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Ellen Mariani v. United Air Lines, Inc.


Scrutinizing the System

In the summer of last year, Ellen Mariani bought a ticket to Los Angeles. Her daughter was getting married that September. Though Mariani wanted her husband, Neil, to come along, the couple didn't think both of them could afford to go. Neil would stay behind in New Hampshire, they decided.

And then I thought:" you know? Why can't you go? I'll go to the attic and I'll find lots of things," and I did, and we had three garage sales. And he was surprised that I made so much and so he, at the computer, decided to get a ticket through the website.

And he says: "You have to stop in Chicago?" and I said yes, and he said: "Guess what?" and he's laughing so hard, he said: "Mine is non-stop United."

And so, on the morning of September 11th, the Marianis headed for Boston's Logan Airport and their separate flights to California.

I went into American Trans Air. I gave my husband a kiss, and then he said: "I gotta go. And I watched him leave, and he says: "I love you." And I looked out the window and he was gone.

It was in Chicago that I found out that his plane had crashed.

Mariani's flight from Chicago to Los Angeles was forced back to the gate as the country's air system was shut down. She asked a reporter if she could borrow his cell phone.

And I call my daughter, and she goes: "Ma, where are you?" And I said: "What's the matter?"
She says: "Are you all right?"
And I said: "I'm fine. What is wrong? Why are you acting like this?"
And she says: "Where's Neil?"
I say: "What do you mean, where's Neil? He's on route."
She says: "No, Ma. There's something wrong with Neil's plane."
And I said… then I'm thinking I don't now what she's talking about: "No, Gina, just go over there. He's going to be there, now, and I'm not going to be there."

"No, Ma, something happened to Neil."

About that time, I hung up on her, and I went back and asked the newsman to go find out. And he said: "Okay."

And he came back and he was gray with shock and I said: "What's wrong?"

And he said: "I shouldn't be the one to tell you."

I said: "What is wrong?"

And he said: "Your husband's plane crashed."

Didn't say how, he just said it crashed, and I remember I turned my face to the left, and I remember my ears going numb. When I turned back around, he was gone.

Mariani began trying to find out if her husband was, in fact, on the plane that had crashed into the World Trade Center.

It took me a long time. It took me 10 hours to find out my husband was on that list. They would not give any answers to anybody, and when they did answer me, they just said: "Your husband was on the list."
Click, bang went the phone.

United has declined to comment on the treatment that Mariani received. She says the airline eventually gave her $500 and flew her to Los Angeles in time for her daughter's wedding, but she says her difficulties in getting answers from United as to exactly how the hijackers of her husband's plane circumvented security have continued to this day.

I want to know what happened. I want to know who was not doing what they were supposed to be doing to protect my loved one from being killed.

In December, she decided to sue the airline, but thus far, the courts have proved to be an elusive path to the truth. Mariani first hired the Nolan Law Group, a Chicago firm that specializes in representing victims of commercial aviation disasters. Nolan soon began the process of discovery, the legal search for evidence. Among the evidence that they requested from United were the hijackers' tickets, their baggage checks, the cards that show that the hijackers cleared security, and the security plan that United had in place at Logan on September 11th. The airline's attorneys have replied that if they provide the information, it should be under seal, because, federal regulations prohibit the release of such information. They took the unusual step in an aviation case of asking the federal judge that even requests for evidence on the part of Mariani's lawyers be kept secret. It has been a frustrating experience for Mariani.

I have a right to know, as an American citizen to go into a courtroom and have it researched through my law firm and not be stopped or pushed aside. I want to know who, what, why, when, and how this all came about. For some reason, we're being blocked -- blocked to know the truth, blocked to have my day in court.

What are they scared of? They're scared of something. Let's have the truth.

Mariani's frustrations were compounded when the federal government intervened in her case to prevent United and any other witnesses from turning over evidence to her lawyers. Federal prosecutors in Manhattan argued on behalf of the Transportation Security Administration that the requests for information sought by Mariani's attorneys raised "grave national security concerns," and they asked the judge to suspend all requests for evidence.

In July, Mariani found herself at the federal courthouse in lower Manhattan, ready to tell the judge why she should have access to the evidence. Accompanying Mariani was her attorney, former Department of Transportation Inspector-General Mary Schiavo. Schiavo says that the government is trying to protect the airlines, and that it should not be allowed to hide behind claims of national security to cover up its own negligence or that of the airlines.

Mary Schiavo:

I think it's very disingenuous-the whole thing the Justice Department is doing. It's clearly just an effort to shut down any discovery and I think it's without legal precedent.

At the July hearing, the judge ordered the suspension of all requests for evidence until another hearing later this month. The U.S. Attorney's Office in Manhattan declined to comment on the case, as did United and its attorneys.

If the U.S. Justice Department and the TSA have only managed to put Mariani's search for answers on temporary hold so far, the TSA seems to have placed in a permanent state of limbo Bogdan Dzakovic's quest to hold the Federal Aviation Administration accountable.

