N001593
Thursday, January 10, 2002 5:02 PM
Interim final rules fiasco
When reading the news and some of the comments here I am dishartened to see
how many people do not understand the underling reason for this legislation:
to protect the airlines, port authorities, city and state governments and
the WTC Building Management from actually being held liable for their own
actions. Security was known to be inadiquite for a long time and telling
people to return to thier desks boarders on criminal negligence. But the
government, at the behest of an airline lobbying effort that began on
September 12, decided that the airlines were "too big to fail" and so placed
severe liability limits on any potental lawsuit. Democrats refused to
consider any bill that did not address the compensation claims of the
victims and this comprimise was reached at the 11th hour.
I would challange any one of the posters against this fund to decide to
forgo any lawsuit or legal actions if one of thier loved ones died as a
result of alleged negligence. Isn't Ford a major American corporation?
Should Congress go back now and tell the families of those who were killed
in Ford Explorers that they cannot sue or collect any judgement against
Ford.
As far as greed is conserned, we would perfer to have a system here that
works so that we would have a real choice. Remember that the corporations
will not pay penny one out of their own pockets, and due to the lack of
punitive damages, any amount from the fund will be lower then a judgement
after trial.
Individual Comment
Brooklyn NY
Please read the following:
------------------September 11 Victim Compensation Fund- Revised
An analysis of the actual legislation and regulations from the point of view
of a potential claimant.
On September 22nd, President George W. Bush signed into law the Airline
Stabilization Act, providing for a bailout and protection to the airline
industry effected by the terrorist attacks of September 11th. As part of
this act, Congress included a provision called Title IV: The September 11
Victim Compensation Fund. Shortly after the passage of the Airline
Stabilization Act, some media outlets mentioned that Congress did include a
provision for compensating those who were physically injured or lost loved
ones in the attack, but few of these sources have provided details of this
provision, partly because of all it does not say. Only the barest outline
of the actual plan was spelled out by the legislation, the rest to be
created as regulations by the Justice Department and the Special Master for
this fund. The Special Master is Kenneth Feinberg, selected by the Attorney
General, and the decisions regarding the final regulations rest solely with
him. The interim regulations for the Victims Compensation Fund were
released December 20th.
As part of the overall legislation, both United and American Airlines were
protected from any legal damages incurred above the amount of their
liability insurance, assumed to be about $3 Billion each. Similar wording
has been inserted in the form of an amendment to the recently signed airline
security legislation that would give the same protection (liability only to
the limit of insurance coverage) to every other potential lawsuit target
except for the airline security companies and Osama Bin Ladin himself.
Those who wish to file suit against the airlines for property damage losses,
business interruption, or costs associated with relocation and clean up,
must all be adjudicated from this amount. After the insurance money is
distributed, any and all further claimants are out of luck, and due to the
legislative language regarding the government's right to subrogate claims
arising from the fund, this will happen very quickly. In short, if some
one does decide to file suit against the airlines or anyone else, they have
a 2 year window to collect a judgment before the pool of insurance liability
proceeds are taken by the Federal Government.
The legislation also makes it impossible to sue for punitive damages in the
event of a court proceeding because under New York State law, insurance
monies may never be used to pay for punitive damages. So, no matter what
should be discovered during the course of the investigation and trial,
neither the airlines nor any other party are actually financially liable for
anything at all.
So while the legislation was touted as a choice of filing a lawsuit or
entering into the fund, the choice is in fact only an illusion. There will
be no money left to collect from insurance funds once the government takes
its share as part of the subrogation clause.
Victims and their families are expected under this scheme to receive monies
from the fund quickly, as the law states that the office of The Special
Master must give a ruling on any determination no later than 120 days after
the claim is filed. Payment must be authorized in no more than an
additional 20 days. Compared to a traditional lawsuit, the system is
faster, potentially cheaper and does not force the claimant to proved proof
of any wrongdoing on the part of anyone. But there may be a catch or two.
