The information coming out of the 9/11 hearings — about the failures of our intelligence community to provide national leaders and the public with information sufficient to warn the nation — is disheartening. In order to prepare for the foreseeable risks of terrorism, as with crime in all of its forms, you must know your enemies, understand their intent, and evaluate the security in place to protect against the threats presented against you. We have learned that we as a nation did not really know our enemies, but rather knew of them. We had information about tactics that might be employed by them, but we didn’t acknowledge the need to prepare for such tactics; and we knew that our security, particularly aviation security, was in place, but we did not ensure that it was prepared for the challenges that were to be faced.
We now have seen and heard sufficient testimony from the 9/11 Commission to know that we were aware before the attacks that al Qaeda was planning to launch a terrorist attack against us, and that the mainland of the United States was not to be ruled out as a target. We knew they were attracted to New York City as a target by their past conduct, and that they had been considering the use of hijacked commercial airliners plans to carry out acts of terrorism against us. Some in law enforcement knew that they had affiliates in the U.S. and that some affiliated individuals were enrolled in flight schools. We also knew that you can’t hijack an airliner without access to the flight deck, but that we hadn’t implemented protocols to keep cockpit doors locked and reinforced.
All of this is clearly set forth in the staff statements prepared for the commissioners. It is apparent that we didn’t need to know much more than what has been acknowledged to have prevented the hijackings and the subsequent mayhem. What we needed to do, and failed to do, was to ensure that the aviation security program already in place on 9/11 was alert to the clear and present dangers identified to the FAA, and prepare to respond to them.
To argue that we did not know the exact time, place, and nature of the specific tactics to be employed is without merit as a defense to the failure of the system to perform on 9/11. Once put in place, our aviation security system should have been reasonably expected to perform 24/7, and not just to be prepared to respond to specific notice of threats. As we have now seen and heard, the TIPOFF watch list worked, the CAPPS system worked, and apparently the screening hardware worked. What failed was the performance of the operational personnel, who let identified potential hijackers and weapons aboard the airliners, both on 9/11 and on earlier occasions when the hijackers rehearsed their tactics. What also failed was necessary revised training for flight deck crews regarding unauthorized access to the flight deck, and the reinforcement of cockpit doors known to be vulnerable to forced entry.
At the conclusion of the 9/11 hearings, and after the presentation of the Commission’s report, we are likely to have confirmed that our current intelligence gathering and information dissemination structure is not reliable in protecting the nation against terrorism — and that it will take years to bring it to an acceptable level. In the meantime, we will need to fill the chasm created by the intelligence community’s inability to centralize the information collected from several intelligence agencies employing disparate sources, and then hone that information into a reliable weapon to be used by the government agencies whose job it is to provide for homeland security. Without having a central authority responsible for getting intelligence to the departments that need it, it is of little use in developing security against terrorism risks.
On 911, the FAA was not a member of the U.S. intelligence community but, according to Staff Statement No. 3 provided for the 9/11 Commission, “…the agency maintained a civil aviation intelligence division that operated 24 hours per day.” While the commission staff found no reason to believe that the FAA knew the details of the 9/11 attack, they did say:
“…the threat posed by Usama Bin Ladin, al Qaeda, and al Qaeda affiliates, including their interest in civil aviation, was well known to key civil aviation security officials. The potential threat of Middle Eastern terrorist groups to civil aviation security was acknowledged in many different official FAA documents. The FAA possessed information claiming that associates with Usama Bin Ladin in the 1990s were interested in hijackings and the use of an aircraft as a weapon.”
Finally, and most important, the staff, in its statement to the panel, points out the following:
“FAA documents, including agency accounts published in the Federal Register on July 17, 2001, expressed the FAA’s understanding that terrorist groups were active in the United States and maintained an historic interest in targeting aviation, including hijacking. While the agency was engaged in an effort to pass important new regulations to improve checkpoint screener performance, implement anti-sabotage measures, and conduct ongoing assessments of the system, no major increases in anti-hijacking security measures were implemented in response to the heightened threat levels in the spring and summer of 2001, other than general warnings to the industry to be more vigilant and cautious.”
Despite the failure of the intelligence community to alert commercial aviation in the United States to heighten its security against a possible hijacking effort of the kind experienced on 9/11, it appears that the information necessary for a diligent FAA to take the necessary steps to see to it that at least the prescreening program already in place was available but ignored. Despite its warnings to the airlines to be more vigilant in view of the circumstances outlined above, nothing special was put in place to ensure that passengers suspected of being a danger to commercial aviation would be prohibited from flying. In fact, from a list of tens of thousands of individuals whose names appeared on the State Department’s TIPOFF watch list of persons who should be barred from flying subject to special security supplied to the FAA, only 20 names had been turned over to the airlines by 9/11. Two of the names not supplied turned out to be those of the hijackers. In addition, the CAPPS prescreening program already employed at the time also failed to keep any of the 19 hijackers from flying with weapons that day, despite nine of the hijackers (who flew on three of the four hijacked flights) having been identified as “selectees.”
