1/27/2004, "NATIONAL COMMISSION ON TERRORIST ATTACKS UPON THE UNITED STATES"
Public Hearing, including Jane Garvey, former FAA administrator, Mr. Flynn, former FAA official, Mr. Manno, TSA, assistant administrator for intelligence, Mr. Loy, DHS Dep. Sec., United Airlines and American Airlines officials, Commissioners former US Senator Bob Kerrey, Mr. Ben-Veniste, Mr. Lehman, and others.
Highlights
From 9-11 Commission Transcript, 1/27/04: United and American Airlines officials say even after 9/11 up to the week before these hearings, they were sued and/or fined each time they removed a passenger who was a threat. United was told not to continue removing such passengers after 38 instances. American Airlines says it was sued by the US government for all 10 or 11 passengers they had removed at that point post 9/11:MR. SOLIDAY (United Airlines Safety Officer): "After 9/11, 38 of our captains denied boarding to people they thought were a threat. Those people filed complaints with the DOT, we were sued, and we were asked not to do it again."...
MR. ARPEY (American Airlines): "In a post-9/11 environment, we had situations where our crew members were uncomfortable with passengers on board the airplane, they hauled them off the airplane and I think -- there was 10 or 11 of them -- and today we're being sued by the DOT over each one of those cases. "...
MR. STUDDERT (United Airlines): "I think last month United was actually fined."...
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MR. KERREY (Commissioner): -- "it is a religious belief and it's not new, it didn't spring at us in 2001."..
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MR. SOLIDAY on advice from Israeli security with whom he contracted for aid and assessment after 9/11: "The only way you will stop them is by keeping them off the airplanes, and to do that you must do aggressive profiling."
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MR. SOLIDAY (UAL): Prior to 9/11 UAL was instituting the CAPPS system and they received "a visitor from the Justice Department who told me that if I had more than three people of the same ethnic origin in line for additional screening, our system would be shut down as discriminatory. "...
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Following detailed remarks about 9/11, we're reminded why it was so easy for the hijacker/killers, then Commissioner Kerrey begins speaking to Ms. Garvey, then FAA Administrator:
Bill Johnstone: "However, on the day of September 11th, 2001...Cockpit doors were not hardened and gaining access to the cockpit was not a particularly difficult challenge. Flight crews were trained not to attempt to thwart or fight the hijackers. The object was
to get the plane to land safely. Crews were trained in fact to dissuade passengers from taking precipitous or heroic actions against hijackers."...
Philip Zelikow: "The no fly list offered an opportunity to stop the hijackers, but the FAA had not been provided any of their names, even though two of them were already watchlisted in TIPOFF. The pre-screening process was effectively irrelevant to them. The on-board security efforts like the Federal Air Marshal program had eroded to the vanishing point"....
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COMMISSIONER BOB KERREY:
"The no-fly list has been referenced a couple of times. Are you familiar with the no-fly list?
MS. GARVEY: Yes, absolutely, Commissioner and you know, again from my perspective and I know there has been a number of questions on this, but from the administrator's perspective, the no-fly list, as Mr. Manno indicated, was created based on information we received from others with a specific aviation -
MR. KERREY: You got Security Directive 95 of 02H, updated April 24th, 2000. Six people who are associates of Ramzi Yousef, including Khalid Shaikh Mohammed that are on the list. That's six. I presume the airlines have no difficulty handling six.
Mr. Manno, you wouldn't defend the airlines if they complained about trying to keep six people off? It may be difficult for all I know. I don't know. Is it harder than it looks?
MR. MANNO: No, not with a list that small.
MR. KERREY: What was the judgment that was made in April 2000 to put these six on the list? On what basis was Khalid Shaikh Mohammed, Ibrahim, all these guys -- there was six people on the list and then there's six more that come on the list on August 28, '01. They're also added on the list and, by the way, they all -- every single one are associated
- with some Islamic extremist group.
And I really think part of the problem that we're having today is we continue to tread lightly on this fact. And we keep calling them all terrorists, you know, as if there's a worldwide network of terrorists of all different stripes, of all different genders, all different kinds. I mean, the only one that makes the list -- there's actually a couple of people lower down the list that appear on there that may not be associated with this Islamic extremist effort -- are people who are associated with some Islamist extremist network. Is that your understanding of it? Is that how they made the list? I mean, they're making the list because -
MR. MANNO: The way that those individuals made the list is that it came out of the investigation being conducted by the FBI and by the Philippine authority.
MR. KERREY: So did the FBI recommend they be put on the list?
MR. MANNO: We received information that actually had originated in a cooperative effort between FBI and CIA. So we receive intelligence reporting that these individuals were tied to -
MR. KERREY: You receive intelligence reporting from CIA and FBI?
MR. MANNO: Yes, sir.
MR. KERREY: Saying that these six should be on the list? Did you -
MR. MANNO: No, sir. That they were associated with Ramzi Yousef who, as you well know, had been involved in the Bojinka plot and that they were in some way tied to that plot. So we had a concern, a specific concern about these individuals, not knowing what else they might have been up to and therefore -
MR. KERREY: Did you consider putting other people on the list at the time that might have some association with Ramzi Yousef?
MR. MANNO: These were the names that came to us in the intelligence reporting. Again it was tied back to the specific plot.
MR. KERREY: You're confusing me, Mr. Manno. At one point you're saying you're making the decision. Now it's somebody else that's making the decision. You're making the decision who to put on the list and I'm asking you, did you consider putting other people on the list beside these six?
MR. MANNO: As far as I know, at that time, those were the only names that we had tied to that plot.
MR. KERREY: Did you put out an inquiry as to whether or not there might be some additional names that should be put on the list?
