SPEAKERS CONTENTS INSERTS
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PROFILING FOR PUBLIC SAFETY: RATIONAL OR RACIST?
TRANSPORTATION AND INFRASTRUCTURE
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HOUSE OF REPRESENTATIVES
ONE HUNDRED SEVENTH CONGRESS
FEBRUARY 27, 2002
Printed for the use of the
Committee on Transportation and Infrastructure
COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE
DON YOUNG, Alaska, Chairman
THOMAS E. PETRI, Wisconsin, Vice-Chair
SHERWOOD L. BOEHLERT, New York
HOWARD COBLE, North Carolina
JOHN J. DUNCAN, Jr., Tennessee
WAYNE T. GILCHREST, Maryland
STEPHEN HORN, California
Page 3 PREV PAGE TOP OF DOCJOHN L. MICA, Florida
JACK QUINN, New York
VERNON J. EHLERS, Michigan
SPENCER BACHUS, Alabama
STEVEN C. LaTOURETTE, Ohio
SUE W. KELLY, New York
RICHARD H. BAKER, Louisiana
ROBERT W. NEY, Ohio
JOHN R. THUNE, South Dakota
FRANK A. LoBIONDO, New Jersey
JERRY MORAN, Kansas
RICHARD W. POMBO, California
JIM DeMINT, South Carolina
DOUG BEREUTER, Nebraska
MICHAEL K. SIMPSON, Idaho
JOHNNY ISAKSON, Georgia
ROBIN HAYES, North Carolina
ROB SIMMONS, Connecticut
MIKE ROGERS, Michigan
SHELLEY MOORE CAPITO, West Virginia
MARK STEVEN KIRK, Illinois
HENRY E, BROWN, Jr., South Carolina
TIMOTHY V. JOHNSON, Illinois
BRIAN D. KERNS, Indiana
DENNIS R. REHBERG, Montana
Page 4 PREV PAGE TOP OF DOCTODD RUSSELL PLATTS, Pennsylvania
MIKE FERGUSON, New Jersey
SAM GRAVES, Missouri
C.L. (BUTCH) OTTER, Idaho
MARK R. KENNEDY, Minnesota
JOHN ABNEY CULBERSON, Texas
BILL SHUSTER, Pennsylvania
JOHN BOOZMAN, Arkansas
JOHN SULLIVAN, Oklahoma
JAMES L. OBERSTAR, Minnesota
NICK J. RAHALL II, West Virginia
ROBERT A. BORSKI, Pennsylvania
WILLIAM O. LIPINSKI, Illinois
PETER A. DeFAZIO, Oregon
BOB CLEMENT, Tennessee
JERRY F. COSTELLO, Illinois
ELEANOR HOLMES NORTON, District of Columbia
JERROLD NADLER, New York
ROBERT MENENDEZ, New Jersey
CORRINE BROWN, Florida
JAMES A. BARCIA, Michigan
BOB FILNER, California
EDDIE BERNICE JOHNSON, Texas
FRANK MASCARA, Pennsylvania
Page 5 PREV PAGE TOP OF DOCGENE TAYLOR, Mississippi
JUANITA MILLENDER-McDONALD, California
ELIJAH E. CUMMINGS, Maryland
EARL BLUMENAUER, Oregon
MAX SANDLIN, Texas
ELLEN O. TAUSCHER, California
BILL PASCRELL, JR., New Jersey
LEONARD L. BOSWELL, Iowa
TIM HOLDEN, Pennsylvania
NICK LAMPSON, Texas
JOHN ELIAS BALDACCI, Maine
MARION BERRY, Arkansas
BRIAN BAIRD, Washington
SHELLEY BERKLEY, Nevada
BRAD CARSON, Oklahoma
JIM MATHESON, Utah
MICHAEL M. HONDA, California
RICK LARSEN, Washington
MICHAEL E. CAPUANO, Massachusetts
SUBCOMMITTEE ON AVIATION
Page 6 PREV PAGE TOP OF DOCJOHN L. MICA, Florida, Chairman
THOMAS E. PETRI, Wisconsin
JOHN J. DUNCAN, Jr., Tennessee
STEPHEN HORN, California
JACK QUINN, New York
VERNON J. EHLERS, Michigan
SPENCER BACHUS, Alabama
SUE W. KELLY, New York
RICHARD H. BAKER, Louisiana
JOHN R. THUNE, South Dakota
FRANK A. LoBIONDO, New Jersey
JERRY MORAN, Kansas
MICHAEL K. SIMPSON, Idaho
JOHNNY ISAKSON, Georgia
ROBIN HAYES, North Carolina,Vice Chairman
MARK STEVEN KIRK, Illinois
TIMOTHY V. JOHNSON, Illinois
DENNIS R. REHBERG, Montana
SAM GRAVES, Missouri
MARK R. KENNEDY, Minnesota
JOHN ABNEY CULBERSON, Texas
BUD SHUSTER, Pennsylvania
JOHN BOOZMAN, Arkansas
JOHN SULLIVAN, Oklahoma
Page 7 PREV PAGE TOP OF DOCDON YOUNG, Alaska
WILLIAM O. LIPINSKI, Illinois
ELEANOR HOLMES NORTON, District of Columbia
EDDIE BERNICE JOHNSON, Texas
LEONARD L. BOSWELL, Iowa
JOHN ELIAS BALDACCI, Maine
PETER A. DeFAZIO, Oregon
JERRY F. COSTELLO, Illinois
ROBERT MENENDEZ, New Jersey
CORRINE BROWN, Florida
JUANITA MILLENDER-McDONALD, California
MAX SANDLIN, Texas
ELLEN O. TAUSCHER, California
BILL PASCRELL, JR., New Jersey
TIM HOLDEN, Pennsylvania
NICK LAMPSON, Texas
SHELLEY BERKLEY, Nevada
BRAD CARSON, Oklahoma
JIM MATHESON, Utah
MICHAEL M. HONDA, California
NICK J. RAHALL II, West Virginia
JAMES L. OBERSTAR, Minnesota
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Corrigan, Katie, Legislative Counsel, American Civil Liberties Union (ACLU), Washington National Office, accompanied by Rachel King, Legislative Counsel, ACLU
Ron, Rafi, Chief Executive Officer, New Age Technology, Ltd., former Security Director at Ben-Gurion Airport
Turley, Professor Jonathan, Shapiro Professor of Public Interest Law, George Washington University Law School
PREPARED STATEMENTS SUBMITTED BY MEMBERS OF CONGRESS
Berkley, Hon. Shelley, of Nevada
Costello, Hon. Jerry F, of Illinois
Millender-McDonald, Hon. Juanita, of California
Oberstar, Hon. James L., of Minnesota
PREPARED STATEMENTS SUBMITTED BY WITNESSES
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Kinton, Thomas J., Jr.
Turley, Professor Jonathan
ADDITIONS TO THE RECORD
U.S. Department of Transportation, memo, DOT Announces Action on Airline Security and Discrimination, October 1, 1997
U.S. Department of Justice, memo, Justice Department Review of FAA Passenger Screening Proposal Concludes it Won't Discriminate Against Airline Travelers, October 1, 1997
Office of the Attorney General Janet Reno, letter and report to Hon. Rodney Slater, Secretary of Transportation, October 1, 1997
Stratcom, John Almash, letter to Rep. Mica on improving airport security through profiling
PROFILING FOR PUBLIC SAFETY: RATIONAL OR RACIST?
Wednesday, February 27, 2002
Page 10 PREV PAGE TOP OF DOCHouse of Representatives, Committee on Transportation and Infrastructure, Subcommittee on Aviation, Washington, D.C.
The subcommittee met, pursuant to call, at 9:40 a.m. in room 2167, Rayburn House Office Building, Hon. John L. Mica [chairman of the subcommittee] presiding.
Mr. MICA. Good morning. I would like to call this hearing of the House Aviation Subcommittee to order. I apologize for the late start. I had a couple of groups from my district. When it comes between witnesses for the subcommittee or people from my district, you all have to wait.
This morning's hearing will focus on an important issue that we are concerned about in aviation security. That is the issue of profiling for public safety.
We have three witnesses, I believe. The order of business this morning will be first opening statements by Members and then we will proceed with the three witnesses. Today we will continue our oversight of the Aviation and Transportation Security Act. We have already held two hearings on this subject since the legislation passed last November. Both of those hearings focused on the screening of checked baggage.
The Department of Transportation and the new Transportation Security Administration have basically done a good job in meeting the aggressive deadlines that we set forth in the law. Checked baggage was being screened within 60 days of enactment, as required by our new law. The administration took over the screening contracts as also mandated in the new law within 90 days.
Of course, one of the toughest deadlines, screening all checked baggage with explosive detection equipment by the end of this year is still ahead of us. But on the whole I believe this administration has done its best to comply with both the intent, spirit and implementation requirements of the new act.
Page 11 PREV PAGE TOP OF DOC While most of the American public that has flown since 9/11 has been willing to put up with delays, personal searches and increased security procedures, we need to carefully examine alternative screening measures for the future.
I woke up this morning and my wife turned on the television. The first story on the television was, I believe, of an 86-year old veteran, Congressional Medal of Honor winner who, I guess, had his medals taken from him, a likely potential suspect of terrorist activity.
But somehow we need to do a better job in this whole process of screening and also profiling potential terrorists. We continue to hear complaints about passengers who seem to get selected for additional screening and some of those who are selected, it makes absolutely no sense.
Security experts tell us that we should focus more on people and not on things. Our current profiling system is based on a computer program that was developed several years ago. The Department of Justice has reviewed this program and concluded that it does not discriminate on the basis of race, religion or national origin.
However, as far as I know, nobody has looked at this program recently to determine whether it makes any sense. Recently, it was reported, as I stated a few minutes ago, that a Medal of Honor winner was singled out for screening. At some point, somebody has to look at this whole system and see how we can improve it. If you spend time at any airport, you will see the elderly, children and the disabled also being selected by the computer profile. Does this make sense?
While we can take comfort in the fact that the computer is not discriminating, what people really want in security screening is a process that has a little bit of common sense. Sometimes it seems like the screeners are barred from selecting anyone who actually looks like a possible terrorist.
Page 12 PREV PAGE TOP OF DOC I am concerned that political correctness may be stifling the development of a good profiling system that will in fact enhance the safety and security of our traveling public and commercial aviation.
I believe profiling, if properly done, can enhance aviation security, but I am concerned that as it is currently employed it is undermining public confidence in our security system.
Israel, which is viewed as having the best security, employs profiling. We had a chance as a subcommittee to visit several countries in Europe that also use profiling. I thought some of it was done very effectively.
We are pleased today to have the former Director of Security at Ben-Gurion Airport, Mr. Raphael Ron, who perhaps can tell us how we can take a better approach and possibly do it all right. I thank Mr. Ron for joining us today. We look forward to benefiting from his expertise.
I also want to thank Professor Turley and the ACLU for agreeing to testify today. It is important that we hear the viewpoint of those who are concerned about how the profiling is conducted and maintaining civil rights and liberties.
We feel that these individuals can shed some light on the difficult legal issues involved in passenger profiling. Again, I am grateful for all of our witnesses. I thank you for participating today.
At this time, I would like to recognize our Ranking Member of the subcommittee, Mr. Lipinski.
Mr. LIPINSKI. Thank you, Mr. Chairman. Thank you for holding this hearing today aviation security and passenger profiling. I also want to thank our witnesses for being here today. I certainly appreciate your presence.
