Tag: transportation security administration

Pervasive Misconduct and Corrosive Culture at the TSA

A new report from the House Homeland Security Committee lays bare the culture of misconduct that continues to plague the Transportation Security Administration (TSA), finding a surge in complaints and a pervasive lack of accountability at the agency.

This comes on the heels of another significant increase in cases of employee misconduct at the TSA, as a 2013 investigation from the Government Accountability Office (GAO) reported a 27 percent increase from fiscal years 2010 to 2012. In response to that earlier report and the GAO’s related finding that the TSA did “not have the process in place to adequately address it,” the TSA installed adopted many of the GAO’s recommendations for investigating misconduct in an attempt to finally bring some effective oversight and accountability to the troubled agency.

Despite those efforts, there has been no slowdown in the surge of misconduct allegations filed against TSA employees: misconduct complaints increased by 28.5 percent from fiscal year 2013 to 2015 while the number of full-time equivalent employees grew by only 1.6 percent.

These allegations range from relatively mundane but still troubling offenses like a failure to follow instructions and failure to report to duty to more egregious cases like an officer being charged with facilitating human smuggling and allegations of sexual misconduct by officers.

The concerns go beyond just the sheer number of complaints or the recent surge, it’s that there are so many employees that have allegedly committed some form of misconduct multiple times: roughly 43 percent of the employees with a complaint had more than one, almost 5 percent had more than 5, and one ‘enterprising’ employee had 18 separate complaints during fiscal years 2013 to 2015.  Despite the long-recognized problems contributing to a culture prone to misconduct, there do not seem to be consequences for these TSA employees. As the report says “it appears as though minimal accountability is provided with certain employees engaged in ongoing misconduct.”

Number of Complaints among Employees with Filed Complaints, FY 2013-2015

 

Source: Homeland Security Committee.

This recent surge in complaints might be due to the perception that allegations of misconduct will not be thoroughly investigated, and this does not seem to be baseless: even as the number of complaints increased substantially, the number of investigations over this same period declined by 15 percent, while the number of investigations closed fell by 28 percent. Even within the shrinking pool of cases where the agency takes some action, fewer employees faced real consequences, as “TSA increased the use of non-disciplinary actions by almost 80 [percent], while it decreased the use of disciplinary and adverse actions by 14 [percent] and 23 [percent], respectively.” In most cases, TSA employees can think it is plausible that they can avoid being investigated should they have a complaint filed against them, and if there is ultimately a decision against them, the most likely reprimand will be non-disciplinary actions like counseling, guidance, or additional training.

Employees within the TSA who might have tried to bring attention to some of the agency’s problem may have faced some form of backlash, as almost a dozen individuals told staffers that  “certain senior leaders at TSA have reassigned employees to other locations around the country as retaliation for, in some cases, employees raising security concerns.” Far from moving towards more transparency and attempting to address the ongoing misconduct that seems to be so prevalent in the agency, some senior level employees could be undermining these efforts. Outside agencies and Congress have also lamented their limited ability to investigate these concerns because the agency has not been forthcoming with requested data.

Misconduct Allegations and Investigations, FY 2013-2015

 

Source: Homeland Security Committee.

Beyond these concerns about misconduct, other investigations have revealed the TSA to be ineffective and prone to security failures. My colleague Chris Edwards has an insightful policy analysis laying out the case for privatizing the TSA and following the lead of most airports in Europe and Canada that use private companies for screening procedures. As he explains, allowing competitive bidding to multiple companies could finally bring a degree of accountability to the sphere, something that is sorely lacking at the TSA. 

What Massachusetts Needs Is a Legislature More Like the U.S. Congress, Said No One Ever

The Massachusetts legislature is currently debating the state government’s budget for the new fiscal year which begins July 1st. This phenomenon—finalizing a spending plan before the beginning of the fiscal year—is something rarely seen in the U.S. Congress any more. Kudos, Bay State, for surpassing the low bar set in Washington, D.C.

But the General Court of Massachusetts is taking one page from the U.S. Congress’s tattered playbook. According to WRAL news, it may attach national ID compliance legislation to the budget bill.

