleared by appropriate authorities ``unless clear, 
            nondiscriminatory reasons justify refusal to transport.'' 
            The policy should clarify that airline employees must take 
            reasonable steps to verify whether a person has been 
            cleared and employees' obligation to permit reasonable time 
            for a customer to be cleared.
    --Provide appropriate guidance regarding how to proceed where a 
            passenger or employee continues to refuse to fly with 
            another passenger even though the carrier has determined 
            that the individual poses no threat. Where a carrier has 
            determined, either via inquiry or clearance by law 
            enforcement, that an initially ``suspicious'' passenger is 
            not a safety threat, there is no legal justification to 
            refuse transportation to the individual. The policy should 
            inform airline employees of the proper process to follow in 
            such situations. For example, it should explain when it is 
            appropriate to offer the complaining passenger a seat on 
            another flight rather than refusing to transport the 
            falsely accused passenger and the options available when a 
            crew member refuses to fly with a falsely accused 
            passenger. Similarly, airline employees should be 
            instructed that a discriminatory removal is not remedied by 
            providing the passenger comparable service on another 
            flight. Alasady v. Northwest Airlines Corp., 2003 WL 
            1565944 *11 (D. Minn. 2003) (no showing that carrier can 
            avoid liability under  1981 by making arrangements for ``a 
            service similar to that which the defendant refused to 
            provide'').
  --Training on Modified Policy: In order to be effective, airlines 
        must train relevant employees in the policy and procedure 
        modifications discussed above. This training must:
    --Effectively and accurately convey airline's nondiscrimination 
            policies and procedures, as modified, to all relevant 
            employees in a timely manner. In furtherance of this 
            critical element, the airline should provide training as 
            follows: (i.) Captains & First Officers: The modified 
            nondiscrimination training should be incorporated into 
            Captains' semiannual training. First Officers would have 
            this training incorporated into their annual training; 
            (ii.) Dispatchers: Given dispatchers' central role in this 
            process, they should be trained in it. In order to 
            facilitate communication between dispatchers and airlines' 
            security departments, security department staff and 
            dispatcher supervisors/directors should receive training 
            together; (iii.) Security Department Directors and Staff: 
            In order to affirm the security department's central role 
            in these decisions, security department staff should 
            receive this training and, as noted above, it should be 
            conducted in conjunction with dispatcher training to 
            facilitate communication between these two groups; (iv.) 
            Station Personnel & Flight Attendants: Station personnel, 
            including Ground Security Coordinators, In-flight 
            Supervisors, and Customer Service Supervisors, should 
            receive ``train-the-trainer'' instruction in the modified 
            nondiscrimination training in conjunction with other 
            training received throughout the year. Supervisors should 
            provide training to their subordinates (i.e. customer 
            service agents and flight attendants).
    --Directly address concerns that adherence to civil rights laws can 
            undermine security by discussing how the modified policies 
            and procedures will improve the security process. Safety 
            and security are of paramount importance to airline 
            employees and, to be effective, civil rights training must 
            address this issue straightforwardly. For example, airlines 
            can provide the principles of CAPPS and CAPPS II so that 
            employees understand that the CAPPS ``profiling'' systems 
            are effective despite their lack of reliance on race, 
            ethnicity, or other protected factors. Airlines should 
            expand their efforts to explain that terrorists, including 
            al Qaeda, have and are expected to continue to rely on 
            stereotyped biases in planning attacks.\2\ In addition, 
            employees should be instructed to consult with security 
            personnel to assist in transportation decisions to ensure 
            that employees know that security professionals are 
            available to affirm the safety of any decision to 
            transport.
---------------------------------------------------------------------------
    \2\ See e.g., Transcript of May 26, 2004, News Conference by U.S. 
Attorney General John Ashcroft and FBI Director Robert Mueller, 
explaining that ``the face of al Qaeda may be changing,'' so that 
operatives are seeking recruits who are or look ``European,'' are ``of 
any nationality inside target countries,'' and who ``may travel with 
families to lower their profile.'' Transcript available at http://
www.cnn.com/2004/US/05/26/terror.threat.transcript.
---------------------------------------------------------------------------
    --Directly address particular scenarios that occur repeatedly or 
            are especially difficult to resolve. To be effective, 
            training should provide concrete instruction on dealing 
            with recurrent problems such as passengers who express 
            discomfort with brown-skinned passengers for reasons that 
            appear irrational and discriminatory, or passengers who 
            claim they are being discriminated against even where the 
            passenger is being refused transportation for legitimate, 
            nondiscriminatory reasons.
