Chairman Metcalfe, Ranking Member Josephs, and committee members: thank you for this opportunity to share my thoughts and answer your questions to the best of my ability. I should state beforehand that the views expressed in this testimony are my own and should not be construed as representative of any official position of The Heritage Foundation.

First, let me take a moment to share my background and interest in today’s hearing topic. I am currently a Senior Policy Analyst at The Heritage Foundation, a public policy research organization in Washington, D.C. In this capacity, I research, write, and speak on homeland security issues, and have a special interest in transportation security and critical infrastructure protection. Among my other professional experiences, I worked previously for the Governor of Maryland, Robert Ehrlich, Jr., so I have a working understanding of how federal regulations impact state governments and their constituents.

Over the years since 9/11, The Heritage Foundation as an institution has consistently published on the topic of counterterrorism and aviation security, as well as on homeland security in general.[1] In fact, my colleague, Matt Mayer and I are currently working on Homeland Security 4.0, a forward-looking assessment of homeland security. The largest focus of this report will be on the need to shift away from a Beltway-centric mentality in terms of creating a truly national homeland security enterprise.

The topic of today’s hearing is to examine the Transportation Security Administration’s new security procedures. I would like make three points:

1. The primary lesson learned from 9/11 and the 38 plots foiled thereafter is that information sharing and good intelligence are the most important tools for stopping plots before the public is in danger.
2. The recent changes by TSA to the airport screening line take the eye off the ball and raise serious questions about the Obama Administration’s overall counterterrorism strategy. Physical security measures at airports should be the absolute last line, not the first line of defense against terrorism.
3. The Administration and Congress should recalibrate the current TSA strategy to one that is responsive to the risks we face.

The 9/11 attacks were a wake-up call for policymakers on the threats facing aviation security. In 1988, a bomb that was detonated on Pan Am Flight 103 killed 243 passengers and 16 crew members (commonly referred to as the Lockerbie bombing). The perpetrator of the bombing did not board the plane, but rather planted a bomb in a suitcase which detonated while the plane was in the air. Most other aviation threats before 9/11 were largely motivated by attempts to extort money or some other agenda where those aboard were largely left unharmed and the airplane intact. The 9/11 attacks were different in that they introduced the idea of suicidal hijackings and reinforced the fact that al-Qaeda, which had targeted the U.S. before, was still seeking to inflict catastrophic harm on the United States.

At this time, the U.S. had very little in terms of a national strategy for aviation security and very few security measures at airports beyond basic protocols that had little to do with a 9/11 attack scenario.[2]

As a result, one of the 41 recommendations of the 9/11 Commission was the following:

Hard choices must be made in allocating limited resources. The U.S. government should identify and evaluate the transportation assets that need to be protected, set risk-based priorities for defending them, select the most practical and cost-effective ways of doing so, and then develop a plan, budget, and funding to implement the effort. The plan should assign roles and missions to the relevant authorities (federal, state, regional, and local) and to private stakeholders. In measuring effectiveness, perfection is unattainable. But terrorists should perceive that potential targets are defended. They may be deterred by a significant chance of failure.

I hope to emphasize today that recent TSA actions have moved drastically farther from, rather than closer to, implementation of this recommendation.

Pre-2010 Aviation Security Efforts

By the time the 9/11 Commission released its final report in 2004; the U.S. had taken key steps toward making the nation a harder target against terrorism and specifically increasing the security of the aviation domain. The Bush Administration worked with Congress to enact a series of structural and policy changes that formalized a federal effort on homeland security and helped to create both the Transportation Security Administration and, subsequently, the Department of Homeland Security. This was accompanied by significant reforms in the intelligence community as well as initiatives aimed at increasing information sharing and empowering law enforcement with much-needed intelligence gathering capabilities.[3] On aviation specifically, this would also incorporate some additional level of physical security at airports including added security assessments, increased employee credentialing, deployment of air marshals on high-risk flights, and cockpit door reinforcements, to name a few.

Perhaps one of the most important developments in aviation security since 9/11 has been the maturation of passenger pre-screening. On the day of the attacks, there was very little in terms of pre-screening for security risks. The only data that the system at the time could screen for was the passenger’s form of payment and travel itinerary. Ticketing agents would ask passengers simple questions and require a photo ID, but little else. It is easy to see how limiting this information was in stopping would-be terrorists from boarding an airplane.

