What I Want to Hear From Homeland Security and the TSA

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    Peter Sperry
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    After taking time to review the commentary, including my own, on the TSA issue; I would not retract any of it but recognize a more nuanced discussion would be helpful. I spent most of today drafting the type of statement I believe DHS and TSA should be making. The statement maintains and supports their current procedures (lets be honest, they are not backing down on this) while explaining them less aggressively and promising additional procedural reviews and enhanced safeguards for civil liberties.

    I apologize in advance for the length of the statement. This is a very complex issue with several delicate moving parts and attempts to address it with elevator pitches and bumper sticker policies tend to be counterproductive.

    I want to emphasize the statement below IS MY OWN WORK AND NOT A REPRESENTATION OF ANY COMMENTS BY ANY PUBLIC OFFICIAL

    It is what I would like to hear, not what I have heard or expect to hear.

    What I Want to Hear From Homeland Security and the TSA

    Proposed Statement to the Flying Public–

    The Transportation Security Administration, acting on my direction recently deployed new screening devices and enhanced pat down techniques at airports throughout the United States. This deployment has sparked a strong negative reaction among large numbers of the flying public and generated serious questions regarding transportation security policy ranging from trade offs between security and civil liberties to the line between public relations and propaganda. These are serious, well intentioned questions which deserve a meaningful response. I will attempt to address each of them individually and my office will provide additional information on the Homeland Security website.

    Before I do, I would like to emphasize that no one, my self least of all, is happy about the current situation. Most of us remember, and long for a return to, a time when heightened security was unnecessary. We used to run through airports, unhindered by checkpoints, metal detectors, sniffers or other scanners and without taking off our shoes or enduring pat downs. We were free to wander through the magnificent architecture of our nation’s public buildings without an escort and at our own pace. We enjoyed taking our families to public places and events that did not include the sight of heavily armed guards within the crowd or on the horizon. We lived in a world where the Department I lead did not exist because it was not needed.

    No one misses those times, nor longs for their return, more than I do. Our colleagues within the Department of Defense, the Justice Department and the National Intelligence community are currently devoting the vast majority of their efforts to identifying and destroying the threats which force the current situation upon us. I am sure you join me in wishing them the greatest success in their efforts. Proud as I am of the Department I lead, I look forward to the day when I or one of my successors is able to stand before you and announce it is being dissolved because our nation has achieved a level of peace and security that no longer requires a Department of Homeland Security.

    But we have not yet reached that day and we must deal with the world as we find it, not as we would like it to be. Consequently, when I reviewed the analysis of current threats against our air transport system, I felt constrained to authorize the deployment of new technologies and enhanced procedures to address the threat as it exists today, not as it existed in the past or as we hope it will exist in the future.

    I will now respond to the various questions which have arisen regarding my decision.

    1. What is the appropriate balance between respecting civil liberties and providing physical protection?

    In 2001, the elected representative of the people, including President Bush and almost all members of Congress, responded to a devastating attack on our nation through the air transport system by establishing as public policy the principal that no future assault on aircraft would be tolerated and the appropriate federal agencies would take whatever steps necessary to prevent them. Many civil libertarians argued at the time that such policy would require unacceptable restrictions on fundamental rights, particularly those afforded under the 4th amendment. An equally large number of security advocates argued the policy did not go far enough and should be extended to rail, intercity bus and mass transit systems. This question was debated extensively in Congress and with the President until the current policy became embodied in a series of laws and executive orders.

    The predecessor agencies to the Department of Homeland Security and TSA provided information and advice which helped shape this policy; but the final decisions regarding the nature of the policy were made, as they should be, by the elected representatives of the people. Once the policy became finalized, DHS and TSA proceeded to implement it to the best of our abilities within the limits of the authority delegated by Congress and the President.

    It is certainly appropriate for the elected representatives of the people to revisit this question often and revise previous public policy to more appropriately reflect current conditions and public sentiment. It is not appropriate for unelected members of the executive branch to take on this responsibility. As a former governor, I am particularly sensitive to the line between making public policy and implementing it. The former is the exclusive responsibility of elected officials who represent the views or their constituents, while the latter lies with executive branch agencies.