And they may be huge.
In order to make a claim, claimants must first waive all right to be
involved in any suit anywhere against anyone regarding the attacks. And
that leads to another problem. There are no appeals allowed in the claim
process. If claimants file and do not like the decision, claimants are
already locked in to the system, and have no further recourse.
An addendum to the Aviation and Transportation Security Act clarifies this
point and now does allow for a person to file lawsuit against any "knowing
participant" and still file a claim with the fund. One caveat is that the
President may, at the request of the State Department, unilaterally quash
any money judgments against foreign entities if they believe that it is in
our national security interest. This is exactly what is happening right now
regarding the judgments already entered against Iran for the terrorist
kidnappings in the 1980's.
Collateral Sources. The law states that any amount that the victim or their
family would receive from the fund would be offset by any collateral
sources. Among the sources specifically listed in the law are life
insurance, death benefits and pension funds. So for the families of
victims who have passed away in the tragedy of September 11, this would
result in the very clear possibility that if they did advanced planning for
the future, they would receive less than those that did no planning at all.
This begs a few questions: Why should those who did plan ahead be penalized
for doing so? What about the money paid for the insurance? Would the
premiums be allowed as an economic loss, and added to the award? Why would
pension funds, which were monies saved over time by the victim, be a
collateral source? Wasn't this already the victims own money? What about
payments made over time to the victims and their families? How will this be
calculated? Will this be considered a collateral source? What about Social
Security? Is it fair to deduct any amount from what is in effect the
settlement of a lawsuit using an Alternative Dispute Resolution system?
The regulations and laws governing New York State Workers Compensation state
that any payments made by the insurance companies would also be offset by
collateral sources, though in that case the law refers to medical payments
made directly by insurance or litigation settlements. Will these companies
expect to be able to reduce their awards based on the amount received from
the fund? Will the Special Master consider that a death benefit? Will both
parties, the insurance companies and the government attempt to reduce the
amount provided for? While the regulations state that the monies received
from the fund are not subject to subrogation from any other party, has the
government received waivers from the insurance companies underwriting the
workers compensation benefits for their right of subrogation under state
law? If not this could lead to victims' families being sued for the amounts
paid by the insurance companies or suits regarding the illegal taking of
property rights.
Please also note that due to the generous pension and death benefits
provided by the government, the families of firefighters and police officers
are effectively barred by the collateral source rule from filing for any
economic damages. Due to the wording of the collateral source rule, unlike
CPLR 4545, collateral sources can be used to offset non-economic damages as
well.
There is no provision regarding the concerns of domestic partners or
undocumented aliens. This fact could reduce the number of potential
claimants.
The mechanism and procedures required for filing are now being finalized.
The Justice Department is currently reviewing suggestions and comments.
These comments can be reviewed on their web site.
In the announcement of the release of the interim rules, many claims were
made regarding the amount people would be awarded, but these numbers are
gross amounts before collateral source are deducted which could lead to
little or no money going to victims families from this system. Payouts from
the fund will be far lower than was announced at the press conference.
From here we can go in one of two directions. Steps can be taken before the
final rules and regulations go into effect in January. The government can
be generous and take into account the feelings and concerns of the families,
and in the process make substantial monies available to the victims and
their families. If this was done, the claimants would have positive and
compelling reasons for not suing the airlines, the goal of the overall
legislation and everyone would feel that they were dealt with fairly.
On the other hand, it could become a morass where victims and their families
may be left with no legal recourse or form of redress, a settlement that is
at best inadequate and at worst no compensation at all for their loss. The
image of the fund, its principals and sponsors would then be that this fund
is nothing but a way for the government to protect the airlines, their
shareholders and lobbyists, the port authorities, security firms, and
airports at the expense of the innocent victims and their families.
The writer is the husband of , a victim of the attack of
September 11.