MR. MANNO: Absolutely. It's part of our standard -
MR. KERREY: Who did you put the inquiry to?
MR. MANNO: With CIA.
MR. KERREY: Do you remember the response?
MR. MANNO: No, sir.
MR. KERREY: You now remember you presume that they didn't respond?
MR. MANNO: Part of the process for us, whenever we open one of the intelligence case files that I mentioned earlier, is to follow up on that and to continue to ask questions for additional information. So it's just part of the process. It's not something that was done only in this case. It's done in all cases where -
MR. KERREY: I just score the point that a number of other commissioners have made. Given the specificity of U.S. Code 49, what it requires the airlines to do, it seems to me, particularly with what was going on at the time, that some effort would have been made to make -- to produce a larger list than that. And again, I score the point, to call them terrorists as opposed to saying this is a part of a worldwide network of Islamic extremists, I think, makes it exceptionally difficult to do what you need to do, which is to identify those who are extremists and keep them on the no-fly list and keep them watchlisted as opposed to having a sort of a broad blanket screen that might produce harassment of people who just look like they might be Muslim extremists. I think there is a paradox here. Not saying what it actually is, you end up harassing people who may not actually be terrorists. But that's a longer point.
Let me ask you, Mr. Manno. You were the deputy -- was it Pat McDonald who was your predecessor?
MR. MANNO: Yes.
MR. KERREY: Were you present when he did the CD-ROM briefing on April 2000?
MR. MANNO: When it was produced, yes.
MR. KERREY: Were you present in April 2000 when he presented it?
Administrator Garvey, were you present when this -
MS. GARVEY: No, I was not.
MR. KERREY: Have you seen the details of it?
MS. GARVEY: I have not. It has only been reported to me.
MR. KERREY: When was it reported to you?
MS. GARVEY: Post-9/11.
MR. KERREY: Have you seen it, Mr. Manno?
MR. MANNO: The CD-ROM was actually produced in about 700 copies and disseminated to the aviation industry, airports, FAA field offices. So it was actually quite widespread.
MR. KERREY: I have here the rebuttal that you all have sent up for Eleanor Hill's statements that she made to the Joint Inquiry. She was, I think, the staff director for the Joint Inquiry. Things that she said about the FAA, didn't do this, didn't do this, didn't do this, and your rebuttals are basically, we didn't know, we didn't get the intel, nobody told us, right down the list. The CIA didn't tell us, FBI didn't tell us.
And I've got to say just honestly, if it had been two or three of them, I would have been on your side, but when it accumulates like 15 or 20 of them, at some point you say, geez, why didn't you push back and ask? I mean, I just tell you, my reaction to your rebuttals does not bring glory to the agency. It's quite the opposite. It causes me to say, I don't understand how there could be so many situations where you simply say, they didn't tell us.
This, by the way, is not they didn't tell us. You go through the 29 slides I think we've got here, 29 slides. Mr. Manno -
MR. MANNO: Yes, sir, I'm familiar with it.
MR. KERREY: -- you've gone through them?
MR. MANNO: Pardon?
MR. KERREY: You've gone through the slides?
MR. MANNO: Yes, sir.
MR. KERREY: Well, this is your own agency making an assessment of Islamic extremist and the dangers and the threat that they pose to the United States of America. It's not terrorists again. I hope I don't offend too much some of my Muslim friends who think that I'm being nasty in this regard. But there's nobody on this list except UBL and people that are associated with UBL or other Islamic extremist groups. I mean, that's basically what this is a presentation of. I mean, Hezbollah's identified as a threat, but you're talking about UBL all the way through this thing. You're talking about Usama bin Laden and al Qaeda and the threat that they present to the United States of America.
MR. MANNO: Well, historically the groups that have targeted aviation have been Islamic extremists, yes.
MR. KERREY: Historically?
MR. MANNO: Hezbollah. Pardon, sir?
MR. KERREY: Historically?
MR. MANNO: Historically. Going back to Hezbollah, for example, is one of the other groups.
MR. KERREY: Give me historically. What are you talking about historically? Last 10 years?
MR. MANNO: Since 1985, with the hijacking of TWA 847 by Hezbollah.
MR. KERREY: Did any change occur in 1998?
MR. MANNO: No.
MR. KERREY: So you're saying that basically you've got a -I mean, are you saying that there's no increase and concern about the danger to the United States from Islamic extremists in 1998?
MR. MANNO: No. There was. And we wrote several assessments, sent out information circulars and -
MR. KERREY: But if you -- let me just pull up one of these slides. I think it was the one that Commissioner Roemer quoted from. I've got to get the exact -- no, I've got it right here unfortunately. It's slide 24. When the conclusion is -- and I guess, Irish, I'm asking you on this one, which is when the conclusion is reached in slide 24, that fortunately we have no indication any group is currently thinking in that direction. That's the statement that's made. And there's a lot in that statement. We have no indication that any group is currently thinking in that direction.
I mean, the first question I would ask is, so, do I need an indication that somebody is thinking in that direction? I mean, take the Ressam plot. We've got the details of the Ressam plot not ahead of time. We didn't have the Ressam plot prior to arresting Ressam in Seattle, did we? I mean, even the threat to LAX. We didn't knock that threat down as a consequence of security at LAX. We didn't discover the details of the plot. So when you say, Administrator Garvey, we had -- your language is we had no credible and specific intelligence indicator that UBL and all the rest of them were actually plotting to hijack commercial planes, I'd say do you have to have a specific plot? Do you need a memo from them saying, this is what we're going to do? And the answer's no.