Frankly, passenger profiling is a very complicated issue. No one disputes the need to have some kind of profiling in order to stop terrorism or at the very least deter terrorists from completing their fatal objectives. But the dispute about how to profile, especially by race or color, is a highly combustible topic.
Page 13 PREV PAGE TOP OF DOC Currently, race or color is not a factor that's used to determine who gets searched. As we will hear today, the CAPPS System is colorblind. But is the CAPPS system so sterile that it has no positive effect? Hopefully, our witnesses will give their opinions on that subject. I believe that passenger profiling at the airport should not be the sole means of protecting our flying public from would-be terrorists.
Our intelligence apparatus needs to do a better job of communicating the pending terrorist threats to airport security and we need to utilize passenger profiling in conjunction with information received from our intelligence community.
Again, thank you, Mr. Chairman, for holding this hearing today. I thank the witnesses for being here. I look forward to their testimony. I yield back the balance of my time.
Mr. MICA. I thank the gentlemen.
Mr. Horn, did you have a statement?
Mr. HORN. Thank you, Mr. Chairman. This is indeed an immensely important hearing. Political correctness should not be the focal point. We ought to have every possible person go through that focus of checking them. I have listened to a lot of people who say one thing in the United States and then get on radio in the Middle East and do exactly the opposite.
I must say, having seen a lot of good friends who want to get their positions done, but sometimes we have a lot of hypocrisy. I hope as this develops that we should not do it on a one percent, two percent, ten percent, whatever. We need to do something that a good inspector would say, ''No, let's check this person out.'' I have been checked out many times in airlines. They thought that something, either too much metal in me or whatever, and that doesn't bother me. IF they are going to yell and screech on the people that are very suspect, we ought to do that and, as I say, not follow the political correctness of some of our people in the United States.
Page 14 PREV PAGE TOP OF DOC Thank you, Mr. Chairman.
Mr. MICA. Mr. DeFazio?
Mr. DEFAZIO. Thank you, Mr. Chairman. I believe the Chairman and the Ranking Member both made excellent points about the current system. I have extraordinary concerns that we are doing something that lacks an element of common sense and perhaps actually any real elements of efficacy.
I fly a couple of hundred thousand miles a year, 30 round trips across the country. I have seen the elderly women hoisted out of their wheel chairs. Now granted, a terrorist could have disguised themselves as an elderly woman and we should ascertain that they really are 87-year old women in wheel chairs or disabled.
But then going beyond that, to turn all the resources of those searchers at the gate on to that woman while other people are trotting past does not make a lot of sense to me. I fear that in an effort to reach the ultimate in political correctness we have established a system that is not getting the job done and we are going to have to, I believe, this committee needs to focus and get people focused on what the airlines are doing.
It is a dumb database. It doesn't relate to anything. It doesn't relate to criminal records. It doesn't relate to other databases at all. We have to move as quickly as possible to a real system that actually is a relational database that goes to other databases and knows something about a person. Because it is not too hard to figure out the criteria. Some of it has been published. It has been published and some of the terrorists actually had maybe figured it out since they become frequent flyer club members who apparently might be less likely to be selected, according to published reports.
But then, God forbid, you buy a one-way segment on any flight because you will be searched and you will be profiled. Now, it wouldn't be too hard for someone to work in a team. You know on my weekly flight where I buy a one-way segment with one airline, part of a round-trip ticket, I am always searched. My constituents find it amusing. I find it irritating. But it goes on every week.
Page 15 PREV PAGE TOP OF DOC Now, if I was working as a team of terrorists, I would be the next person in line behind the person who bought the one-way segment because those people would be very busy wanding the bottom of my bare feet, for whatever reason, and they would not select that person. They don't select anybody else.
What we are doing is sometimes abysmally stupid. We have let the airlines do it and we know how well they have done with security in the past. I think it is time that the Transportation Security Administration developed a meaningful system, which is not inappropriate in terms of people's constitutional rights, but is effective.
I hope that some direction comes out of this hearing to move us that way in the near future. Thank you, Mr. Chairman.
Mr. MICA. They.
The gentleman from Georgia, Mr. Isakson.
Mr. ISAKSON. Thank you, Mr. Chairman. Just to comment, I hope that everybody will recognize we have the luxury of holding this hearing today, some five months after September 11th. I hope as everybody asks questions and comments we will maybe put ourselves in the perspective that we had on September 17th or September 20th.
There has been an awful lot of criticism that I have heard of airline security, of inspectors, of the way in which people are pulled out to be searched and that becomes greater the more time that passes. But our job is to ensure to the maximum extent possible that 9/11 never happens again.
I don't like inconvenience any more than anybody else and I fly 40 or 50 round trips a year. My life is changed because of it. But I am also probably, maybe, alive today because we have had the type of inspections we have had since 9/11. So, I think all the issues that we are going to talk about in terms of profiling, in terms of selection, in terms of positive bag match, in terms of all the programs are important. I think we all understand their great inconveniences. But safety and security is the most important priority. I hope as we learn from all this testimony today we will keep in perspective what we went through, what our country went through five months ago and not let inconvenience override the best possible security that we can have for the people of the country that fly and travel.
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Mr. MICA. Thank you.
The gentlelady from the District, Ms. Norton.
Ms. NORTON. Thank you, Mr. Mica. Mr. Chairman, I think you begin a process of reforms and an important public service when we try to bring the subject of profiling, as it is called, into some kind of ordered definition and understanding. This is not a subject that should be left to talk shows or cocktail chat. This is a very serious matter. My major concern is that what we have in place is not effective, whether it is intrusive, I simply do not know. I have no information about it. I hope we get some beginning today.
I want to thank the witnesses for coming because I think we need to hear from people who have thought about this issue, particularly people who have had some experience, as this country has not. We, I think, have to come to grips today with the fact that we are inventing a new system for detecting people who may do harm on planes.
''Profiling'' is a word that has earned a bad name, largely from the clear use of racial profiling on the roads of the United States. That's perfectly clear. We are going to have to come to grips with that when the Transportation Bill comes before us in 2003.
Meanwhile, here comes the clear need to come to grips with a clear and present danger. How do you do it in an open and democratic society? That's what we have to come to grips with. We have to do it and to it effectively and we have to essentially keep the kind of open democratic society that respects constitutional rights. That's the whole reason we fight wars in the first place.
My concern is that the airlines each appear to have their own ''system,'' that is to say their own way of doing it. It appears to have been ad hoc, even internally, with large discretion left to employees. One still gets the impression that large discretion if left to employees. If it is not discretion, then it must be every tenth person or every 25th person because it's hard to see any analytical approach that would be effective in deterring dangerous people.
Page 17 PREV PAGE TOP OF DOC The reason that this becomes particularly important today is that we now have Federal government responsibility. That is a different kind of liability, ladies and gentlemen, because that means state action when an employee of the federal government engages in any action with respect to a passenger or a citizen.
If in fact discretion is still being used, if appearance is a major factor, then there's a problem. Frankly, during our briefing when we were considering our earlier bills, I was impressed with the Israeli experts. Above all, I think we need to have testimony from and question deeply experts from Europe and from the Middle East who have done this to see what parts, if any, of their systems comport with our values and our systems.
I don't like the fact that we seem to be inventing the wheel as if nobody had ever done it before. I don't know if what has been done before is applicable to what we should do. I do know, perhaps from my training as a lawyer that I want to look first at the precedents to see whether any of them are applicable, take what might in fact help us and throw out what doesn't comport with our values or our systems.
What impressed me about what the Israelis did was its analytical approach. It looks like we have a checklist approach. The people who had been doing it at Ben-Gurion Airport seemed to me, I'll tell you one thing, nobody gets through there. Yet that must be the highest place target in the world.
It was interesting if one listened to what they were doing to know that there was no easy explanation for what they were doing. The reason, as I listened to them, that I understood it, that there wasn't an easy explanation for what they were doing was engaging in an analytical process, unlike anything I saw in place here where people were looking for this or that in order to cue them to danger.
I am afraid it is not as simple as that. I hope this hearing helps us come to grips with what is really needed. I am going to be particularly interested in this hearing. I will have to be excused for a few minutes because of another commitment, but I'm going to come back and try to remain throughout this hearing.
Page 18 PREV PAGE TOP OF DOC Thanks once again to the Chairman for focusing on this important issue.
Mr. MICA. I thank the gentlelady.
The gentleman from Pennsylvania, Mr. Shuster. You have no statement?
The gentleman from New Jersey, Mr. Pascrell.
Mr. PASCRELL. Thank you, Mr. Chairman. I want to thank you and the Ranking Member for holding this hearing. I am very interested in hearing from the panelists. I come from a very diverse district in New Jersey, probably one of the most diverse in the country. There's a large Arab and Muslim community in my district and I certainly don't want to see them undergo unnecessary scrutiny.
I am looking at a list, Mr. Chairman, provided by the American Islamic Relations Committee concerning profiling that has existed in folks from many of the State in this great union.
We are at war in Afghanistan against terrorism to defend the constitution of the United States which I carry with me at all times. That constitution is either a meaningful document and we need not take recess from it or absent ourselves of the very specific principles. We had profiling going on at airports in the United States before September 11th. We had profiling going on with the coordination between the INS in many airports. We had it in Newark airport. In fact, until we went to the INS, until we went with the representatives of the community, this ended.
So, there was profiling going on before September 11th, that's picking out people because they look a certain way. It would seem to me that we need to deal more with behavior rather than how people look. We are in trouble when we do that.
I do want to hear from the security side and see what can be done. I know the state of the art. We have somebody here who is going to testify about that. But I want to concentrate more of folks' behavior rather than what they wear.
Page 19 PREV PAGE TOP OF DOC I don't believe that we should concentrate in trying to reduce the amount of inconvenience, Mr. Chairman. We have to go through inconvenience. Surrendering our records and having folks look through our belongings, to me, is a necessary activity at this time in terms of what has gone on. There's no objection to that.
What I do object to is that when we look at what other countries do and point to them as the models for security, we are a different country. We are a heterogeneous Nation. That brings very different circumstances because we have folks that look like everybody here, which is what we are all about.
We cannot dilute the constitution, nor should we dilute our commitment to its implementation. I do not accept any, under any consequence, ethnic or racial profiling. It cannot be defended under any circumstances. People's behavior should be the bottom line. I don't care what inconvenience we have to go through, all of us; no one privileged. But certainly no one selected because they look a certain way.
There is a balance that must be found between security concerns, privacy, and personal protections under this constitution.
Mr. Chairman, I look forward to hearing from the panel. Thank you.
Mr. MICA. I thank the gentleman.
The gentleman from Michigan, Mr. Ehlers.
Mr. EHLERS. Thank you, Mr. Chairman. I will be very brief. I don't support racial profiling or other types of profiling, but I think it is also very important to use common sense. I am amazed at the number of 87-year old grandmothers I see being submitted to a search when they scarcely even know what is going on. It is a waste of screeners' time. They have to use some common sense in deciding who should be selected for the screening process.
With that, I think we can move on to the hearing. Thank you.
Mr. MICA. I thank the gentleman. There are no further opening statements at this time. We were expecting a vote, but it looks like it may be delayed for a few minutes, so we will try to go ahead and get statements by our witnesses.
Page 20 PREV PAGE TOP OF DOC I would like to welcome Professor Jonathan Turley. He is a Shapiro Professor of Public Interest Law at the George Washington University Law School; Mr. Rafi Ron, he is Chief Executive Officer of New Age Technology, Limited. I am going to have him introduced in a minute by Mr. Thomas Kinton who is Director of Aviation and Acting CEO of the Massachusetts Port Authority; and Ms. Katie Corrigan, Legislative Counsel, the American Civil Liberties in the Washington Office. She is accompanied by Ms. Rachel King, Legislative Counsel for ACLU.
