The 9/11 Tort Litigation, Five Years On
By: Brian J. Alexander, Partner
- Airlines and aviation security companies are responsible for aviation safety: Federal law CFR 108.103 and 108.201 states that airlines must provide “safety of persons and property against criminal violence and air piracy.” They must “prevent or deter … dangerous weapons” on person’s “or accessible property prior to boarding.” In In Re September 11 Litigation, Judge Alvin Hellerstein denied the airlines’ motion to dismiss and found that airlines’ have an obligation to “take responsible care” when screening due to hijacking risk.
- Before 9/11 the aviation security system was greatly flawed and dysfunctional. FAA audits, inspections and documented security violations showed a vulnerable/deteriorating system. The Government Accountability Office (GAO) published numerous reports criticizing aviation security. Two presidential commissions outlined airport security flaws.
- Screenings, a critical element in the FAA’s counter-terrorism strategy, were worsening. Random hand searches of carry-ons at checkpoints was mostly being ignored by carriers. Secondary screening to ID weapons was non-existent except for those who triggered metal detectors.
- The airlines knew of the dangers/risks of being hijacked. The FAA and the GAO warned the industry that “civil aviation will continue to be … an attractive target for terrorist groups.” In the months leading to 9/11, the FAA issued 15 warnings regarding terrorist groups training for hijackings and the disguising of weapons.
- The 9/11 Commission found that the FAA had presented a CD-ROM to the airline industry that “described the increased threats to civil aviation” and warned of possible suicide hijackings.
- A former FAA official stated an FAA report issued in the late 1990s evaluated 10 years of hijackings. It concluded that small knives were most frequently employed. Therefore, weapons used during airline hijacking were not unpredictable or unexpected.
(Reprinted from Aviation Law)
As I write this article just days before the five-year anniversary of the 9/11 tragedy, I am preparing for the first depositions in the September 11th Tort Litigation which are scheduled to finally take place next week. The cliché about the wheels of justice turning slowly certainly rings true in this case, but at long last we will have our chance to get answers to the many questions never asked by the 9/11 Commission
Indeed, while the Commission’s efforts are in many respects to be applauded, it is surprising how little of the final report actually addresses the deficiencies that existed in our aviation security system before September 11, 2001. Frankly, in the days, months, and now years following 9/11, I have been amazed at how little focus and attention has been paid to what the airlines and their security companies actually knew about the threat and the deplorable state of their aviation security system.
Not too long ago I gave a speech in Washington, DC, and just moments before I began, a father in the crowd who had lost his daughter at the Pentagon approached me and questioned how I could give a talk on the airlines’ culpability for September 11th. He felt that the “terrorists alone are to blame” and if not them, it was our intelligence community which fell down on the job. He went on to tell me that he did not believe the airlines and their security companies could have “seen this coming” or that they could have done anything to stop it.
In response, I made a deal with this kind-hearted father asking only that he listen in exchange for my promise to present “spin-free” facts each backed up with a specific source. Set forth below are some of the highlights from that presentation.
Who Is Really Responsible for Aviation Security? The Airlines and Aviation Security Companies
Under federal law, the airlines have a duty “to provide for the safety of persons and property against acts of criminal violence and air piracy” and “to prevent or deter the carriage of any explosive, incendiary, or deadly or dangerous weapon on or about each individual’s person or accessible property before boarding an aircraft or entering the sterile area.” CFR 108.103 and 108.201.
In his opinion denying the airlines’ motion to dismiss, Judge Alvin Hellerstein noted: “The airlines, airport authorities and security companies controlled who came onto the planes and what was carried aboard. They had an obligation to take reasonable care in screening precisely because of the risk of terrorist hijackings, and the dangerous consequences that would inevitably follow.” In Re September 11 Litigation, 280 F.Supp.2d 279, 296 (SDNY 2003).
“The air carriers are responsible for screening all passengers and baggage, hiring and training their employees or contracting for screening services, and procuring equipment to screen passengers and baggage. The screening of passengers and baggage is a critical element in the FAA’s strategy against terrorism.” GAO Report, Aviation Security, February 1999.