And so when you say, we have no indication any group is currently thinking in that direction, I wondered, did you -- was there a conversation? Is that challenged internally? I don't know what the process is. Do you have a conversation with anybody from the National Security Council? How do you get that double-checked, because as it turns out, it wasn't true?
MR. MANNO: That was an analytical judgment. There was no specific and credible information that al Qaeda or anybody else -
MR. KERREY: No, no. Believe me, I know it's an analytical judgment. I recognize it as an analytical judgment. The question is, was Jim or Mary or Dick sitting there saying their analytical judgment was completely different. And, in fact, looking at some of the previous slides, some of the previous slides state just the opposite, seem to indicate just the opposite. I mean, the possibility of a suicide bombing attack was mentioned in one of the previous slides. I mean, I do this
- I mean, it's not like I don't have internal contradictions that I don't need my wife or somebody else to point out, but did anybody else disagree at that presentation? Did anybody internal to FAA security disagree with that conclusion?
MR. MANNO: No. But, again, the hijacking threat was not discounted. But in the grand scheme of things, looking at the variety of threats that we were looking at, it was considered less of a threat at the time than -
MR. KERREY: Okay. So it's less of a threat. You say it's a low probability. That's not very comforting to passengers to hear that if it's a low probability, don't do anything with it. I mean, God, how high probability is it I'm going to do any damage with my fingernail clippers on an airplane, but you take those every damn time I get on the plane. So you've got a low probability for hijacking and therefore we're not going to put much energy into it. Is that what you're saying?...
MR. KERREY: After the attack on Dar es Salaam in Nairobi -- and I say it with great respect, Administrator Garvey -- you said that after 9/11, there was a war, before 9/11, there was a war. There was a war before 9/11. It didn't start with 9/11. That was one of the military actions against us.
There was a war going on before that and I'm not blaming you for this because it seems to me at some point the President's national security advisor, whether it was President Clinton or President Bush or Burger or Rice, they got to drive this thing all the way down to the FAA or it's not going to work. You're the only -- with all kinds of other problems, whether it's CIA or the FBI simply saying, "We're not going to tell you what's going on." But at the time, in 1998, there was no question that bin Laden was public enemy number one and that he had declared on us and that, by the way, he was enormously sophisticated.
It was not like World Trade Center I where somebody was trying to get a refund on a Ryder truck. They were very sophisticated to be able to hit Dar es Salaam and Nairobi in the way that they did and it should have, I think, then driven all the way down to the FAA so that you modified and changed the procedures on that airplane -- on those airplanes. I passionately believe that's the case....
MR. RICHRD BEN-VENISTE: Well, I think I'll start by simply observing from my own personal view that this war on terrorism may or may not be the right way to describe our efforts to combat a vicious, murderous gang which did and continues to mean us harm. I don't know whether elevating it to a war, in my own view, gives undue deference to these bloodthirsty individuals and their methods and motivations. But let me ask this question with respect to the important information that has been developed this morning by my colleagues.
We're looking at a situation, at least as of July of 2001, where the FAA itself has gone to the trouble of communicating a statement which is put in the Federal Register. So that means that there was prior planning and discussion until you get to the point of actually putting it in the Federal Register, and that says on July 17, 2001, "Terrorism can occur anytime and anywhere in the United States. Members of foreign terrorist groups, representatives from state sponsors of terrorism, and radical fundamentalist elements from many nations are present in the United States."
You recognize that. "The activities of some of these individuals and groups now include recruiting other persons for terrorist activities and training them to use weapons and make bombs." And then you conclude, "Thus, an increasing threat to civil aviation from both foreign sources and potential domestic ones exists and needs to be prevented and/or countered."
So that's the set as we move toward the 9/11 catastrophe....So when we are on such high alert, when there are advisories, when there is a recognition that the potential for a domestic hijacking exists and may be carried out by fundamentalist elements who have been tracked and described and whose motivations have been categorized for years and years, and then an individual in the screening process, seeing a young Arab male carrying such a device, is not interviewed: What are you doing with this? Where are you going? Who are you? How long have you been here? The sort of common sense that we heard yesterday from an INS officer, Jose Melendez.
But that was not done not once, not twice, nine times as people set off magnetometers, which of course was the case we know with respect to at least some of the hijackers. I don't understand how you could have all of these directives and taking additional security measures when the individuals who are conducting the security measures are not themselves told to be alert and specifically for the type of people who you know, on the basis of what you are saying yourselves, might be the ones to carry out such terrorist acts. Admiral Flynn?
MR. FLYNN: With regard to people, we were under very strict guidelines not to select people on the basis of ethnicity or national origin.
MR. BEN-VENISTE: But somebody of ethnicity who fits the description of what you yourself regard as the principal threat domestically to airline security, carrying a knife like this, does that not -- did that not at that time at least warrant the individual conducting that security measure
- to ask some questions?
MR. FLYNN: No....
MR. FIELDING: Mr. Manno?
MR. MANNO: I really can't comment on -- in terms of possible pressure from the Congress. But as far as the airlines, from an intelligence perspective, sometimes there was some skepticism about whether or not there really was a threat and was it really the way that we were telling it to them. But all in all, when we brought them in -- and as an example of that, in the mid '90s we invited in all the corporate security directors, airport directors and they got a classified briefing by CIA and FBI on the threat in the United States and went away believers that after 1994 things had changed, that terrorism had actually come to this country, it wasn't just something overseas. And I think that after that time there was a little bit more acceptance by the airlines that, you know, what we were telling them was right and it was the best assessment that we could provide them....
MR. LEHMAN: Thank you. I can only shake my head in disbelief at the naiveté of many of the statements that have been made here this morning.And, Ms. Garvey, when you say you're unaware of any lobbying that the industry has done against these measures, I find that astounding because our record is very different. Our information is that there was very active airline lobbying against not only...