Mr. MICA. Let's go first to Professor Jonathan Turley from George Washington University Law School. We ask if you have a lengthy statement that it be submitted to the record through a request to the Chair and you try to summarize in about five minutes if possible. We don't have too many witnesses, but if you could try to limit your comments so we could engage in some dialogue with the witnesses.
So, first we will hear from Professor Jonathan Turley of George Washington University Law School. Welcome. You are recognized.
TESTIMONY OF PROFESSOR JOHATHAN TURLEY, SHAPIRO PROFESSOR OF PUBLIC INTEREST LAW, GEORGE WASHINGTON UNIVERSITY LAW SCHOOL; RAFI RON, CHIEF EXECUTIVE OFFICER, NEW AGE TECHNOLOGY, LTD., FORMER SECURITY DIRECTOR AT BEN-GURION AIRPORT; AND KATIE CORRIGAN, LEGISLATIVE COUNSEL, AMERICAN CIVIL LIBERTIES UNION [ACLU], WASHINGTON NATIONAL OFFICE, ACCOMPANIED BY: RACHEL KING, LEGISLATIVE COUNSEL, ACLU
Mr. TURLEY. Thank you, Mr. Chairman. It is an honor to be here at the Aviation Subcommittee to appear before you and the distinguished members of the subcommittee to talk about the constitutional policy implications of the use of passenger profiling. I know your time is limited, so I have also put in a longer statement as you indicated.
Page 21 PREV PAGE TOP OF DOC Mr. MICA. Without objection, your entire statement will be made part of the record. Please proceed.
Mr. TURLEY. Thank you, sir. As an academic, I enjoy the luxury of being able to discuss legal and constitutional implications of government programs without the burden of having to act on those recommendations. That burden is, of course, yours in a representative democracy.
However, I think that passenger profiling is a subject that could benefit greatly from a frank and good-faith discussion. The United States constitution is a unique document and it has been said that the United States constitution is not a suicide pact. We have a great asset in our constitutional system in that it was designed to adapt, to adapt to changing times, to adapt to emerging dangers. But the document that is grounded in practicality, the man who principally wrote that document, James Madison, did so with a frank appraisal of the national tendencies of people in power to expand and abuse authority.
So, if you look throughout the constitution, you will see a very common thread, that from the freedom of speech in the First Amendment to the search and seizure protections of the Fourth Amendment to the equal protections of the Fourteenth Amendment the court has often recognized a balancing of interest, that you have to look not just at those rights threatened, but the interests of the state as well.
Thank God we have a country that leans heavily toward the interests of the individual. That is what makes us unique as a people. Profiling, of course, has been the third rail of anti-terrorism legislation. I can certainly understand that it is inextricably linked with racial profiling.
As a long time critic of racial profiling, I can certainly understand the pejorative element of that term. But we need, first and foremost, to distinguish between profiling and racial profiling, because racial profiling is to the science of profiling as forced confessions are to the science or art of interrogation.
Page 22 PREV PAGE TOP OF DOC It is a veneer to give the appearance of objectivity in scientific fact to something that's only a racial bias, like forced confessions, it achieves the opposite of good police work. That's why racial profiling is a misnomer. It is not a legitimate profile. It is a single item profile.
Now, what we are talking about today is something, I hope, of a different kind. We do have profiling in the sense that we have the CAPPS system. But that system, as you have already noted, has been designed to avoid any type of elements that might touch on nationality, race or ethnicity.
That means that the primary identification process beyond the current CAPPS system is random selection. I became aware of that system because I actually had the same experience you did. Soon after 9/11 I was off to Chicago for a speech. I fulfilled every profile you might have of a risk. I bought my ticket that day. I had no luggage. I was running. I was clearly agitated. I was going to a city with high-yield targets.
When the security came over to me I thought that was perfectly reasonable and then they grabbed an old lady behind me. Now, I asked the security person why they didn't go for the younger male running through security and went for the octogenarian. She said, well, I would like to, but we are not allowed to profile. We have to do this on a random basis. So, we had succeeded in actually picking the person with the least statistical likelihood of being a terrorist. If she was Al-Qaeda, we are going to lose this war. They even got the cozy that hung around her neck, a hand-knit cozy to hold her water bottle. If they are that good, then I really think we have problems.
So, the question is why, why are we doing this? I think we can all agree that the current system we have lacks a certain degree of common sense. This is not to say that random selection cannot yield a guilty party. The problem is that we have something like a terrorist lottery, that we do random selection in the hope that we are going to hit a terrorist.
Page 23 PREV PAGE TOP OF DOC It turns out the odds of that lottery are almost identical to real lottery systems. If you go to California and play the lotto system in California this week, the odds are one in 41 million, about the same odds as a monthly hit for a terrorist. Now, that means we start with the same odds as a lottery, although we are not playing for a ticket. We are playing for someone's life, maybe our lives.
That is not to say that we can't hit the jackpot and land on Mohammed Atta. That might happen. It is just statistically not likely. That is why lotteries are for recreation. But I think airport security should be about something else.
Now, in my testimony I laid out four lines of cases that help guide us in what elements of a profile, if we change this, could be utilized. I am not going to go through those lines of cases, but the one thing that you need to understand up front is that the Supreme Court has never held that a profile, even a racial profile, is unconstitutional. A racial profile can be unconstitutional, and in my view, most should be unconstitutional as a violation of the Equal Protection Guarantees of the Fourteenth Amendment.
But in fact as you know, in Sokolow and a number of other cases profiles have been upheld. Also, the Supreme Court has consistently said that airports are the functional equivalent to a border and are entitled to particular flexibility in terms of their security. So, the government is given greater ability than an airport to use things like profiles.
We also know in cases like Terry, the government is allowed to make a stop based on reasonable suspicion as opposed to probable cause. We know in cases like Whren, that even a pretextual stop is viewed as constitutional.
Now, the fact remains that we probably have profiling occurring on an informal basis all the time. We may call it an information circular with a description. But if you look at the information circulars, they are basically a profile. They are not identifying a single suspect. And that is dangerous because the Supreme Court has allowed officers to act on hunches. That is part of Terry.
Page 24 PREV PAGE TOP OF DOC Now, in my view it would be far better to get beyond the initial loaded difficulties with profiling and instead focus on training our people and making sure our profile is used correctly.
Now, we saw with Richard Reid that a profile can work. The problem with Richard Reid was not that the profile didn't work; the problem with Richard Reid was that they didn't go far enough. I expect if they were an Israeli airport his shoes would have been looked at. In fact, the FAA issued an information circular on December 11th asking for people to consider shoes as a possible source for weapons or devices.
So, we can develop a profile and I believe you can develop a profile with nationality and even ethnicity and have it be constitutional. But what we need to avoid is a profile that simply puts in an element because it has a higher yield than the mean. An example of that would be to put religion, to say that we are going to use the Muslim faith as a criteria for profiling. That's an example of how profiles can be abused.
One out of four humans on this planet are Muslim. To suggest that that is going to be a reliable indicator, I think, is a serious and tragic mistake. So, one of the great values of this hearing, and the reason I commend your efforts, is that if we can come together as people of good faith, people who I think look at our history of racial profiling, we are comfortable with it and so we are cautious, we can come up with a system that yields far greater security and uses our common sense and uses a system that's our greatest asset. Our greatest asset is not our army. Our greatest asset is not our security forces. Our greatest asset is the United States constitution. There's no document like it. It is the altering vehicle of constitutions. It can handle any threat, any condition and it is yours to be flexible and to deal with this threat as our representative.
The one thing that I would encourage is that as the subcommittee acts, that we look very closely, if we push towards changing the profile system, in a system like CAPPS, that we also push equally for a separate monitoring system, a training system, a monitoring system, and a recording system so that we can take a very careful look at whether people are being abuse because the greatest dangers of a profile system is not the stop. The stop is basically a Terry stop. That's not going to be a huge burden. All of us expect to be inconvenienced. But the dangers to our citizens, particularly Arab-Americans, is what happens after the stop, whether they are treated respectfully, whether the stop is limited in time.
Page 25 PREV PAGE TOP OF DOC Those are the things that I believe this subcommittee could address in addition to the security benefits of profiling and yield, I think, a much better system than we have today.
Thank you very much.
Mr. MICA. I thank you for your very enlightening testimony.
We have six minutes before this vote concludes. We will be back in approximately 15 to 20 minutes. I would ask the witnesses to return in about 15 or 16 minutes and we will start in about 20 minutes. We'll stand in recess.
Mr. MICA. The subcommittee will come back to order. We had just finished testimony from Professor Jonathan Turley of George Washington University Law School.
I am going to ask Mr. Thomas Kinton, who is the Director of Aviation and Acting CEO of the Massachusetts Port Authority, MassPort, to introduce our next witness. I am pleased that he is loaning us the witness at this time.
Welcome, Mr. Kinton, for the purpose of an introduction.
Mr. KINTON. Thank you, Mr. Chairman. Thank you for the opportunity to make a brief statement and then turn it over to our counter-terrorism consultant, Mr. Rafi Ron.
I do want to take a moment to thank you, Mr. Chairman, and this committee for the Transportation Security Act. I think it is a major step forward in the commitment to passenger safety. It has elevated airport security to a national priority and it will create uniform standards for performance and accountability, which we desperately need.
Obviously, we are prepared to work very closely and in full cooperation with the TSA on issues like profiling. Logan certainly feels a special urgency to be at the cutting edge of security techniques and technologies because of Logan being in the national spotlight.
Page 26 PREV PAGE TOP OF DOC Logan has responded by taking a leadership role in airport security and we are proud to be selected by the TSA among 15 airports to help establish security procedures and protocols for all of the Nation's commercial airports. We are testing a lot of technology at Logan, things like facial recognition, document verification technology. I think all show promising signs to assist us in this war against terrorism.
Technology certainly is important but more important are the people who use that technology. We need to train our personnel. We need to change the culture of security awareness of our law enforcement officers at the Nation's airports.
All of us can learn from the good ideas developed at airports in those parts of the world that has been on the front line in the war on terrorism a lot longer than we have. By bringing new age aviation security and Mr. Rafi Ron to Logan we have been able to learn about the strict security that's standard operating procedure in Europe and Israel.
Mr. Ron has been at MassPort since October of this past year. As you stated at the outset, he is former head of security for Ben-Gurion Airport in Israel. His credentials as a security specialist in one of the world's most dangerous regions is vital to Logan.
As we prepare for the threats of a more dangerous world, we are delighted to have him on our team to learn from their techniques and apply them, working with the TSA at Logan.
Thank you very much, Mr. Chairman, for this opportunity.
Mr. MICA. Thank you.
Mr. RON. Mr. Chairman and Members of the Subcommittee on Aviation, for the record, I am Rafi Ron and up until October 1st, 2001 and for the last five years I was Chief in charge of security in the Israeli Airport Authority. Within this role I was in charge of all aspects of the Israeli airport security including security assessment and risk analysis, security planning and development, commanding all security operational units, identifying, negotiating, purchasing, and implementing new technologies, et cetera.
Page 27 PREV PAGE TOP OF DOC Within this role I was in charge of more than 2,000 security personnel who were working at Ben-Gurion Airport. Currently, I am the Chief Executive Officer of New Age Aviation Security and I am directly in charge of the professional side of the company's performance.