    --Effectively convey the harmful impact of this type of 
            discrimination. A more acute understanding of the human 
            cost of discriminatory refusals to transport may encourage 
            many employees to take the required steps to ensure that 
            they and others do not discriminate against their 
            customers. This understanding can be provided in many ways. 
            Community organizations active in this area may be able to 
            assist. In-person or videotaped presentations by persons 
            who have been discriminated against can be presented.
    --Be presented by a person or team of persons that: (a) can speak 
            credibly to security concerns; (b) can provide insight on 
            how to effectively interact with frightened passengers and 
            employees in these situations; (c) can present the 
            perspective of individuals who have been discriminated 
            against by airlines. Experts in aviation security may be in 
            the best position to ally fears that nondiscrimination laws 
            undermine security. Experts with psychological training may 
            be better at explaining how to defuse incidents at an early 
            stage. As noted above, groups or individuals who have 
            experience with discriminatory refusals to transport may be 
            an effective way to convey the importance of adherence to 
            civil rights laws.
  --Complaint Tracking & Investigation. Airlines should document, 
        track, investigate and evaluate refusals to transport. 
        Evaluations should be used to identify problem areas and modify 
        policies and procedures where appropriate. Similarly, airlines 
        should document, track, investigate and evaluate complaints of 
        discrimination by customers to identify and respond to any 
        problem areas.
    While profiling may be a critical component of airline security, 
ethnic profiling is not necessary, it is illegal and it is destructive 
to us as a nation. It is time to move beyond questions born of fear and 
misinformation and to begin properly preparing airline employees to 
make decisions based on legitimate security criteria rather than upon 
ethnic bias. Once we do this, we will both make our airlines safer and 
decrease incidents of discrimination.
    Thank you.

    Senator Specter. Thank you very much, Ms. Lopez.
    Mr. Smerconish, you cite the case of the rejection of an 
individual who ``gave him,'' referring to the airline 
personnel, ``the creeps.'' Was there anything more by way of 
specification beyond that statement that he gave him the 
creeps?
    Mr. Smerconish. Well, yes, sir. Mr. Jose Melendez-Perez is 
the individual to whom you refer. He testified in front of the 
9/11 Commission about an interaction that he had on August 4, 
approximately one month before 9/11. He was requested to 
perform secondary screening on a Saudi national at that time 
that we now know to be Mohammed Kahtani, and he sized him up. 
He sized him up in terms of his appearance, his demeanor, his 
physical stature. He used his street smarts I think for a lack 
of a better way to describe how he went about his task, and the 
net effect of him sizing this individual up was to decide that 
he was cocky, that he was probably militarily trained, that he 
might be a hitman, and that he ``gave him the creeps,'' and he 
slowed down the process of allowing that individual to gain 
process into the country.
    We only learned later, when there was an analysis of 
Mohamed Atta's telephone records, that he was at the Orlando 
airport at the exact same time upstairs, presumably to pick 
this man up to be Hijacker No. 20.
    And I am not advocating that an individual who is an Arab 
automatically gets cast aside and subject to some kind of a 
secondary screening, but I think that we are asking our 
individuals who were charged with protecting our borders to 
operate with less than all of the information if we do not 
permit them to at least permit ethnicity, and appearance, and 
religion, to the extent they know it, and country of one's 
origin to be factored into the equation. It seems to me, sir, 
that it is an ostrich approach given that we are 19 for 19 on 
9/11 with all of those common denominators.
    Senator Specter. Ms. Lopez, what do you think of the 
description which Mr. Smerconish has given? Demeanor, stature, 
sizing them up, appearance, general sense of giving them the 
creeps, is that enough, in your opinion?
    Ms. Lopez. I think the important distinction there is that 
in that instance it was a trained law enforcement professional. 
They have received the training to know how to size somebody up 
based on those criteria. Our airline employees, quite properly, 
it has been decided that they do not receive that training, 
which is why we simply think they should consult with the 
people who have received that training when they do have those 
sorts of concerns.
    Senator Specter. So you think the TSA people have had the 
training to be able to make a judgment based upon what Mr. 
Smerconish has said, but the pilots do not?
    Ms. Lopez. I think it is much more likely that they have. 
And, in fact, airlines themselves employ security professionals 
that are always available 24/7, and there is no reason that 
pilots cannot be at least required to talk with them. It would 
at least ensure that you do not have pilots who have no reason 
to be making these decisions.
    Senator Specter. So your point is that the pilot would 
consult with those security people, and the security people 
backed up the pilot, that that would be an adequate test?