- not only against specific rule-making but OMB, against the implementation and funding of certain safety measures they disagreed with, that they played a very significant part in the disappearance of the marshal program that was instituted during the Reagan administration, that they played a very significant role in the eroding of the locked cockpit doors and the single key, that they played a very significant role in the disbanding or at least diminution of the Red Teams which repeatedly showed that their security, their implementation of screening was a farce. Every Red Team got through nearly 100 percent of the measures and these reports were very embarrassing, led to fines.
The efforts that they made to see that there were no teeth allowed in FAA enforcement, that the fines were enforced at an average 10 percent. How can you sit there and say that the airlines were not lobbying? What are they paying these high priced lobbyists for, if not to do exactly that? I'm just amazed.
But I'd like to hear Admiral Flynn, who has a very significant reputation for not being a yes man and not being a pushover. He's a Navy Seal and he's accomplished a great deal inside of bureaucracy. What happened to the Red Teams? The records that we have show that a lot of these problems were identified 10 years ago by Red Teams and reports were sent. Now, earlier, Ms. Garvey, you said you never saw a direct Red Team report while you were in the job. What happened to them?."...
(Mr. Flynn answered that he didn't know).
(continuing after lunch break): "MR. KEAN: Our next panel represents key executives representing United and American Airlines. From United Airlines we have Mr. Andy Studdert. Is that right?
MR. ANDREW P. STUDDERT: Studdert.
MR. KEAN: Studdert -- who is chief operating officer, and Mr. Ed Soliday, vice president of safety, quality assurance and security. With us from American Airlines are Gerard Arpey, who on 9/11 was the airline's executive vice president of operations, and Mr. Timothy Ahern, who served as the airline's vice president of safety, security and environmental affairs.
We thank you very much for taking the time to be with us today and to help us with our inquiry. And, Mr. Arpey, we'll begin with you.
MR. GERARD J. ARPEY: Good afternoon, Mr. Chairman, Mr. Vice Chairman and members of the Commission. My name is Gerard Arpey and I am president and chief executive officer of AMR Corporation and American Airlines.
MR. KEAN: Wait, wait. I'm sorry. Counsel reminds me what I didn't do is ask you to stand and raise your right hand.
(Witnesses sworn.)
Thank you very much."...
"MR. KERREY: (Speaking to United Airlines and American Airlines executives): "
But you were selected by the conspirators, and one of the things -- and I'm going to try to make this point slightly different than I've made before. The people who perpetrated these acts on the 11th September, they don't feel remorse, they don't feel shame. They didn't target the pilot, they weren't going after somebody and then accidentally killed some additional people as a consequence. They were trying to kill as many as possible. It's a religious beginning. I don't believe all Muslims by any extent believe this. I don't see all Muslims this way at all, this is an extreme form of Islam. But it does -- it is a religious belief and it's not new, it didn't spring at us in 2001, although the risk grew considerably in 2001.
Usama bin Laden had began with a relationship actually with us in Afghanistan, but he declared in 1998 a fatwa and my guess is 19 participants responded to that fatwa and participated as a consequence. And I think it's very important to understand that because we continue to put this word terrorism over the top of this for some reason that's beyond my reach, and I think it makes it difficult for us both to understand the why and more importantly the what do we need to do.
And I would like to begin by asking you, perhaps if you, Mr. Arpey, first and you, Mr. Ahern, because you had some significant response in this area, what's your understanding of the law, of the 44902 section of U.S. Code Title 49. Seems to be very specific that you have the responsibility as well as the authority to refuse to transport people that you consider to be at risk to the passengers on the airline. I mean, do you believe you have under that law
- a responsibility to prevent or do you believe your responsibility is merely to deter?"...
(contining): "MR. KERREY: "
MR. KERREY: Let me press that a bit because National Security Advisor Rice made a very famous statement in which she said nobody could have predicted this. I disagree with that. I mean I absolutely disagree with that. I mean you're talking and I presume that you've got safety precautions dealing with a plane that's fully loaded of 70,000 pounds of jet fuel that you consider it to be dangerous, all but itself as a consequence of having the flammable material on it. I presume that you've got procedures to deal with a pilot or two pilots that might wig out and I presume you've got procedures to screen your own pilots to make sure that something terrible doesn't happen.
And you may not have been able to say, oh my God, maybe suicide is going to be a part of this thing, but it -- even there, I must say given what was going on again and the Islamic extremist groups they were using suicide technology. I mean, they were using the technology of suicide to accomplish their objectives increasingly. So, I mean, even there I must say I have a difficult time with an argument, gee, nobody could have predicted this, because I think if we're thinking about you know, trying to prevent all instances like this, it seems to me that that would have been on the list.
MR. ARPEY: Well again, Senator, I'll just be candid with you. If you go back to the morning of 9/11, the entire security paradigm that was in place given to us by the FAA did not anticipate this type of threat.
MR. KERREY: You keep saying that it's the FAA that's telling you about it. I must tell you that the law doesn't mention the FAA. The law says, quote, "An air carrier may refuse to transport a passenger or property the carrier decides is or might be inimical to safety." End of quote. It doesn't mention the FAA at all. And it -- I mean, let me -- I presume that you're familiar
- with the list of prohibited passengers -
MR. KERREY: And that you have to implement that?
MR. ARPEY: Yes.
MR. KERREY: And do you have any -- do you participate in that? Do you say, gee, the list is too small, the list is too big -- I mean, I'm down on talking about pre-911, there were -wait a minute, we've been given a list of 15 people at least by
- at least on the surface it looks like 13 of them were in some way connected with Islamic extremism.
