Transcript Powerpoint File - Alan Armstrong, Attorney-At-Law

TRANSPORTATION SECURITY ADMINISTRATION
INITIATIVES DIRECTED TOWARD GENERAL
AVIATION
(1) THE LARGE AIRCRAFT SECURITY PROGRAM
(2) SECURITY DIRECTIVES 8F AND 8G
and
(3) OPERATION PLAYBOOK
By:Alan Armstrong
www.alanarmstronglaw.com
www.stoplasp.com
I. THE TSA ISSUES ITS NPRM
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October 30, 2008: TSA issues 265 page NPRM:
(1) Criminal background checks on pilots
(2) Vetting of all passengers by “watch list
service provider”
(3) Security Positions required: aircraft, ground
and in-flight security coordinator
(4) Biennial auditing by a third party vendor.
Burdens on reliever airports
(a) Create an airport security program,
(b) Training requirements for personnel,
(c) Handle SSI (sensitive security information)
(d) Impose “unfunded mandates” on airports
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January 8, 2009: TSA hearing in Atlanta
No scientific study to support aircraft
trigger weight of 12,500 pounds.
TSA said the trigger weight was based on
the ability to inflict damage
A Cessna 172 could carry a nuclear device.
An ultralight could carry anthrax.
With no demonstrated relationship between
the trigger weight and the regulation, the
regulation was arbitrary and capricious
violating substantive due process.
II. A PRIMER ON CONSTITUTIONAL LAW AND
THE ADMINISTRATIVE PROCEDURE ACT
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“No person shall be…deprived of life, liberty or
property, without due process of law” U.S. Const.,
Amend V.
Administrative Procedure Act: Government
agencies must publish notice of intention to
promulgate a rule in the Federal Register affording
public comment before final rule making. 5 U.S.C.
553 (b)(1), (2), (3).
Courts authorized to set aside and hold unlawful
agency action that is “arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance
with the law.” 5 U.S.C. 706 (2)(A).
Since the TSA trigger weight was not supported by
a scientific study, it was arbitrary and capricious
violating substantive due process under the Fifth
Amendment.
III. SKIPPER AND I JOINED FORCES AND MOUNT A
GRASS ROOTS EFFORT TO STOP THE TSA
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January 17, 2009: Meeting with Skipper Hyle.
January 20, 2009: Rahm Emanuel, Assistant to
the President issues Memorandum freezing
regulatory initiatives except “national security
matters.”
January 21, 2009: White paper completed: A
Call to Scrap the TSA’s Large Aircraft Security
Program.
www.stoplasp.com & www.alanarmstronglaw.com
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January 21, 2009: Letter dispatched to
Rahm Emanuel concerning LASP.
January 22, 2009: Skipper meets with
staff personnel of Congressman Lynn
Westmoreland.
The cost of www.stoplasp.com was $24.
Westmoreland’s office recommended a
grass roots movement.
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January 26, 2009: Video conference
with Congressman Lynn Westmoreland:
(a) TSA had published the NPRM just
before Christmas hoping to sneak it
through.
(b) Westmoreland promised to bring the
topic up with Congressman Oberstar,
Chairman of the House Aviation
Subcommittee.
(c) Westmoreland advised that the TSA
initiative could only be stopped by
reaching the “boiling point.”
(d) Westmoreland requested I prepare a
synopsis of LASP for him.
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January 27, 2009: Westmoreland receives my
synopsis of LASP.
January 28, 2009: David Hook -- 42% of the
reliever airports would not actually
accommodate aircraft weighing more than
12,500 pounds.
January 28, 2009: Robert P. Olislagers,
American Association of Airport Executives: the
TSA study of December 30, 2008 declared
general aviation was not a security threat
undermining the TSA’s position in LASP.
February 2, 2009: Letter to Governor Sonny
Perdue -- four airports in Georgia are impacted
by the TSA’s LASP.
IV. OPERATION PLAYBOOK
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February 3, 2009: Jerry Trachtman: TSA agents
had appeared, searching pilots, their cars and
their hangars in Melbourne, Florida.
Local TSA Director claimed the activities were
“training” for TSA agents.
Physician/Pilot told by TSA he could not bring his
gun to the airport or put it in his airplane or
police would be called.
February 11, 2009: Reports filtered from the
NBAA – similar operations in Nashville,
Tennessee and at the Bradley International
Airport.
Operation Playbook is classified.
Is the TSA’s assertion of “training” a cover story?
V. THE LAW SUPPORTS UPHOLDING WARRANTLESS
SEARCHES FOR AIRPORT SECURITY
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American citizens are protected against
unreasonable searches and seizures requiring
a search warrant or probable cause. U.S.
Const., Amend. IV.
Airport security authorizes administrative
searches with no Fourth Amendment
protections. United States v. Aukai, 497 F.3d.
955, 959-960 (Ninth Cir. Haw. 2007).
U.S. Supreme Court recognizes administrative
searches at airports. New York v. Burger, 482
U.S. 691, 702 (1987).
