Sales on Patriot Act Prosecutions: Prudence Trumps Change

In a National Review Online op-ed, Professor Nathan Sales argues that "prosecutorial prudence" is a better way to ensure in-flight safety and flexibility under the existing Patriot Act then enacting new legislation restricting the statute to terrorist assaults.

Sales counters recent criticisms of stringent prosecution of non-compliant airline passengers under the Patriot Act by explaining that it has been a federal crime to interfere with airline crews since 1961. A minor adjustment to the law under the Patriot Act made it illegal to now attempt or conspire to do what the statute already barred actually doing.

"The basic idea is prevention: We shouldn't have to wait until a hijacker slits a flight attendant's throat to impose criminal liability. We should be able to prosecute him for the steps he takes along the way to complete the assault—ignoring an order to return to his seat, pulling a box cutter out of his pocket, and so on," says Sales.

Rather than leaving flight crews with with fewer protections than they had prior to 9/11, the Justice Department could issue guidelines to field offices to instruct as to what constitute offenses significant enough to warrant criminal prosecution, versus offenses calling for fines or other lesser mechanisms of punishment.

When Skies Become Unfriendly, National Review Online, March 11, 2009. By Nathan A. Sales.

"The PATRIOT Act has attracted such notoriety in some quarters that journalists naturally blame everything they can on it. But the reality is that most of these people could have been prosecuted even if PATRIOT never existed. PATRIOT isn’t putting them behind bars; the 1961 law is.

"The question then becomes whether that JFK-era statute makes sense in today’s world. It’s important to bear in mind that the law isn’t limited to terrorists; it reaches anyone who interferes with a crewmember (which means that headlines like 'Mother Declared Terrorist Threat for Spanking Children on Airplane' are inaccurate). There are at least two good reasons why it’s written so broadly.

"The first is to promote passenger safety. A lot can go wrong at 35,000 feet, and it’s hard for pilots and flight attendants to keep everything in order if they’re distracted by a scuffle between two passengers. As one federal court put it back in 1975, the statute’s goal is to prevent' crimes which, if committed on the terrain below, might be considered relatively minor, but when perpetrated on an aircraft would endanger the lives of many.' It goes without saying that belligerent passengers aren’t as dangerous as terrorists. But they can still distract the crew (not to mention frighten their fellow passengers), and any distraction is a potential safety risk.

"The second reason is flexibility. When an incident takes place, it won’t always be clear whether it’s a garden-variety fracas or the early stages of something more sinister. We might just be dealing with a shouting match, or terrorists might be staging a fight, hoping to lure the captain from the cockpit and gain control of the aircraft. Flight attendants shouldn’t have to wait until the true nature of the disturbance reveals itself to warn passengers they’re violating federal law.

"That’s not to say the 1961 law is perfect. More people are probably being charged with violating it now than before 9/11, and, as with any broad statute, it can be applied too severely. There’s always a risk that innocent passengers could be ensnared — or, more likely, passengers whose behavior is not exemplary but who aren’t terrorists, either. So what do we do about it?"

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