MR. ARPEY: Well, I think -- and Tim, jump in here -- but that list I think came out of the FAA's own threat assessment of what the industry should be trying to protect itself against, and they came up with that list and on the basis of that list we put in procedures to screen.
MR. KERREY: Any of you at the -- I think it was April or May 2000 briefing that the FAA security people did with airline officials? I don't -...
MR. SOLIDAY: -- Senator Kerrey, on your question? The law that you talk about, quite frankly when you read it as you do, it would presume that the burden is upon the carrier. But if I could share some history with you, how that law has been applied to us is that when we have tried to deny boarding -- most recently after 9/11, 38 of our captains denied boarding to people they thought were a threat. Those people filed complaints with the DOT, we were sued, and we were asked not to do it again.
So the burden upon us was to only take those people off of the flight who we knew posed a threat and the only way we can know that they pose a threat is through those who identify them. Quite frankly, at United and I know at American, in the mid-'90s there were customers who assaulted our passengers. We created our own list of those people who committed violent acts on our airplanes to keep them off the airplane. We were reminded quite frequently that unless they posed an immediate threat we were disobeying the common carrier rules.
MR. KERREY: If you just take the first and -- in April of 2000, April 24, 2000, Security Directive 95 comes up. I presume you're familiar with this, if not I can show you the list as well, have you seen this list?
MR. SOLIDAY: Yes, I'm familiar with the list.
MR. KERREY: So you've got six guys on here -
MR. SOLIDAY: Right.
MR. KERREY: -- all of whom have some relationship with Ramzi Yousef.
MR. SOLIDAY: Right.
MR. KERREY: So you get the list, what do you do about that?
MR. SOLIDAY: There are a number of things we do with it, some of them I think I would prefer to discuss in a private session because those are part of the procedures today, but those lists were distributed not only to the field as a list, because six names is pretty easy to manage, I might -- you probably know already, Senator, that that list grew to over 1,800 within a week. Managing that becomes much more complex....
Many, many people have common names in, and what becomes very, very complex is if we have someone who's name -- to use a generic name is John Smith, and we have a list that says deny boarding to John Smith, and quite frankly, the Arab names are repeated very, very frequently, then we may have 500 or 600 people with that name on any given day.
Now, we have to be able to, in a very short timeframe, identify which one is the one on the list. And so as the list grows, the handling of that -- you can do some of it with computer services, but much of it has to be done with hand phone lines and so forth. Now, there are contingencies in place at the present time that have helped that -
MR. KERREY: Why didn't we modify the -- what do you call the on-flight security procedures, the Common Strategy? Why didn't we modify that common strategy to accommodate the possibility that suicide could be something that the pilot -that a hijacker would select?...
All the threat assessments that were being done in '98,'99, 2000, 2001, they had to include some discussion of suicide. As I mentioned -- the word I used earlier was suicide has become a technology. Suicide attacks have become a technology that increasingly is being used by, again, largely people that are motivated by religion against us.
'MR. SOLIDAY: I think first of all that is a fact that today we are very, very aware after what's been happening in Israel that suicide is something that they will do. But the thought that they would be able to have the technical skill to fly an airplane, that level of education --...
MR. KERREY: It was your responsibility. You should have asked if you didn't know. You know, I didn't want to make the FBI mad, I didn't want to make the CIA mad. I mean, given all the things that were going on, again the background of '98, '99 and 2000, 2001, I mean I think you all can help us a lot, not just to understand what happened that day, which I'm sure makes you feel worse than it makes me in many ways. They were your employees. You were associated with them in a very active and upfront way. You've got to help us by being very frank. Not right now because this commission's got to -- a lot of the Commissioners ask questions, but you've got to in writing tell us what aren't we doing that we should be doing, that we're -- whether -- I don't know if it's a national identification card, if you think that's what it ought to be, tell us.
I don't have to worry about the National Rifle Association, I don't have to worry about civil libertarians, I only have to worry about what you tell me that should be done. And by the way, I'm a customer, and when this commission finishes this work today, I'm taking the train back to New York and no small measure because I find the security procedures not only to be a nuisance,
- but I think they're largely ineffective....
"MR. LEHMAN: The FAA was saying that it was perfectly all right for young Arabs to come on to your airplanes with 4-inch knives and, you know, the industry's attitude was, "Hey, it's not our business. The FAA says it's okay, it's got to be okay." What's been missing from a lot of the witnesses that we've had these last two days is an application at the leadership level of the common sense test to some of these things. The record that our staff has produced is one of the industry continuously eroding and blocking and defunding initiatives like the first air marshal initiative, the locked cockpit door initiative, the single key initiative and one of the things that we've heard constant complaints about from the immigration people is the industry's successful thwarting of their efforts to fix the "transit without waiver" loophole, which the industry has known has been used by terrorists, has been used heavily by smugglers and could be relatively easily fixed with the building of secure transit lounges and the kind of measures that most large countries in the world, if not all of them, have.
Yet, as I understand it, even today, the industry is whinging and whining because the President suspended this huge loophole. I would like to hear how you, without, you don't necessarily have to respond to my indictment of the pre-9/11 era, but how do you see your roles going forward as an active challenger of the bureaucratic inertia that's inevitably part of many of these government regulatory initiatives? Why do we not have a single instance in our research of the industry saying, "We've got to tighten up in screening. We're only paying minimum wage and we have a 100 percent turnover of our people. We should be hiring higher quality people. Why are you letting 4-inch blades aboard our airplanes?"