I am also a member of ACI's World Standing Security Committee and a member of GASAG, which is a Global Aviation Security Action Group, initiated by IATA.
I want to thank the committee for inviting me to talk with you about aviation security and profiling. In 1968 an El-Al airplane was hijacked by a Palestinian terrorist to Algeria. As a result, the State of Israel decided that protecting Israeli aviation is a national security matter of high priority and established the air marshal program. It became obvious that there is a need to develop a ground security operation in order to minimize the risk on board the aircraft.
The operational analysis was based on the assumption that in order for an attack to take place two conditions must be met. There has to be a person with a hostile intention, and two, there has to be a weapon. I would like to make a remark here that 9/11 proved that the second condition is not necessarily a condition.
The natural tendency was to choose the discovery of the weapon as the preventive method. Through the attempt to develop an effective method for this purpose, it became clear that while it is possible, it must involve some very thorough checks, some at forensic levels. The reason for the great difficulties is the fact that weapons, and especially explosive charges take almost every possible shape, color or smell and they can be produced from a great variety of materials.
Simple manual searches are not effective enough. These checks consume a long time. It could be about one hour for a single passenger with one checked bag. They are very intrusive and considered by most passengers as a very substantial hassle.
Page 28 PREV PAGE TOP OF DOC It became clear that it will be impossible to provide this type of procedure to all passengers, and therefore a need to develop a method that will allow an intelligent decision as to who is more eligible for this thorough search.
The answer to this need came in the development of a systematic, real time investigation of the passenger profile. This well-designed procedure allow the security officer to make a decision based on identifying the level of threat as to the level of checks to be performed before the passenger is allowed to board the aircraft.
This real time investigation can be as short as 90 seconds or last as long as 20 minutes. It involves the checking of documents and questioning that relates to passenger's journey and background.
This profiling method has been used very successfully for the last 32 years by the State of Israel. It led to the discovery of an explosive device in an attempted terrorist attack on an El-Al flight from London to Tel Aviv in 1968 using a naive Irish girl by the name of Ann Mary Murphy. It was through questioning that El-Al security officers realized that the pregnant young woman was carrying a bag she received from her Palestinian father-to-be boyfriend.
The thorough check of this bag exposed a 1.5 kilograms of Cemtex and a sophisticated altimeter initiation device disguised as an electronic calculator.
The last of further attacks gives credence to the assumption that this method is a strong deterring factor, since it is difficult to assume that Palestinian terrorism lost its interest in Israeli aviation.
There has been criticism against the use of this method on the grounds of racial discrimination. Most, if not all of this criticism is unfounded. The fact that there have been many Palestinian selectees in Israeli aviation procedures merely reflects the fact that most of the terrorists acting against it are Palestinian. It is also a fact that there are more selectees in this process of other nationalities and other background rather than Palestinians.
Page 29 PREV PAGE TOP OF DOC I would even argue that without professional procedure the space is taken by intuition by the security person and in many cases it will involve some level of prejudice personal views.
After the 9/11 tragedy the public discussion focused on the low performance of the screeners as if the attack could have been prevented or avoided by better screening. To my best judgment, this is not the case and focusing the discussion in this direction leads to future exposure to the same type of attacks.
Even the great effort to develop quickly a 100 percent hold baggage-screening standard cannot prevent the type of attack that was carried out on 9/11. I do not suggest that these technological measures are not important. On the contrary, their importance is paramount, but they are not enough. The missing element is the human factor and without relating to it we leave the room for future attacks.
It should also be argued that without the ability to take an intelligent decision on who and where we want to invest our efforts, we may end up wasting our attention on the low-risk passenger, and not being able to invest enough of it on the high-risk passengers.
The situation is particularly worrying because the technology used in security checkpoints, meaning X-ray screening and metal detection, is not enough to stop the Richard Reid type attack.
I would not suggest that we rely on a one to ten random ETD, explosive trace detection check that is being held right now.
The idea of the ''Trusted passenger program'' that was brought up lately allows people to register in advance by submitting personal information on a volunteer basis. They do apply for it just like they do when they apply for a credit card, combined with the use of biometric technology for identity verification, it will make the profiling at the airport easier and smoother without great disturbance and most of it on a voluntary basis.
Page 30 PREV PAGE TOP OF DOC So what the airport would have to do is to deal with the rest of the public, which will probably create a much smaller amount of problems and hassle at the airport.
Finally, it can be said that the civil rights issue can be controlled and the creation of an operational method for profiling or behavioral pattern recognition as we would like to call it, in order to distinguish ourselves from the old perception of profiling is feasible. Without it we will not be relating effectively to the threat as it materialized in the latest Al-Qaeda attacks.
Thank you. I would be pleased to respond to any of your questions.
Mr. MICA. Thank you for your testimony. We will withhold questions until we have heard from our final witness. The last witness is Ms. Katie Corrigan. She is Legislative Counsel for the American Civil Liberties Union in the Washington National Office. I think she is also accompanied by Ms. Rachel King, Legislative Counsel of ACLU.
Welcome. You are recognized.
Ms. KING. Good morning. Thank you very much for inviting me to testify this morning on aviation security and passenger profiling systems.
The ACLU is a nationwide non-partisan organization with nearly 300,000 members dedicated to protecting individual liberties and freedoms guaranteed in the constitution and the laws of the United States.
Your committee has already done yeoman work to increase our security. As you move forward, we believe Congress should evaluate any new security measure, including passenger profiling, with the following three criteria:
First, is the security measure genuinely effective or does it create a false sense of security?
Second, is the security measure implemented in a non-discriminatory manner?
Page 31 PREV PAGE TOP OF DOC Third, is the measure implemented in a manner that minimizes the cost to fundamental freedoms, including privacy, due process and equality?
First, passenger profiling would not be an effective air security measure. 1972 was the last year that profiling was used to determine whose carry-on baggage would be screened for weapons and explosives. That year there was 18 hijackers and since then every single passenger has their luggage screened before boarding a plan.
Profiling will never be able to protect the future. Profiles are based on how terrorists got around security measures the last time. Terrorists will always find new ways to beat the system. New criteria are only added to the mix after a terrorist has been caught or worse, after a bomb detonates.
Even proposed artificial intelligence programs are based on a voodoo science that provides an illusion of security but no guarantee. Congress must institute effective security measures rather than trying to save money by relying on profiling. For example, luggage matching has always been an effective security measure. It has also always been expensive.
For years, seemingly as a cost-saving measure, the only people to have their luggage matched were those selected through the CAPPS profiling system. The ACLU has been on record since 1997 recommending that every checked bag should be matched with a passenger.
Congress basically agreed with us last fall when it passed Air Security Bill with the requirement that every checked bag be screened for explosives.
Second, profiling undermines privacy. Personal information is the engine that drives the profiling machine. As profiling systems become more complicated, there will be a hunger and need for more and more passenger information. Already there have been press reports about the development of profiling technology that would rely on information from direct marketing databases that store consumer information, including magazine subscriptions, lifestyle information, home ownership records and other personal information.
Page 32 PREV PAGE TOP OF DOC In combination the information would provide a snapshot of passengers' daily lives before they are allowed to board an airplane. Again, reminding you, such security measures would not be effective. In addition, profiles would undermine a basic privacy principle that information gathered for one purpose should not be used for another purpose.
Privacy is one of the most important checks against government intrusion into individuals' personal lives. The ACLU would support sharing of names of suspected terrorists with air security personnel, but indiscriminate information sharing runs directly counter to the Privacy Act.
There should be a meaningful nexus between the information shared from a database and the purpose of identifying an individual passenger who is a suspected terrorist, not just a stereotype of one.
Finally, profiling discriminates by its very nature. Even if ethnicity, race or religion are not specifically considered as profiling criterion, disparate racial and ethnic treatment is likely to occur.
When DOJ first evaluated the CAPPS system in 1997, it confirmed that CAPPS did not use race or ethnicity as criterion to determine selectees. However, the DOJ also pointed out the concern that disparate impact might occur. We have no hard data to determine whether CAPPS has had, in fact, a discriminatory impact. The only study on the issue conducted by the FAA at the Detroit Airport was discontinued after September 11th.
There's significant anecdotal information, however, that discriminatory profiling is taking place at our nation's airports. We attached just a sampling of complaints from CAIR showing literally dozens and dozens of complaints. Of particular concern are the cases where people are prevented from traveling, a constitutionally protected right, because the pilot did not like the way the person looked, even after the person had voluntarily been subjected to heightened scrutiny and cleared by security.
Page 33 PREV PAGE TOP OF DOC This is blatant discrimination and the federal government must act to end it. Congress has far superior security options than profiling. Everyone would like to have a system that says, ''It is not me.'' But profiling will merely provide individuals with an illusion of protection. If profiling continues, however, Congress must, at a minimum, provide greater oversight of a system to ensure that no individual rights are violated.
First, by establishing an independent oversight board to monitor abuses of a system, both overly intrusive searches and discriminatory impact.
Congress should require data collection and reporting on whether profiling is causing a disparate impact on a certain population. The Congress should also prohibit the use of suspected classes in determining profiles at all levels, both in any profiling system the administration implements and at the ground level by security personnel and cabin crew.
Finally, Congress should pass legislation to address the problem of racial profiling and ensure that any profiling system respects individual privacy and does not result in a national ID system.
Thank you for the opportunity to testify before you today. My colleague, Rachel King, will join me during the question and answer period to answer questions on ethnic and racial profiling.
Mr. MICA. Thank you. We will start with a round of questions. I have a couple for you, Ms. Corrigan. It appears that you are opposed in almost every circumstance to using profiling for passenger screening purposes. Is that correct?
Ms. KING. That's our position, that it would not be an effective security measure and pose high risk to protections like privacy and equality.
Mr. MICA. One of your concerns is protecting the constitutional rights of American citizens. Over the years your organization has been in the forefront of that effort. I commend you for that. Are there certain circumstances where we could use profiling for those that aren't U.S. citizens or individuals coming into this country?
Page 34 PREV PAGE TOP OF DOC Ms. KING. Thank you, sir, for allowing us to be so flexible here and have me answer questions, too. We don't think that there's any rational reason to discriminate between citizens and non-citizens. We have always taken that position. In the United States non-citizens, if they are here, are protected by the constitution and are entitled to due process.
We are also concerned that if you allow discrimination to take place, then it just sets a tone for how people are treated and we see that happening now in terms of the dozens and dozens of complaints about the way that people from particular countries are being treated. It is not increasing our security.
Mr. MICA. Well, I think you pointed out, you said profiling uses criteria based on the last terrorist incident. There's some truth to that. But if we look at those who have been involved in terrorist attacks on the country, so far they have all been non-U.S. citizens.
Ms. KING. Well, according to the Washington Post January 18th article entitled ''Terror Concerns of U.S. Extent to Asia,'' there's reason to believe that Al-Qaeda contains members from basically every race and nationality and every country of origin. So, it is just really too large of an organization to be able to effectively profile. So, even if you were inclined to do it in this case it wouldn't be practical.
Mr. MICA. But part of the effectiveness of any security screening system is to go after your greatest potential risks. How do you do that when you are spreading your resources so thin?
Ms. KING. Well, I think that's the underlying presumption here, that we don't have enough resources to do proper thorough screening of everyone. I think even Mr. Ron would agree that if he could do that, that would be preferable then to just selecting a profile. It is our position that what we should be focusing on is developing the methods of security that provide, really, the opportunity to look at everybody and screen them for weapons and not be focusing on trying to figure out what is the best profile.