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And
Mary Schiavo's speech before the National Air Disaster Alliance and
Foundation
2001 Autumn Annual Meeting, Washington, D.C., September 29, 2001
Updated December 7, 2001 to reflect the changes in the law as signed
by the President on November 19, 2001
Airline Litigation and Victims' Rights and Remedies
in the Wake of September 11, 2001
Our nation, and the world rushed to respond
On September 11, 2001, America suffered a terrible tragedy. Nations
around the world have felt the impact. The United States and our allies have
deployed their military forces to root out terrorists, topple terrorist
regimes, and ameliorate the threat that such an attack could be replicated.
Police and firefighters toiled and died. Relief agencies launched
impassioned campaigns for blood and money. The President asked each American
child to give a dollar to aid the Afghan children in surviving the hunger
and hurt of war. My daughter's elementary school launched a campaign for the
school children of New York schools in the area of the World Trade Center.
Seven year olds dressed in red, white and blue and spelled out "We Love NYC"
for pictures which accompanied the money they collected for the innocent
victims. Music and movie stars pitched in with telethons. It would be
unthinkable and inhuman not to do all we can to help the families of the
victims. Who on earth would ever consider taking any action to further harm
people who had suffered such a terrible tragedy? We were about to find out.
. . .
While people around the world were concerned about
helping the victims and their families, airlines, aviation industry groups,
airports and their government sponsors and even the
World Trade Center rushed to Capitol Hill
According to the New York Times, by September 12 the airlines and
other aviation interests such as airports and manufacturers and the security
companies (who failed so miserably), had constructed a plan--not to help the
victims and improve aviation security and safety--but to seek federal
payments to the airlines and aviation interests, immunity from legal
proceedings, and a way to avoid responsibility for the role their poor
management, lax oversight and abject security failures played in this
horrible tragedy. They took action to very dramatically limit the legal
rights available to the families of victims, to limit the right to discover
what really happened, and to limit financial accountability of those
responsible.
This is what they did
The day after the attack, the New York Times estimated nearly 100
lawyers and lobbyists fanned out on Capitol Hill and throughout Washington
to protect airlines and aviation interests from the victims and their
families. Before the care teams were in place to search for the dead and
care for the living, the political machinery was put in motion to
retroactively change the law, to cut off the ability to engage in full
discovery, and to limit victims' legal rights to punish the reckless
companies that made us vulnerable to the terrorists. In short, the airlines
and other negligent entities, largely in secret, maneuvered behind the
scenes of Washington, D.C. to get their protections into legislation before
Congress. Their protective provisions were disguised with misleading
captions and cryptic language in bills that were supposed to improve
security and protect citizens. This language now gives airlines, airports
and others immunity from responsibility for the attack.
How the law is supposed to work--and how it has worked in the
aftermath of dozens of terrorist attacks on aviation in the past, for
thousands of victims, for several decades
Aviation attacks are not rare
In the past, in the aftermath of a terrorist attack on aviation,
victims on the plane and on the ground were able to seek discovery to
determine how it was the terrorists were able to get access to the airlines,
airports or other aviation facilities. Terrorism against aviation is not an
unknown, unforeseeable risk. Quite the contrary. The risk of airlines being
subject to terrorist attack--whether by a disgruntled employee or a
murderous foreign faction set on launching a jihad or making a political
statement--is a risk that is well known and real. Such attacks have happened
dozens of times in the past, which risk airlines cover with insurance. It is
because aviation has been repeatedly attacked this way, that we have laws,
regulations and requirements for aviation security.
Passengers had a contract for security
The courts have held that when passengers purchase their tickets
they rely on the representations made by airlines that they are U.S.
certified and meet the Federal Aviation Administration standards, including
security requirements. There is actually a contract associated with a
ticket. Passengers don't usually see it, but that contract is on file with
the federal government. It is a binding contract called the "Contract of
Carriage." The carrier makes that contract with passengers when they buy
their tickets.