We don't have any record of that and somehow, you guys have to change the whole paradigm of the way you approach these safety issues. You've got to be proactive and not a drag on the system which, historically, you have been, unless you can provide us evidence that challenges the overwhelming weight of evidence that we have so far. ...
MR. SOLIDAY: Quite frankly, if you look at the record, we tested numerous things long before they were mandated. Immediately after TWA 800, we, as a company, talked with the FAA and said we are prepared to move forward with some security measures to ramp up because we don't know what caused this. The problem is -- and you can make light of it, if you like -- a citizen does not have the right to search and seize. There are privacy issues and, for example, as a company who was prepared to roll CAPPS out and did roll it out long before any other company, a visitor from the Justice Department who told me that if I had more than three people of the same ethnic origin in line for additional screening, our system would be shut down as discriminatory.
MR. LEHMAN: That is an important point.
MR. SOLIDAY: Tell me about common sense.
MR. LEHMAN: I agree with you totally. What I'm suggesting is that your childlike faith, in your earlier testimony, in the ability of the government to provide you threat warnings, you should be equally skeptical about. These are all good points. think you're right.
MR. SOLIDAY: Again, I hope I did not come across as making excuses. We have a clear role. There are more people in the intelligence community in the United States than we have in our airline, or had in our airline.
MR. LEHMAN: That's the problem....
MR. ARPEY: Commissioner Lehman, let me just add a follow-on to his point. You know, Ed, you're talking really CAPPS I in the pre-9/11 environment and I think coming back to what Senator Kerrey was saying earlier, some of this does defy common sense. In a post-9/11 environment, we had situations where our crew members were uncomfortable with passengers on board the airplane, they hauled them off the airplane and I think -- there was 10 or 11 of them -- and today we're being sued by the DOT over each one of those cases.
MR. LEHMAN: That's something we should definitely follow up on because if DOT is still pursuing that policy that we will get involved.
MR. STUDDERT: I think last month United was actually fined. We should follow up for you on that.
MR. LEHMAN: Is that right? Could you get us data? We'd be happy to take up your cause.
MR. ARPEY: You know, despite that kind of situation that does I think lack some common sense, we continue -- and I suspect United is the same way -- to advocate to our crew members, if anyone is on the airplane that makes you uncomfortable or in any way you think compromises safety, get them off the airplane. The captain is the in-flight security coordinator for every flight and is the final authority on everything. So despite some of the stuff that we deal with, we do make a lot of commonsense decisions and give our crew members a lot of commonsense advice and we tell them, you don't worry about lawsuits and that kind of stuff. We'll take care of that....
MR. SOLIDAY: One of the great problems we've had with security is that almost any procedure we implement is leaked and it's vetted in the media. And quite frankly, in some of the discussion we have had there are things that we shouldn't know because they compromise the ability to gather the information. So I think -...
MR. ROEMER: Was any of it informational intelligence oriented, either general terrorist threat or specific terrorist threat information? Or was this all on -
MR. SOLIDAY: No.
MR. ROEMER: -- implementing general -
MR. SOLIDAY: This was implementing -- if I were to talk to Associate Administrator Flynn, it would be about -- generally it would be about advanced technologies. He would ask me what our experience was with CTX implementation because he wanted to hear it firsthand.
MR. ROEMER: So there was no intelligence exchange ever between the two of you?
MR. SOLIDAY: I can think that -- any time we say ever/never, that's -MR. ROEMER: Rarely.
MR. SOLIDAY: I can think of one instance -
MR. ROEMER: Hardly ever.
MR. SOLIDAY: -- in particular that I came into Washington for a briefing, very similar to the -
MR. ROEMER: Did this concern you at all that you were not getting any kind of intelligence passed on, either in a general sense about a threat, an evolving threat that you might be reading about in the paper but not getting more specific information from the agency?
MR. SOLIDAY: I think things that I'm reading about in the paper, those were being briefed regularly. The issue I would -
MR. ROEMER: By who, though? That's what I'm trying to figure out. Who briefed -
MR. SOLIDAY: By the intel group from FAA, by -- like I say, on one occasion Irish Flynn didn't do the briefing, but the associate administrator was in the room to give emphasis to the importance. Again, what -- if I'm hearing your question correctly, and correct me if I'm wrong, it is one thing to get a briefing in which maybe 300 or 400 potential threats are listed, and another to have a prioritized briefing that says, these are the things. There is X amount of resource that can be devoted. So the discussion of threats out there is a part of every day conversation: every day between myself and my staff; every day between us and the FAA.
MR. ROEMER: Let me commend you. I think you also told our staff that post-9/11 you hired an Israeli firm to perform an outside audit of United's airport stations from the standpoint of risk. Can you give us information as to what kinds of things were recommended to you in ramping up security, and what obstacles you might have run into in order to implement those?
MR. SOLIDAY: Yes, we used them after the OSAF threat in the Pacific. Immediately when the threat became apparent to us, I had at that time an Israeli consultant and consulting firm through the time I left. We asked them to go out into the Pacific, look at our stations, look at them specifically. Those things that we corrected -- I believe we have records of what they were. I'm not certain we're not into some issues that should be in private as opposed to -- but that is true. Then in the 9/11 instance -- post-9/11, as I shared with the staff, I brought him in in the first flight that I could get him here, asked him to share with me additional things that we could do.
MR. ROEMER: Without being specific about what those are -I agree with you, maybe we can share that in writing or in a closed session -- would you have difficulties with the airline today implementing those or with the FAA?
MR. SOLIDAY: I would have difficulty with the government in general. His -- I can give you his high-level assessment. His exact words were, "You Americans are obsessed with the means. The only way you will stop them is by keeping them off the airplanes, and to do that you must do aggressive profiling." One carrier shared their data and you know the results of that."...
