SCATHING REPORT ON AIR MARSHALS REVIEWED BY HOUSE JUDICIARY

By Diane M. Grassi

“The attitude of this agency stinks…..This report should have come out a year ago had we gotten even minimal cooperation…….” No, this was not a criticism of the Federal Emergency Management Agency (FEMA) concerning the impending hurricane season. But it is in fact a quote by Congressman James Sensenbrenner (R-WI) referring to another agency, the Federal Air Marshal Service (FAMS), which is also under the authority of the Department of Homeland Security (DHS). FAMS directly reports to the Transportation Security Agency (TSA) also under the DHS. It has not always been that way, however. But things changed after September 11, 2001.

The Federal Air Marshal Service began in 1968 under the auspices of the Federal Aviation Administration (FAA) and known as the Sky Marshal Program. Its job was to prevent hijackings. The program expanded in 1985 under President Ronald Reagan when the U.S. Congress enacted the International Security and Development Cooperation Act, providing the statutes carried out by the FAMS today. By 1987, there were 400 Federal Air Marshals. But by September 10, 2001 the FAMS had dwindled down to a mere 33.

Following the 9/11 attacks on the U.S., President George Bush called for an immediate expansion of the FAMS, and under the Homeland Security Act of 2002, FAMS was transferred from the FAA to the DHS under its division of Immigration and Customs Enforcement (ICE). In late 2005, Secretary of DHS, Michael Chertoff, yet again shifted FAMS to be under the direct authority of the TSA. Although classified information, it is estimated that the number of Federal Air Marshal personnel now totals somewhere between 3,000 and 5,000.

Now, a draft report based upon a two-year investigation of the FAMS, at the request of the Congressional House Judiciary Committee, will be publicly released on May 25, 2006 and discussed by the Judiciary Committee as to the report’s proposed policy and management recommendations. House Judiciary Committee Chairman James Sensenbrenner (R-WI) has read the report and has been candid about his initial impressions of it.

Yet the report’s acting title: "Plane Clothes: Lack of Anonymity at the Federal Air Marshal Service Compromises Aviation and National Security,” while self-explanatory does not tell the entire story. Numerous administrative miscues in the FAMS program are exposed, along with the treatment of its air marshals, some of whom were retaliated against for cooperating with the Judiciary Committee investigation. Both are expected to be addressed by the Congress.

Most glaring in the report, according to Frederic J. Frommer of the Associated Press, who got an advanced copy of the draft report, are the changes in dress code mandated by the FAMS after arriving at the DHS. Air marshals immediately became more easily identifiable at airports and aboard aircraft. Required to wear khakis or dress slacks and sports jackets for the men and skirts or dresses for women with no jeans or athletic shoes allowed, became an immediate tip-off as most air travelers dress far more casually.

FAMS also requires marshals upon check-in for flights to identify themselves as air marshals in front of waiting passengers and requiring them to board the aircraft prior to passengers by not going through security as do other passengers. They are then accompanied by airline flight attendants to board the aircraft, as they are not allowed to be on board without a crewmember present according to the airlines.

Additionally, air marshals are required to sit in aisle seats, but only near the front of the aircraft. They must repeatedly stay in the same hotels within short distance of airports and provide their FAMS identification to hotel personnel in order to pay for their rooms as they are not issued separate ID’s as promised the FAMS, strictly for such purposes. Ultimately, the air marshals’ covers are able to be breached in numerous ways.

Further to the lack of anonymity of Federal Air Marshals being challenged, is the lack of whistleblower protection also documented in the report. The FAMS retaliated against Federal Air Marshal Frank Terreri for when he initially voiced his concern to a fellow air marshal via e-mail regarding a published article in People Magazine in 2004, which disclosed details of operations within the FAMS. Terreri was relegated to desk duty, put under investigation and gagged by the FAMS for a year.

Equally alarming according to the Federal Bureau of Investigation (FBI) after hearing from not only Terreri but hundreds of other air marshals is the double standard of leaking operational procedures by the FAMS to major news outlets such as FOX, CNN, NBC and ABC. All have aired various segments over the past two years detailing FAMS operational procedures, and thus indirectly acquainting terrorists with such data.

Terreri filed a lawsuit in April 2005 against the DHS, TSA and FAMS on constitutional grounds of the violation of free speech. The lawsuit was settled with the ACLU of Southern California on behalf of Terreri in April 2006. In the settlement the DHS, TSA and FAMS agreed to e-mail all personnel of changes they would make in clarifying the FAMS policy on what air marshals may say publicly on legitimate concerns for the protection of the FAMS and its personnel.

But that is not enough for Frank Terreri. He petitioned the Office of Special Counsel in April 2006 to investigate his remaining problems with the FAMS, which are reiterated in the House Judiciary report. Terreri alleges “gross mismanagement, abuse of authority, violations of law and substantial threat to air safety, created by repeated disclosures of operation tactics and FAMS policies that compromise the identity of individual air marshals.”

Terreri is also an advocate for amending the Whistleblower Protection Act of 1989, last amended in 1994. S.494 and H.R.1317 are amendments which have remained in limbo for years in both the Senate and the House. S.494 would ensure protection for whistleblowers called upon by Congress to testify before oversight committees and H.R.1317 would allow whistleblowers the right to jury trials comparable to those in the private corporate sector. Both amendments otherwise share similar enforcements.

For example, during the course of the House investigation, a Federal Air Marshal special agent in charge of the FAMS Atlanta office, was pulled from his post when it was learned that he had cooperated with the House Judiciary investigation. And thus, the report includes criticism and states, “Disciplinary procedures…on their surface, can be characterized as unfair and even retaliatory.” Congressman Sensenbrenner hopes that the FAMS “will at least be a little bit more compliant with the law and whistleblowers, rather than trying to shut them up.”

With the formation of the DHS in 2002 which comprises 22 different agencies, the learning curve for crucial areas of law enforcement and emergency services still thrives. The question is whether such a brash and immediate turnover of agencies and personnel after 9/11 will continue to haunt a number of services such as the FAMS and FEMA. FEMA Director Michael Brown resigned on September 12, 2005, two weeks after Hurricane Katrina hit the Gulf Coast. On February 3, 2006 Thomas Quinn, Director of FAMS, did the same.

Leadership apparently is flailing at the DHS at a time when it can least be afforded. Layers of bureaucracy appear to impede policy and direction including clear and two-way communication within its ranks and within the FAMS and the oversight by the TSA. And since 9/11, the FAMS has both changed and absorbed another bureaucratic layer, within a behemoth framework known as the DHS.

But upon release of this latest Congressional report it will be up to the American flying public to voice their concerns. After all, with air cargo holds remaining uninspected, TSA screeners recently failing tests for both weapons and bomb materials allowed through security points and hearing that identification of air marshals is continually at risk, should not sit well with flyers. As Sensenbrenner admits about the report, “I think the American public will be shocked.”