The contract that each passenger had with his or her carrier was
forged and binding when every passenger on every plane on September 11
purchased their ticket. That contract was made before the terrorist attack
occurred. The contract of carriage is a very important event. The contract
presumes compliance with all U.S. laws including aviation security and
safety regulations. Adequate liability coverage to pay compensation to
passengers that are injured or killed is also required by law. Should a
horrible tragedy happen, well-established U.S. laws and courts provided a
forum for victims and family members to pursue their legal rights for two
very important reasons: 1) to engage in lawful discovery of facts to show
the full scope of the responsibility and liability of all potential parties;
and 2) to hold those accountable for their negligence by requiring them to
pay damages for the injuries and deaths they helped cause. And if their
negligence was particularly egregious, such as is the case here--if they
were grossly negligent in their security--to require them to pay additional
damages, out of their own pockets as opposed to payments by their insurers.
These punitive or exemplary damages encourage those parties to change their
ways and encourage others to avoid such conduct.
Choice of law
Historically, passengers and others injured in an airline tragedy
had several choices regarding where and how to pursue their search for the
truth and make their pleas for compensation from the wrongdoers for their
role in bringing about death or injury. Traditionally there were several
possible forums, or locations to bring the actions: location of the crash;
where the ticket was purchased; where the injured or killed lived; where the
defendants maintain their main office, wherever the defendants are located;
or a combination of these factors. Historically the "choice of law" centered
on the damages law chosen by the choice of law rules in effect in the court
in which the action was filed.
In commercial airline accidents, cases are usually filed in many
different jurisdictions since the individual passengers, their circumstances
and their survivors, are generally quite dispersed. When multiple lawsuits
are filed in different federal districts, as opposed to state courts, they
are subject to the Multi District Litigation (MDL) Rules and are all
consolidated into one district court for a liability trial. This process
prevents conflicting rulings, streamlines discovery, prevents multiple
liability trials, and conserves judicial resources. Damages issues are
usually left to the courts where the cases were originally filed. Even
though the Federal Rules state that the law of the transferring court should
govern, MDL courts often decide defense choice of law motions from the
perspective of the MDL court. Usually this procedure worked to the
disadvantage of the plaintiffs, but a recent ruling by the judge in the case
against Alaska Airlines for the crash of Flight 261 may have the opposite
effect.
In the wake of September 11, Congress retroactively changed the law
to protect
air carriers, aircraft manufacturers, airport sponsors, or persons
with a
property interest in the World Trade Center, from any liability
other than the limits of their liability coverage
On September 22, 2001 and November 19, 2001, Congress attempted to
retroactively reduce the rights and abilities of victims to seek redress
against many, but not all, entities whose negligence contributed to, or made
possible, the horrible crimes of September 11, 2001. In the wake of the
incidents of September 11, 2001, the new "Air Transportation Safety and
System Stabilization Act," formerly Senate Bill, S.1450, and House Bill,
H.R.2926, signed by the President on September 22, and the Aviation
Transportation Security Act formerly Senate Bill 1447, and Conference Report
107-296, signed by the President on November 19, changed the law. There are
problems with these laws, including Constitutional impairments, which leave
in doubt the long term viability of these hurriedly, secretly negotiated,
and blindly passed laws.
The original plan of Congress was to limit the liability of airlines
for "third-parties" [persons "other than passengers," 14 CFR 205.5(b)(1)] if
the Attorney General so certifies "during the 180-days period following the
date of enactment of this Act" [201(b)(2)]. In the event of such
certification, which was clearly intended to materialize, the liability for
such third parties shall not "exceed $100,000,000, in the aggregate," with
the Government being "responsible for any liability above such amount" and
allowing "no punitive damages against the air carrier (or the Government . .
. )" [201(b)(2)].
But on November 19, 2001, the law changed yet again. In the latest
version, Congress extended the protections beyond air carriers to aircraft
manufacturers, airport sponsors, or persons with a property interest in the
World Trade Center (WTC)--as long as they don't back out on obligations to
rebuild the World Trade Center! Simply put, the victims' recovery is further
limited if certain entities commit to rebuild the WTC. But, nobody asked the
families of victims if they wanted their damages to be given to the Port
Authority of New York/New Jersey and the multi-millionaires pushing to
rebuild.