(Regarding human factors in screening):
(continuing): "MR. SOLIDAY: The issue was -- when one talks about performance, ...if you look at the National Academy of Science panel study in 1996, it said specifically there was very little evidence that pay would change anything. There were significant human factors issues....
MR. KERREY: And the reason I'd like to have you look at it is these are very precise intelligence assessments that are being made by various people in national security organizations, most generally coming out of the CIA. And it causes me -- as I read this and as I look at the PowerPoint presentation that was done in 2000, I look at this and say, had this information gotten to the people that were in charge of security, I think they would have immediately said suicide is a real possibility. So I mean I don't -- I honestly do not buy this idea that it's unimaginable. That what happened on 11 September was unimaginable. We should have been able to imagine it. We should have been able to imagine it and defend it.
And I very much agree with you, Mr. Soliday, there's two big ways I think you get the job done. One is by preventing them from getting on the plane in the first place, and I think there's a couple of -- personally, I think there's a couple of relatively simple things that could have been done and still could be done that could eliminate all these long lines and all this harassment and all this difficulty getting on the airplane and making it difficult to fly and causing people to wonder what in the heck is going on.
There's a couple of relatively simple things that could be done prior to people getting on the airplane and I think, for political reasons, we don't want to do it. And I think the American people want you to tell us what are those simple things. And if the politicians are afraid -- the elected politicians are afraid, we need to give them some room and give them permission to do it because I mean I see a lot of the stuff being done. I mean, we heard Mr. Bonner yesterday in here talking about what he's doing to make his agency work. I've got to tell you it'll be four or five years before the INS and Customs start working together as a family. And in the meantime if you're relying on them to make certain that they screen these people out, you're relying on the wrong agency. You've got to figure it out on your own. You've got to figure out how to keep people off planes that are willing to die in the act of killing passengers and killing other people on the ground, because I think -- I personally feel that unless you provide us with that information,
- it's not likely to come from anybody else.
MR. KEAN: I want to thank you all very, very much. We appreciate your testimony and appreciate your help....
MR. ROEMER: That's helpful. Commissioner Gorelick asked very artfully your opinion about how we try to organize this massive lash-up of various organizations called the Department of Homeland Security. Let me put it a different way. Don't you think that Congress went too far and made a mistake in lashing up too many different cultures, too many different organizations, that it's too big, it's too bureaucratic, it's too political, it can't get the job done quick enough going against such a dynamic enemy as al Qaeda and how al Qaeda is going to work against the United States for the next five years?
And before you answer because I'm sure your answer -- you have to go to work tomorrow or tonight -- before you answer, just put this in the context of somebody who still believes that the Department of Energy which is 26 years old still has real problems functioning as an organization and a Cabinet-level agency in this town. How in the world is this Department of Homeland Security going to take on this commensurate threat? You have this huge bureaucratic organization on the one hand and this dynamic, agile, fluid organization that moves from Afghanistan to Pakistan to Indonesia, cells of four people in Berlin, another cell of six in the Sudan. Are you going to recommend at some point certain reforms to make this organization work more efficiently?
MR. LOY: There's no doubt, sir, that I think this is a work in progress. The organizational structure of the department, I think, is relatively sound. The idea of the four major directorates with a director associated predominantly with operating agencies and the work that they are doing, one associated with the science and technology, associated with an investment in R&D and technological improvement, that is a very sound organizational element, I believe. One that is associated principally with the response side of the post-event challenge in EP&R and one that's associated with predominantly the information and prevention or the pre-event side of this notion of when the event may trigger before and after.
I don't know that I'm smart enough, as I sit here today, to have reached fundamental conclusions as to whether or not it should have been only 16 agencies instead of 22 or 14 or 21 -
MR. ROEMER: You artfully suggested, I think -- you diplomatically suggested that maybe the Homeland Security Council could evolve, go away eventually. Is there a part of this that could be merged with a different department that has a better synergy with a different agency, that, in retrospect, some of us thought this could have been smaller and more agile like Secretary Ridge's first assignment in the White House? How might you help us think this through?
MR. LOY: Well, I think there's probably two things. One would be to understand the difference between one who is responsible and armed only with collaborative, coordinative kind of influence as opposed to one who has direct line authority over the engaged agencies that he is trying to get to do something. The homeland security advisor is just that, one who makes an effort to use the bully pulpit of the White House to influence things one way or the other. The secretary of the department in which there are these agencies has the direct authority to, as necessary, direct traffic with respect to what they do. That's one array of thought that suggests that a Cabinet level department has perhaps a better ultimate way of having things get accomplished because they have the line authority to make it happen.
The second thing is to -- I believe goes back again to Commissioner Gorelick's question about culture, and it has to do with what are those things that we must value in this brand new department, things like adaptability and agility and those that you were just describing, and make absolutely certain that in this white sheet of paper that we have, you know, in kicking off this new department in this new century, we design into the development of leadership programs in the department, in the day-to-day life of executing policy and things in the department, that those are the things that are valued. We incentivize the process such that we reward behavior that goes that direction and we don't reward -- in fact we punish if appropriate behavior that goes the wrong way....
MR. KERREY: I don't have -- actually, there's not enough time to go into a lot of questions so I'm not going to do any questions...and I mean nothing that will follow here is made in a disrespectful fashion, but I'm a skeptic on all this stuff. I really am. I mean, put me in the ranks of -- just as a citizen, not as a commissioner here at the moment. I mean, my view is a lot of this new money we'd have been better off converting into $1,000 bills and throwing it out the window.
