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
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
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
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
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.
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.
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
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
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
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
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
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.