VI. THE MEETING IN WASHINGTON WITH
CONGRESSMAN SAM GRAVES
Pictured: Mike Collier, Skipper Hyle, Congressman Sam Graves, Alan Armstrong and Mike Matousek.
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February 20, 2009: Meeting with
Congressman Sam Graves and his
assistant, Mike Matousek during NWOC.
Craig Spence of AOPA and Doug McNair
of EAA were present.
There was no civil liberties assessment
study conducted by the TSA attendant
to its implementation of LASP.
Obtained formerly classified TSA study
of December 30, 2008 admitting general
aviation was not a threat to the
homeland.
VII. THE TSA’S USE OF SECURITY DIRECTIVES
TO BYPASS THE NOTICE AND PUBLIC COMMENT
REQUIREMENTS OF THE ADMINISTRATIVE
PROCEDURE ACT
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TSA can issue a “security directive” to combat a threat to
national security and bypass APA rule making.
Security directives without public comment undermine due
process.
The greatest intrusions into our civil liberties do not
come from the decisions of courts. Rather, they
come from regulations promulgated by government
agencies acting under the auspices of “national
security” or “aviation safety.”
May 14, 2009: Rep. John Salazar (R-CO) voiced concerns
about Security Directive SD-8F.
A pilot must have a separate badge for each reliever
airport.
The badging requirements are unfunded mandates
imposed by the TSA.
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May 31, 2009: Major General Amy Courter,
National Commander of the Civil Air Patrol:
Our recommendation is to move as many CAP
aircraft as possible to non-commercial-service
airports until our efforts to lessen the restrictions
have been exhausted…
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Skipper is told the TSA does not even know which
airports SD-8G applies to.
The Mica/Graves/Ehlers/Petri Amendment to H.R.
2200 would force the TSA to promulgate a
security directive in the Federal Register six
months after promulgation.
VIII. H.R. 2200 – THE AMENDMENT
OFFERED BY MICA, GRAVES, EHLERS
AND PETRI – THE FIRST
CONGRESSIONAL INTIATIVE
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June 4, 2009: Letter of Patrick Graham,
Executive Director of the Savannah
Hilton Head International Airport to Rep.
Jack Kingston (R-GA).
Graham urged support for the
Mica/Graves/Ehlers/Petri Amendment to
H.R. 2200.
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June 4, 2009: The Mica/Graves/Ehlers/Petri
Amendment to H.R. 2200 that requires the TSA, 180
days after implementing a Security Directive, to publish
the Security Directive as a rule in the Federal Register in
accordance with the Administrative Procedure Act
passed by a vote of 219 to 211.
There are 435 members of the House of Representatives
which means that only five members of the House failed
to vote on this amendment to H.R. 2200.
June 5, 2009:
“Everyone knows that TSA has had some serious
missteps especially when it comes to GA. Someone
ought to go over there and grab them by the neck and
shake some sense into them.” (Paraphrase of words
attributed to Congressman Pete DeFazio from Oregon
during the course of the debate on the amendment to
H.R. 2200.)
IX. CONGRESSMAN PETE OLSON’S
AMENDMENT TO H.R. 2200 AND THE WATCH
LIST SERVICE PROVIDERS – THE SECOND
CONGRESSIONAL INITIATIVE
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The airlines, air carriers and air taxi operators vet their
passengers with the TSA.
The “Watch List Service Providers” that operators would
vet their passengers with is a cottage industry the TSA
envisioned setting up because it lacks the resources to
vet all these passengers.
June 12, 2009: Congressman Pete Olson (R-TX) said:
“H.R. 2200 includes an amendment offered by (him) to
block non-governmental entities from checking terrorist
watch-and no-fly lists.” AOPA Online Briefing Bulletin,
June 12, 2009.
If there are no “Watch List Service Providers”, then the
vetting under LASP would have to be done by the TSA
itself.
X. H.R. 2892 – THE THIRD LEGISLATIVE
INITIATIVE
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June 24, 2009: A committee report
accompanying H.R. 2892, an appropriations
bill to fund the Department of Homeland
Security for fiscal year 2010, included
language “commending the TSA for working
with stakeholders to develop a modified LASP
rule that ‘minimizes adverse effects on general
aviation while addressing security concerns’”
AOPA Briefing Bulletin, June 26, 2009.
June 26, 2009: “Senator Mark Pryor (D-AR)
worked to include similar language in the
Senate version of the bill, which is passed out
of committee and awaits consideration on the
floor.” AOPA Briefing Bulletin, June 26, 2009.
XI. CONGRESSMAN CHARLIE DENT AND THE
GENERAL AVIATION SECURITY
ENHANCEMENT ACT OF 2009 – THE FOURTH
LEGISLATIVE INITIATIVE TO SOLVE
PROBLEMS CREATED BY TSA
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Congressman Charlie Dent (R-PA) introduced
the General Aviation Security Enhancement Act
of 2009 requiring the TSA to enter into
negotiated rule making with the aviation
community and find solutions to the issues
created by the TSA in implementation of its
Large Aircraft Security Program. The Dent bill
had eight co-sponsors: Olson, Ehlers, Moore,
Perlmutter, Miller, Petri, Mica and Campbell.