A Dysfunctional System
Evaluating the Aviation Security System as a whole the 9/11 Commission concluded: “Each layer relevant to hijacking — Intelligence, Passenger Prescreening, Checkpoint Screening, and Onboard Security — was seriously flawed prior to 9/11.” 9/11 Commission Report, p. 83.
The Airlines Knew the Danger and the Risk of Hijacking
Despite the political spin since 9/11, the evidence demonstrates the airlines knew that 1) there was an increasing terrorist threat to civil aviation from hijackings and bombings and (2) the aviation security system they were charged with implementing was completely “vulnerable” and in “urgent” need of repair.
In 1999, the FAA published its annual report on Criminal Acts Against Civil Aviation (CAACA). The report specifically identifies bin Laden as a threat: “Another threat to civil aviation is from Saudi terrorist financier Usama bin Laden, who has been indicted for the August 1998 bombings of U.S. embassies … A[n] Islamic leader in the United Kingdom proclaimed in August 1998 that bin Laden would ‘bring down an airliner, or hijack an airliner to humiliate the U.S.’”
The 1999 CAACA Report also reminded the airlines of another recent example “which suggests that the threat to civil aviation” is still real — the infamous Manila Air or Bojinca plot which contemplated the simultaneous destruction of as many as 12 U.S. airliners flying out of the Far East. The report concluded by noting that “there is every reason to believe that civil aviation will continue to be an attractive target for terrorist groups.”
In 1996, the GAO warned that “the threat of terrorism has increased and aviation is an attractive target well into the foreseeable future. The World Trade Center bombing [and other plots to bomb landmarks] … revealed that the international terrorist threat in the U.S. is more serious and more extensive than previously believed.” The report warned of increased attacks by “radical fundamentalist groups” inside the U.S. and that the terrorists “were aware of airport vulnerabilities and how existing security measures could be defeated.”
In March 2000, the GAO warned that “events over the past decade have shown that the threat of terrorism against the U.S. is an ever-present danger.” “A single lapse in aviation security can result in hundreds of deaths, destruction … and have immeasurable negative impacts on the economy.”
In April 2000, the GAO cautioned the airlines: “The fact that there have been no major security incidents in recent years … could breed an attitude of complacency … However, serious vulnerabilities in our aviation system exist and must be adequately addressed.” The report also again warned that the threat to aviation was increasing, including threats from hostile and criminal acts which “could be potentially catastrophic if dangerous objects, such as weapons were to be involved.”
In June 2000, the GAO again reminded the airlines that the Bojinca plot demonstrates that the “potential for the destruction of aircraft and great loss of life has increased” and that “concerns are growing about the potential for attacks within the U.S.”
The Threat Warnings
According to press reports, in 1998, the FAA warned airline officials about possible hijackings at a metropolitan airport in the eastern United States by Osama bin Laden (OBL). In 2001, the FAA issued 15 warnings to the airlines in the months leading up to 9/11. Beginning in January, the FAA warned the airlines that terrorists might attack U.S. interests and mentioned OBL in the alerts.
In January 2001, U.S. carriers were warned about the continuing possibility of violence against Americans. In April 2001, an alert advised “some of the current active [terrorist] groups are known to plan and train for hijackings … The FAA encourages U.S. carriers to demonstrate a high degree of alertness.”
In June 2001, a warning that the “potential for terrorist operations, such as an airline hijacking … remains a concern.” In July 2001, encouraging airlines to be on high alert and warning that the terrorists are known to be planning and training for a hijacking. In August 2001, the FAA warned about disguised weapons terrorists might use as weapons.
The Airlines Knew “Suicide Hijackings” Were Possible
According to the 9/11 Commission, prior to 9/11, the FAA presented a CD-ROM to air carriers describing the increased threat to civil aviation. “The presentation mentioned the possibility of suicide hijackings …” and indicated “that if a hijacker was intending to commit suicide in a spectacular explosion, the terrorist would be likely to prefer a domestic hijacking.” 9/11 Commission Report, p. 264, 535 n.47.
