Transportation - Security Contemporary Transportation

Transportation - Security

CONTEMPORARY TRANSPORTATION SECURITY ISSUES in the U.S.

The Historical Evolution of Contemporary Transportation Security Issues

Airline Hijacking and Attacks on Transportation as Political Terrorism:

The first hijacking of a passenger airliner for the express purpose of influencing national or geopolitical events was the 1968 overtaking of an Israeli flight from Rome, Italy to Tel Aviv, Israel on July 22, 1968 by the Palestine Liberation Army (PLO).

Previously, numerous airline hijackings had occurred, but only for the purposes of either securing a monetary ransom or (more commonly) for the purpose of transportation.

Typically, prior hijackings involved the temporary takeover and diversion of a passenger airline flight as a means of transporting the hijackers to a specific destination; given the relations between the United States and Cuba in the post-Kennedy era, many of those incidents involved flights diverted to Cuba (Dershowitz 2002b). The new phase of airline hijackings marked a shift from tactical use of commandeered aircraft to their strategic use expressly to generate media exposure to a political cause, as well as to force national and geopolitical policy decisions. Terrorist shootings and bombings on civilian transportation preceded the era of widely available international air travel. In Israel, Jordanian and Egyptian forces had long perpetrated attacks on passenger buses, starting with the conclusion of the first Arab-Israeli war in 1948, in response to the United Nations decision to establish the country.

Initially, those targets were selected simply because they were convenient, with the majority of Israeli citizens (including soldiers) commuting daily to and from work by bus. Such incidents, (including the first Palestinian bombing of an El Al passenger jet) peaked again in 1967 after Israel captured the Gaza Strip and the West Bank in the defensive) Six Day War.

This shift in the purpose of terrorism coincided with increasing attacks on aircraft, passengers, and air transportation without any attempt to seize or divert a flight, simply because it achieved the goal of drawing media attention to political causes whether or not planes were actually hijacked in the manner associated with previous experiences. The phenomenon that began with terrorist attacks on Israeli airline transportation in 1967 culminated in brutality (as well as in media coverage) in the devastating massacre of Israeli athletes at the 1972 Summer Games in Munich, Germany by the same PLO that had introduced the world to the realm of modern political terrorism against transportation.

Airport Security Before September 11, 2001:

Prior to the terrorist attacks of September 11, 2001, U.S. domestic airline security was handled in its entirety by private security organizations under contract with the federal government. Naturally, assignment of the work was awarded through a bidding process, to ensure the lowest possible expense of federal funds. As the saying goes, "you get what you pay for" and reports of ineptitude and inappropriate conduct on the part of airport security screeners were ubiquitous. Typically, airport security passenger screening was handled by unskilled workers possessing only a high school, education (or GED), earning approximately $10 per hour.

One of the largest companies furnishing contracted airport security screeners was Argenbright, many of whose employees were widely considered completely incapable of fulfilling their essential job functions at a minimally acceptable standard within the industry, in addition to being too socially unskilled to respond appropriately to passengers in routine circumstances arising daily within the passenger airport vocational environment, according to Charles Slepian, a security analyst formerly of TWA who now heads the Foreseeable Risk Analysis Center in New York (Sperry 2003).

Airport Security Since September 11, 2001:

In the aftermath of September 11th, the newly created Transportation Security Administration (TSA) replaced all privately contracted airport security screeners with federal security screeners after conducting intensive efforts throughout much of 2002 and 2003 to select, assemble, and train more than 60,000 new security employees.

Concurrent with those efforts, the TSA also began implementing explosive detection technology used to scan unscreened passenger baggage carried within the cargo holds of airline passenger aircraft.

Restrictions have since varied, partly in response to threat warning levels issued by the Office of the Secretary of Homeland Security, the new Cabinet-level position established by President Bush after September 11th. Generally, domestic U.S. airline passengers are prohibited from carrying any sharp objects aboard aircraft capable of being used to commandeer a passenger aircraft. Initially, even ordinary nail clippers were included on the list of items absolutely prohibited from carry-on luggage.