Secondly, I mean I've never been more frightened in the last 18 months. I mean, every time some new alert comes out about some damned thing, my wife tells me we ought to move out of New York City. And, look, we made some terrible mistakes, and actually I'm becoming even more skeptical about the Department of Homeland Security, although from the standpoint of good government maybe at some point with all the new authorities you're talking about, it might make sense. I mean, maybe five years from now, just from a good government analysis, we'll look at it and we'll say this was a good thing to do.
But, I mean, all the witnesses that I've heard thus far in my short time on this commission, I mean, there's just too many of them that are saying, god, if I'd just had the intel from the CIA, as you were referencing, Barry.
If the FBI had just told me, or the FBI and the (ECM ?) and -- you know, I just didn't know what was going on. I had no idea that maybe terrorists would commit suicide. You know, I had no idea that something like this could happen. It was unimaginable.
It wasn't unimaginable. We had an Islamic terrorist organization that was operating right in the United States of America and we allowed it to happen. They were training in Afghanistan, we let it happen. And once we stopped doing all that stuff and going after people with a vengeance, it seems to me that the world has gotten an awful lot safer.
I mean, I tell you, I mean I travel a fair amount, and going to the airport is no fun. You know, you do have to add to your concentric circles the one that Commissioner Fielding was talking about, which is that law abiding passengers like us when we get on the plane, the last circle is we say, oops, here's the stun gun, Mr. Attendant. Here's the knife that I got on that I realize I shouldn't have had on. I mean, all the -- I take my shoes off.
I've got a prosthesis from the Vietnam War. You know, they've got to -- now they practically strip search me to check me out and do all that. I mean, go fly commercial. I've got friends today that won't fly commercial any more.
I mean, I hope that TSA doesn't do to Amtrak what it's done to the airlines. I mean, that's the way I feel, let me just tell you. I just -- from the standpoint of a single individual, I don't feel safer and I don't feel like -- in part because I don't think we're walking up to the microphones and saying, all of us made a terrible mistake. We miscalculated here.
I mean, I heard in earlier panels they said, well, we just didn't realize these guys were this sophisticated. I mean, get the hell out of here. They beat the Soviet Union, for god's sakes, in Afghanistan. That's no small accomplishment.
I didn't realize they could fly a plane. Get the hell out of here.
We sell them fighters and train them how to be a pilot, for god's sakes. But we don't know -- we didn't realize they could learn how to fly a plane.
What is that all about, other than denial?
So when I hear this -- I hear people seem sort of chirpy that we've got it all figured out and it's all going to be better, I just say Jesus. I mean, you've got to start by saying every single one of us made a huge miscalculation and it got us into a hell of a lot of trouble. And we've stopped making that kind of miscalculation and we've stopped blaming it on somebody else. It's not somebody else's fault.
We made a terrible mistake and we paid a hell of a price for it. And I just -- I mean, my whole -- I wish you well. I mean, I hope that you and Tom Ridge are very successful and that you win distinguished service medals for great service in organizing this department, but I'm still a skeptic. I'm still skeptical that the whole thing has added much value to the security of the American people.
MR. LOY: Sir, I thank you for your candor. I could not agree with you more about the huge mistake. I mean, I'm one who is of the mind that this complacency thing does manifest itself in organizations and in fact can manifest itself in nations, and we took a decade off.
We took 12 years off. From the 1989 fall of the Wall and the implosion of the Soviet Empire, I am of the mind that we, the collective we, took a big deep breath, found no other superpower across the falter gap to worry about any more and tended to relax. And strangely enough, we woke up on the morning of 9/11 not only to get that cold pail of water in the face very directly, but also to realize that all that stuff that we had built over the course of the Cold War largely was no longer very meaningful in this new war that we had to encounter on -- you know, in this global war on terrorism.
It's not about, you know, the weapon systems, the protocols, the diplomatic engagements, all the things that were so dramatically effective for us to outlast the Soviet Union in the Cold War. A whole new ball game. I mean, a whole new ball game that we have to understand and build from scratch.
That is our challenge. That is our generation's challenge for this country.
MR. KERREY: Well, thank you for accepting the challenge and for your service and -- (off mike.)
MR. LOY: Thank you, sir....
MR. LEHMAN: I've one last question. I was quite surprised to hear from an earlier panel of airline officials, former and current, to learn that political correctness is still very much being enforced. And they said that, for instance, after 9/11 when some 35-38 people were -- pilots declined to fly them because they suspected they were of a dangerous profile, that Department of Transportation is now suing them over that ethnic profiling.
And further, one witness said that current regulations for governing TSA are that if there are three ethnic persons more of three ethnic -- the same ethnic profile, selected out for examination, that the carrier will be fined. And I find after the experience of 9/11 that to continue that kind of political correctness, that they can't focus their attention on people that fit the profile when we're in a war against Muslim fundamentalism, that you look for Muslim fundamentalists, to be idiotic. Tell me it ain't true.
MR. LOY: It ain't true, sir. I just don't -- having stood the agency up and operated it for two years, I do not remember any such guidance being provided. We are -- you know, this profiling thing to me is all about capital "P" and little "p" and the capital "P" profiling that all of us have been against, for all the right reasons, in our culture is not to be confused with profiling with a small p" where we are using a tool to do whatever is necessary to be safe in terms of putting American citizens on airplanes flying from Point A to Point B.
I have no recollection of that guidance. I certainly will go back and take a hard look because I have no recollection.
MR. LEHMAN: Could you run that to ground? I'd appreciate it because they said categorically that they were being both fined and sued because of such profiling.
MR. LOY: Yes, sir, I will sure check it out.
MR. LEHMAN: Thank you. Thank you very much..."...
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