According to the 9/11 Commission: “In early August 1999, the FAA Civil Aviation Security intelligence office summarized the bin Laden hijacking threat. After a solid recitation of all information available on this topic, the paper identified a few principal scenarios, one of which was a “suicide hijacking operation.” 9/11 Commission Report, p. 345
One former FAA official has stated that there was an FAA Report issued in the late 1990s which evaluated nearly ten years of hijacking incidents and concluded that small knives were the most frequently used weapons to hijack aircraft. As such, the means by which hijackers would take over an aircraft were neither unpredictable nor unexpected. In the three decades prior to 9/11, there were at least 800 reported hijacking incidents with nearly 175 involving U.S. carriers.
A System Designed to Fail
Since the early 1990s, the GAO published numerous reports critical of aviation security focusing on screener performance problems, low pay, inadequate training and high turnover rates. Two Presidential Commissions detailed dangerous flaws in airport security. FAA audits, red team inspections and years of documented security violations demonstrated that the system was vulnerable and getting worse. A pre-9/11 study from 1991 to 2000 reported more than 50,000 aviation security violations at the nation’s top 25 airports.
As noted by the GAO and 9/11 Commission, the screening checkpoints and screeners who operate them are “the most important line of defense against the introduction of dangerous objects into the aviation system. All passengers and their baggage must be checked for weapons, explosives, or other dangerous articles that could pose a threat to the safety of an aircraft and those aboard it.”
Despite its importance, the poor performance of the checkpoint screening was well known and well documented for years leading up to 9/11. After several years and numerous reports on the long-standing problems, a GAO official testified in May 2000 that the airline industry “had made little progress in improving the effectiveness of airport checkpoint screeners.”
He added, “Screeners are not adequately detecting dangerous objects and long-standing problems affecting screeners’ performance [low wages, inadequate training, and rapid turnover] remain.”
Prior to 9/11, the GAO unambiguously identified the scope and magnitude of the checkpoint vulnerabilities in a series of reports. Relying on FAA tests, the GAO noted that in 1978, screeners failed to detect 13 percent of the FAA tests. By 1987, the failure rate grew to 20 percent. The GAO noted that the declining trend in detection rates continued in the 1990s.
Prior to 9/11, “an FAA requirement for screeners to conduct ‘continuous’ and ‘random’ hand searches of carry-on luggage at checkpoints had … simply become ignored by the air carriers. Therefore, secondary screening of individuals and their carry-on bags to identify weapons was non-existent, except for passengers who triggered the metal detectors.” 9/11 Commission Report, p. 84.
According to their own guidelines, box cutters, mace, tear gas and menacing knives of any size were strictly prohibited items which were banned from the sterile area of on aircraft. Yet we know these were the weapons of choice for the terrorists.
The Commission appears to have accepted the convenient excuses proffered by the airline industry: reinforced cockpit doors were unnecessary because of the need for emergency egress and the common strategy of cooperation. Again however, the airlines had ample warning of the dangers of unlocked, penetrable doors as evidenced by the hundreds of cockpit intrusions in recent years.
As noted by the Commission, the doors should have been locked as was required by rules established in the 1960s. 9/11 Commission Report, p. 85. Hardened cockpit doors were known to be a critical last line of defense and were technologically feasible for a relatively minor cost — unfortunately, it was a cost the airlines were not willing to bear.
A Glimpse at Why the System Failed
The air carriers played a major role in pre-9/11 security and were, therefore, able to exert “great pressures to control security costs and to limit the impact of security requirements on aviation operations so that the industry could concentrate on its primary mission of moving passengers and aircraft … [T]hose counter-pressures in turn manifested themselves as significant weaknesses in security.” 9/11 Commission Report, p. 85.
One longtime FAA security official described the airlines’ approach to security as “decry, deny, and delay.” Tragically, these denials and delays cost many brave Americans their lives.
Following the presentation, the father returned to the podium as I was shutting down the power point projector and simply said “go get ‘em.”
Our efforts have begun. We will keep you all posted.
Brian J. AlexanderBrian Alexander has been appointed to the Plaintiffs' Executive Committee for the Boeing 737 MAX litigation arising from the crash of Ethiopian Airlines Flight 302. For over two decades, Brian has litigated numerous international and domestic airline cases, commuter, military and general aviation crash cases, most notably as one of the lead attorneys for the September 11th Terrorist Litigation.