The specific list of prohibited items no longer includes nail clippers, but passengers are currently prohibited from carrying liquids of any type in containers larger than 4 ounces. Furthermore, as a result of concerns over terrorists possible combining numerous liquids that are inert individually but explosive or extremely corrosive in combination with others, domestic airline passengers are limited to a total of one quart of liquids, gels, or cosmetic pastes of any kind. To pass through TSA screening checkpoints, airline passengers must declare their liquids and present them for inspection sealed within a clear plastic baggie no larger than one quart in size. Finally, only full containers of toothpaste or gels may be carried aboard the aircraft, because of concern that empty space within flexible tubes and other containers could facilitate the mixing of dangerous chemicals aboard the aircraft (Dyer, et al. 2007).

The latest addition to the security layers imposed by the TSA now includes backscatter scanners capable of providing high resolution X-ray images of passengers designed to reveal anything concealed under external clothing. In principle, backscatter scanners employ thermal imaging technology to display images assembled from the relative difference between inanimate concealed objects and body temperature. Because the composite images display the entire unclothed outline of every passenger, civil rights groups have argued (unsuccessfully) that the procedure is a violation of personal privacy.

Finally, several American airports where drug trafficking is a greater concern, (such as in Tampa, Florida), and where the facilities are in close proximity to sensitive airspace, (such as Washington, DC) have deployed the first series of equipment capable of identifying the presence of minute quantities of explosive residue on passengers or their clothes. The devices consist of phone-booth-sized single-person compartments into which passengers enter one at a time immediately prior to boarding aircraft. A small puff of air is them directed at several areas from head to toe and analyzed almost instantaneously by sophisticated sensors.

Federal authorities have even more latitude with respect to their legal right to screen international passengers (including U.S. citizens) seeking entry (or re-entry) into the country pursuant to the border exception to Fourth Amendment search and seizure limitations. Specifically, all forms of digital media such as laptop computers, PDAs, I-

Pods, and virtually any other information-storing device are susceptible to closer inspection by federal border agents without probable cause, search warrants, or any specific suspicion of criminal behavior or terrorist association on the part of the passenger (Bulzomi 2007).

Fundamental Flaws in Design:

Unfortunately, aviation security experts and counter-terrorism professionals with more experience than the TSA question the value of many of these costly (and invasive) post-September 11th changes in U.S. airport security. In many respects, they demonstrate the age-old observation that most armies are prepared perfectly to fight the last war in their experience rather than the next war facing them.

In other (equally disturbing) respects, most of the security procedures implemented after September 11th accomplish little more in the way of actually increasing airline security. Instead, they merely provide passengers and the media alike with an entirely false sense of increased national security, mainly for the purpose of maintaining public confidence in the ability of the federal government to protect them from international terrorism (Larsen 2007).

The institutionalized ineptitude in the entire design of current airport security measures is easily illustrated by media reports of elderly American citizens in wheelchairs being randomly selected for in-depth searches of their persons and effects while other much more sensible candidates for heightened security attention are not for various reasons of dubious merit on the bases of supposed justification examined in Section III of this report.

Similarly, TSA authority to select candidates for additional screening based on criteria logically related to addressing the specific nature of the contemporary terrorist threat represented by Islamic extremists is severely constrained by limits imposed under current interpretation of constitutional principles. Meanwhile, airline pilots and crew are prohibited from carrying the same types of "contraband" as passengers and subjected to the same screening procedures, notwithstanding their access to a full-size fire axe maintained in every cockpit by Federal Aviation Administration (FAA) regulations, not to mention the fact that pilots who are already in possession of flight controls hardly require any weapon to destroy the aircraft should they desire to do so (Sperry 2003).

