Transportation and Terrorism January 2004 In This Issue Volume 52 Number 1 United States The Transportation Security Administration: Fighting Terrorism at Our Department of Justice Executive Office for Nation's Transportation Facilities ................................. 1 United States Attorneys Office of Legal Education By Jay N. Lerner and Stephen E. Brundage Washington, DC 20535 The Criminalization of Air Violence ............................... 5 Guy A. Lewis By Jeff Breinholt Director Contributors’ opinions and Air Bombings ................................................. 12 statements should not be considered an endorsement by By Jeff Breinholt EOUSA for any policy, program, or service. Skyjacking ................................................... 18 The United States Attorneys’ By Jeff Breinholt Bulletin is published pursuant to 28 CFR § 0.22(b). A Smokescreen for Terrorism .................................... 30 The United States Attorneys’ Bulletin is published bi-monthly By D. Scott Broyles and Martha Rubio by the Executive Office for United States Attorneys, Office of Legal Education, 1620 Pendleton Street, Bolstering Cargo Container Security: How U.S. Attorneys' Offices Can Columbia, South Carolina 29201. Make a Difference ............................................. 35 Periodical postage paid at Washington, D.C. Postmaster: Stephen E. Flynn and Peter Hall Send address changes to Editor, United States Attorneys’ Bulletin, Office of Legal Education, 1620 Pendleton Street, Columbia, South Carolina 29201. Managing Editor Jim Donovan Technical Editor Nancy Bowman Law Clerk Marian Lucius Intern Courtney Kane Internet Address www.usdoj.gov/usao/ reading_room/foiamanuals. html Send article submissions to Managing Editor, United States Attorneys’ Bulletin, National Advocacy Center, Office of Legal Education, 1620 Pendleton Street, Columbia, SC 29201. The Transportation Security Administration: Fighting Terrorism at Our Nation's Transportation Facilities Jay N. Lerner II. The Transportation Security Deputy Chief Counsel for Criminal Administration: Its origins, structure, and Enforcement goals Transportation Security Administration A. Origins of the Transportation Security Administration Stephen E. Brundage TSA has redefined aviation and transportation Attorney-Advisor, Criminal Enforcement security over the past twenty-three months. This is Division no small task, given that more than 620 million Transportation Security Administration passengers and 1 billion pieces of luggage pass through United States airports annually. I. Introduction Nevertheless, the agency has operated under the The events of September 11, 2001, guiding principle of "Excellence in public service undoubtedly shocked the nation. In the post-9/11 through: Integrity, Innovation, and Teamwork." era, the United States Government is focusing http://www.tsa.gov/public/display?theme=7&cont enormous time, energy, and resources on fighting ent=44. terrorism on all fronts, both domestically and During this time frame, TSA has internationally. Numerous laws were enacted accomplished the following: aimed at strengthening the Government's ability to combat terrorism. In the wake of the horrific • Recruited, hired, trained, and deployed a events, certain vulnerabilities in our nation's security screening workforce for the entire homeland protection and security were nation; highlighted. One such area was the country's • Instituted screening procedures for all transportation systems, particularly aviation. passengers and baggage boarding aircraft; To address such vulnerabilities, Congress • Installed explosive detection devices in nearly passed, and the President signed into law, the all the nation's airports; Aviation and Transportation Security Act, Pub. L. No. 107-71,§ 101, 115 Stat. 597 (2001). In • Hardened airplane cockpit doors; addition, following the events of September 11, • Trained and deployed federal flight deck 2001, the American public demanded additional officers; investigative resources to enhance airport security and law enforcement. As a result, certain law • Developed K-9 explosive units nationwide; enforcement responsibilities were assigned to the • Initiated enhancements to the Computer- Transportation Security Administration (TSA). Id. Assisted Passenger Pre-screening System; and The Aviation and Transportation Security Act • Began development of national (ATSA) is the organic statute that established Transportation Worker Identification Card TSA. Its legislative history demonstrates the (TWIC). country's dissatisfaction with prior enforcement B. Organizational structure of TSA efforts in the area of aviation security. H.R. CONF. REP. NO. 107-296, at 1 (2001). As a result, TSA's When initially created and authorized, TSA mandate