That’s how Congress passed the ill-conceived REAL ID Act back in 2005. There were no hearings on the national ID issue or the bill that gave us one. Instead, the Republican House leadership attached the national ID law to a must-pass spending bill and rammed it past the Senate to President Bush, leaving states to grapple with implementation challenges and Department of Homeland Security belligerence ever since.

As in many states, the U.S. DHS has been telling Massachusetts legislators that they have to get on board with the national ID law, issuing licenses and ID cards according to federal standards, or see their residents refused at TSA’s airport checkpoints.

The threat of federal enforcement in 2016 was broadcast loud and clear last fall. Then in January DHS kicked the deadline a few more years down the road. It’s hard to keep track of the number of times DHS has set a REAL ID deadline, then let it slide when elected state officials have declined to obey the instructions of unelected DHS bureaucrats.

Minnesota has had a similar experience. Last winter, its legislature was spooked into creating a special “Legislative Working Group on REAL ID Compliance.” But Minnesota just ended its legislative season without passing REAL ID compliance legislation. There are a few people there who recognize the demerits of joining the national ID system, and Minnesota elected officials may have figured out that when DHS bureaucrats say “Jump!” they do not have to ask “How high?”

The General Court has done better than the U.S. Congress on REAL ID by holding hearings before acting. In 2007, then-Massachusetts Attorney General Martha Coakley testified before the Joint Committee on Veterans and Federal Affairs.

On REAL ID, DHS Caves Once Again

After menacing states across the country this fall, the Department of Homeland Security has once again caved on threats to enforce REAL ID by denying Americans their right to travel.

This afternoon, DHS Secretary Jeh Johnson put out a press release backtracking on agency claims that the Transportation Security Administration would turn away air travelers from states that don’t comply with the U.S. national ID law in 2016.

The new deadline, according to Secretary Johnson’s statement, is January 22, 2018. That’s sure not 2016. That’s more than two years away.

REAL ID, Rumor Control, and You

The Identity Project says that a new DHS “Rumor Control” web page lies about the REAL ID Act. That may be true, but a lie is an intentional misstatement, and we don’t know if the PR professional who wrote the material on that page knows the issues or the law. Let’s review the record, taking each of the rumors DHS addresses in turn, so that the agency doesn’t misstate the federal government’s national ID policy in the future.

The U.S. Department of Chutzpah

For PR professionals, the holiday season is like one big Friday at 5:00 p.m. That’s when you release information that you don’t want getting too much attention.

So it’s no surprise that we learned yesterday that the Transportation Security Administration has just awarded itself the authority to make airport strip-search machines mandatory. Until now, having a machine create a digital representation of your unclothed body has had a happy alternative: a prison-style pat-down! (That’s my choice. It’s sometimes a little massage-y.)

It takes a lot of gall for the Department of Homeland Security to make this move now, though—not because it’s the holiday season, but because the DHS (of which TSA is a part) is currently under a court order to establish the legality of its strip-search machine policies in toto.

In July 2011, the D.C. Circuit Court of Appeals ruled that the DHS had failed to follow the procedures required by law when it established its policy of using strip-search machines for primary screening. The court ordered the DHS to “promptly” undertake a notice-and-comment rulemaking. Four years later, our friends at the Competitive Enterprise Institute initiated a new lawsuit seeking to compel DHS to finish what was amounting to an endless rulemaking process.

DHS recently told the D.C. Circuit that it would finish the regulation by March 3, 2016. In the meantime, they’re screwing the lid down just a little bit more on air travelers. Chutzpah!

When the regulation is done, it can finally be challenged under the Administrative Procedure Act’s “arbitrary and capricious standard.” Our John Mueller and Mark Stewart have already shown that strip-search machines are a cost-ineffective security measure.

In a similar vein, rumors are swirling that the DHS will soon announce full REAL ID enforcement at airports. The quiet week between Christmas and New Years seems like a ripe time to get that news out.

They’ve said they’d give 120 days’ notice that TSA is going to start rejecting drivers’ licenses and IDs from states that don’t participate in the national ID system. A December announcement means that April would be white-knuckle time for travelers.