II. Conceptual Problems in the Post-9/11 Approach to Transportation Security the Nature of the Current Threat to American Air Travel:

With the exception of one specific aspect of post-September 11th airport and airline travel security measures, the vast majority of changes implemented since 2001 have been obsolete in design almost as of their first deployment. By federal law, all passenger airliners now feature cockpit doors that are locked by the pilots from inside the cockpit. Likewise, pilot training now includes the specific instructions not to open the door in response to any occurrence or emergency in the passenger cabin; instead, pilots are under instructions to land the aircraft immediately in response to any perceived emergency that would have previously been cause to investigate beyond the flight deck (Sperry 2003).

Fortunately, by itself, this single set of rules has effectively ended any realistic threat of terrorists (or anybody else) ever hijacking a passenger airliner or otherwise gaining access to the flight controls for the purposes of commandeering it. In fact, it is now virtually impossible for anyone to hijack an American airliner again. Unfortunately, all of the subsequent passenger restrictions and billions of dollars in expenditures for sophisticated screening equipment is largely considered a complete waste of money and effort by aviation security experts. All the other elements of the security screening system in place now are designed perfectly to prevent the catastrophe that already occurred seven years ago on September 11, 2001, rather than to address the true nature of the most realistic and likely post-September 11th threats to American aviation safety (Scheuer 2004).

The primary focus of all post-September 11th restrictions and procedures are intended to interdict items that can be used as handheld weapons for the purpose of threatening hostages in the same manner that the September 11th hijackers used standard box cutters to gain access to the cockpit by threatening or assaulting flight attendants and passengers. Despite the fact that the cockpit doors now incorporate Kevlar into their design and are already impervious to penetration from the passenger cabin side of the door, federal screeners still actively search for nail files and pocket knives in passengers' carry-on luggage.

The secondary focus of all post-September 11th restrictions and procedures are intended to detect explosive residue to prevent suicidal terrorists from boarding passenger planes with explosives. Much like the primary focus on September 11th - style cockpit takeovers that occurred seven years ago, the secondary focus of American aviation safety on in-flight explosive detonation is perfectly formulated to prevent such an attempt by one individual that occurred a month later.

Tactically, the emphasis of TSA security restrictions on explosive detection is a sound approach to preventing another individual like Richard Reid from boarding a plane with the intention (and equipment) to bring the aircraft down by igniting an explosion capable of breaching the pressurized fuselage at altitude. Strategically, the emphasis of TSA security restrictions on explosive detection is a complete waste of funding and other scarce resources, in addition to unnecessarily delaying aircraft boarding procedures across the nation. Even worse, specific components of the explosive detection efforts actually increase the risk of the more likely avenue through which prospective terrorists would attempt to blow a passenger plane out of the sky (Clarke 2004).

By far, the most likely risk of such a terrorist act comes from within the commercial aviation industry and not from members of the general public flying as passengers. That is because most of the support industries that contract their services to airports and airlines are not required to conduct the same kinds of background investigations as federal agencies. Time and again, airline baggage handlers in airports in areas considered high-priority potential terrorist targets (like New York City) have been arrested for exploiting their access to aircraft and to secure areas to smuggle narcotics or to rummage through passengers' checked baggage (Larson 2007).

In many cases, employees have been granted clearance and received credentials giving them unrestricted access to the tarmac and to virtually any aircraft and to the support equipment used to service them in-between flights before their basic criminal histories come back from their sources. Among the individuals who have acquired routine access to highly restricted areas of American airports before being identified as security risks are fugitives from the law, subjects of criminal arrest warrants, illegal aliens, as well as several with strongly suspected al-Qaeda ties (Sperry 2003). In comparison to the prospect of infiltrating front-line airport security measures with an explosive charge as a passenger, doing so under the cover of employment within the catering and service industries employed by airlines is far preferable. Aircraft services workers regularly have complete and undisturbed access to parked aircraft on a daily basis as required by their jobs. Even without the comparative difficulty of reliably concealing explosives from carry-on baggage screening, access to aircraft in conjunction with vocational responsibilities is optimal from the terrorist's tactical perspective. Food service workers and cabin cleanup crews provide substantial opportunities for sole individuals to take the necessary time to secret explosive devices almost anywhere on the aircraft where their placement is likely to be catastrophic and unlikely from being discovered in the ordinary course of flight preparations and in-flight operations.

