Temporary flight restrictions and constitutionality after September 11

TEMPORARY FLIGHT RESTRICTIONS REGULATION: IS IT CONSTITUTIONAL?

Condition of airline industry after Sept.

TFRs and general aviation

TFRs without information

TFRs and business at busy airports

TFRs Circles

TFRs and young pilots

TFRs: an ineffective measure

Temporary flight restrictions (TFR) are considered unconstitutional by many quarters because they are seriously hurting economic conditions of the United States aviation. But speaking from legal point-of-view, we cannot declare any action taken for security reasons as unconstitutional. This is because the federal government has Congress's permission to take appropriate measures to ensure security of the country, its landmarks, general public and important public figures such as the President and Vice president. But when these actions cross the limits of justice and start interfering with smooth operations of any industry, a petition can be filed against them in U.S. courts to determine the legality of those actions. No such action has so far been taken against TFRs, which were imposed in the wake of September 11. The paper thus studies the issue closely to find out why people feel that TFRs should be declared unconstitutional and how it is contributing towards bad economic conditions in the country.

TEMPORARY FLIGHT RESTRICTIONS: UNCONSTITUITIONAL?

INTRODUCTION

Temporary flight restrictions were imposed after September 11 in order to protect America public from terrorist attacks. These restrictions had a huge negative impact on the airline industry in specific and on economy in general. This is the reason why many felt that such restrictions should be declared unconstitutional even if the objective behind such measures is highly constitutional. TFR regulations have been in operation since 1971 but amendments that have taken place over the years have expanded the scope of this regulation. For example while formerly it could be invoked at certain given occasion or days, since September 11, they are being used whenever the government feels a certain site can become potential target for terrorist attacks. In order to understand why temporary flight restrictions were imposed and whether or not they are unconstitutional, we must first take a look at the economic conditions of the country after September 11. This will help us understand why any flight restrictions can further worsen the United States economic downturn. Temporary flights restrictions are issued by Federal Aviation Authority (FAA) to protect certain sites from any kind of threat. Before September 11, the main purpose of such restrictions was to protect government military sites from spy planes or to prevent possible collusion of non-participating planes during air shows. But since the tragic incident of September 11, things have changed dramatically for the airline industry as many commercial planes are now being forced to take new routes to reach destination because of FAA flight restrictions.

Al Carrozza (2001) writes, " [In the wake of September 11] The FAA has expanded the range of "class B" airspace in New York, Boston, Washington and around other high-density airports, which means only military and certain commercial aircraft are allowed to fly in the zone. They' ve also banned such flights in a 30-nautical-mile radius of the 30 biggest U.S. cities. That is keeping the planes away from choice venues with big crowds, like the Meadowlands and Yankee Stadium." This brings us to a very important question, does the government have the right to impose such restrictions when it is clear that such moves would hurt the financial condition of commercial airlines, aerial advertising, flying schools and other related businesses.

METHODOLOGY:

For this research paper, the author closely studied impressive collection of relevant material on the subject. Research material was collected from magazines, newspapers, aviation web sites and FAA guides. The material thus gathered was thoroughly studied in order to see how FAA restrictions are affecting the aviation industry in the United States. Various charts of the areas currently under TFR were also examined to see how restricted circles are formed and whether or not they can be effective as deterrents. In this paper, the author has presented review of the material that was collected for research along with conclusions extracted from that literature.

LITERATURE REVIEW AND DISCUSSION

TFRs and general aviation

Under such conditions, Bush administration was aware of the fact that further restrictions on use of airspace would result in complete destruction of the airline industry. Even temporary halting flights could cause great damage to airline industry because of the weak financial structure of most commercial airlines. But these TFRs are needed from time to protect public places and figures from further attacks. But if we closely measure the long-term effects of TFR, we would be able to see why they are not a feasible option. Because of TFR not being commercially viable, it is felt that government crosses the limits of its federally granted rights when it disallows use of airspace above certain areas.

Kathy McCabe of Globe Correspondent (2001) writes about negative impact of temporary flight restrictions and shows how it is hurting airline businesses. In her article titled 'Airspace limits hurt flight schools', McCabe writes, "Severe restrictions on airspace within 20 miles of Logan Airport have crippled flight schools, fuel suppliers, and other small aviation businesses at Beverly Municipal Airport and Hanscom Field in Bedford. The restrictions, put in place after the Sept. 11 terrorist attacks, also have grounded most recreational pilots, who fly under so-called "visual flight rules," meaning they do not use instruments to fly a plane. Only instrument-trained pilots may fly within the 20-mile restricted airspace. Everyone else must be accompanied by a flight instructor, according to the Federal Aviation Administration."