Page 35 PREV PAGE TOP OF DOC We are never going to be able to predict who the criminals are. So, why not put our resources into providing a type of security that will be applied equally to everyone and be effective?
Mr. MICA. One of the problems is we are presuming everyone is potentially guilty, which also goes against the grain of the constitution.
Mr. Ron, you look like you were in opposition or had some concerns about what was being said.
Mr. RON. First of all, referring to profiling as a non-effective method is completely wrong in my view and my experience. On the contrary, I think that profiling has proven to be, through the last 30 years, the only method that managed to stop an actual bomb on its way to the aircraft. I don't know of any bomb that was discovered just by screening, again, to the best of my you have.
At the same time, referring to the possibility that we will develop our tools and skills to provide everybody with a 100 percent physical check, whether they carry a weapon or not, is not good enough for two reasons. One, with the present technology available it is still not a good enough criteria to make sure that a weapon will not get on board.
When we take a decision, at least this is our approach in Israel, when we take a decision that somebody is a potential suspect and you do search him, you search him further than you search the rest of the public.
Richard Reid flew to Israel by El-Al seven months ago, before he boarded the American Airline flight from Paris. Through profiling he was singled out and checked from hair to sole. He was found out clean and was allowed to board the aircraft. That information was conveyed to the air marshal on board and he was properly seated, not very far from the air marshal so the air marshal could keep an eye on him during the flight.
9/11 was carried out by people without weapons. So, again, if you are only looking for the weapon, you do not answer to the 9/11 method. Finally, the efforts that have to be invested in searching the person in a way that will make sure that he is not carrying a weapon or a bomb, at Ben-Gurion Airport, it takes an average time of 57 minutes.
Page 36 PREV PAGE TOP OF DOC Now, I don't think that anybody assumes that an American airport can be run on a 57 check for every single passenger. Further, these checks are very intrusive. They actually deal with every item in a person's bag or in what he carries on his body. I think that if we are looking at the intrusion of privacy and the rights that passengers have, then probably this thorough check is a much more difficult an a much more disturbing process.
Mr. MICA. Well, to summarize, you said, I believe your quote was, ''We waste attention on low-risk passengers, potential threats to aviation security.'' How do you get away from using the current lottery system as we have heard described where one out of X number are thoroughly screen without some sort of discrimination? What is the best method of this?
Mr. RON. I oppose the idea of random checks as a main method. As an additional method they are okay. But as the main method they are completely wrong because as it was described earlier, they lead to cases like this morning's case, where a decorated second world war General, 84-years old, which I think we all agree is not only a waste of time, but if I look at this incident this morning, I would assume that probably between seven to ten people were involved in this incident, in dealing with all the implications of this incident.
These ten people should have been looking for the Richard Reids of this world, and not wasting their time in dealing with an unintelligent decision to confiscate the Congressional Medal from a Second World War hero.
So, what I am suggesting is that the idea of random checks should not be considered and an intelligent, professional profiling process that judges the passenger on behavioral basis and not on a racial basis will be constructed. This will lead to a decision as to the level of checks that you want to conduct afterward.
The Richard Reid incident that was mentioned earlier indicates the fact that again, profiling is not enough. At the end of the profiling process, you have to take further measures.
Page 37 PREV PAGE TOP OF DOC Mr. MICA. Mr. Turley, you seem to indicate that the courts have upheld profiling as it has been applied in most instances. Are there any criteria on which we can establish say a new profiling system that will not discriminate on the basis of race, religion, ethnic background and pass the legal muster? I am not sure if I am framing this question properly, but you have already said you believe they are constitutional, but do you feel we can develop a system that will satisfy some of the concerns of the legal community and groups like the ACLU?
Mr. RON. The answer is yes.
Mr. MICA. Let me get to Mr. Turley first.
Mr. RON. I'm sorry.
Mr. TURLEY. That is all right. He probably would have answered better than I would. The answer to your question, Mr. Chairman, is that profiles have been upheld as a generic matter. If you look at the United States v. Sokolow, the Supreme Court has said you can use a profile.
But having said that, I want to emphasize that that was not a racial profile and the court has indicated even in cases like Whren, which was the Supreme Court saying you can do pretextual stops, they did have in dicta a statement that this is not to say that you can use race as the basis to stop for pretext and that they are going to look closely at that.
But I think to answer your question is that I think we have to deal frankly with this. The fact is that profiling is a system of discrimination, not in the pejorative sense, but it isolates groups of people. The basis of that isolation for the most part, I think is going to be non-controversial. That's, for many of the profile elements that we have seen in past cases, like Sokolow, are going to actually translate to the airport situation.
You are going to have behavioral profile aspects. You are going to have travel plan aspects, one of the issues that Reid was nailed on in France. But, of course the controversial elements are going to be are you going to include nationality and/or ethnicity.
Page 38 PREV PAGE TOP OF DOC In my view, looking at the Supreme Court cases, I believe the Supreme Court would uphold a profile if it is well tailored that would include nationality or ethnicity. The important thing is that it has to be one of many factors. It can't be the sole factor. That's what racial profiling is. Racial profiling is just a post-rationalization of a police officer who uses it as a single factor profile. That is not a profile. That is a racist decision.
If you say that, look, I am just going to assume that all African-American males have a propensity for crime, that is not a profile. That is something that is as old as the hills. It is discrimination. Well, what we are talking about is to include a criteria, something like nationality which is a well-supported and articulated basis for inclusion.
You can't simply ignore the fact that much of the threat that we are facing since 9/11 is regionally centered. That doesn't mean that Al-Qaeda is not going to go and get a Swede. I mean that is perfectly possible. But the important thing is that we take those measures in combination that will isolate the highest risk individuals.
Now, I would note that the Supreme Court has also handed down cases like Reid v. Georgia where they have looked very closely to make sure that you are not talking a good game. Every racist cop that stops an African-American says, ''I did this on the basis of profile.'' What the Supreme Court has said is, ''We are going to look very, very closely at what that profile is.''
In Reid v. Georgia the Supreme Court said, ''We took a look at your profile and only one of those issues in the profile actually dealt with the suspect's conduct.''
So, the Supreme Court is likely to look very closely at what profile comes out of all of this.
The other things you have to avoid in creating a constitutional profile is what the Customs people dealt with. That is, the most controversial profiles are the ones that include variable that are inversive. For example, one of the most common profiles was that if you have someone who made eye contact, that was a subject of suspicion. But if you have someone who avoided eye contact, that was also a subject of suspicion.
Page 39 PREV PAGE TOP OF DOC If you had somebody who got off a plane first, the question is why are you in such a hurry. But if the person got off the plane last, the question is ''Why are you holding back?'' Those were all in the same profile. What Customs did, they looked at that. They had over 40 criteria. They reduced it down to six because they found that all of these were inversive. So, you can't come up with a very accurate profile that addresses our concerns and it can include nationality. I think it would pass constitutional muster.
Mr. MICA. Mr. Pascrell had a quick question.
Mr. PASCRELL. A point of clarification. I am listening very attentively. I read your statement. You do define in your statement the conditions of profiling with Mr. Reid. The only problem is we didn't check his shoes. We went through a lot of things. Was he selected because of his ethnicity or his nationality, Professor Turley.
Mr. TURLEY. You are absolutely right. He was selected without any reference to nationality or ethnicity. I would hope that we would continue to select people like Reid. Reid was a walking bulletin board for a terrorist. It is amazing that they didn't strip this guy and check every item. If you went down the list it was virtually a menu of items indicating that this guy was a terrorist. The only thing he didn't have was a tee shirt that said, you know, ''I Survived Ben Laden's Camp, 1999.'' That is the only thing he didn't have on.
Mr. PASCRELL. But are you telling this committee, as a point of clarification, are you telling this committee that ethnicity and nationality, which are two different things
Mr. TURLEY. Right.
Mr. PASCRELL.can be a criteria to separate out from the mass and go after whatever means under the law you can do it. Are you suggesting that methodology?
Mr. TURLEY. Congressman, I wish I could tell you absolutely not, we don't need ethnicity or nationality, but I don't believe that. I think that they should be criteria on a profile. I think ignoring the fact that certain nations are feeders for terrorism or have a concentration of radical or extremist Islamic groups, I think, is to ignore reality. It is a very dangerous game.
Page 40 PREV PAGE TOP OF DOC I think the important thing, and I respect your view because I agree with you. This is a major concern. If you put nationalities as one of those criteria, you do risk what we have seen in racial profiling, where somebody just selects you because of your nationality and then says, ''You look nervous.'' That is a very standard racial profiling case, you know. It was the nervous demeanor.
That is the reason that I agree entirely with the ACLU that we need to have a very close monitoring and reporting system to make sure that doesn't occur. But, sir, I think if you ignore nationality, if you ignore the fact that we could have threats coming from Sudan or other countries, I think is not just counter-productive, I think it is really dangers.
Can I just emphasize one other thing? I am sorry to take this long, but when we talk about profiling, there are two forms of profiling from a legal matter we have to concern ourselves with. One is the computerized profiling like CAPPS. But I think the profiling that we are all concerned with is the observational profiling. That is where you have the greatest discretion. But if we have intelligence to suggest that there are Sudanese terror cells that have been activated, I would hope that we would spend serious efforts to look more closely at Sudanese travelers.
Mr. PASCRELL. And I would suggest to you, Mr. Chair, that that is exactly what got us into trouble on racial profiling. Because when you look at the data, instead of Sudanese, we talked about folks that were coming over, for instance, the Delaware River into New Jersey that were stopped on the turnpike because troopers were told that the mass, when we looked at it, you can extrapolate and therefore you had a right to stop every sixth or seventh car. That is what got us into trouble, Professor Turley.
Mr. TURLEY. Can I respond, Congressman?
Mr. MICA. Sure.
Mr. TURLEY. I don't think it is an accurate analogy because I am a critic of racial profiling because it is not very statistically well based. I think there is a lot of smoke and mirrors in racial profiling to hide more ugly things. But the difference between stopping every Sudanese traveler when you have a report that there could be a Sudanese cell that has been activated and racial profiling is that the former is based on an articulated suspicion.
Page 41 PREV PAGE TOP OF DOC That is what the Supreme Court has said. It is, ''Show us why you are doing this.'' The difference between that and saying I am going to stop every African-American mail because I believe there's a propensity for criminality is a world of difference in my view.
Mr. PASCRELL. Well, we didn't stop every African-American male. But, when you look at who was stopped, you have to come to a conclusion. I understand your objectivity in this and I respect your academia. But I think what your suggesting is dangerous, I really do.
Mr. MICA. Well, I can't get into a debate here. I want to yield to Mr. DeFazio in just a second.
Let me just clarify a couple of things. As I understand it, they did use profiling on Richard Reid and it wasn't based on his ethnicity or his nationality as a British citizen, et cetera. The profiling did work that was used. What didn't work, according to FAA security, which I met with, I believe it was in Brussels, when we reviewed the case, was that they did not have the equipment deployed that would detect the explosive material in the shoes.
American Airlines had agreed to use the detection equipment. The airport had orally agreed to use it. The French National Police did not allow the use of that equipment. That was related to me.
So, the profiling did work and it was not based on that criteria.
Mr. DeFazio most patiently has been waiting.
Mr. DEFAZIO. Thank you, Mr. Chairman. I thank the Ranking Member for apparently yielding his time.
There are obviously a lot of controversial issues here and we have just aired some. I want to go back to some more mechanical questions. Now the ACLU has testified that we shouldn't use a trusted passenger program. I just want to first lay out something and then re-ask the question.