In February, Dzakovic made national news when he filed a whistleblower complaint against the FAA. He became the first FAA official to go on the record against the agency's handling of security. He said FAA management was responsible for September 11th because the agency's inadequate handling of security helped to create an environment exploited by the hijackers.

He based his complaint on years of experience as a member of the FAA's Red Team, when he tested security at airports around the world. Dzakovic says the Red Team documented security breach after security breach at U.S. airports, and FAA management ignored those reports. Months after Dzakovic went public with his accusations, he sits in his northern Virginia home. Soon after his whistleblower complaint, all his assignments were taken away, and though he officially works for the TSA still, he has had nothing to do there since February. By law, the Inspector General was supposed to look into his complaint.

My understanding was that they were going to investigate my allegations, but I haven't heard anything since. One thing I do know is that they have not talked to my witnesses, nor have they looked at some of the paperwork that I suggested that they look at, and they had 90 days to complete their investigation, which expired some time ago.

For months, Dzakovic has also tried to get Congress to investigate who was responsible for the security lapses that led up to September 11th. Recently, the House of Representatives announced that it would conduct an investigation, but because of what he sees as the cozy relationship between members of Congress and the airlines that contribute to their campaigns, Dzakovic is generally not optimistic that anyone will ever be held accountable.

Congress basically will tie the FAA's hands behind its back when it comes to regulating the airline industry. So there are so many people involved and so much money involved in the accountability thing, which is why nobody wants to investigate what really happened leading up to September 11th.

Dzakovic's complaint is one often heard, though it's hard to determine to what extent money influences congressional oversight of aviation. According to the Center for Responsive Politics, the airlines have contributed close to a million dollars to members of Congress over the last two years, but that's less than the airline unions have given, and it's only about 1/18th of what lawyers have contributed.

No matter whether anyone is ever held accountable for any possible security lapses on September 11th, Dzakovic says that serious problems with accountability continue to exist with the new security system being put in place. He says it's not clear who is ultimately responsible.

Well, in theory, it's TSA, the Transportation Security Agency, but operationally, nobody really knows what's going on. In fact, there's a joke running around our headquarters that the new TSA salute is a shrug of the shoulders, which is like an indication that nobody really knows what's going on. I do believe that TSA is conscientious, that they really want to do something, but they have neither the technical background in aviation security. They don't know how airports operate.

The Transportation Security Administration was created after September 11th to take over the aviation security responsibilities of the Federal Aviation Administration. Under the old system, the airlines had responsibility for the checkpoints and the gates. That responsibility has been taken away from them, and placed in the hands of the TSA. Dick Markey, senior vice president for technical and environmental affairs for Airports Council International, the airport lobby, explains how the new system works:

The new Transportation Security Administration is directly responsible for assuming the passenger screening checkpoints and then by the end of the year, they'll be responsible for doing a percent bag screening on all checked baggage. In addition to that, the airports were governed by regulations originally issued by the Federal Aviation Administration. That got transferred to the new TSA, and they are responsible for such things as maintaining patrol of the terminals, to having canine presence available for explosives detection, to maintain security of the airport perimeter, of the airfield access gates where all of the supplies and that sort of stuff come and go to the secured portion of the airfield.

Markey warns that problems could arise if airports and the TSA try to police the same areas. Before September 11th, the FAA forbade Boston's Logan Airport from implementing additional security at its checkpoints at Boston's Logan Airport. The checkpoints were outside the airport's jurisdiction. Now, Logan is considering implementing additional security before the checkpoints. Massport Aviation Director Tom Kinton says before passengers get to the security checkpoint, it's clear that the airport retains responsibility for security, and it can implement its own security measures-- undercover agents to observe passengers in ticket counter lines, for instance.
If this airport, through our law enforcement, wants to do behavior pattern recognition, that is something that we will do on our own. That is not something that is direct TSA responsibility.

Norman Mineta:

No, I think that aspect of it would be the federal responsibility.

U.S. Secretary of Transportation Norman Mineta says his department won't allow airports to implement extra searches, interrogation, or surveillance of passengers on their own.

The law would have preempted local authority from doing anything more. If they want to do something more, I think they would have to work with our transportation security people to do that. They wouldn't be able to do that unilaterally on their own.

To be sure, Kinton says that he would work with the TSA if his airport wants to implement security measures above and beyond the minimum security requirements imposed by the agency.

Mineta has been appointing federal security directors at airports who are supposed to be in charge of all security measures. But Bogdan Dzakovic says it will take some time before these new directors have a grasp of the security issues at their airports.

The bigger ones have federal security directors, but it's going to take them two years just to figure out how an airport operates, much less sink their teeth into the security issues, and obviously the airport security system is working to some effect. I mean obviously there are security screening checkpoints and the gates are locked, and what not, but as far as an organized structure of some type where someone will be held accountable for negligence or whatever, that does not exist, and until you actually have someone that will be held accountable, you're always going to have problems.

Dzakovic says the TSA has within its ranks people who do know airport security-the FAA special agents who moved over to the new agency when the TSA was created-but, he says, it's not listening to them.