TFRs without Information

This proves that temporary flight restrictions can often hurt economic conditions and also highlights another very important point. Government's measures regarding flight restriction can be considered unconstitutional when the intelligence agencies do not have any information, which can warrant such actions. But if the government knows something which others are unaware of, then its actions can be granted constitutional cover. This means that sometimes government takes action because of the information provided by intelligence agencies but at others restrictions are imposed without any kind of warranty. In the latter case, the government can be held responsible for contributing to economic disaster but in the former case, its actions would be absolutely constitutional. This is the point which FAA spokesman in McCabe's article, "The National Security Council ordered the airspace restrictions around 30 major airports across the country immediately following the Sept. 11 attacks. Since then, the restrictions have been either lifted or eased in several major markets. In Boston, although the restricted airspace was reduced to 20 from 30 miles, the new rules are not likely to be eased further anytime soon. "The restrictions remain in place indefinitely," said Jim Peters, an FAA spokesman in New York. "I can only make the assumption that [federal intelligence officials] have information that warrants these restrictions be kept in place."

TFRs and business at busy airports

Not only is it hurting the airline industry, federally imposed flight restrictions can also cause a get deal of damage to busy airports. The government usually imposes restrictions on airports where traffic is usually the heaviest, without realizing that such restrictions can cost airports hundreds of flights, thousands of passengers and millions of dollars. This is because with flight restrictions that disallow use of certain portion of airspace, many fights are either to be diverted to other airports or they are forced to change their landing schedule. This can have a very negative impact on the airports' financial conditions and many are of the view that FAA doesn't even know what area should be restricted.

In an Editorial feature in Newsday, (2001), the author condemned the FAA's actions and urged the authority to use common sense when imposing restrictions. Discussing the problems caused by senseless restrictions imposed by FAA in the wake of September 11, the author writes, "The broad cloak of security that the federal government has thrown over aviation in metropolitan New York is economically strangling Republic Airport in East Farmingdale. The government should act quickly to make its restrictions work without killing the airport. In the wake of the Sept. 11 terrorist attacks, the Federal Aviation Administration imposed a temporary flight restriction here, banning some kinds of flights within a circle of 25 nautical miles from John F. Kennedy International Airport. The most hurtful provision prohibited all flights by small general aviation aircraft using visual flight rules, the overwhelming majority of Republic's business. That action cut daily flight activity by 96%. The airport's 50 businesses are losing $200,000 a day."

TFR Circles

While people agree that government needs to be more vigilant and security is certainly a big issue on its agenda, still it is important to exercise some caution when taking security related measures. This is because if these measures later hurt the airline industry and several other related businesses, the moves made by the government would not only become unconstitutional but to certain degree criminal too. The government thus needs to understand that vigilance must not lose sense of direction and temporary flight restrictions should be formulated and imposed carefully. Many are of the view that circles of airspace that are put under restriction are not calculated wisely as they are anything but foolproof methods to ensure security.

The author of Newsday Editorial further adds, "No one doubts the need for vigilance, but the leaders of the airport, used mostly by corporate and private planes, have raised good questions about the way the FAA chose to be vigilant. One question is whether the circle should have been centered at JFK or on the high-risk area to be protected in Manhattan. As a result of the decision to center it on JFK, the circle covers Republic, but it excludes New Jersey airports that are actually closer to Manhattan. The size of the circle is another issue. Just yesterday, the airport learned that the FAA is reducing it from 25 miles to 18, but that does not help Republic, which just barely falls within the smaller circle."

TFRs and Young Pilots

Thus it is clear that flight restrictions imposed by federal government can seriously hurt businesses especially those connected with aviation. In this sense we can claim the flight restriction measures are unconstitutional and if we look at the way it is contributing towards unemployment, we almost become certain that Courts must take some actions against TFRs. The section of pilots that get hurt the most are the ones for whom skies remain heavily restricted even after some seasoned pilots have been granted permission to enter forbidden area. These pilots are usually the ones getting training from various flying schools across the country and they are in dire need of applying their flying skills in heavy traffic airspace in order to be able to get a license. But since September 11, they are being asked to stay away from certain heavy traffic areas because they are potential targets for terrorist attacks. But the future of these pilots is in jeopardy if flight restrictions are not suspended from most dense areas of the country.

During a television discussion on the subject of TFR, ANDY BOWERS said, "It's not that all private flights are grounded. Pilots with an advanced instrument rating and who file flight plans to go from one point to another can do so, except in New York and Washington. But in 28 other major cities, pilots are not allowed to fly under what are known as visual flight rules, or VFR. Phil Boyer, president of the Aircraft Owners and Pilots Association, says that affects the vast majority of pilots." To this Boyer himself replied, "Ninety percent of all flying is under visual flight rules, it's not on instrument flying. And if you were to look at the pilot population, you have about 15% only of the 620,000 pilots who are licensed in this country that are current on and able to fly on instruments at this moment."

