Legal Issues in Aviation Security - Essay Example

Aviation Security 1. Introduction The right to travel is a part of the "liberty" of which the citizen cannot be deprived without due process of law under the Fifth Amendment ..... -- Justice William O. Douglas, Kent v. Dulles (1958) Every citizen has a right to exercise his liberty but definitely not at the cost of others. When certain unpatriotic citizens take it upon themselves to infringe on these benefits given to them, then necessary action has to be taken against them. In this study we are going to examine how Aviation Security plays its role in the securing the safety of life and property of its citizens. Aviation security is that branch of Science that deals with the unlawful interference in the field of international civil aviation. In this study, the various aspects of Aviation Security is going to be examined and analyzed in order to give us a clear perception of the existing situation which would in turn help us to find safer methods of air travel. The modern day trend which is presently used has only proved marginally effective. This is solely due to the fact that only the existing values pertaining to International law have been nurtured but yet perceived with a restrictive vision through the lens of air law. Aviation Security is making all efforts to critically analyze the legal and regulatory issues in the field of civil aviation and providing us with improved methods by implementing new approaches to solving the various problems of unlawful interference. In lieu of this, Aviation Security has established a new philosophy with regard to international criminal law that transcends all municipal boundaries. The regulatory authority that is responsible for the area of civil aviation is the ICAO – International Civil Aviation Organization that has encouraged new approaches from the international community. This book, with all its legal laws, principles and recommendations is invaluable and indispensable not only to national and international aviation and criminal lawyers, security professionals, students and teachers of international law but also to the whole industry of aviation. In this context of international law the United Nations has made great strides to totally discourage people who try to use aviation transport as a means to carry out, commit or evade criminal activity or acts involving terrorism. This form of transportation seems to attract offenders who yearn to enjoy their twenty minutes of fame, to use it as a means of carrying out their terrorist activities and also as a means of escape. This is especially evident in certain groups of people who do not live in a country with a defined border and who try to carry out a hijacking or bombing. 2. Security Starts at Home (Air Carriers) Chap. 2 Safety at all times is the important keyword to be followed and more so when it deals with the lives and property of other people. Therefore in order to uphold the tenets of safety, it should begin from home. Important security directives were issued from the Department of Homeland Security’s Transportation Security Administration (TSA) for all international and domestic air carriers with regard to cargo safety procedures. TSA personnel have the duty of ensuring that the carriers conduct random inspections on cargo – carrying Passenger aircraft for foreign as well as domestic planes. In addition to this the TSA will also detail important screening procedures for all the foreign all- cargo carriers that operate within and outside of the United States. The TSA has also enforced other security procedures such as verifying the identity of people having access to aircraft, ensuring complete safety for aircraft that are parked and also reporting requirements necessary for foreign air carriers in case of any potential threats. One of TSA’s programs is the “Known Shipper Program” which prohibits or prevents all air carriers from permitting cargo from shippers who do not meet the TSA’s Known Shipper requirements. The Known Shipper Automated Database and Indirect Air Carrier Database allows the TSA access to faster information about all people desiring to ship their cargo aboard any passenger aircraft. The TSA is working in close tandem with Customs and Border Protection to improve the existing technology. Research is being carried out for the development and incorporation of the latest technology and finding solutions for improving inspection protocols. Pilot programs utilizing canines teams for the inspection of mail and cargo is being undertaken by the TSA. The strategic plans of the TSA focuses on securing high standards of security, facilities, equipment and also its aviation personnel and strives to make both flying and shipping extremely safe. Countries without borders: Terrorism: The problems we face today are more global than personal such as reducing the CO2 in the atmosphere that is causing the rising global warming and its adverse effect on change in weather, the ever widening gap between the rich and the poor and to top it all is the distasteful problem of terrorism. In order to tackle these problems we have to be first of all broad minded and view these problems from a much broader