Despite this relatively obvious vulnerability, airline support service venders are not required to submit employee history information for FBI screening or to conduct any inquiry more than five years prior to hire. Paradoxically, flight crews, airline employees, and both local and federal agencies involved in airport security are all (properly) subjected to a minimum of ten-year background history investigations and FBI checks before their employment and certification in the aviation industry (Sperry 2003).

If anything, the unskilled nature of the work associated with airline support services and the comparatively high turn-over rate in that industry justifies a higher degree of scrutiny for those employees than for the highly-skilled professionals employed directly by the airlines and federal agencies, not a lower degree of scrutiny in their pre- employment screening process than flight crews and baggage screeners.

Therefore, to the extent the purpose of post-September 11th airport security measures are intended to interdict explosives that could be detonated on board by terrorists, the most practical, effective, and sensible approach would have been to invest a small fraction of the funds wasted on front-line passenger screening on more thorough background investigations of any prospective airline support service employee whose position requires access to secure areas.

Meanwhile, at least one concurrent TSA airport security requirement designed to lessen the chances that terrorists will manage to defeat baggage screening efforts and succeed in placing explosives on an aircraft before takeoff. In particular, the TSA now requires checked baggage to remain unlocked to facilitate ease of access by security officials to inspect passenger luggage. Unfortunately, whatever degree of security is gained by that measure is probably more than offset by the extent to which the same requirement actually provides the opportunity to sneak explosives into random passenger's checked baggage anywhere in the process of routine baggage handling (Larson 2007).

If that situation were not frustrating enough, the front-end passenger screening and security measures are rendered relatively impotent by the impact of various constitutional rights as currently applied to airport screening (Dershowitz 2002a). That is because the most effective and sensible methods of identify potential terrorists and security risks posed by hand-held weapons or explosives transported onto aircraft cabins on the persons of passengers are constitutionally impermissible.

The problem is that if security measures are to successfully achieve their most basic conceptual purpose, they must address the need to focus screening efforts on people instead of on inanimate objects like shoes and toothpaste tubes. Finally, the process of devising security strategy must be imaginative and forward-looking rather than perpetually defining future security concerns by reacting to past incidents. Even from the terrorist's perspective, the usefulness of attempts like Richard Reid's to detonate explosives in shoes or to assemble explosives from multiple inert liquids in the manner prevented in Britain in 2006 lies in their novelty. Chances are, once executed unsuccessfully, that approach would likely be immediately abandoned by terrorists irrespective of subsequent countermeasures implemented by the government. In fact, the most cynical terrorist analyst might even suggest that orchestrating a few novel attempts like shoe bombing serve a very valuable purpose for terrorists represented by the effectiveness with which American authorities have thus far tailored future security safeguards to terrorist tactics that are likely already considered obsolete (or merely failed experiments) by their perpetrators. In other words, if terrorists hope to hide a kilo of plastic explosives in the lavatory ceiling by infiltrating airline support services operations under the guise of employment, they might very well attempt to divert interdiction efforts by giving them incentive to redouble their efforts to identify a few grams of contraband within toothpaste tubes and the soles of passengers' shoes.

Lessons from Israel:

El-Al, the Israeli national airline provides a model for the person-oriented security focus that contrasts so dramatically with the inanimate object-oriented security focus that characterizes American efforts to safeguard air travel. The Israeli Security Agency (ISA), also known as Shin Bet directs the security procedures used by El-Al. Ironically, because of its pejorative connotations in this country, the primary tool used by Israel's Shin Bet agents is profiling of airline passengers (Hoffman 2003).