After a contentious debate over the best way to use passenger data, the idea for Secure Flight was developed. Secure Flight checks a passenger’s data against a federal database at the FBI Terrorist Screening Center—a center that integrates all available information on known or suspected terrorists. Airlines now gather basic information (full name, date of birth, gender) when the passenger makes a reservation that is subsequently checked under this system. Secure Flight currently operates on all domestic and international passenger flights and is a gigantic leap forward in terms of security.[4]

One of many other positive reforms that have occurred since 9/11 is in the area of information sharing and intelligence gathering. Congress enacted the PATRIOT Act, which brought down the wall that existed between the law enforcement and intelligence communities prior to 9/11. Previously, these authorities would have been unable to share leads, intelligence, or evidence when pursuing both criminal and national security charges against the same suspect(s)—severely limiting investigative capabilities. This was very helpful in the Lackawanna Six plot in 2002, when an anonymous letter sent to investigators which detailed a potential terrorist plot as well as criminal activity was able to be pursued as one investigation. The law also gave law enforcement officers new tools by which to gather intelligence and track down leads in communities. This was vital in terms of stopping the Zazi plot in 2009 when law enforcement authorities used the Act’s roving surveillance authority to track Najibullah Zazi’s activities across multiple communication devices.

These PATRIOT Act provisions, along with increased relationships between federal, state, and local law enforcement, and programs like the Visa Waiver Program which have formalized our relationships with our allies in terms of counterterrorism information, have all dramatically increased our ability to stop plots at the earliest stages. I cannot emphasize enough the importance of these measures. Our success, however, speaks for itself. Since 9/11 the U.S. has foiled at least 38 publicly known plots against the United States. Almost across the board, the plots that have been foiled because of quality intelligence and robust information-sharing relationships. The 2006 London-based plot to smuggle liquid explosives on U.S.-bound international flights is a good example of just how effective such a preemptive strategy can be.[5]

While all of these efforts are maturing even today, on the whole these have been the right changes in terms of making the U.S. a harder target against terrorism.

The 2010 Changes

Certainly not all security measures since 9/11 have been as effective as these. There were a number of reactive kneejerk measures aimed at the TSA screening line that did not add to security but made airline travel increasingly more inconvenient. Prior to 2010, however, most of the more extensive screening of passengers in the TSA screening line had been limited to secondary screening. Even Advanced Imaging Technology (AIT) or full-body scans, while much talked about in recent months, have actually been deployed on a limited basis since around 2007—focused, however, on those flagged for secondary screening. Passengers, for instance, might be pulled aside for additional screening randomly, or if they paid with cash, were flagged through passenger pre-screening, were taking a one way flight, or if some other piece of intelligence led law enforcement to require increased scrutiny.

In late 2010, however, DHS announced that it would move forward with more extensive deployment of full-body screening measures. Passengers in primary screening would be forced to choose between undergoing (1) a full body scan or (2) a physical pat-down by a TSA screener. Those who did not submit to either would not be permitted to fly. Again, the key difference in this new approach was that it would now be part of primary screening—meaning the line that all passengers had to go through to board a plane.

The Administration, for its part, has argued that these efforts are limited to certain airports, and that not all passengers around the country are being forced to undergo scanning or a pat-down. It was and is true that not every passenger in every airport in every screening line is currently forced to undergo this screening. According to DHS, there are currently 486 such machines deployed at 78 airports in the United States.[6] However, the number of passengers forced to make this decision continues to grow. It is clear from the President’s FY 2012 budget request that the Administration plans to continue extensive deployment of AIT technology, including monies for around 1,500 scanners and 535 associated personnel positions.