Page 42 PREV PAGE TOP OF DOC There was some indication that some airlines wanted to use trusted passenger to basically get people a by through security. Let's take that off the table. I don't agree with that. But it is a fact that airline's profit centers are business travelers. Business travelers, even though they constitute less than 10 percent of the people who fly, take a much larger percentage of the trips.
If we could move those people out of the system, we could provide more scrutiny to the other people, that is the random checks and other things that are done, but not moving them out of the system in terms that they don't go through security. They still go through security, but they go through a line with other people who know when you get there you hold up your ticket, you take off your belt, you take off your watch. You don't set off the magnetometer and you go through quickly. Unless you set it off you are not going to be screened further because you had the biometric card.
This would require a fairly extensive background check, for instance the same background check or maybe even more intrusive than I had to have to get my concealed weapons permit. I haven't heard the ACLU object to the fact that I had to undergo a background check to get my concealed weapons permit. Why would you object to people who voluntarily subject themselves to this, who travel frequently for purposes of business who want to just get to a shorter line with other people who travel all the time, but they are going to go through the same security? Would you still object to that? It is voluntary? Would you object to that?
Ms. CORRIGAN. We object to a trusted passenger program for both security purposes and for privacy reasons.
Mr. DEFAZIO. But I have explained to you that these people still go through security. So, do you object to me voluntarily, or anybody else voluntarily submitting myself to this? Then do you object also to the fact that I had to undergo such a check to get my concealed weapons permit?
Page 43 PREV PAGE TOP OF DOC Ms. CORRIGAN. I think the emphasis on ''voluntary'' is a problem, because we don't because that actually is voluntary. If you are going to be treated in a privileged manner
Mr. DEFAZIO. Well, it wasn't voluntary when I got my concealed weapons permit. It was mandatory.
Ms. CORRIGAN. Because you wanted to carry a concealed weapon. Now, in terms of going and flying from an airport
Mr. DEFAZIO. We are talking about issues of public safety and security here. Why would you object to a truly voluntary process as opposed to a mandatory process which I had to undergo?
Ms. CORRIGAN. Well, could I have a moment to explain it?
Mr. DEFAZIO. Yes, go ahead.
Ms. CORRIGAN. What we object to is number one, an effective security measure. Now, to me what you have just described in terms of this voluntary background check, what does that get us as a matter of security?
Mr. DEFAZIO. Okay, I'll tell you. You get relational databases. You establish that this person has lived at a certain address for a long period of time. They have an established credit record. They have a job. They have had a job for a long period of time. They have good credit. They are a U.S. citizen. You get a whole bunch of criteria that lower the threat level down substantially. We do have some enraged businessmen out there flying, but they don't propose a terrorist threat for the most part. They are still going to have to go through the magnetometer. They are still going to have their bag go through the X-ray machine. But they get to go in a shorter line, which means that they are more likely to fly.
For instance, the commuter airlines are losing passengers in the west on flights of less than three hours because the business people don't want to put up with it, they say, the heck with it, I'll drive. What you need to do is balance this issue and that is what I am getting to.
Page 44 PREV PAGE TOP OF DOC There is a reality here. We have to deal with reality. Maybe you are dealing with academics.
Ms. CORRIGAN. Well, I guess I am still confused about the goal, though, which is that if you are a trusted passenger versus not a trusted passenger you are saying the advantage is one of convenience in that everybody would be going through the same security check. Is that correct?
Mr. DEFAZIO. No. It would be just like Europe where there's a different line for those people. You go through the same security, but you go to a line with other people who travel all the time. You don't fly very much, obviously. When you get in line behind someone who doesn't fly, they don't know how to go through the security checkpoint. They are like, ''Oh, change in my pocket?''
Ms. CORRIGAN. Would there essentially be a presumption that that individual was okay?
Mr. DEFAZIO. The presumption if they have lived in the same house for 20 years, they are an executive for IBM, they have an extensive credit history, they are married, all the things you can get through all the publicly available databases or all the things that come up when I go to buy a car within two minutes, when they check my background, which is all out there, or my Social Security number which a reporter bought by going to one of these sites, all that stuff is out there. It is in the public domain. It is all on the Internet. Why not link it together in a useful way and, yes, it is presumable that that person is not a terrorist.
Ms. CORRIGAN. I think there then, if everyone is going through the same exact security measures that you describe and that the only advantage is that that person is ''voluntarily'' putting themselves to a background check, I guess to me, number one, how long would that stay voluntary and why would it be limited to business travelers? I mean you are creating two classes.
Page 45 PREV PAGE TOP OF DOC Mr. DEFAZIO. It is voluntary, because if you want to you can go stand in the much longer line with other people who don't fly very often who don't know how to get through security without setting off the magnetometer. I mean, I am holding my belt in my hand before I get there.
I am just getting to the realities of travel. We will leave that one alone.
Ms. CORRIGAN. May I say this in conclusion? Mr. McGaw has said in the papers.
Mr. DEFAZIO. No, Mr. McGaw didn't understand. I was at a conference with him recently and under the criteria I have just described, he is supportive of the idea.
Ms. CORRIGAN. He is supportive of the idea of creating this privileged line versus not a privileged line. I would just simply question, and this is something where today I think we are looking at the different arguments, my question I would pose to you is how long would that card remain voluntary? In our mind it would become a de fact
Mr. DEFAZIO. It would remain voluntary forever, as long as other people are willing to go over and stand in line where they are going to waste time.
Ms. CORRIGAN. So, without the card you would end up being in a long line, which again, the incentive system, basic economic incentive, is that everybody would want that card.
Mr. DEFAZIO. Well, let me go to something else, something that would improve security. You are against body scanners. You say because of the naked body on a screen is intrusive.
I would rather walk through a body scanner than be patted down. I have been patted down a lot. I think a lot of people have. How about giving an option? You can have body scanners that don't show your body. It just shows a stick figure and it shows where the plastic explosive is strapped to you with a little flashing light. Would you object to that? It doesn't show the naked body, just a stick figure with anything that is strapped to it. Would you object to that?
Page 46 PREV PAGE TOP OF DOC Ms. CORRIGAN. The way we have analyzed that is the following: This is the way the courts do it as well. In terms of how intrusive is the search. There are very different variables. One, how embarrassing is it? Two, how intrusive is it?
Mr. DEFAZIO. I don't like being frisked. How intrusive is it to be frisked?
Ms. CORRIGAN. In terms of embarrassing, I wouldn't want my naked body on a screen.
Mr. DEFAZIO. But your naked stick figure?
Ms. CORRIGAN. What you are talking about is advances in the technology. When that technology is available.
Mr. DEFAZIO. I am just saying, would you object to a naked stick figure.
Ms. CORRIGAN. The question there again is how intrusive is it or whether or not that is less intrusive than the pat down.
Mr. DEFAZIO. Intrusive in that it can effectively show that someone has strapped plastic explosives to their body. We see this going on in Israel every day. This is a real threat that we have to look at for airlines. Magnetometers don't find it. You don't object to a magnetometer. Guess what, a magnetometer doesn't find plastic explosive, so I am trying to get to something that might effectively find that.
Ms. CORRIGAN. What we would ask the Congress to do in terms of its analysis of the following, number one, in terms of when you mentioned plastic explosive, again, number one, what is effective. You are saying both are effective. Number two, is it non-discriminatory? Yes, it would be applied to everyone, I assume. Number three is there a way to minimize the intrusiveness on civil liberties, including privacy.
Number one, your question about is it a naked figure, is it a stick figure? Is there an alternative like the Kleenex swipe for explosives? That isn't intrusive at all.
Page 47 PREV PAGE TOP OF DOC Mr. DEFAZIO. My time has expired. Thank you.
Mr. ISAKSON [ASSUMING CHAIR]. The gentleman's time has expired.
The Chair recognizes Mr. Kirk for five minutes.
Mr. KIRK. I want to get back to the subject of nationality. We all know that of the 19 they were overwhelmingly from one country. Correct? Thirteen were from Saudi Arabia. So, it would seem to me reasonable from an intelligence perspective that we do that. When we wrote the Aviation Security Act, we were heavily influenced by the Israeli Security Agency. There, nationality is part of the Israeli profiling system; correct?
Mr. RON. Yes.
Mr. KIRK. So, it would seem to me that we are living in a world in which the State Department officially designates terrorist-sponsoring nations and that nationals from those terrorist-sponsoring nations would be part of the profiling system.
Is that a problem for the ACLU?
Ms. CORRIGAN. If there's articulable suspicion, if there's hard evidence of a particular country or suspect coming from there, we don't have a problem with that being considered for identity purposes. But just if you are going to put an overall profile on would is a terrorist, how would you do that with Al-Qaeda because supposedly they cells all over the world.
Mr. KIRK. We have an official list published by the State Department of nations sponsoring terrorism. It is okay to use that nationality as one of the clues.
Ms. CORRIGAN. But Al-Qaeda contains members from Britain, from France, from the Philippines. Those aren't countries that are terrorist countries. Are you going to put them on the list as well?
Mr. KIRK. Is Al-Qaeda the only terrorist organization?
Page 48 PREV PAGE TOP OF DOC Ms. CORRIGAN. No, but that is the one we are focusing on primarily today. If there was a different situation that came up, again, if there was specific information about intelligence, we would not oppose that being considered, no, we don't.
Mr. KIRK. We know that Hezbollah is a wholly owned subsidiary of the Iranian Intelligence Service, MOIS. So, would it be okay to indicate some heightened suspicion with an Iran national leaving Iran and entering the United States? Correct?
Ms. CORRIGAN. If you had information to suspect that a particular person from the Hezbollah was going to enter at a particular time, otherwise, how would you get it narrowed enough?
Mr. KIRK. Wouldn't it be the mission of the MOIS to deny you that information on that individual so that they could get on a civil aircraft and blow it up?
Ms. CORRIGAN. I am sorry. I don't understand the question.
Mr. KIRK. You say you could only profile a specific individual if we had specific information on that individual.
Mr. CORRIGAN. I think the problem, sir, is that we live in a world where there are many people who hate us from all over the world. I really don't think you can adequately deal with the problem of security if you are just going to focus on particular countries because there are so many people from so many different countries.
Mr. KIRK. So, we ignore the fact that particular countries want to kill us?
Ms. CORRIGAN. No, I said no, we don't ignore that, if we have specific information. It depends upon how specific the information is. That is what the courts have said, like Mr. Turley pointed out, how specific is the information? If it is just general presumptions that all terrorists come from certain countries, that is not specific enough.
Mr. KIRK. How do we live in a world in which the Iranian intelligence service will specifically recruit individuals to not attract attention?
Page 49 PREV PAGE TOP OF DOC Ms. CORRIGAN. That seems to argue again the profiling position. That is my point. The terrorists are going to figure out a way to get out of the profiling. If you are picking on a particular group of people from a particular country, the terrorists are going to send somebody from another country.
Mr. KIRK. But in the last case they sent 13 nationals from one country.
Ms. CORRIGAN. Do you think they would likely do that again?
Mr. KIRK. Yes.
Ms. CORRIGAN. Well, I am concerned that they probably wouldn't; that they are very smart, they would figure out exactly where our weaknesses were in our security system and that they are willing to wait for years, they are willing to wait for years to become members of a Trusted Passenger Program.
Are we going to have the most effective systems that really protect us instead of trying to find a needle in a haystack?
Mr. KIRK. Do you think we should be nationality blind?
Ms. CORRIGAN. I can't answer more specifically than that. But if you have specific information yes, but if it is just generalities, no, you shouldn't.