In Israel, surveillance of passengers begins before they even enter the airport terminals. Shin Bet agents observe passengers as they arrive at the airport. Unlike baggage check-in procedures in this country, there is no curbside check-in; in fact, passengers do not check any baggage until after they have passed through security screening themselves. Notwithstanding the willingness of many terrorists to die for their cause, keeping passengers and their luggage together until security clearance is issued makes much more sense than allowing passengers to check bags for conveyance to waiting aircraft before passengers encounter any security screening as is the case in the U.S.

More important than the timing of the security screening is the fundamental qualitative difference between the criteria used in the U.S. And the criteria used to evaluate passengers in Israel. Shin Bet agents observe passengers from electronic surveillance rooms where they are in direct contact with other agents circulating throughout the terminal. In Israel, security agents are trained to observe human behavior and to identify any signs possibly associated with surreptitious conduct, nervousness, and virtually anything else consistent with possible nefarious intentions (Hoffman 2003). In selecting subjects to approach for investigative interviews, Shin Bet agents need not justify their choice of subject; nor are they under any obligation to select interview subjects randomly as is the case in the U.S. (Dershowitz 2002a).

Sometimes, apparent ethnic or national origin play a part in the agents' rationale to select certain passengers over others for interviews. Shin Bet agents have no interest in unnecessarily persecuting or harassing any passengers based on their personally identifying characteristics; the only relevance of ethnicity is in the context of the totality of the circumstances that includes external behavior, manner of dress, and myriad other factors used to profile passengers for the sole purpose of directing their investigative efforts toward individuals who are most likely to harbor terrorist motives.

The Shin Bet agents question any passengers who arouse their suspicion or investigative interests for any reason. Their questioning is neither aggressive nor invasive and is not conducted in an adversarial or accusatory tone; it is merely designed to allow the agent to inquire into the passenger's purpose for the trip, the general relationship between the passenger and business contacts and the nature of personal interests in Israel.

The agents are less interested in the specific content of the actual answers to their questions than in the totality of circumstances of the person's response patterns and their behavior during the conversation. If the passenger appears to answer questions evasively or to provide inconsistent responses, the agents have the authority to deny passage. Conversely, where the passenger's answers are consistent and devoid of apparent contradictions or evasion, the agent simply thanks the passenger for cooperating and continues conducting impromptu interviews with other passengers whose overall demeanor or personal characteristics arouse the agent's interest (Larson 2007).

The approach adopted by the ISA have prevented terrorist attacks against Israeli passenger airliners so successfully in the last two decades that the same entities that had previously targeted Israeli airports and airlines have since apparently abandoned those targets for other soft civilian targets such as buses, outdoor shopping centers, and resort facilities. In the U.S. any such approach would immediately provoke protest among civil libertarians that would prevail over the national interest of ensuring the safety and security of American airports and commercial aircraft (Dershowitz 2002a).

Rectifying that situation requires a fundamental change in the way we interpret and apply certain provisions of the U.S. Constitution that were drafted long before the Framers could possibly have anticipated international terrorism targeting civilians on commercial airlines. However, in principle, doing so requires nothing more than the sensible application of certain exceptions to constitutional protections that are already recognized in circumstances justifying greater latitude to government authorities.

III. Fundamental Civil Liberties and Transportation Security Issues Civil Rights in the Age of International Terrorism:

Admittedly, the history of race relations in the U.S. is an embarrassment to concepts of civil liberties, racial equality, and the fundamental rights of all people to equal treatment under the law. A full century transpired between the Emancipation Proclamation issued by Abraham Lincoln at the conclusion of the American Civil War and the Civil Rights Act signed into law by President Lyndon Johnson in 1964. Even then, racism in actual practice persisted in many respects well into the late 20th century.

In light of this legacy, it is perfectly understandable that civil rights and equality under the law would have particularly strong significance in contemporary American society.

The underlying basis for all rights to equality under the laws of the U.S. emanate from the Equal Establishment Clause of the Fourteenth Amendment to the Constitution, which reads in relevant part:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws" (Friedman 2005).