    Consequently, unless and until they are modified, DHS and TSA must implement current transportation security policies. Attempting to modify these policies in the absence of directions from Congress and the President would be an inappropriate usurpation of elected authority by unelected officials. This will not happen on my watch. Citizens who believe it is time to revisit the transportation security decisions made following 9-11 are free to contact their elected officials with their concerns and I encourage them to do so. Office phone numbers and email contact information for Members of Congress and the President can be found on the following web sites –

    [List web sites]

    2. Are current DHS/TSA procedures necessary to implement the transportation policies established by Congress and the President?

    I sincerely believe they are or I would not have authorized them. The current procedures were established through a rigorous review process that included extensive consultation with recognized security experts.

    Nevertheless, in recognition of public concerns, I am requesting a complete review of our procedures by the General Accountability Office. I will also establish a procedures review panel that will include representatives of the flying public and be empowered to consult with civil liberties advocates as well as security experts. The first assignment of this panel will be to review our current procedures and benchmark them against those of other nations to determine if, and how, DHS and TSA may be able to implement transportation policies established by Congress and the President with less intrusion on civil liberties. Your assistance in this effort would be greatly appreciated. Contact information to submit comments and suggestions can be found at [include link]. Submissions will be read carefully. Summaries will be posted on both the TSA and DHS web sites along with responses where appropriate.

    3. Have TSA agents made inappropriate comments or engaged in unacceptable behavior while conducting inspections?

    I would like to flatly deny that any TSA agents have ever engaged in such behavior. Unfortunately, I am unable to do so. There are entirely too many news stories, blog reports and customer complaints to completely dismiss all allegations of inappropriate conduct. Any leader of any organization wants to believe their team is entirely composed of individuals who uphold the finest standards of the organization. No leader of any organization which employs as many people as DHS and TSA is able to do so. I could not claim otherwise without insulting the intelligence of the flying public.

    Nevertheless, I can and will assure every person coming in contact with any DHS or TSA employee that we rigorously scan every potential employee before they are hired. We conduct extensive training programs. We emphasize courtesy and respect as values which are second only to safety and security. We closely monitor our employees. TSA agents at inspection points spend most of their working day under video surveillance. We take complaints of inappropriate behavior very seriously and respond to them immediately.

    Leaders of any law enforcement or security organization must reach a balance between their employees and the public that responds quickly and with sensitivity to public complaints while protecting employees from repeated unwarranted accusations. It is one of the most difficult tasks in the security community and despite our best efforts we have not always stuck the balance as well as I would like. I know of no security agency whose leader would not privately admit this was a major concern and an area where they felt their organization fell short of the mark.

    While I will not subject DHS or TSA employees to repeated unwarranted investigations, I will institute policies and procedures to ensure the public is treated with dignity and limit violations of law or policy by DHS or TSA employees.

    First, all contact, particularly physical contact, between DHS or TSA employees and members of the public will be video recorded. This will include contact in private. Copies of the recording will be provided to the subjects of the contacts and or their legal representative if requested.

    Contact information for the supervisor on duty will be prominently posted at all inspection points along with instructions for submitting complaints. Supervisors will respond to all complaints by email within 48 hours and will respond to complaints of physical assault before the passenger leaves the checkpoint. It should be noted that physical assault is a serious criminal complaint and individuals making such an accusation frivolously or doing so repeatedly without substantiation may themselves be subject to charges for filing a false police report.

    In recognition of the particular sensitivity surrounding enhanced pat downs, in addition to being video recorded, travelers will be permitted to have a family member or friend act as witness to the procedure. They will be permitted to have the procedure conducted in public or in private. They will receive a written statement explaining why the procedure is required. If requested, they will be provided a private, unmonitored room in which to compose themselves following the procedure.

    Any allegations of inappropriate sexual contact, remarks or gestures by DHS or TSA employees will be taken very seriously. The video tapes of the incident will be reviewed within 24 hours by the senior regional TSA official and a senior DHS official trained to respond to sexual harassment complaints. Either official will be empowered to forward the tapes to the Justice Department for further review. As noted above, an accusation of inappropriate sexual contact is a serious criminal complaint and individuals making such an accusation frivolously or doing so repeatedly without substantiation may themselves be subject to charges for filing a false police report.