This announcement was followed shortly thereafter by changes in the TSA workforce that make the Administration’s aviation security strategy even more suspect. It announced in January of 2011 that it would no longer allow airports that wanted to privatize their TSA screening workforce to do so. This is contradictory to statutory law, specifically the Aviation and Transportation Security Act of 2001 which grants airports the ability to “opt out” of having federal TSA screeners as long as their private workforce submits to TSA oversight. The benefits of privatization are many—including a workforce that not only maintains security but can respond to the demands of consumers in a flexible manner. The Administration followed this, unsurprisingly with an announcement that it would engage in limited collective bargaining with TSA screeners. While this is currently limited in application, my colleague James Sherk, a labor analyst at The Heritage Foundation warns:

The TSA needs the maximum flexibility to respond to potential threats using the latest information available. It needs the ability to rush screeners to high-risk locations and modify screening procedures at a moment’s notice. The TSA does not have weeks to bargain over officer assignments and new schedules before implementing them.[7]

All of these efforts, according to the Administration, were supposedly taken in the name of security. With regard to the new screening procedures specifically, the Administration emphasized that this policy is part of a layered defense to security and was initiated because the Christmas Day would-be bomber in 2009 was able to smuggle explosives, located in his underwear, through a foreign airport checkpoint. The argument is that the current metal detector technology would have been incapable of finding the explosives in the location and the type possessed by Umar Farouk Abdulmutallab if he had come through a U.S. airport.

I’ll be the first to admit that AIT technology is indeed better than metal detectors at identifying dangerous items carried by passengers. My concern, however, is that the Obama Administration has taken the wrong lessons from the Christmas Day plot and other recent attempted attacks. This raises serious questions about the Administration’s overall counterterrorism strategy and whether it is taking the steps to adequately to meet the security threats we face.

The real lessons of the Christmas Day plot, and all of the plots foiled over the last 10 years, are that information sharing and intelligence are the absolute cornerstones of effective counterterrorism not wholesale screening of travelers. This Christmas Day in particular plot demonstrated failures by the Department of State and the Department of Homeland Security to share information and sufficiently connect the intelligence dots. Despite a visit from Abdulmutallab’s father to a U.S. consulate office warning of his son’s potential plans for terrorism, the younger Abdulmutallab’s visa was not revoked nor was there additional follow-up with the National Counterterrorism Center—measures that might have placed him on a “no-fly” list and stopped him from boarding an airplane. In fact, by law, the Department of Homeland Security (DHS) is supposed to set security policies for the State Department Consular Affairs office that issues visas. That has never happened because of squabbling between the two departments. Likewise, embassies have been reluctant to accept visa security officers from Homeland Security who could work with the consular officers in identifying security gaps and threats.[8]

Recalibrating Aviation Security

Without the right relationships between law enforcement to track down leads in local communities in a fast and effective manner, and key partners working smoothly to connect the dots, the U.S. will lose and terrorists will adapt and strike in a way that will cost significant American lives. In my view, if we are relying on stopping terrorists at the TSA screening line we are in big trouble.

Airplane plots since 9/11 including Richard Reid in 2001, the liquid explosives plots in 2006, the Christmas Day bomber in 2009, and the suspicious package scare in 2010 demonstrate that the aviation domain is still under threat. Furthermore, we don’t know how many plots have been avoided because our physical security measures have caused terrorists to think twice before acting. Because of this, TSA needs some level of physical security at airports that will help us identify threats as necessary. This might as include full body scanners and pat-downs, but should be limited to those who warrant additional screening, not one-size-fits-all security solutions. Our intelligence efforts can better inform the choices we make—and who we choose to inconvenience in the TSA screening line. Screening everyone equally, however, increases the amount of information that security screeners must process and dilutes the ability to drill down to those individuals that represent tangible risks to the traveling public.

The gravity of this threat is exactly why it is essential that TSA has the right policies in place and a strategy that is not driven by political priorities or political correctness. We can waste of lot of money, time, and effort, better spent tracking terrorists, trying to childproof the country against terrorism. The fiscal reality, however, requires tough choices and a good process to determine how to best spend money in a way that actually contributes to security. As the 9/11 Commission emphasized, “Hard choices must be made in allocating limited resources.” The only way to effectively prioritize those resources is to have an accurate assessment of the risks at the TSA screening line.

For states frustrated by these efforts, it is essential that pressure be exerted on the White House and DHS, as well as congressional leaders, to take a step-back and reexamine TSA’s entire aviation security strategy. There are several proposals and efforts in Congress that would potentially do so. I would caution that looking at this problem exclusively from the full-body scan/enhanced pat-down aspect could have the reverse effect of limiting TSA’s ability to stop terrorists at the airport when necessary. To me, this is a much larger problem of pushing the Administration to take an actual assessment of the threats we face and how to best mitigate those threats—using the lessons learned of the past 10 years to drill down on intelligence and information sharing failures and successes and make real changes accordingly.