TSA is not even asking for the opinions or input of the people who actually work in the trenches. They're only taking the opinion of the senior management in FAA, and basically not paying attention to anybody else, and senior management in FAA are the ones that caused the problems leading up to September 11th, and so TSA is building up this multibillion-dollar organization on top of a rotten infrastructure, which was FAA, and I really don't think too much is going to change, except it's going to cost everybody a lot more money.

In some ways, the security setup at the nation's airports is very much the product of real-world economic forces that drive aviation and that the government officials who are in charge of regulating the industry cannot ignore. Some government-run checkpoints now have special security lines for first and business-class passengers and for the elite members of the airlines' frequent flyer programs. The special lines are the subject of some controversy. They highlight the tug between security and convenience-especially convenience for the airlines' most lucrative passengers. Airport lobbyist Dick Markey says the special treatment for preferred customers is not appropriate.

When the airlines were responsible for this and they were paying all the costs of screening passengers, it seemed pretty clear that if they wanted to invest some additional money and equipment and personnel to give their premium flyers a little edge in terms of the queue length, that was pretty much their business, but we're not fans of it.

This is now a public process, and it is true that they only give preference to the preferred flyer in terms of the length of time he's got to wait in a queue to get to an X-ray machine. Still, this is all being done with public resources, and although the carriers would dearly love to be able to differentiate their first-class travelers from everybody else, they shouldn't be doing it with public money.

The air carriers say it's important to distinguish the lines that lead up to the checkpoints, which they control, from the checkpoints themselves, which are controlled by the TSA. U.S. Secretary of Transportation Norman Mineta is paying attention to the airlines' wishes to cater to their high-end customers.

What I'm trying to do is to get the business traveler back onto the airplane. What I want to do is make sure that the business traveler is able to make a 24-hour trip without a great deal of hassle. For the airlines, the business traveler constitutes maybe about 11 percent of their enplanement, but it constitutes about 40 per cent of their revenues. So if we're going to get the airlines back on their feet then that is not a problem for us in terms of having airline crews, people with disabilities, first class, and high-frequency milers to get through those lines.

The airlines are pushing for the removal of some security measures that were put in place after September 11th. Michael Wascom is vice president for communications for the Air Transport Association of America, the airline lobby.

There are some procedures that we do not believe have been very useful. Random gate screening is not of tremendous use particularly if you have increased and enhanced the security on the front end: at the checkpoint, at the ticket counter. Once you have cleared security at the checkpoint, you should be good to go.

Critics of the TSA point to other ways that the airlines' concerns for the convenience of their best customers have sometimes held sway over the agency's security concerns. Pat Friend is the president of the Association of Flight Attendants, a union which represents flight attendants at United and several other airlines.

We saw from the TSA a security directive that said that if a passenger was randomly selected for additional scrutiny, and if it turned out that that passenger had been a member of that airline's frequent flyer program for at least six months, that they would be excused from this random test. We were outraged, because we all know that every single one of those men that perpetrated that act on September 11th were frequent flyers.

Friend says the TSA at first denied that the security directive existed. She says the flight attendants' union then faxed a copy over. At that point, she says, the TSA said it was a mistake, and withdrew it.

Secretary of Transportation Mineta says there doesn't have to be a tradeoff between security and convenience:

They're not mutually exclusive. If we're going to do security, that doesn't mean that it's going to be at the expense of the convenience of the passenger. First of all, you have a sufficient number of lanes to get people through the process. And then, if you require someone's shoe to be taken off, then there is a runner who takes that shoe to a dedicated X-ray machine for shoes, and then runs it through the machine and then brings it back to the passenger.

Back at Boston's Logan Airport, United flight attendant Sarah Delacruz says Americans want convenience above all, and so it's no surprise that they want it when they fly.

Our system is set up for convenience. The passengers fly because it's convenient to fly. It's more convenient than taking the train or driving.

Delacruz cites another example of how passenger convenience has trumped security at the checkpoints.

We haven't done things like cut down on the carry-on bags aboard the aircraft. There's this new rule in place, the one-plus rule, one bag plus. Well, the plus has not been defined, so really nothing has changed at all. You still have the same number of bags going through the security checkpoints, and the more that these screeners have to look at, the less that they can spend with each person.

The more their eyes are tired, the sooner they need a break, the harder it is to scrutinize the people that are going aboard our aircraft, and all of the luggage that they're bringing, and what they could possibly have in that luggage.

Delacruz admits that the slower lines do allow security personnel-- and flight crews-- more time to observe boarding passengers. Despite all the attention to the government takeover of security at the airports, she says, it is the flight crews who bear the greatest responsibility for security, but, she says, the government and the airlines are not giving crews the support they need to carry out their responsibility.

The flight attendant job has drastically changed since September 11th. We are now charged with making sure that all the passengers on the aircraft are safe not only in the event of a crash or a fire on board the airplane, but in the event of a terrorist act or any sort of act of aggression on other passengers or the cockpit. We are charged with also guarding that cockpit and being the last line of defense before anyone may enter that cockpit. However, we have not been given any training or any tools on board the aircraft to make sure that that job is done.