    Ms. Lopez. I think it would still be subject to review 
later, but I think that the main goal here, which is to prevent 
discrimination and increase airline security, would be served 
because those security people would be able to ask the 
questions that would draw out whether there was a real security 
problem, and they would also be able to make sure that the 
pilot did not do things like take the person off, but leave 
their bags on or take the person off and then put them on the 
next flight without any more searching. It would make the 
system more rational, and it would I think give airline 
employees much more comfort, which is really the root I believe 
of these discriminatory decisions. They do not trust the 
system, and if there was more security involvement, I believe 
they would trust it more.
    Senator Specter. Ms. Sterling, I am looking at a document 
marked as a consent order involving American Airlines. And on 
Page 3 one of the lines is, ``The enforcement officer believes 
that some passengers were denied boarding or even removed from 
flights because of, because or principally because of the 
passengers' ethnic background.''
    Are you familiar, at least in a general way, with this 
finding and determination?
    Ms. Sterling. I am certainly familiar with the consent 
order. I would say that, based on the, and again in my earlier 
testimony, I believe that the removal of the passengers had 
nothing to do with their ethnicity. It had everything to do 
with what was observed to be in terms of a suspicion behavior.
    Mr. Smerconish. Senator Specter, may I speak to that, sir?
    Senator Specter. Sure.
    Mr. Smerconish. You had asked earlier Mr. Rosen to speak 
with specificity about any one of the cases. I have read the 
litigation files, to the extent that they are publicly 
available, and I have read those 11 different complaints.
    I can tell you about one of them, and I think that it 
displays some of the problems, and I have detailed this in my 
statement. It is the case of Jehad al-Shafri, a self-described 
32-year-old Arab American, a naturalized American citizen of 
Jordanian birth. According to his declaration, which 
accompanied the complaint, he worked for a defense contractor 
helping to build missiles for the military and possessed a 
secret-level security clearance. November 3, 2001--so it is the 
fall of 2001--he was refused entry while trying to board an 
American Airline flight from Boston to Los Angeles. I took note 
of the fact that in the litigation files there were a large 
number of flights from Boston to Los Angeles which were subject 
to the enforcement action. Well, that is the same path as one 
of the flights on 9/11.
    In the complaint against American, it states that Mr. al-
Shafri was denied boarding after responding to a page and 
reporting to an American counter. There, he was greeted by an 
American employee and a U.S. marshal. He was told that the 
pilot had denied him boarding on the flight. He informed the 
American employee that he had a secret-level clearance. He was 
nevertheless told he was being denied passage.
    ``I was calmly contesting the pilot's decision when a State 
trooper arrived and asked me to move along and to deal with 
him. I was humiliated to be confronted by a State trooper in 
full view of the crowded boarding area.'' He missed his flight. 
He was upgraded to first class on the next plane.
    Well, that is the perspective of the complaint filed by the 
DOT against American. Now, here is what American said, and I 
think it suggests that there is more to the story. American 
said that at least one other passenger had reported what 
appeared to be this man's suspicious behavior to an American 
gate agent. Unfortunately, that is not defined what was 
suspicious. Additionally, American said that the Federal air 
marshal advised the pilot in command that the passenger had 
been acting suspiciously, had created some kind of a 
disturbance and that his name was similar to a name on the 
Federal watch list.
    So here is what was known to the pilot at the moment that 
he had to make this determination:
    No. 1, he was 2 months removed from the worst act of 
terrorism against the United States ever;
    No. 2, that that terrorism had victimized his own employer, 
American Airlines;
    No. 3, that the point of origin of those flights was this 
same airport where he now sat, Logan;
    No. 4, the destination of the flights on 9/11 was L.A., 
which is where he was headed;
    No. 5, the hijackers were, to a person, young Arab males;
    No. 6, there was at least one passenger who was ill-at-ease 
with this man and who was acting in what was described to the 
pilot as a ``suspicious manner'';
    No. 7, that the Federal air marshal advised that the 
passenger at issue had been acting suspiciously;
    No. 8, that the passenger had a name similar to one on the 
Federal watch list;
    And, yes, No. 9, let us not be afraid to say it, that he 
probably resembled the appearance of some of the 9/11 
hijackers.
    And the question becomes, when faced with those nine 
criteria, was it appropriate for the Department of 
Transportation to come down on American Airlines with an 
enforcement action, to question the judgment of the pilot who, 
after all, not only has to be protective of security, but to 
get off the ground and fly that plane? And I suggest that it 
was not.
    Senator Specter. Ms. Lopez, at American Airlines, did the 
pilot act appropriately under the circumstances which Mr. 
