Sales in LA Times: Difficulty in Determining Disruptive Passengers' Intent

The flexibility afforded airline personnel in dealing with unruly passengers under the Patriot Act is was intended to put terrorists in violation of the law before they had the ability to execute a harmful activity says Professor Nathan Sales, who helped write the Patriot Act during his tenure at the Department of Homeland Security. Citing examples of a mother disciplining a child on board an aircraft and an Al Qaeda operative with a box cutter, Sales underlines the difficulty in determining intent in the midst of an incident.

Commenting in an article in the Los Angeles Times, Sales says, "If you get out of your seat and walk to the front of a plane and talk about bombs, you get what you deserve." He also points out that sanctions other than a federal felony conviction under the Patriot Act exist for those with mental health issues at the roots of their behaviors.

According the the Transactional Records Access Clearinghouse, the federal government has obtained 208 felony convictions for disrupting flights since 2003. A single case of actual terrorism exists in the 2001 Richard Reid conviction in which the man attempted to ignite explosives stored in his shoes on board a flight and was subdued by passengers and crew members.

Terror law used on unruly air travelers, Los Angeles Times, January 20, 2009. By Ralph Vartabedian and Peter Pae.

"For decades, airline personnel and law enforcement have had wide latitude in prosecuting unruly passengers, not only for assaults or threats but also for any behavior, including arguing, that disrupts a flight or 'lessens the ability' of crew members to perform their jobs.

"In practice, however, airlines have largely maintained order under Federal Aviation Administration rules, in which hundreds of unruly passengers are simply slapped with an infraction and fine each year.

"According to FAA guidelines issued in 2007, 'interference or intimidation of a crew member by itself is not chargeable under the [criminal] statute unless it rises to the level of physical assault, threatened physical assault or an act posing an imminent threat to the safety of the aircraft or other individuals on the aircraft.'

"Sept. 11, however, changed everything. Within two months of the attacks, Congress passed the Patriot Act, a sweeping attempt to improve the nation's defenses against international terrorism. It included broad new powers for law enforcement in such areas as electronic surveillance, money laundering and search warrants.

"Included were two key provisions on airline security. The first defined disruptive behavior as a terrorist act, reflecting the seismic shift in airline security.

"The second broadened the existing criminal law so that any attempt or conspiracy to interfere with a flight crew became a felony -- a change that allowed flight personnel to act against suspicious passengers even if they hadn't begun an actual assault.

"The law gave flight personnel enormous latitude in determining what precisely posed a potential threat or disruption, and judging by some cases, there is no clear standard."

Read the article

Read a January 23, 2009, Las Vegas Sun editorial on this topic, Felonious Flying, in which Professor Sales is quoted.