Mr. KIRK. Mr. Chairman, I would suggest the U.S. government has a specific view on this subject. We publish a terrorist list of nations sponsoring terrorism.
Ms. CORRIGAN. But sir, that is under-inclusive. That is the point. It is under-inclusive. That is the point. It is under-inclusive. That does not include everybody. That is the problem with racial profiling. It is over-inclusive and under-inclusive. Just looking at the terrorist nations is very under-inclusive.
Mr. KIRK. Mr. Chairman, I would suggest it is a floor and not a ceiling. But at a minimum, if the State Department and the intelligence agencies had told us that it is the government policy of this nation to attack Americans, at the very least that nationality should be considered.
Page 50 PREV PAGE TOP OF DOC Thank you very much, Mr. Chairman.
Mr. ISAKSON. The Chair recognizes the gentlelady from the District, Ms. Norton, for five minutes.
Ms. NORTON. Thank you, Mr. Chairman. Mr. Chairman, I would like to request that the committee have a confidential briefing on the CAPPS system and on whatever security system the new Transportation Agency will be using so we have some sense of what we are comparing this to.
Mr. ISAKSON. The substitute Chair will report that to the real Chair and we will see what we can do.
Ms. NORTON. Thank you, Mr. Chairman.
In some ways this discussion is troubling because I can say to you as a person who worked for the American Civil Liberties Union and began her career as a constitutional lawyers, argued before the Supreme Court, deeply believes in civil rights and civil liberties that I think it is going to be very important to those of us who have that view who deeply oppose racial and ethnic profiling to think more deeply about proxies and acceptable proxies, or else we are going to lose this fight.
That is why I want to know more about what we are doing and we can't know, of course, in an open session.
First of all, I would like to narrow the notion. I am sorry that we used the words ''blanketly profiling'' since unfortunately this work is almost like a term of art in our country today. It comes from the roads and it means ethnic and racial profiling. I assume that nobody on the panel would object to profiling if race, ethnicity or nationality were not a part of it.
There's nothing wrong with profiling. That is to say, if we say, just to give an example of what I am talking about, we are looking for somebody, beware or give closer scrutiny to people who have one-way tickets, who are males, who are young, who may have a nervous demeanor, does anyone have objection to that? That does not invoke race or ethnicity.
Page 51 PREV PAGE TOP OF DOC I also assume that a profile related to a specific incident would not give anyone any trouble. I am looking for a black male of a certain description on the basis of reasonable evidence that somebody has been done by this black male. I assume that no one would have any problem with that.
The problem we have with profiling is that with a profile built into the system, if I could then go on, I want to refer to what I think is on the minds of members, including many members who tend to agree with me on civil liberties, it really goes back to what I mentioned before, if all we can say is, ''No, you can't do that, do that or do that.'' Everybody feels they are open to terrorism and we are not going to get very far.
Unfortunately, this country has shown in every war we have fought that people are willing to tolerate invasions of civil liberties. So, I think for civil libertarians for the first time it becomes incumbent upon us to do something we never had to do before and what people who support constitutional rights normally don't have to do, to try and build ourselves a system instead of their system, particularly when you are dealing with the kind of terrorism that we are facing now, don't know who they are, don't know what their ethnicity is, don't know where they come from, engage in surprise attacks, hiding in the shadows in your own country. That is hard.
As you know, I am impressed with the Israeli system. I don't know if we could ever paste it on our system. But I want to ask everybody's opinion of a statement from his testimony. The fact that there are many Palestinian selectees, that is people who are selected out for further questioning in Israel's aviation security procedures merely reflects the fact that most of the terrorists acting against it are Palestinian. It is also a fact that there are more selectees of other nationalities rather than Palestinians. I just want to put that hard statement, as opposed to the more fluffy stuff we have heard, specially considering that we could get where Israel has now gotten.
Page 52 PREV PAGE TOP OF DOC I want to know what alternative way, if not this way, should be used in Israel, given the particular threats that country is now facing? Should they not select out Palestinians? Should they have some more random system?
I am very troubled with the use of disparate impact here. That is a procedural mechanism in our law, the whole notion that disparate impact, that if somehow there were more Arabs that legitimately got selected out that would be completely verboten is a misuse of disparate impact. That is the way we get painstaking systems that we have built up in the racial area thrown out by the courts, because we concede that we are willing to thrown them around.
So, I want us to have everybody look at Mr. Ron's statement and tell me what they should be doing instead and what we might have to do should this continue to build up in our country. Let's go right across the table. I suppose we could begin with Mr. Turley. Mr. Ron, apparently, has been doing it. He may want to add something. Then, of course, I am particularly interested in my good friends from the ACLU, seeing how they would approach that situation.
Mr. TURLEY. Well, as an academic I avoid real life as much as possible. I can comment on the security realities of the Israeli airport. But I would say as a constitutional law scholar that I would be bothered if it was a single profile, if you are a Palestinian, you are always searched.
Ms. NORTON. He has already testified that that is never the case in Israel. Of course, he will speak. But he has already testified to a far more complicated analytical system than using only the ethnicity. So, essentially I am asking should it be in there at all if analytically you have other factors.
Mr. TURLEY. I am making a guess without empirical knowledge. It is not the first time. But I would probably say if you look at this that it probably should be one of the criteria because I think it will yield a significant difference above a baseline in terms of its statistical yield. But I would emphasize that I would be very uncomfortable with that being on a profile unless it was part of a multi-variable profile.
Page 53 PREV PAGE TOP OF DOC Ms. NORTON. But that is exactly what I am asking. I am using this real live example. And I share with you, Mr. Turley, the preference for hypotheticals. But I am using this example because that is a real live example and anybody who thinks that that can't come here needs to go back to September 11th.
Perhaps I should move on to Mr. Ron. You have described a far more analytical system than anything that is even being considered here that I know anything about. What besides the fact that they are Palestinians is on the system or the profile that would get a Palestinian stopped and are large numbers of Palestinians not stopped?
Mr. RON. I find it inappropriate to discuss the exact criteria in this open environment for obvious reasons. But I would just say that the fact that somebody is of Palestinian origin is not enough to make him a selectee. There has to be more to it.
Along the lines of Professor Turley, I would add a comment that relating to the reality here in the United States airports now that if you have information that somebody's home address is a cave in Afghanistan, I would suggest not to ignore it in terms of how do you want to look into this person. When I say, ''look deeply into this person,'' at the end of the day it doesn't mean arresting the people national or taking any of his basic rights.
What I do suggest is that you invest more in checking him. That is the result of profiling. The result of profiling doesn't lead to a rejection or to an arrest or to anything that is more than the use of the information in terms of providing a much more thorough check. As I said earlier, it is very difficult, I would even say impossible, to run a good quality check for everybody.
Mr. ISAKSON. The gentlelady's time has expired. We will do a second round if you wish.
Ms. NORTON. Would it be possible just to hear this answer and I wouldn't take a second round?
Page 54 PREV PAGE TOP OF DOC Mr. ISAKSON. It would be possible if it is real short.
Ms. NORTON. The answer, because I wanted to hear what all three of them would say to the same question and I will not take a second round.
Ms. KING. I am not an expert on Israeli security as well, but it would seem to me that in that particular situation you are dealing with a country that is basically at a civil war, between two groups of people. There are reasons besides the fact that they are Palestinian that that ethnicity could be considered, like I said, particular suspicion.
There is something wrong with my microphone.
It may make sense and it may be permissible to include that ethnicity as part of a profile. But I don't think that necessarily translates to the United States. We are a much larger country and much more diverse, many more people. Again, you are going to have the problem of being under-inclusive.
Mr. ISAKSON. Time has expired.
The Chair recognizes the gentleman from Michigan, Mr. Ehlers.
Mr. EHLERS. Thank you, Mr. Chairman.
I would just like to get back to the point I made in my opening statement and Professor Turley made earlier. That is that we should be looking at certain characteristics that imply that they are more dangerous individuals than other individuals. I think what has happened is that we are so deathly afraid of being accused of profiling in this country, we are afraid to do anything other than total random checking. I just don't think that makes sense.
Any law enforcement activity has to deal with people who are more likely to be suspects than others. Policemen over time have developed some hunches as to who is more likely to be the criminal than the other person.
You gave the example of where you were obviously a suspect because of certain things you had done and they picked a very elderly lady behind you. I have seen that happen many times. But recently, on a trip, boarding an airplane in Detroit, the inspector randomly searched only two individuals, did so at great depth, 15 minutes each. I was one of them and the other was Congressman Sensenbrenner.
Page 55 PREV PAGE TOP OF DOC In the meantime, about 90 other people streamed past us on to the plane. I find it a little hard to believe that Congressman Sensenbrenner and I were the most likely suspects to do something wrong to that plane. I don't object to being searched. I think we have to take our turn with anyone else. But to just blindly, randomly pick two people out of 90 and subject them to a very intensive search, I think, is a waste of the random check.
You should certainly not spend that much time on anyone and secondly, you should try to deal with those individuals who are likely to have done something wrong.
That is an editorial comment. It is not a question. But if anyone wishes to respond, you may.
Mr. TURLEY. Could I just know one thing that I think you touched on which is of particular value? That is, we use the term ''profile'' as if it is this thing from another planet. I mean in reality a profile, when it is used correctly, is the aggregation of information from hundreds of thousands of police officers.
What this committee has to consider is that in case lines like Terry which are very developed with the Supreme Court, the success has repeatedly stated that it is willing to accept, in terms of reasonable suspicion, an experienced officer's judgment as to what seems to be an articulated basis for a stop. All a profile is ideally, if we avoid all of the racial and abusive problems, is the aggregation of experience so that an officer, which is the case because we have this new security apparatus, if an officer is relatively new to this business, he will have a profile which is the aggregation of experience that goes back decades.
So, a profile when it is used correctly is exactly as you would suggest when you used the term ''hunch.'' We need more than a hunch under Terry, but the Supreme Court has accepted that officers need to have some flexibility. You can't have a system where an officer on the beat in Detroit can make a stop more easily than an officer at O'Hare Airport. They both are going to be subject to the same standard. At times it sounds like it is more restrictive at O'Hare.
Page 56 PREV PAGE TOP OF DOC Mr. EHLERS. I would just conclude. Ms. Norton in her question commented about it being perfectly okay to look for someone who might be nervous in some way. I concur heartily. We have to establish a set of characteristics, behaviors, criteria that makes sense. Let us get away from the idea that that is profiling.
When we talk about profiling, it would be strictly on the basis of race, ethnicity, religion or something that we all agree is not appropriate for the problems that we are facing in the U.S. But clearly there are other types of behavior we should be looking for, that we should make use of in order to ensure the safety of the passengers.
I am also very much in favor of establishing a list of likely suspects, that is anyone who is on that list would be more thoroughly searched as they enter a plane. I think there is a lot we can do in the way of improving the operation and making it more efficient and more likely to keep out the true risks.
Mr. ISAKSON. The Chair recognizes the gentlelady, Ms. Millender-McDonald for five minutes.
Ms. MILLENDER-MCDONALD. Thank you, Mr. Chairman. I do have a statement for the record.
Mr. ISAKSON. Without objection.
Ms. MILLENDER-MCDONALD. You know, when you listen to all of this you seem to think that if we could just take profiling off the table it might help a great deal because when you speak of profiling in this climate it speaks to African-Americans. Anything other than that is sheet nonsense.