Additionally the liability of the City of New York cannot exceed the
insurance coverage or $350,000,000. The law fails to specify whether this
limit is the greater or the lesser of the two amounts. At $350 million, and
approximately 3,500 dead, that is coverage of only $100,000 per person. And
don't forget the cost of their own lawyers, clearly actively at work here,
which cost also eats into the insurance money. New York City has already
claimed its insurance would be eaten up by lawyers--its OWN lawyers, not the
victims.
The new laws' scheme requires those seeking compensation for
passenger decedents to choose between one, but not both, of the following
options [405(c)(3)]:
(1) Allow a person appointed by the Department of Justice to decide
an amount to compensate the victims and families for their losses. The
Department of Justice will make the rules, present arguments against the
families' claims, subtract all the dead or injured's own personal life
insurance, pension and death benefits (even if paid for with his or her own
money) from what the award would be, and allow no discovery into the
negligence of the airlines or other aviation defendants. To date there has
been absolutely no indication of the value of the compensation the Justice
Department has in mind, but once a claimant embarks on this route, they
cannot change their mind and bring a legal action. There is no appeal if you
do not like the award.
With this option, a claimant can submit "no more than one claim"
[405(c)(3)(A)] for each injured individual or decedent to a "Special Master"
within two years after the §407 Regulations are promulgated [405(a)(3)].
Regulations under §407 must, in turn, be promulgated "not later than 90 days
after the date of enactment of this Act [407]. The Special Master will award
compensation for all "economic" and "non-economic" damages
[405(b)(1)(B)(i)]. The term "non-economic" damages are defined very broadly
to mean "losses for physical and emotional pain, suffering, inconvenience,
physical impairment, mental anguish, disfigurement, loss of enjoyment of
life, loss of society and companionship, loss of consortium (other than loss
of domestic service), hedonic damages, injury to reputation, and all other
nonpecuniary losses of any kind or nature." This amount, which is "not
subject to judicial review" [405(b)(3)], is to be reduced "by the amount of
the collateral source compensation the claimant has received or is entitled
to receive." [405(b)(6)]. Collateral source, in turn, is defined as "all
collateral sources, including life insurance, pension funds, death benefit
programs, and payments by Federal, State, or local governments related to
the terrorist-related aircraft crashes of September 11, 2001." [402(7)].
Payment is to be made within 20 days of the award [406(a)]. No punitive
damages may be awarded [405(b)(5)] nor may "negligence or any other theory
of liability" be considered [405(b)(2)].
(2) Proceed in the same method in which airline disaster cases have
been brought for decades, by bringing a legal claim seeking all relief
allowed by law and engaging in discovery to reveal the full extent of the
negligence and wrongdoing of those involved and seek all appropriate
damages.
Under this option, claimants will bring a legal action as had been
done in the past, except that all actions must be filed in the Federal Court
for the Southern District of New York [408(b)(3)] utilizing the substantive
law" derived from the law, including the choice of law principals, of the
state in which the crash occurred unless such law is inconsistent with or
preempted by Federal law" [408(b)(2)]. This Federal action is the "exclusive
remedy for damages" [408(b)(1)].
Punitive or exemplary damages--to deter, for example, airlines and
others from lax safety in the future--and very important to the families of
PanAm 103 (Lockerbie), American 965 (Cali, Colombia), ValuJet 592
(Everglades) and Alaska Airlines Flight 261 (Point Mugu, California) to
discover the extent of the gross negligence of those carriers--remain a
possibility in bringing a civil action
The new laws do limit the amount of the damages, including punitive
or exemplary damages--to the amount of the insurance coverage. Nonetheless
this is a very, very important tool for families to use in seeking answers
and discovering the full extent of all parties' negligence or criminal
culpability.