perspective sparing us the consequences of shortsightedness. Speaking about identification, it does not matter what color, caste or creed we belong to, what religion we follow or what are our likes and dislikes. What really matters is the country to which we belong. We are identified by the land which has or does not have a border. Each country is a geographical entity in itself and is identified by its border. Countries with their own boundaries are safer than countries without boundaries. If a place does not have a boundary it easily attracts terrorists and their nefarious activities. Such countries pose a threat to all the other countries around by breaching safety codes because of their selfish and narrow interests. In order to counter these problems it is very necessary to look beyond our national borders and cooperate with one another in solving issues on terrorism. According to military parlance The Global War of Terrorism (GWOT) needs to deploy US forces all around the world if they have to put a stop to terrorism. According to Vice President Cheney (2005) the duty which is undertaken by the US government is quite laborious and long drawn and needs a lot of patient effort. The US will undertake to execute military action against all “failed states” and “unstable nations” which do not pose any foreseen threat to the security of the United States of America. (National Security Strategy, 2005) According to Mr. Cheney’s speech, the US military has drawn up its agenda to – Fight against terrorism and to protect the “civilized world” against terrorism not only against America but also against other civilized countries. Promote democracy encouraging the contribution of other nations to join the fight to put an end to terrorism. Spread reforms concerning free market worldwide in order to encourage the idea of democracy, tolerance and how to overcome violence thus paving the way to encourage nations on the path to peace and prosperity. According to statistics taken, the terrorist attacks across the globe in the period of 1968 – 2003 averaged around 400 a year. In 1998 it peaked at 665 and had a low dip of 125 in 1968. Unlike criminals, terrorists indiscriminately kill and destroy life and property In 1968 to 1973, the average of casualties per attack was 1.2 and the average for 1974 to 1993 was reported doubled. From the year 1994 to 2003, the average is shown to have tripled. These results show that terrorists keep resorting to more spectacular methods, to attract more attention to their nefarious causes. The United States don’t mind bearing the massive costs in order to suppress international terrorism. Countering terrorism is by no means an easy task. For example, if national borders are made less permeable, it would not only restrict the migration of harmful human traffic and harmful goods, but it would also slow down the migration of good trade and human flow. A good example of this would be the shutting down of the US border – land, air and sea soon after the 9/11 attacks. This policy aimed at restricting flow of people and goods at the border by making it less permeable for ““terrorists, weapons of mass destruction, illegal migrants, contraband, and other unlawful commodities” (White House 2002). Most countries without borders invite terrorism and as such the situation warrants the US to bear the large costs that accompany the hardening of borders by enforcing it unilaterally by exerting pressure on the other members to help tighten up their security around their borders. The second is that terrorists will readjust their strategy after the hardening of the U.S. border and will substitute softer targets and countries with less secure borders for harder targets and countries with more secure borders (Sandler et al. 1983). Enders and Sandler (2003) Therefore a unilateral stance would not be the solution. On the other hand a multilateral stance would prove a better option when taking into consideration other huge industrial democracies. Though countering terrorism would be expensive in terms of money and human capita yet in the long run it would prove to be beneficial to all the countries of the world. Technology and Travel: Considering the threat posed by terrorists and their activities considerable steps are being taken to improve the area of aviation security. Terrorist activities advance with the advancement of technology. The more sophisticated the technology, the more sophisticated are the acts of terrorism. Hence it is inevitable that technology has to be improved to such an extent that it would make it impossible to penetrate. In accordance with the advancement of technology, it becomes imperative to emphasize on good training facilities for Aviation personnel. These areas would include personnel for airport screeners, for checking luggage for bombs and other weapons, enhancing the doors of the cockpit, employing air – marshals on board the flights and employ round the clock well trained security guards. The efforts taken in this direction would help to identify the harmless passengers from the “bad guys”. The Federal Aviation Administration (FAA) (EPIC, pg. 19219) had drawn up a secret agenda in its prior response to threats against