Solutions

1. Reassess the current enhanced screening strategy. While TSA screeners need to be given flexibility to make decisions about what passengers merit additional scrutiny, one-size-fits-all approaches are a waste of taxpayer dollars and do not contribute to U.S. security. As a general rule, such screening should largely be left to secondary screening.
2. Drill down on Christmas Day intelligence failures. While the U.S. has made tremendous strides forward, it is clear that there is still improvements to be made in the flow of information from one federal agency to another.
3. Revive and Improve the Security Partnership Program. There was no reason why TSA should have stopped the SPP program. If airports want the added flexibility of a private security force for their airports, they should be encouraged to do so. Simultaneously, however, Congress should look to make reforms in the program so that “it becomes a viable, flexible, and innovative option for helping airports deploy more efficient and effective security solutions that are tailored to their specific requirements.”
4. Examine GAO cost savings for TSA. GAO recently identified waste and potential cost savings within the Transportation Security Administration, including a recommendation regarding in-baggage screening. This can help make DHS a better steward of taxpayer dollars.
5. Resist collective bargaining efforts. This highly political move, while so far limited, can only make TSA more bureaucratic and ineffective, while decreasing its ability to best serve consumers and stop terrorists.
6. Step Up Implementation of REAL ID. The Real ID program sets standards for U.S. driver’s licenses, and once fully implemented a REAL ID compliant driver’s licenses would be required to board an airplane. Such an effort would help keep malicious actors attempting to use fraudulent, stolen, or altered licenses from breezing through security checkpoints. DHS has played politics with REAL ID and has not taken implementation seriously despite gains by states to meet compliance standards.
7. Make the TSA Administrator a non-partisan position. Decreasing the politics associated with the position would help to minimize the reactive security measures that are thrown at U.S. transportation sectors in respond to potential threats.[9]
8. Move forward with a Trusted Traveler program. The U.S. should better explore avenues to pre-screen/approve passengers in a way that can expedite these individuals for less physical screening, increases convenience and decreasing security costs.
9. Expand air marshals. Currently, armed U.S. air marshals cover only a fraction of international flights bound for the states, and few other countries have similar programs. The U.S. force should be expanded and the White House should press allies to establish or expand their programs. Air marshals provide another layer of deterrence against terrorism. In addition, giving these marshals real-time access to databases (both while they are on the ground and in the air) will offer an additional capacity to screen flight manifests for suspicious passengers.

Endnotes

[1] For more research and a copy of this testimony, visit www.heritage.org.

[2] The 9/11 Commission Report, at http://www.9-11commission.gov/report/911Report.pdf.

[3] The Aviation and Transportation Security Act of 2001 created the Transportation Security Administration, which would later be housed under the newly created Department of Homeland Security in 2003. Prior to this time, efforts were managed by the Federal Aviation Administration.

[4] Jena Baker McNeill, “Secure Flight Program Creates Safer Skies,” Heritage Foundation WebMemo No. 2376, April 1, 2009, at http://www.heritage.org/Research/Reports/2009/04/Secure-Flight-Program-Creates-Safer-Skies.

[5] James Jay Carafano, “After Detroit: Presidential To-Do List for Plugging Gaps in Stopping Terrorist Travel,” Heritage Foundation WebMemo No. 2743, December 30, 2009, at http://www.heritage.org/Research/Reports/2009/12/After-Detroit-Presidential-To-Do-List-for-Plugging-Gaps-in-Stopping-Terrorist-Travel.

[6] TSA Fact Sheet on Advanced Imaging Technologies, at http://www.tsa.gov/approach/tech/ait/faqs.shtm

[7] James Sherk, “Unionizing Airline Screeners Endangers National Security,” Heritage Foundation WebMemo No. 3142, February 9, 2011, at http://www.heritage.org/Research/Reports/2011/02/Unionizing-Airline-Screeners-Endangers-National-Security.

[8] Carafano, “After Detroit: Presidential To-Do List for Plugging Gaps in Stopping Terrorist Travel.”

[9] U.S. Travel Association, A Better Way: Building a World Class System for Aviation Security, at http://www.ustravel.org/sites/default/files/page/2011/03/A_Better_Way_032011.pdf.

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