It is almost impossible to overstate the importance of this
possibility to families. As many families of victims know from personal
experience, even where there are criminal investigations and airline
personnel, contractors and others are charged with criminal offenses, it can
be difficult to obtain information from the Federal Bureau of Investigation
as long as the criminal case is ongoing. Yet, the statute of limitation in
most aviation cases (the date by which an action for damages must be
brought) occurs much sooner ( one to two years), while the FBI and the
federal prosecutors have usually at least five years to bring criminal
charges. Therefore, discovery is of paramount importance.
I worked with the FBI for well over a dozen years, first as a
federal prosecutor, and then as Inspector General of the U.S. Department of
Transportation, investigating hundreds of aviation crimes with my own
Special Agents and those of the FBI. While we tried to share information
from our investigations as the law allowed, in many cases we were prohibited
from doing so while the criminal investigation was ongoing. That fact is
very well known to the families of PanAm 103. The crime and the crash
occurred in 1988. Most of the families had to bring actions by 1989 or 1990.
The criminal defendants were tried and convicted in 2001.
The possibility of seeking punitive or exemplary damages preserves
the families' opportunity to explore the details of the careless, often
reckless and criminal, behavior--whether by terrorists, domestic criminals,
airline personnel or security companies, and sometimes even by the U.S.
government. Only by this discovery can we get answers and accountability.
Bringing action against Osama Bin Laden, Al Qaeda, the Taliban,
their bankers, and Afghanistan
The U.S. Government is also seeking the funds
These new laws do not "limit any liability of any person who is a
knowing participant in any conspiracy to hijack any aircraft or commit any
terrorist act." [408(c)]. But there is the problem of collecting from
terrorists because the U.S. government is after the same funds. The laws
further provide, "The United States shall have the right of subrogation with
respect to any claim paid by the United States." In simple language, the
U.S. and its Justice Department, can go after Osama Bin Laden and any
associated organizations--and more particularly their seized bank
accounts--to cover what it pays out in the damage claims to the families.
There is also the problem in suing Afghanistan, in that astonishingly,
Afghanistan was not listed by the U.S. Department of State on its list of
nations which harbor and support terrorists--and which permits U.S. citizens
to sue such a country. The hard-core fighters are believed to be Saudi,
Chechen, Egyptian, Pakistani, and other nationals who used Afghanistan in
opposition to the legitimate government. Such countries are not on the State
Department's list of countries harboring and supporting terrorists.
Overall limits of carrier liability
"Liability for all claims, whether for compensatory or punitive
damages, arising from the terrorist-related aircraft crashes of September
11, 2001, against any air carrier shall not be in an amount greater than the
limits of the liability coverage maintained by the air carrier" [408(a)].
The amount of insurance is usually some $500,000,000 per aircraft, which
leaves a sufficient $2 Billion for the passengers or a completely
insufficient $2 Billion for all claimants if the Secretary of the Treasury
fails to certify the airlines as "victim of an act of terrorism,"
[201(b)(2)], an unlikely event.
Is this an unconstitutional ex post facto law?
More troubling, however, is this dramatic departure from the
established laws, procedure, and rights of the dead or injured after the
fact.
Most people remember reading the Constitution at some point, usually
high school civics class, and one of the phrases people remember is that the
Constitution of the United States protects us from "ex post facto" laws, or
in other words, from a wayward Congress attempting to change the law after
the fact. King George did that, and the colonists were outraged that the
"crown" could change the law retroactively to suit his circumstances with
the benefits of 20/20 hindsight. We were to have none of that in the United
States of America. Until now.