Furthermore, the Constitution also provides specific protection against the unreasonable search and seizure of persons as well as their papers and effects, as expressed in the Fourth Amendment: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no

Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized" (Freidman 2005).

Taken together, the Equal Protection Clause, the Fourth Amendment prohibition against unwarranted search and seizure, and the Civil Rights Act of 1964 operate to protect the rights of all persons in the U.S. To comprehensive civil rights that rival the protections afforded to citizens of any other country with respect to the authority of the government. In ordinary situations, civil rights (as granted by the Constitution and interpreted by the Supreme Court) are inviolable, certainly without justification represented by substantial government interests.

Among all recognized civil rights, racial and religious classifications are afforded the highest constitutional protections, requiring the highest level of judicial scrutiny for any proposed legislation or application of law that distinguishes among individuals on those bases (Friedman 2005). Nevertheless, and notwithstanding the supremacy of constitutional civil rights protections, several circumstances are recognized as justifications for suspending the effect of some of those provisions. For example, the exigent circumstances exception to general search and seizure constitutional protections allows police officers to conduct unwarranted searches based on their reasonable belief that there is a genuine need to do so to protect lives or property.

Likewise, the motor vehicle exception authorizes law enforcement authorities to search motor vehicles based only on probable cause without a warrant issued by judicial authority as required in the case of stationary residences. The justification for this exception lies in the fact that the mobility of vehicles (compared to homes, for example) makes it impractical if not impossible to obtain a judicial warrant on the basis of probable cause (Hoover 2005).

Other exceptions to the general protections against unwarranted searches and seizure include the plain view doctrine that allows the seizure of evidence or contraband viewed by police officers who are legally authorized to be in close enough proximity to the evidence to see it without manipulating it; the open fields doctrine; the search incident to lawful arrest doctrine pursuant to which arrestees may be searched after arrest; and the border exception referenced earlier with respect to the authority of border agents to examine travelers' laptops when entering or re-entering the country (Dershowitz 2002b).

Police Profiling in the United States:

Whereas in Israel profiling is employed as one of the most valuable law enforcement tools used by authorities to prevent acts of terrorism, contemporary Supreme

Court interpretation of constitutional protections absolutely prohibits the tactical use of profiling as an element of establishing either reasonable suspicion or probable cause for further investigation. Constitutional standards defining impermissible profiling by law enforcement authorities have arisen most frequently in conjunction with pretextual traffic stops whereby police initiate contact with the occupants of vehicles through traffic stops based on bona fide vehicle code infractions observed by the officer. The relation between the vehicle code and the actual purpose of the traffic stop is a "pretext" to the extent that the observed violation justifying the initial state action is not the real reason for conducting that particular traffic stop (Friedman 2005).

The pretextual stop as a mechanism for initiating police contact has been upheld by the U.S. Supreme Court based on the rationale that any good-faith belief of the police officer as to an apparent traffic violation satisfies the probable cause element of the constitutionality analysis. The officer may initiate a valid traffic stop based on probable cause of any violation provided only that the pretextual violation justifies state action in the first place. For example, if applicable state law or municipal code defines seat belt violations as primary offenses, police may pull over a vehicle based on observing or reasonably suspecting a seat belt violation. Conversely, where seat belt violations are defined as secondary offenses, they cannot justify a traffic stop, but can only be cited pursuant to a traffic stop initiated on the basis of some other primary violation (Dershowitz 2002a).

Primary violations are legitimate justification for initiating traffic stops even if the underlying purpose of addressing traffic violations is merely a means of pursuing subsequent lines of investigation conducted within constitutional guidelines. In high- crime areas, for example, police may monitor vehicle code compliance to look for observable evidence of other criminal activity in every vehicle detained. However, police may not select candidates for vehicle code enforcement using race, ethnicity, or other suspect classifications, regardless of the independent constitutionality of the codified pretext for the traffic stop (Friedman 2005).