    4. Was the decision to deploy new scanners based on inappropriate influence by former high ranking DHS or TSA officials.

    No. We hold our technical review teams, contracting and acquisition professionals to very high standards. In addition there are long standing and severe penalties for any federal employee who knowingly “rigs” a contract. Federal employees can and have gone to jail for this. I am entirely comfortable no inappropriate influence was exerted by former DHS or TSA officials during the decision to deploy this new equipment.

    Nevertheless, I am asking the General Accountability Office, the DHS Inspector General and the Attorney General to each conduct separate reviews of this decision. If their reports identify any individual who engaged in improper behavior, appropriate discipline will be applied immediately.

    5. Have TSA’s public statements responding to the current situation crossed the line between public relations and propaganda?

    I do not believe they have. However, that is a very subjective judgment, which has been vigorously challenged in many quarters. Consequently, I am asking the General Accountability Office and the DHS Inspector General to review all recent public statements and blog postings or comments by TSA officials to determine if they have been appropriate. I am also instructing all DHS and TSA officials engaged in public communication of any type to undergo training focused on the distinction between public relations and propaganda. In addition, all future TSA blog posts, press releases and official statements will include citations to available independent sources of information regarding the subject of the blog post, press release or official statement. Finally, TSA will maintain a web page containing links to all critical press stories and blog posts regarding the organization along with the official TSA response where appropriate.

    6. Will senior administration officials, including the First Family demonstrate acceptance of enhanced pat downs though personal experience.

    I will and I will do so publicly with press availability. I will also direct all politically appointed DHS and TSA officials as well as senior level civil service employees who draft or review procedures related to air safety or make public statements regarding them to undergo an enhanced pat down in private.

    I have spoken with President Obama regarding various blog posts suggesting that he and his family undergo an enhanced pat down in public. I am recommending that he do so. I cannot and will not recommend the same for his family. Members of the public selected for enhanced pat downs at airports are offered the opportunity to have them conducted in private. They are not asked to have the experience broadcast to the world. President Obama and myself, by virtue of the offices we hold have a responsibility to publicly demonstrate our acceptance of these procedures. Our families however should be afforded the same respect for their privacy that would be provided to any private citizen at any airport in the United States.

    7. How will the TSA respond to opt outs or civil disobedience at airport checkpoints?

    We will respond with restraint and within the limits of the law but we will enforce the law. Our nation has a long and honorable history of civil disobedience starting before the Revolution and including the Civil Rights Movement, Anti-Apartheid efforts, protests at meetings of various multinational organizations and Don’t Ask Don’t Tell opponents chaining themselves to the fence in front of the White House. In almost all of these cases, the protests were nonviolent, the protesters were arrested and subsequent decisions to press charges were based on the degree to which they had endangered other people or demonstrated contempt for the law. I am instructing DHS and TSA attorneys to apply similar standards in determining when to file charges following an act of civil disobedience. Once charges are filed, the disposition of the case will be in the hands of the judicial system which may or may not uphold the charges and apply penalties accordingly.

    I should emphasize that while opting out of the full body scanning process is perfectly legal, individuals intending to do so should arrive at the airport early to allow sufficient time to complete the pat down procedures. Individuals planning to opt out as part of a larger protest movement such as the “Opt Out Day” planned for November 24th may want to carefully consider whether the resulting delays and possible missed flights will generate more sympathy or annoyance for their cause among the larger flying community.

    Conclusion

    Let me end by repeating what I stated at the beginning. There is no one at DHS, TSA or anywhere in this government who is happy about this situation. We all recognize the indignity and humiliation some of these procedures may inflict on people and deeply regret the need to do so. We would welcome Congressional review of our policies and procedures and appreciate any suggestions regarding how we might implement Congressional public policy with fewer intrusions on civil liberties. We pray for the day restrictive security policies will no longer be necessary. But until that day arrives, the procedures I have authorized are the most effective method available to implement policies established by your elected representatives.

    Thank you.

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