Here are the blatant ex post facto provisions in these laws:
1. Individuals' personal life insurance, travel insurance policies,
pension, death benefits, benefits from any government-federal, state, city,
county, port authority, fire department, police department, county welfare
agency, Federal Emergency Management Agency, Social Security, even the
automatic life insurance if the victim bought the ticket on a credit card,
will go to reduce the liability of the airlines and others, reducing the
amount the Justice Department might choose to award under Option #1. This
was NOT the law prior to September 22 and November 19, 2001, when these
bills were signed into law. This was NOT the law on September 11, 2001, when
passengers boarded their planes. And, this was NOT the law when the
passengers bought their tickets 30 minutes, 7 days or 30 days in advance of
the flight.
2. Individuals' right to seek full recovery for their damages is
limited to the carrier's insurance coverage. This was never the case. You
couldn't even mention insurance at trial. There have even been cases in the
past where aircraft have been seized to pay damages. And why not? If your
negligence leads to someone being hurt and if you do not have enough
insurance, your car, house, salary and bank accounts can be seized. Why are
the airlines any different--because so many have been harmed? A family's
harm and suffering are not less because thousands were killed as opposed to
a few dozen. Why should the law choose to retroactively save the tortfeasor
by impoverishing the victims?
3. The November 19, 2001 law seeks to retroactively ban all claims
for punitive damages, in a double sleight of hand. It amends the paragraph
in the September 22 bill to ban all punitive claims.
4. The November 19, 2001 law retroactively gives protections to
airports, all entities running airports, the World Trade Center, all
government entities, and most entities associated with the September 11
flights, except the security companies like Argenbright, and, of course, the
terrorists.
Yes, you can sue Argenbright, Globe, and any other responsible
security subcontractors, for their roles. They must have had lousy lawyers
or lobbyists. In the wake of these tragedies, their lawyers even tried to
hire me. I am not for sale, and neither should be the victims of these
tragedies.
Such an outrage is most certainly not the American law I know and
respect. The government has already appropriated $20 billion to save the
airlines and billions more for insurance companies covering the airlines!
Why is it necessary to hurt the victims? The airlines keep threatening us
that if we do not limit victims' rights to recovery, they will bankrupt the
airlines.
That is only false hyperbole. Only two airlines are at risk of being
sued; American and United. Maybe American's and United's security were so
outrageously poor that they were purposely selected by the terrorists. After
all, American Airlines security was so bad it was fined $3,411,225.00 by the
federal government, just in the years 1998-2000! Can United be much
better--fined $3,026,825 for lax security (from 1998-2000) and in the wake
of September 11, a man armed with knives, stun gun and mace got though
United's security checkpoint? PanAm is gone, in part because it had several
planes hijacked and bombed because of its poor security. Hundreds of people
died because it failed to have adequate security. It deserved to be gone,
and the law did not, and should not, save a bad carrier because it threatens
us that we'll be walking. We won't. PanAm's routes were quickly assumed, and
today college students have never heard of PanAm, and they aren't walking.
As an American these provisions shock my conscience. As a lawyer, I
know many of them are unconstitutional and will not be upheld if challenged.
Congress knew that too; they told us so. These new laws state that
if parts are held to be unconstitutional, the rest is supposed to be saved,
and not stricken by the courts. The Act, anticipating a constitutional
challenge for various reasons, especially the taking of property (victim
insurance) and personal rights (the right to seek redress in a court of law
and attendant discovery), culminates with what is known as a "separability"
clause. This clause states, "If any provision of this Act (including any
amendment made by this Act) or the application thereof to any person or
circumstance is held invalid, the remainder of this Act (including any
amendment made by this Act) and the application thereof to other persons or
circumstances shall not be affected thereby."
I, for one, am more than willing to challenge this outrage, all the
way through the Supreme Court, and I imagine others with a conscience and
backbone would be happy to join me. Victims should not be afraid to seek
justice from being bulldozed into taking a cheap payout from the government.
For, as the National Air Disaster Alliance and Foundation knows, better than
anybody, victims' voices start weak, and alone, but over the months and
years to come, they will become loud, they will become heard, they will
become a force which can bring truth and justice to the injured and the
dead. And in doing so, they will forever memorialize those lost with change,
improvement, security and a better future.