There will not be enforcement, of course. The goal is to bluff about enforcement to state legislatures in advance of their 2016 legislative sessions, so that they’ll pass laws implementing the federal national ID mandate. Just yesterday, two DHS bureaucrats issued orders to Minnesota governor Mark Dayton (D) detailing how the law in Minnesota must change to satisfy their demands.

Federal bureaucrats ordering around governors and legislators! Chutzpah!

DHS isn’t dumb enough to do it … I’m sometimes wrong … but actual REAL ID enforcement at airports would be quite a show. Not only would there be howls of protest aimed at TSA in the media, the DHS would catch a delicious lawsuit from some law-abiding American citizen trying to visit family who is denied the right to travel.

The lawsuit would expose that DHS enforcement is entirely arbitrary. REAL ID is unworkable, and the agency has been handing out waivers like they were candy canes since the statutory deadline in 2008. Having selected a pared-down “material compliance checklist” to treat as compliance, DHS bureaucrats have been arbitrarily claiming that some states are in compliance and some states are not, giving waivers to some states and not to others based on internal, self-selected criteria. That is not how law works, and once they try to enforce, they’ll have to square-up their enforcement efforts with the terms of the REAL ID law, equal protection, and due process.

Should DHS try to show that it has rational criteria for refusing IDs, that may bring in the question of ID security, which, like strip-search machines, is another cost-effectiveness loser. I won’t belabor that point, but my Christmas list includes a TSA and DHS operating under the rule of law, required to defend its programs in light of solid points made by security analysts like this guy Adam.

Learn more than you ever wanted to know about REAL ID from this recent Hill briefing.

Another Step toward Government Under Law

Last week, our friends at the Competitive Enterprise Institute won a small but important victory in the effort to bring the Transportation Security Administration under law. It began when the Electronic Privacy Information Center (EPIC) challenged the TSA’s policy of using strip-search machines at airports for primary screening. EPIC’s Fourth Amendment attack failed, but the D.C. Circuit Court of Appeals found that the TSA hadn’t used required administrative procedures to establish the policy, and it ordered the agency to promulgate a rule after taking comments from the public.

That was more than four years ago. The agency has been dragging its feet. And last week the court gave TSA thirty days to submit a schedule for “the expeditious issuance of a final rule within a reasonable time.”

Once the TSA has finalized its rule, it will be subject to challenge under the “arbitrary and capricious” standard in federal administrative law. John Mueller, Mark Stewart, and I filed comments during the rulemaking that will help show that the TSA’s policy is incoherent when it’s before the court.

Yes, it’s taking a long time. Courts often defer to agencies as experts in the fields they regulate, though they’re really expert at gaming the regulatory system and the courts. With persistence, though, the effort to bring the TSA under law and reverse its needlessly invasive and expensive programs will bear fruit.

Or responsibility for air security will be restored to airlines and airports.

TSA’s Classified “Risk-Reduction Analysis”

Last month, our friends at the Competitive Enterprise Institute filed suit against the TSA because the agency failed to follow basic administrative procedures when it deployed its notorious “strip-search machines” for use in primary screening at our nation’s airports. Four years after being ordered to do so by the U.S. Court of Appeals for the D.C. Circuit, TSA still hasn’t completed the process of taking comments from the public and finalizing a regulation setting this policy. Here’s hoping CEI’s effort helps make TSA obey the law.

The reason why federal law requires agencies to hear from the public is so that they can craft the best possible rules. Nobody believes in agency omniscience. Public input is essential to gathering the information for setting good policies.

But an agency can’t get good information if it doesn’t share the evidence, facts, and inferences that underlie its proposals and rules. That’s why this week I’ve sent TSA a request for mandatory declassification review relating to a study that it says supports its strip-search machine policy. The TSA is keeping its study secret.

In its woefully inadequate (and still unfinished) policy proposal on strip-search machines, TSA summarily asserted: “[R]isk reduction analysis shows that the chance of a successful terrorist attack on aviation targets generally decreases as TSA deploys AIT. However, the results of TSA’s risk-reduction analysis are classified.”

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