Shortly after the January 6 attack on the nation’s capital, incoming Senate Majority Leader Chuck Schumer called on the Transportation Security Administration (TSA) to add those protestors identified as participating in the riot to the agency’s no-fly list. The TSA obediently announced that it was “working with law enforcement” to determine if the hundreds of protestors who had by then been identified “pose a risk and should be added to the no fly list.”
At first glance, this is the sort of statement you’d expect the TSA to issue. And initially, it appears to be entirely reasonable.
However, the only reason the TSA exists at all is to protect flight safety. The agency’s responsibility is to ensure passengers boarding an airplane don’t pose a risk to other passengers or the flight crew. The agency’s job description doesn’t include a mandate to determine if participation in a political protest – even a violent one – should end the participant’s ability to travel on a commercial flight.
Nor is it helpful for politicians like Congressman Bennie Thompson (D-MS), chair of the House Homeland Security Committee, to announce that elected officials who supposedly encouraged the capital riots should themselves be placed on the no-fly list. Two politicians Thompson singled out were Republican Senators Ted Cruz and Josh Hawley.
The confluence of political protest with the denial of the right to board an airplane is only the latest example of “mission creep” at the TSA. Another example is the agency’s “Quiet Skies” initiative. Launched in 2018, the program enables a small army of federal marshals to conduct warrantless surveillance on ordinary Americans going about their everyday lives. These individuals aren’t on the no-fly list or any other terrorist watch list. They aren’t visibly linked to any terrorist organization or activities. Instead, around 5,000 citizens are currently being monitored for activities as innocuous as “changing flights in the wrong country.” Marshals take notes on any behavior they deem unusual and send reports to the TSA.
Also consider the agency’s Credential Authentication Technology (CAT) initiative, which the TSA began deploying nationwide in 2019. The purpose of CAT technology is purportedly to prevent the use of fraudulent identification documents. Again, this appears to be an entirely reasonable initiative on first impression. However, under current law, the only time you’re legally required to show federally standardized ID to travel is if you’re flying internationally. In that case, you’ll need to show a valid passport to board the airplane.
For domestic flights, no court has ever ruled that passengers must produce identification documents in order to board the airplane. What’s more, the TSA refuses to disclose the law or regulation that supposedly requires you to identify yourself. Instead, the agency cites a “security directive” that has never been made public. In 2007, the Supreme Court rejected a challenge to the TSA’s policy of using what amounts to secret law to administer its passenger identification policy.
And that brings us to our final example of TSA mission creep, albeit at the behest of Congress, not the TSA. The Real ID Act establishes "national uniform standards" for driver's licenses. Once the law comes into effect, state driver's licenses that fail to conform to federally mandated "minimum standards" will no longer be valid for any federal "official purpose." One such official purpose is boarding an airplane.
While the deadline for this mandate’s enforcement has been delayed repeatedly, the current “final” deadline is now October 1, 2021. If you don’t present an identity document meeting the law’s minimum standards after that date, you won’t be permitted to board a commercial flight.
These invasions of our privacy and our rights might be more palatable if there was any evidence that the TSA makes flying safer. But no such evidence exists. For instance, according to a report published last November by the DHS Inspector General, the Quiet Skies initiative has never unearthed a terrorist. And nearly two decades after the 9/11 attacks, it’s still relatively easy to sneak explosive materials and other dangerous devices past TSA screeners.
In 2017, the DHS sent undercover agents to multiple airport security checkpoints to test security protocols. A classified report summarizing the findings concluded that screeners, their equipment, or their procedures failed more than half the time. An unnamed source at the TSA said the actual failure rate was closer to 80%.
That’s still an improvement, though, from previous tests. For instance, in a 2015 test, undercover agents succeeded in smuggling fake explosives or weapons through security checkpoints 95% of the time. The TSA failed 67 out of 70 tests.
TSA apologists say the agency has deterred 9/11-type hijackings, since there haven’t been any since September 11, 2001. But that’s simply not true. Until 9/11, both the Federal Aviation Administration and individual airlines had an official policy of complying with hijacker demands. If hijackers took over an airplane, the pilot would simply fly it to wherever they wanted to go, or until it ran out of fuel. Once the plane landed, the threat to passengers and crew would be greatly reduced.
But the 9/11 hijackers turned three of the jets they took control over into weapons, crashing two of them into the World Trade Center and a third into the Pentagon. The fourth hijacked plane, United Flight 93, never made it to its intended target. Once the flight was taken over, passengers and crew began calling their loved ones and learned the fate of the first three hijacked aircraft. And they decided to fight back. At 9:57 am, the passengers and crew aboard Flight 93 began an assault on the terrorist-controlled cockpit. Rather than allow them to retake control of the jet, the hijackers crashed it into an open field in rural Pennsylvania.
The real reason there haven’t been any more 9/11-style hijackings since 9/11 is that terrorists now realize that passengers and crew will no longer comply with their demands. They’ll resist.
Personally, we believe travelers would be far safer if Congress abolished the TSA and returned responsibility for flight security to individual airlines. Since airlines have more incentive to deter hijackers than anyone else, they’ll enact procedures making such acts of terror virtually impossible.
Naturally, that won’t happen. At least not anytime soon. But minimally, Congress needs to step in and quash the TSA’s continuing mission creep. The agency’s function is to protect flight safety, not to function as the thought police, enforce secret laws, or surveil non-terrorists. They would do well to remember their stated mission, instead of playing into distracting rounds of political theater.