Given what the FAA knew about the repeated failures of the checkpoint screening personnel to identify weapons and explosives carried through the screening stations (in tests by agents of the FAA’s Inspector General’s office, its own “Red Teams” and the General Accounting Office’s investigators), it was to be expected that FAA would have significantly raised the level of security at the nation’s screening stations. However, despite the intelligence information about al Qaeda’s intent to strike America through the civil aviation system, and some of its thoughts on the use of airliners as weapons, FAA did nothing to harden screening station targets; they merely advised the airlines to be more vigilant and cautious.”
The foreseeable risk of crime is assessed on the basis of criteria including, but not limited, to:
- past history of the target
- known potential vulnerabilities of the target
- information about the intent of potential enemies of the target
- principles of security acknowledged by the industry involved
- the learned views of experts
- special knowledge and information relating to unique characteristics of the target
- special information derived from intelligence about immediate threats which is known to those charged with providing security against reasonably foreseeable risks.
The duty to protect our civil aviation system against terrorism was, and is, with our government, which had held scores of hearings and conferences on the subject, passed legislation, entered into treaties with other countries and promulgated rules to govern security in airports and aboard airliners. On September 11, 2001, that duty resided with the FAA and, more specifically, with those managers who were responsible for the decision-making over how that duty was to be carried out to protect the traveling public, and, as it turns out, the security of the nation. Why and how that duty may have been breached by the FAA needs to be considered to protect against future failures, to underscore that we will not tolerate or minimize such failures, to appropriately sanction those responsible if sanctions are called for, and to allow all who mourn the multiple tragedies of that day to have an answer to the question: How did this happen?
To fulfill its duty to prescreen and screen passengers, their carryon items, and checked baggage, the FAA allowed its non-delegable legal duty to secure air travelers as set forth in federal aviation regulations to be delegated to contract security personnel. These screeners were often unskilled, poorly trained, and badly managed by commercial air carriers who did not want the job, and weren’t prepared to perform it with the necessary level of expertise.
To all familiar with commercial aviation security in the United States prior to 9/11, the weaknesses and vulnerabilities of the security system are well known. The presidential commission investigating the 1988 bombing of Pan Am 103 pointed out many of those vulnerabilities and recommended many changes. The Gore Commission highlighted the security flaws in aviation security and recommended many of the same changes which had not been implemented from the earlier hearing. Numerous inspections by government agencies continued to point out the systems weaknesses, and yet, in the face of these long-awaited improvements in the screening of passengers and baggage, airport personnel and overall airport security, proposed improvements continued to languish in the hands of the FAA.
Whether the events of 9/11 could have been prevented by a better national intelligence network is academic. But there is no question that if the FAA had alerted its agent air carriers to the names of all of those on the State Department’s No Fly list, two hijackers would likely not have flown that day. If the FAA had directed screening at the screening stations to be conducted at the heightened levels of security called for under its own CAPPS program’s protocols for “selectees,” nine hijackers would not have been allowed to board in possession of restricted box cutters, mace, pepper spray, or tear gas. Nor would they have been allowed to carry on discretionary items such as pocket utility knives and “leatherman knives,” which, it is believed, may have been permitted to remain in their possession despite the “common sense” standard regarding weapons which was operative.
Nor would on-board security procedures have allowed for vulnerable flight deck doors, and protocols calling for cooperation with hijackers rather than resistance in an effort to, first and foremost, land the aircraft under the circumstances taking place on board. According to the findings of the staff of the 9/11 Commission, all of these vulnerabilities existed, and were most likely relied upon by the hijackers, who had studied the system and rehearsed their crime repeatedly. And each of these vulnerabilities was or should have been known by FAA prior to the hijackings, and most if not all could have been remedied.
In the final analysis, most of us rely upon our law enforcement agencies to protect us from criminal acts because we know and accept that, despite our best efforts at predicting crime and criminals, we are not likely to identify or prevent nearly as much crime as occurs. We now know that our intelligence efforts have not as yet developed to the point where we can expect advance notice of attacks against us, other than in a general sense. We therefore must demand unqualified vigilance from the government agencies upon whom we musts rely for our national defense. On 9/11 such was the duty of the FAA. That duly was breached and we need to know why.