XII. CONGRESSMAN JEFF FORTENBERRY AND
H. RES. 508 – THE FIFTH LEGISLATIVE EFFORT
IN RELATION TO THE TSA’S LARGE AIRCRAFT
SECURITY PROGRAM
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July 1, 2009: Congressman Jeff Fortenberry
(R-NE) introduced H. Res. 508 noting that the
general aviation industry contributes $150
Billion Dollars to the U.S. Economy and
provides 1.3 million jobs and provides vital
services to our nation.
Apparently, Fortenberry believed that
introduction of this resolution would cause the
TSA to be reasonable in its Large Aircraft
Security Program initiative.
XIII. S-1298 – THE SIXTH LEGISLATIVE
INITIATIVE DESIGNED TO AMERIOLATE
THE MISCHIEF OF THE TSA
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July 8, 2009: S-1298: The committee
understands that TSA is currently
working with stakeholders to develop a
modified Large Aircraft Security
Program rule that minimizes adverse
effects on general aviation while
addressing security concerns…
XIV. H.R. 3678 – THE SEVENTH LEGISLATIVE
EFFORT TO AMELIORATE THE MISCHIEF
CREATED BY TSA WITH LASP
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October 5, 2009: Letter from Greg Principato, President,
Airports Council International – North America to
Representatives Mica, Boyd, Ehlers, Graves and Petri:
Endorsed H.R. 3678 to ameliorate TSA’s issuing security
directives to bypass normal rule making procedures.
“We do not believe that Congress intended to provide TSA
such latitude that it could issue SDs absent or months after
an identified threat. In addition, ATSA (Aviation and
Transportation Security Act) requires all SDs to be reviewed
by the Transportation Security Oversight Board, which to
our knowledge has never held a meeting.”
The inference? – There has been no supervision of TSA
abuses by the Transportation Security Oversight Board. The
system is not working as it was designed.
XV. BRIAN DELAUTER – THE NEW GENERAL
MANAGER OF GENERAL AVIATION FOR TSA –
DOES THIS SIGNAL A RESOLUTION OF THE
ISSUES?
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November 11, 2009: Brian Delauter, the new General
Manager for General Aviation of the TSA made some
interesting comments at an AOPA forum:
(a) The weight will go up considerably (the word I have
heard is about 30,000 pounds).
(b) The next fight is going to be over badging pilots,
since Delauter asserts the TSA rule was improperly
interpreted by pilots.
(c) In an incredible leap of logic, the TSA is advancing
the idea of having one TSA badge nationwide. This
makes absolutely too much sense. Maybe the TSA
will finally get it right.
(d) Delauter admits the TSA has done a poor job in
terms of outreach to the community.
XVI. CONCLUSION
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There have been seven initiatives in Congress
directed toward curbing the TSA’s misadventure:
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(1) The Mica/Graves/Ehlers/Petri Amendment to H.R.
2200.
(2) Rep. Pete Olson’s Amendment to H.R. 2200.
(3) H.R. 2892 encouraging the TSA to work with
stakeholders.
(4) Rep. Charlie Dent’s General Aviation Security
Enhancement Act of 2009.
(5) Rep. Jeff Fortenberry’s H.Res. 508.
(6) S-1298 encouraging TSA to weigh the costs and
benefits associated with its security mandate.
(7) H.R. 3678 that would modify the ability of the TSA
to employ security directives as a means of bypassing
due process under APA.
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The rumor is:
(1) TSA will increase the trigger weight to
30,000 pounds, and
(2) Exempt all piston-powered airplanes.
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If the rumor is true:
(1) It is designed to assuage the concerns of
the majority of the General Aviation
community.
(2) The TSA hopes general aviation will give
up the fight and let it have a Large Aircraft
Security Program.
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The General Aviation Community needs to
ponder three things:
(1) If TSA gets a Large Aircraft Security
Program, what is to prevent it in future
NPRM’s from (a) lowering the trigger weight
and (b) deleting the piston-powered
exemption?
(2) If general aviation cannot get the
Mica/Graves/Ehlers/Petri Amendment
passed, TSA will continue to defy the
Constitution by issuing “security directives”
bypassing the rule-making process under
APA.
(3) Nothing prevents the TSA from
resurrecting “Operation Playbook” and
harassing general aviation.
XVII. CALL TO ACTION
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Go to WWW.STOPLASP.COM or WWW.ALANARMSTRONGLAW.COM
Secure the names and addresses of Congressmen on the General
Aviation Caucus.
Contact General Aviation Caucus Members and your Congressmen.
Tell them to:
(1) Scrap LASP,
(2) Stop the TSA from bypassing APA due process by employing
security directives, and
(3) Scrap “Operation Playbook.”
“All that is required for evil to triumph is that good men do nothing.”
Edmund Burke
Copyright, 2009. Alan Armstrong.
FOR MORE INFORMATION VISIT ALAN ARMSTRONG AT
BOOTH 841
www.midwayairbattle.com