is to improve security of the was a component agency of the United States United States' transportation systems and Department of Transportation. However, upon the facilities, as well as minimize the risks of another establishment of the Department of Homeland terrorist tragedy in the transportation sector. Quite Security, TSA became an integral part of our simply, TSA has the sole mission to protect the nation's homeland defense under the Secretary of nation's transportation systems to ensure freedom Homeland Security. of movement for people and commerce. JANUARY 2004 UNITED STATES ATTORNEYS' BULLETIN 1 TSA headquarters regions surrounding the nation's thirty largest airports. The senior leader of TSA is Acting Administrator David Stone. Acting Administrator The OCC at headquarters is made up of seven Stone is supported by Deputy Administrator divisions specializing in certain areas of the law: Stephen McHale, Chief of Staff Carol DiBattiste, • Criminal Enforcement; Chief Operating Officer Vice Admiral John Shkor, and Chief Logistics Officer Gale Rossides. • Civil Enforcement; In particular, the Chief Operating Officer oversees • Litigation (primarily Employment and four primary divisions: Aviation Operations, Tort/Liability litigation); Maritime and Land Operations, Intelligence, and Policy. • Regulations; Each division is operated by an Assistant • Procurement; Administrator. The largest division, by far, is • General Law (Ethics, Information/Privacy, Aviation Operations, as it has been the primary and Personnel); and focus of TSA for the past year. This division is responsible for the day-to-day operations of the • Operations (Administrative Functions, nation's airports, including screening of Legislation, and International Law). passengers and baggage, law enforcement, and United States Attorneys are most likely to civil enforcement actions, pursuant to aviation interface with Field Counsel (many of whom have security regulations through an administrative extensive criminal law and law enforcement process. backgrounds) in local jurisdictions and/or the TSA field operations Criminal Enforcement Division in Washington, D.C. TSA maintains a robust and vital field structure at the more than 400 airports nationwide, and the The Criminal Enforcement Division (OCC Federal Security Director (FSD) is responsible for Criminal Enforcement Division) is headed by a all security operations at these airports. There are Deputy Chief Counsel, and six Attorney- 158 FSDs, covering the nation's largest (Category Advisors. These attorneys are highly experienced X and I) airports and the geographic region in the areas of criminal law, law enforcement, around them. Many FSDs have extensive background checks, intelligence issues, and background and experience as law enforcement general security matters. With their knowledge of officers. aviation and transportation security, the OCC Criminal Enforcement Division can be a valuable The Administrator has delegated most of his asset for United States Attorneys seeking daily operational responsibilities to the FSDs at assistance and counsel in Title 49 (aviation the airports (through the Assistant Administrator). security) offenses, as well as unique Title 18 The FSDs routinely work with federal, state, and criminal offenses dealing with aviation issues. local law enforcement and public safety agencies, More specifically, OCC Criminal Enforcement to ensure the best protection possible at their Division stands ready to assist with all facets of a airports. FSDs generally have three Assistant case, including litigation support, research Federal Security Directors designated for the assistance, guidance on charging decisions, and following areas: law enforcement, regulations, appeals. and screening. The FSDs rely heavily upon their staff and a professional cadre of highly trained Goals of TSA security screeners. The FSD in each jurisdiction During TSA's first year in existence, it set out can be located at: to address aviation security and meet the http://www.tsa.gov/interweb/assetlibrary/FSD_Co challenges and deadlines set out in the Aviation ntact_List.xls. and Transportation Security Act (ATSA). In TSA Office of Chief Counsel addition, it created an agency from nothing but a single document, a statutory authorization. In order to support an agency of this size, TSA maintains a strong Office of Chief Counsel With respect to TSA's law enforcement (OCC) that addresses a variety of legal issues and efforts, the guiding tenets are: matters. TSA OCC is comprised of attorneys from • Prevention of harm to the transportation various federal and state government agencies, as systems and facilities; well as the private sector. There are approximately sixty TSA Field Counsel covering the geographic