Smerconish has noted, in your opinion?
    Ms. Lopez. If he was acting upon the first eight factors, 
yes. If he included the ninth, no. And that is why there is no 
tension between civil rights and air safety in this case.
    You asked earlier what the standards are. The standard is 
perhaps best explained in the ``but for'' test, what is called 
the ``but for'' test that DOT has included in its post-9/11 
statements. And they ask airline employees to question 
themselves, ``Would I be making this decision but for this 
person's ethnicity?'' And so all of those first eight things 
that the pilot thought made this person suspicious, if that is 
what really is at play there, that is fine.
    But I think the goal here is that you do not have two 
people who are equally suspicious, but you only pay attention 
to one because he appears to be Arab, and you do not pay 
attention to the other one because he or she appears to be 
white. That would be a dangerous situation. You need to be 
looking for suspicious behavior.
    And as Senator Shelby said earlier, terrorists will exploit 
any weakness they see in the system. As Mr. Smerconish said, he 
was concerned at how easy it was to negotiate his way out of 
being checked. We need to be checking people based on behavior 
not because they are good talkers, because of how they look or 
because of what we think their race or religion is.
    Senator Specter. So you think the action would have been 
appropriate if they had relied on just the first eight 
indicators, but not the ninth?
    Ms. Lopez. If they relied on his behavior rather than his 
ethnicity, yes, or the other circumstances that----
    Senator Specter. Well, they relied on eight factors, which 
you think were appropriate, but one which you think 
inappropriate.
    Ms. Lopez. I want to make sure I recall exactly what the 
eight factors were, but assuming that there was nothing 
illegitimate about those eight factors, I think that would be 
fine.
    Senator Specter. Ms. Sterling, this may be carrying coals 
to New Castle, but do you think American Airlines acted 
properly?
    Ms. Sterling. I am sorry?
    Senator Specter. Did your company act properly?
    Ms. Sterling. Absolutely.
    Senator Specter. I thought you would say that.
    We are due to have a vote shortly, so we are going to have 
to conclude the hearing. It has been very informative, and I 
thank you all for coming.
    I would be glad to give you a last comment, Ms. Lopez. We 
will go for the ladies first and then give Mr. Smerconish the 
last word.
    Ms. Lopez. I guess I would just say that when balancing 
this equation, civil liberties versus airline security, it is 
important not only to hear from security experts and airline 
CEOs, but also from the people who are affected by this. We did 
not have any of those people here today. This sort of 
inconvenience should not be disregarded. Sitting at the back of 
the bus is not an inconvenience. Being asked to move to the 
back of the plane, which people have been, is not an 
inconvenience. Being told you have a different set of rights 
because of the color of your skin is not an inconvenience.
    Our clients have changed their names, they have changed 
their jobs so they travel less, they have cut their hair to 
look less Arab, they have cancelled vacation plans. This has a 
devastating effect on a large community that is a vibrant part 
of our country, and we need to make sure that we fully consider 
that when we are considering these issues of airline security.
    Thank you.
    Senator Specter. Ms. Sterling.
    Ms. Sterling. Yes, I would just like to say that at 
American Airlines we have a policy not to discriminate. We hire 
a diverse workforce and pride ourselves in not placing judgment 
on another due to gender, race, religion or sexual preference. 
This goes for employees and passengers alike.
    We scrutinize everyone when it comes to security and 
safety. I guess I do not need to bring up Timothy McVeigh, John 
Walker, Terry Nichols, do I? If we were to profile our 
passengers on their race, we would miss the terrorists 
disguised as the brainwashed college student from Kentucky.
    Terrorism is faceless and nameless. Eradicating Osama bin 
Laden will only make a small dent in the fight on terrorism.
    Thank you very much.
    Senator Specter. Mr. Smerconish.
    Mr. Smerconish. Thank you for the privilege of being here. 
It is time for all of us to acknowledge the fact that the 19 
hijackers on 9/11 had many commonalities. The world will be a 
safer place when we face those facts.
    In closing, may I please enter into the record hundreds of 
e-mails that I have received from my radio listeners and my 
readers at the Daily News on this issue?
    Senator Specter. Yes, they will be made a part of the 
record, without objection.
    [Clerk's Note.--The information referred to has been 
retained in Committee files.]

                         CONCLUSION OF HEARING

    Mr. Smerconish. Thank you, sir.
    Senator Specter. Thank you all very much.
    [Whereupon, at 3:35 p.m., Thursday, June 24, the hearing 
was concluded, and the subcommittee was recessed, to reconvene 
subject to the call of the Chair.]

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