TFRs: an ineffective and futile security measure

Whatever are the flight restrictions imposed in the wake of September 11, most of them are seriously hurting the American public and businesses and on top of that many are of the view that these restrictions are not very effective too. According to FAA, any person violating the airspace restrictions would be intercepted midair. In other words, such planes would probably be gunned down but this is according to many experts a highly ridiculous penalty. This is because in the most cases, the area, which is to be protected, can be reached within 20 seconds and there is a very dim chance that government would be able to intercept pilots within such short time. While such steps are being taken for the security of the country, we need to understand that senselessly imposing these restrictions would hurt both the economy and the security of the homeland. While the constitution allows the government to take appropriate measures to ensure security of the homeland, it doesn't grant permission for moves that could prove detrimental to economy or public in the long run. Another important thing to keep in mind is that TFRs are not unconstitutional as long as the government has some information that certain areas can become targets of terrorist attacks. But the authenticity of this information should be checked thoroughly before taking any action and secondly, the restrictions must be removed as soon as the threat is over. This is because prolonged restrictions can not only become a liability for businesses in the country, they can also turn ineffective as terrorists in most cases can find an alternative route to their target. As we mentioned above, it is not the temporary flight restrictions or their objective which are unconstitutional but the consequences of such measures along with the way these restrictions are implemented that can make government's actions in this connection unconstitutional. Some experts actually measured the effectiveness of restricted airspace circles to find out if they would really be able to deter the terrorists and to our utter disappointment, they found that the answer was no. They concluded that meaningless attempts to protect the American public are doing more harm than good and therefore government moves in this connection should be declared unconstitutional unless intelligence agencies can back it with some significant piece of information.

HAL FISHMAN (2002) writes, "The story about flight restrictions around our treasured national landmarks is a good example of homeland security. Right? Wrong! It's completely ridiculous. Let's take the Statue of Liberty for example. The flight restriction is for a one nautical mile radius from the statue to 1500 feet altitude. Now, let's say I am one of those evildoers determined to crash into this symbol of American freedom. Flying my own airplane, which is capable of easily covering three miles in one minute, I can cover the distance from the boundary of the restricted area to the statue in 20 seconds. This is just one example of many meaningless and futile attempts at homeland security.

For if this is homeland security, I fear for the security of our homeland."

FAA is the agency responsible for imposing restriction and in the wake of September 11th, its activities in this connection have become more aggressive than usual. While we do need an agency like FAA but many pilots feel that FAA is no helping the matters when it fails to speak to the government on behalf on the aviation industry. Pilots are of the view that they have lost their rights in this connection as FAA imposes restrictions as and when our government requires without consulting the airlines, airports or pilots for that matters. This lack of consultation is another reason why many pilots would want to declare TFRs unconstitutional.

CONCLUSION:

Now that we have studied the issue of TFR from every possible angle, we can safely conclude that such actions are not unconstitutional from a legal point-of-view but they can certainly be declared unlawful when we focus on their consequences. During our discussion in preceding paragraphs, we noticed just how meaningless such restrictions can be at times and their impact both on the economy in general and on aviation in particular can be far-reaching in a negative sense. Therefore it is important that government exercises caution when imposing such restrictions. The most important thing is to have accurate assessment system, which would measure the effectiveness of these moves and then implement the restriction. While the government has Congress's approval to take actions to ensure security of the country, it is still not allowed to take senseless desperate steps, which would jeopardize both the public and economy. We need to impose stricter check on the activities of FAA so that it would not impose restrictions of its own free will.

It is important to mention here that often it is the wrong polices of the government, which can seriously hurt economic conditions in the country, and temporary flight restriction is one such meaningless strategy. We understand the need for security but with frequent temporary flight restrictions; it has impossible for pilots and airlines to conduct their business as usual. With frequent changes in the policy related to TFR, aviation business suffers a great deal, as it has to continuously readjust its routes and schedules. These minor irritations and disturbances in their planned schedules have had a profound impact on airline business. Secondly any pilots are not certain why flights are still being viewed as potential; threat because we are only fooling ourselves if we think that terrorist would use their September 11 strategy again.

Many are of the view that government moves should be challenged in Court in order to find out if they actually have Constitutional cover or not. It is not only the moves that have created bitterness among people, but also the way in which these restrictions have been implemented and formulated. Many aerial advertising companies have also suffered tremendous from these flight restrictions because sometimes TFRs disallow any advertisement carriers to enter heavy traffic areas. This business suffers because it is unable to reach its target audience and thus rapidly loses its clients. Al Carrozza (2001) writes, "With the heightened security response to the Sept. 11 terrorist attacks, the Federal Aviation Administration has placed restrictions on aerial advertising flights, including prohibitions on banner towing and skywriting over most stadiums and open-air places where people are assembled. And that, say industry spokesmen and owners of companies like Shirley-based Island Aerial, is crippling the aerial advertising business. "The short-term economic impact on the aerial advertising industry is in excess of $20 million dollars," said association vice president Harald Ibele. "The industry lost 95% of its flights since September 11, and 2,500 families are directly affected."

Unless these businesses file a petition to assess the legality of these restrictions, we can never claim that such actions are unconstitutional from a legal point-of-view. The federal government's actions can only be officially termed unlawful when U.S. Courts rule against them. Till then, the only thing we can do is make the government understand how cruelly it is contributing towards financial collapse of aviation industry and related businesses.