Last month federal judge Alvin Hellerstein rejected a motion by American Airlines and United Continental to dismiss a lawsuit that blames the destruction of the World Trade Center on Sept. 11, 2001 on flawed airport screening. The suit, brought by WTC tenants seeking compensation, will presumably proceed to trial.
The connection to these two airlines stems from the way airport screening was carried out in those days, prior to creation of the TSA. The FAA was responsible for aviation security regulation, and it imposed an unfunded mandate on airlines to provide checkpoint screening. It’s never been clear to me why the mandate was imposed on airlines rather than airports, but apparently since the original purpose of checkpoint screening was to prevent weapons from being brought on board airliners, and since in many cases specific airlines more or less ran concourses of gates devoted mostly or entirely to their flights, there was a certain rough logic to this policy.
But that’s where the logic of this case stops. Since the unfunded mandate was imposed by the FAA on airlines, they understandably sought to comply with the mandate at the lowest possible cost—just as they do with all other operating costs. And since there were essentially no standards for FAA-mandated screening, this led to a low-cost system using security contract firms selected by low-bid. GAO and FAA’s own “red teams” documented the poor performance of this screening as far back as 1978. GAO in 1987 recommended that performance standards be established, but the FAA failed to act. Congress eventually ordered (in the 1996 FAA reauthorization act) the agency to develop certification requirements for airport screening companies, as well as the implementation of uniform performance standards. It took the FAA more than three years to come up with a proposed “Certification of Screening Companies” rule in January 2000. When that rule had still not been finalized by November 2000, Congress ordered FAA to issue the final rule by May 31, 2001. After FAA failed to meet that deadline, Congress required the agency to report twice a year on the status of each missed statutory deadline. The attack on 9/11 occurred without the new rule and standards in place.
So point 1 is that airlines, as of 9/11, were complying with the regulations in place as of that date, no matter how pathetic those regulations were.
Point 2 is that, as most people know, the apparent weapon used by the 9/11 terrorists—box cutters—were not prohibited items at that point in time. So no matter how low the quality of airport screening may have been at that point, it was not the failure of either the screening companies or the airlines that employed them that led to the successful take-overs of the cockpits of those planes.
Point 3 is an intelligence failure, in which the various agencies charged with protecting this country from terrorism failed to connect the dots that would have identified the terrorists and either prevented them from flying or at the least subjected them to heightened inspection at the checkpoint. This could have been done, in part, by an information system called CAPPS (Computer Assisted Passenger Prescreening System) that had been in operation since 1998, had that system been allowed to be used to identify higher-risk passengers. But a 1999 FAA regulation limited CAPPS to determining which passengers’ checked bags should be screened for explosives. For fear of being accused of allowing “discrimination,” FAA barred airlines from using CAPPS to identify passengers who should be searched and questioned. Nine of the 9/11 hijackers had been flagged by CAPPS, but none were searched at the checkpoints.
Thus, if any party should be sued for damages over the destruction of the World Trade Center, it should be the FAA. That agency failed to provide standards for passenger screening companies, like those that were in place at the time at numerous European airports that use certified security firms for screening. And it prevented airlines from using a tool that could have stopped at least nine of the hijackers from boarding the flights in question.
The WTC tenants’ suit against the airlines is completely wrong-headed and should have been dismissed. And if there is any justice in the world, the court will find that there is no cause to hold the airlines responsible for the 9/11 tragedy.