So, it seems to me like we should but we can't. Let me first say for the record that I agree with Ms. Norton that we need to look at CAPPS because we really need to closely define what this really means and discuss it. Mr. Ron said himself that we should have good quality check. But then he could not go into the ramifications of what this quality check is because of this open forum.
Page 57 PREV PAGE TOP OF DOC So indeed, we need to look at that, Mr. Chairman. I would like to be on the side of Ms. Norton in asking for that because we don't know whether this technological system really does in fact have some racial overtones in it. So, for that reason I think we need to do this.
Mr. Turley, you spoke about nationality being a part of profiling, but it needs to have something other than that. Can you in this open forum talk about what that something else is outside of nationality?
Mr. TURLEY. Well, I would expect that if you look at past profile cases by the Supreme Court, some of them are airport profile cases and some are not, some of the criteria are rather obvious, particularly after Reid. I certainly agree that Al-Qaeda is likely to evolve with knowledge and try to fit a profile of a tourist as opposed to a terrorist, which was the case for Reid.
But many other issues can come into play. First of all, someone traveling alone without children, a younger male. Those are obvious. If you look at who has been doing this, they tend to be young males. They tend to be regionally based. You can also look at issues like the lack of a travel plan, the lack of identification, legitimacy.
In the cast of Reid, he left a phone number and when they looked up the phone number they found that it didn't have the same name.
Ms. MILLENDER-MCDONALD. So, then could we use some of those outside of the nationality? Could some of those be the criteria and not have nationality with it?
Mr. TURLEY. Well, that would be close to the CAPPS system and what I would suggest is that it is hard to ignore the nationality. It is a significant increase, I think, in terms of specificity. I think to simply ignore that there's going to be a higher risk in a Sudanese national who meets some of these other criteria than a country that doesn't have a history of terrorism or anti-Americanism, I think is sort of forcing blindness on our selves. I think it is a dangerous thing.
Page 58 PREV PAGE TOP OF DOC I think that ultimately people of good faith can say, we are thing to be reluctant, we are going to be cautious, but we also have to acknowledge reality. There's no question Al-Qaeda can go outside those countries, and they probably will, but still, judging from past experience, that is where these recruiting grounds are from. We may be assuming too much about Al-Qaeda. Some of these countries yield a very large number of people who are willing to fly planes into buildings. It is sort of hard to find people that are willing to do something so absolutely inhumane and ridiculous. So, they may have to play to their market and go to some of these areas that yield a very high percentage of people willing to take these efforts. Once they go outside those markets, it may be more difficult to recruit. But simply to ignore that is a dangerous blindness.
Ms. MILLENDER-MCDONALD. But when you speak of nationalities, certainly race comes into the picture as well. I mean you just cannot bifurcate that at all. It is just one of those things. When you speak about persons of good faith, where do you tend to find them when you talk about profiling? In my sense, it just seems to me like you don't have that.
After September 11th, I along with Congressman Vern Ehlers also was stopped many a time. I had a bag with papers and all of that and they searched that. Every time I came into the airport they searched me. So, I thought, ''What is it that I have that seems to be suspect, other than my race?''
It clearly reflects on people of good will, people of good faith as to whether or not it still goes back to that narrow scope of race. It is a type of concept that we must strongly look at when we talk about passenger profiling because most people, after the 11th, looked at everyone who wore a headdress, who had a beard and all of these things. That should not be the case. I am not sure whether we can ever get past that, but certainly there has to be some other definitive specificity by which we look at passengers, in my opinion, outside of one that tends to always come back to race.
Page 59 PREV PAGE TOP OF DOC Mr. TURLEY. Congressman, if I could just note one thing, and of course, I agree with everything you just said about the dangers and all. It is troubling for me to come to a hearing and say we need to put nationality and ethnicity on a profile. It is troubling. But what I would suggest is first of all, the danger that you point out is exactly the high-risk area.
I think Congresswoman Norton really put this in sharp relief which is observational profiling is where we are going to have the most problems.
Ms. MILLENDER-MCDONALD. Yes, I agree.
Mr. TURLEY. Where you are being selected it sounds like observational profiling.
Ms. MILLENDER-MCDONALD. Yes, absolutely.
Mr. TURLEY. But we do already have race as a legitimate issue that the courts have upheld. I mean along the borders the INS considers obviously race along the Mexican border as an important criteria and we accept that because it is connected on a close nexus to an articulated basis.
I think that is going to be the key, that we have to really sort of sweat the specifics and make sure there is an articulated basis. The other thing we have to make sure of is that whatever profile we have is evolutionary. The biggest danger to Arab-Americans and other sub-groups is that you can have staleness, that a profile is going to list somebody as an element and it is not going to evolve with intelligence.
Ms. MILLENDER-MCDONALD. Mr. Chairman, I know there's a bell, a vote is on. This is can go on and on, so we will just stop here. Thank you.
Mr. ISAKSON. I thank the gentlelady. The Ranking Member and I haven't asked questions and we are going to ask a couple each fairly quickly and then we do have to go to a vote.
Page 60 PREV PAGE TOP OF DOC I want to thank Professor Turley. I am not an attorney, so it is always helpful to get some simple explanations of complex issues. In the cases of Terry, Katz and Whren in your remarks and in your printed remarks, make sure I understand it right, it says that profiling can be a reasonable pretextual way for a law enforcement officer or an authority to further question someone, but after that begins, the type of treatment they receive versus the type anybody else receives cannot be discriminatory. Is that a fair definition?
Mr. TURLEY. I guess I would isolate it. In Sokolow, the court said a profile is a legitimate basis for a stop. We have not heard a lot from the Supreme Court since then. In Terry, they said reasonable suspicion, significantly lower than probable cause, can be the basis of a Terry stop in which you can be patted down. But that has to be of a limited time period and it cannot be coercive.
Then in Whren, the court said that an officer can actually use a pretext stop whereas in Whren you had an officer who clearly wasn't a traffic cop in the sense of looking for traffic violations, who used a minor violation to stop an automobile and the court said, ''We are not going to inquire into the subjective purpose of an officer. As long as they can point to even a minor violation as a pretext, they can do it.'' All of those cases are applicable to airports.
Mr. ISAKSON. Ms. Corrigan, do you agree or disagree with the Supreme Court in those cases? The answer needs to be pretty short because we are going to be on a tight fuse. That is kind of a yes or no type thing.
Ms. CORRIGAN. Well, my understanding of the court's decision in Whren is that they can use pretext but you can't use an illegitimate criteria as the underlying pretext. Race is considered one of those. Again, if you have articulable suspicions it is okay, but just race per se is not.
Mr. ISAKSON. I have a second question. I am not really trying to be cute here, but I said in my opening remarks, I think we should ask these questions in the context of the time of the horror this whole country went through so we keep a perspective.
Page 61 PREV PAGE TOP OF DOC One September 10th, the civil liberties of all Americans were a paramount concern for every one of us. On September 11th, 3,000 innocent Americans and people of 80 other nationalities and ethnicity were brutally killed, as were the 19 people that killed them.
You think it is unreasonable, on the 12th of September for us to consider in airport security the profile of an individual as a criteria for determining weren't flying was going to be safe. Is that correct?
Ms. KING. I think sir, that our comments are really getting misconstrued. I think it is not sufficient. We think it doesn't go far enough. Profiling was in place at the time of September 11th. Then we had September 11th.
Mr. ISAKSON. I am going to stop because I want Mr. Lipinski to have time. The answer then would have been, yes, you wouldn't think that should have been a profiling component. I would just have to just tell you, I think we all have to be reasonable.
I think our civil liberties have to be protected, but I think the lives of individuals is an important civil liberty.
Ms. CORRIGAN. Could I answer this very quickly?
Mr. ISAKSON. Sure.
Ms. CORRIGAN. Certainly, and that is why post-September 11th we developed the criteria that you see which is, number one, is it effective? One thing I would just urge members, when you go into those briefings with the Security Administration, the question that you want to ask is: ''Are these criteria effectively going to identify possible threats to an airplane?''
One thing I would just pose, which is in fact different with Israel, is that we have many, many more flights in and out of the domestic than Israel does. We have had over five billion passengers since 1991 and 1992. Out of those billions of passengers we have an incredibly small subset of people who are terrorists.
Page 62 PREV PAGE TOP OF DOC The question is: Can profiling effectively section out those people that pose a danger? So, that is something, when go into those private briefings, I would encourage members to ask that question; not should race or nationality be used, but rather why should they be used and why would they be effective?
Mr. ISAKSON. Well, my answer to that is that to omit that as a reasonable criteria would probably put the people's lives in danger and that is the balance that I look at.
Now, I will yield to Mr. Lipinski.
Mr. LIPINSKI. Thank you, Mr. Chairman.
Professor Turley, does a non-American citizen have the same protections in regards to being an airline passenger in this country that American citizens have and if they do, why do they?
Mr. TURLEY. Well actually, and I am not being evasive, the answer is yes and no. That is they do have the same constitutional rights of due process and treatment under the United States constitution, but at border areas, non-citizens can be subject to much more stringent searches because I think there's an articulated reason. An airport is the functional equivalent of a border. So, in international flights certainly, I think the court would view them as two different and independent sets in terms of analysis.
In terms of domestic flights, I think that the Supreme Court would say that they entitled to the same constitutional and criminal protections as citizens. I think that is absolutely clear. But when it comes to profiling, I actually think that the court, if you can show on an articulated basis, which I think you can, would allow non-citizens to be subject to greater scrutiny. But I don't think it would just be because they are non-citizens. I think you would have to connect it to some type of intelligence, like one of the circulars or the announcements made by the Department of Justice where you would have some greater basis. I think the court would probably accept that if you look at their past cases.
Page 63 PREV PAGE TOP OF DOC Mr. LIPINSKI. Have there been any decisions made on that by the appellate court or by the Supreme Court?
Mr. TURLEY. Well, not on that specific issue. In fact, the problem that we are having is that since Sokolow the court has not been willing to take profile cases. We have not had profile cases subject to Supreme Court rulings.
Mr. LIPINSKI. Well, I am not talking about profile cases. I am talking about cases dealing with citizens and non-citizens.
Mr. TURLEY. Well, I think in terms of non-citizens and constitutional criminal protection, the line of cases is pretty clear, that when it comes to those parts of the constitution, governing constitution and criminal law, they are treated the same.
Mr. LIPINSKI. But that is once they are in the system or once they have been charged with a crime. It seems to me it would.
Mr. TURLEY. Yes. If you look at the 4th Amendment, they are not technically in the system necessarily yet, but the 4th Amendment protects you in terms of search and seizures which would be certainly part of the aspect of airport stops.
Mr. LIPINSKI. I thank you very much. Unfortunately, I don't have time to ask anybody else any questions.
I would just like to make one quick comment and that is that I am certainly not the civil libertarian that Ms. Norton is, but I think the advice that she gave you is very good advice because I think there's a train coming down the track, and you better make some modifications to it if you want to because it is going to roll.
Ms. CORRIGAN. I would just encourage you to look at our recommendations at the end of the testimony about means by which you could monitor the discriminatory impact.
Mr. LIPINSKI. I certainly will do that because other than positive bag match, I am not so sure what you are in support of.
Page 64 PREV PAGE TOP OF DOC Mr. ISAKSON. We look at all considerations and as Professor Turley said at the beginning, you have the luxury of comment and we have the responsibility of action. There's a different in that.
We want to thank our witnesses for being here today, and thank all of our guests for being here today.
We stand adjourned.
[Whereupon, at 11:58 a.m., the subcommittee was adjourned, to reconvene at the call of the Chair.]