In several states, including Florida and Texas, major interstate highways are known to be used by drug traffickers headed to the northeastern states. Police had implemented guidelines for identifying candidates for (otherwise constitutionally legitimate) pretextual traffic stops that included racial and ethnic descriptions pursuant to which, for example, they would preferentially select apparently Hispanic drivers instead of selecting candidates for traffic code enforcement in a racially neutral manner. That practice has been firmly rejected as a constitutionally valid police tactic notwithstanding that, as it happens, the vast majority of individuals intercepted in those areas while transporting illegal narcotics and later convicted of those charges were, in fact, African-Americans, or of Hispanic, South American, or Mexican descent much more often than of Asian, Caucasian, or Western European in descent. Obviously, it is perfectly understandable why selecting persons for criminal investigation because of their race or ethnicity violates the most basic constitutional principles of equal protection and due process of law. On the other hand, police profiling is completely permissible where race or ethnicity is a descriptive feature of suspects.

Where, for example, a victim of an assault reports that her attacker was a "very tall black man," police may ignore non-black individuals in their search for the suspect while detaining certain black males; however, they may not detain a black man who is five foot-three.

Similarly, police profiling is perfectly permissible where demographic and statistical psychological analyses suggest composite profiles of likely personal characteristics based on previous experiences. Therefore, where police circulate a hypothetical description that includes race together with chronological age, education level, recreational interests, or likely occupation, profiling has not been determined to violate any element of constitutional neutrality in law enforcement either (Dershowitz 2002a).

IV. Resolving Constitutional Issues in American Transportation Security

Distinguishing Constitutionally Permissible and Impermissible Passenger Profiling: The most fundamental problem in the manner in which front-end passenger screening security procedures are restricted in their implementation to the detriment of efforts to protect airports and commercial aircraft from terrorist attack. In the U.S., airport passenger screening procedures are unnecessarily restricted by constitutional interpretation that ignores the conceptual similarity between profiling in that context and in contexts in which law enforcement profiling has been upheld as permissible.

Unfortunately, that renders passenger screening largely ineffective, wasting tremendous money, manpower, and other valuable resources dedicated to identifying terrorists and interdicting explosive contraband were terrorists intent on smuggling it aboard domestic U.S. passenger aircraft (Sperry 2003).

Imagine that the main source of international terrorism against American interests were the Irish Republican Army and that their attacks were initiated specifically in conjunction with public statements and warning from IRA leaders in Dublin that terrorism directed against the U.S. were attributable to American diplomatic relations with Britain. In that case, sensible counterterrorism efforts would dictate greater investigatory attention to individuals of apparent Irish descent, determined by outward appearance, including skin color, hair color, spoken dialect, and surname. To the extent that airport passenger screening measures were designed and intended to address IRA terrorism, security agents would focus their attention on individuals with greater apparent likelihood of association with IRA interests than on individuals with less apparent likelihood of similar association (Dershowitz 2002b).

Provided only that the genuine underlying motivation of law enforcement relate to counterterrorism and not at all to ethnic animus or for the purpose of ethnic persecution, they do not violate constitutional principles any more than do FBI profilers who compile hypothetical composites of unknown suspects or local police patrol procedures that incorporate evidence of ethnicity in suspects of specific crimes.

Expansion of the Constitutional Use of Profiling Potential Terrorists:

If the known source of terrorist attacks against meeting places of Black Israelites is extremist Hasidic Jewish sects, police are justified in selectively approaching individuals who reasonably appear to be Hasidic anywhere in the vicinity of Black Israelite facilities; vice-versa where the situation is opposite with Hasidic facilities regularly attacked by Black Israelites. Current constitutional limitations on the effective implementation of appropriate passenger screening safety measures completely deny the irrefutable fact that the primary source of domestic U.S. terrorism (as well as terrorism targeting Americans and American interests abroad) is Islamic extremism (Dyer, et al. 2007). Police may reasonably focus investigative attention on suspects fitting specific descriptions and hypothetical profile composites without constitutional challenges.