security by which the airlines were permitted to make demands for photo identification and also initiated a new system of profiling called CAPPS (Computer Assisted Passenger Pre- screening System) Another new proposal is being advocated and that is to use biometric credentials for all the "trusted travelers" around the globe. Extensive data of a person’s criminal record, credit history and their travel patterns would be thoroughly checked and only then approved for this status. However, there is no guarantee that terrorists would not go to great lengths to procure such a card. That is why John Magaw, who was the Former Transportation Security Agency chief bluntly refuted the idea, on the grounds that this would be main item any terrorist would like to procure. Technology has advanced so much that NASA has proposed using "non-invasive neuro-electric sensors" or brain scans to check people with suspicious thoughts at the security gate. According to a report on CNN, the Federal Government of the US is considering using cameras on board the aircraft to monitor airplanes. Boeing has initiated developing a satellite system that would permit the installation of video cameras which are capable from being monitored from the base. The reason for these cameras is that terrorist acts could be indicated and thwarted while in air. The plan is still in the research and testing stage and would be implemented after everything is completed and checked. The aim of all these hi-tech proposals is to mostly rely on technology to decrease the “fear factor” while reducing security threats. The primary idea is to focus or zero in on suspicious characters while not inconveniencing the other passengers due to heightened security. The new profiling and identification systems would create airports and airplanes into hot spots for nabbing and arresting such criminals. General Aviation: General Aviation is a security threat of a different order. Ever since terrorist activities had become the order of the day, the scales have tipped in the opposite direction. Formerly the overall emphasis lay on treating the consumer with the best hospitality and courteousness, but now the safety and security of passengers seem to be the highlight of air flying ceremonies. General aviation accounts for three-quarters of all aircraft that take off and land in the United States. These aircraft encompass a wide range of flight operations at nearly 191,000 general aviation airports nationwide.1 General aviation includes recreational flying or in other words flying for pleasure and not business purposes. The other categories of general aviation include aerial advertising, medical services, aerial mapping and photography and aerial application of seeds and chemicals.2 In response to the attacks made by terrorists, the AAA has rendered yeoman service in making every effort to bring stability to the Aviation industry by overhauling every aspect of airport security. To improve safety measures further, the AAA has advocated the following steps to be taken – By strengthening the oversight and accountability of the Federal government. By implementing stringent security procedures equally across all nations. By securing sufficient funds to help in implementing new security measures. By providing access to consumers on gaining information about security procedures and the existing airline policies. By ensuring the efficient and free flow of passengers, luggage and cargo to the best limit possible in compliance with security measures. According to the GAO report submitted to the chairman, the Federal Intelligence agencies reported how in the past how terrorists contemplated making use of the General Aviation Aircraft for their terrorist activities. For example the terrorists of the Sept. 11th attack also took their training from the flight schools of general aviation in Florida, Arizona and Minnesota. Therefore the question arises as to what precautions or action has the Federal Government taken in order to identify or counter these threats. Other question raised to the GAO were what steps are the Federal Government taken in order to strengthen security measures in general aviation and the steps the non- federal stakeholders have utilized to enhance or increase the security measures of General Aviation. The GAO on the other hand made recommendations for the Transportation Security Administration (TSA) to implement a plan for risk management to strengthen the security of General Aviation. It also recommended that Federal Aviation Administration (FAA) that a documented process should be implemented to revalidate restrictions for flight. Though the TSA and the FAA have taken necessary measures to address these issues on guidance and safety such as backgrounds study of foreign candidates enrolling in flight schools in the US, yet they face tremendous challenges in enhancing security still further. After the September 11th attacks, the general aviation industry had teamed up with TSA and formed a Security Advisory Committee which “3helped develop security guidelines for general aviation airports based on industry best practices.” 3 General Aviation Airports were also given security guidelines to be strictly followed by security personnel. In addition to this the TSA, FAA and other Federal agencies have introduced airspace restrictions over specific landmarks during special events for indefinite periods of time. However, limitations of these procedures and policies have not been reviewed or revalidated and hence could negatively impact on the general aviation industry. General Aviation stake- holders (Non-federal) have tied up with the Federal Government in enhancing general aviation security such as the Airport Watch Program4. State Governments have contributed by providing funds for the enhancement of security for all general aviation airports and airport operators and also installing fences and increasing the number of police patrols. Recommendations are being made to the Department of Homeland Security to address the necessary challenges in order to enhance the general aviation operations. Some of these recommendations are – 1) to conduct a fool- proof assessment on the possibility of misusing the general aviation aircraft. 2) Information on terrorist threat to be better communicated. 3) Removing security risks to general aviation operations. Recommendations have also been made to the Department of Transportation to make sure that the restrictions for temporary flights for indefinite time periods be reviewed and appropriately applied. Terrorism comes in different forms and have different targets. It could be a bombing, a hijacking, exploitation, blackmail or hostage – taking. Terrorism can take place on land, sea or air. But all said and done a larger target would mean a greater success for a terrorist plan. Yes, larger planes are bigger targets for terrorists. It would mean greater loss to life and property. Because of the increased threat to both life and property and threat to Civil Aviation Security, the Bomb Detection and Bomb Disposal Squads (BDDS) have been equipped with more sophisticated equipment to meet the increasing challenge. Besides fully trained and well equipped bomb squads, sniffer dogs have been trained and deployed to sniff out explosive objects and drugs. These dogs are not capable of working very long hours and so have to be replaced by the next group. These dogs are so faithful to their duty and many of them have served with their lives. Conclusion Wagons, Trains and now Planes. Though threats to transportation have been met with increased security and advancement made in technology throughout history, yet there always seems to be a scope for improvement. Our Government, together with both private and public sectors are well on their way to finding fool – proof methods to ensure public safety of life and property and also safety to aircraft and all their personnel. With the passage of the Aviation and Transportation Security Act, the U.S. has placed new emphasis on aviation security. Is it enough that the U.S. has enacted key legislation to combat the threat? Measures such as this ensure safety on a limited scale but will do little justice in influencing the unlawful interference of terrorists and terrorist acts with international civil aviation. The need of the hour is a “working together” approach, recommending measures that are effective in dealing with the root cause of the problem. A renewed emphasis on actions which may be taken to alleviate the problem of unlawful interference is in order. International law is the tool and the concern is with those that wield the tool. Is it possible to gain a consensus between nations? Can steps be taken towards achieving this objective or will it be mired with personal agendas? The questions lie with us and so do the answers. It is not up to just one or two of us to bring about a radical change. The onus of the problem lies on the shoulders of each and every responsible citizen to take it upon himself to bring about a safe, peaceful and harmonious change that would help us look fear in the face and know that it is but harmless! Bibliography Aviation Security/ Legal and Regulatory Aspects http://www.abeyratne.com/index.html Air Travel Privacy. www.epic.org/privacy/airtravel AAA Exchange www.aaapublicaffairs.com/Main/Default.asp?CategoryID=4&SubCategoryID=10 All Eyes on You in the Sky – Safety, Security and Surveillance in Air. www.airtravel.about.com/cs/safetysecurity/a/cameras.htm Countries without Borders. www.huffingtonpost.com/ron-dembo/countries-without-borders_b_48802.html DEPARTMENT OF TRANSPORTATION   Federal Aviation Administration 14 CFR Part 108   [Docket No. FAA-1999-5536; Notice No. 99-05] RIN 2120-AG51 PA Homeland Security: Transportation Security Administration. www.homelandsecurity.state.pa.us/homelandsecurity/cwp/view.asp? Sandler, Todd (2003). Collective Action and Transnational Terrorism. World Economy 26: 779- 802. Sandler, Todd, Tschirhart John T. and Jon Cauley (1983). A Theoretical Analysis of Transnational Terrorismm, The American Political Science Review 77: 36-77. The White House, Office of the Press Secretary (2002), “Securing America’s Borders Fact Sheet: Border Security”, January 25. Available at (http://www.whitehouse.gov/news/releases/2002/01/20020125.html. War without Borders www.infowars.com/articles/terror/war_without_borders_continuous_gwot.htm Read More