And frankly that is the only way to do it. Otherwise the full
details of what happened will be kept hidden and forever locked away in
secret government reports and there will be no change, no improvement, and
no security.
Why did the airlines and others rush to change the law?
Airlines and others rushed to change the law retroactively because
legally they were responsible for leaving the "door" wide open to aviation
criminals.
Aviation crimes and terrorism were well known and foreseeable risks,
including using planes as part of a jihad and crashing into other
structures:
Many aviation industries are using the spin that this horrible
terrorism was unimaginable and unforeseeable. Yet from 1993 to 1997 (more
recent data are not available at this time) worldwide there were 87
hijackings, 7 commandeerings, 5 bombings or shootings, 50 attacks at
airports, and 16 shootings at aircraft in just 5 years. The notion that
these hijackings and terrorism were an unforseen and unforeseeable risk is
an airline public relations management myth. A look at the facts dispels
that corporate spin. Terrorist attacks against U.S. aircraft on U.S. soil
date as early as November 1955 when United Airlines Flight 629 left Denver
with the mother of Jack Graham on board. Graham was an American, a domestic
terrorist threat. He had placed a bomb in his mother's suitcase to collect
her insurance policy. He could not . . . she had never signed the policy.
Today, 46 years later, we still have less than a 10% chance of the airline
screening her luggage. Senator Hollings says its 2-3%.
Thirty-three years after the first such attack on U.S. aviation,
terrorists used the same old tried and true method . . . a bomb in a
suitcase . . . to bring down PanAm 103. Not only was such a risk
foreseeable, but a danger the airlines had a legal obligation to protect
against. That airline's security was deemed by the courts to be wantonly
negligent, and the airline was subjected to exemplary damages to punish its
lax and careless security and to deter it and others from such behavior in
the future.
But then, Osama Bin Laden has previously resorted to this method as
well. He planned to bring down 12 U.S. airliners within 48 hours over the
Pacific in 1995. He did a test run on a Philippine jetliner in 1994, and
killed a passenger and injured several others, but the plane managed to
land. He would have to try something different the next time around. He did,
but he followed the example of several previous terrorist attacks. Documents
seized in that investigation revealed they intended to crash a plane into
the CIA building near Washington, D.C.
Hijackings to Cuba in the 1960s and 70s brought us the metal
detectors and x-ray equipment. Again, the corporate spin says that ended the
U.S. hijacking problem. Far from the truth, worldwide, FBI data reveals the
terrorist threat of hijackings and crimes on planes has dramatically
increased and the crimes are frequently deadly, both on U.S. domestic and
international flights.
In the events of September 11, while astonishing in the numbers of
casualties and the enormity of the devastation, neither the modus operandi
of the terrorists, nor crashing planes into buildings, were new. In fact,
these types of hijackings and the crashing of planes into buildings, had
been planned but thwarted on several previous occasions.
On May 7, 1964, a former member of a Philippine Olympic yachting
team boarded a Pacific Airlines flight, shot the pilot and copilot and
crashed the plane.
Consider PanAm Flight 93 from Brussels to New York City on September
6, 1970. Two passengers produced handguns and grenades and ordered the plane
to Lebanon and then on to Cairo, Egypt. At a stop in Beirut, the plane was
laced with explosives. The fuses were lighted just before landing . . .
giving the passengers and crew scant minutes to disembark before the plane
exploded. The hijackers were traveling on Senegalese passports but were
supporters of the PLO. Forty-five minutes into the flight the hijacking
started. En route the hijackers calmly used the PA system to explain their
opposition to the U.S. government's support of Israel. Within just a few
days, 5 planes were hijacked, 4 on the same day! Besides PanAm 93, three
others were hijacked including TWA 741, to Dawson's Field in Jordan on
September 6, and a BOAC flight was hijacked on September 9. On September 12,
1970, the three additional planes were blown up, bringing the total to four.
But there were supposed to be five. On the fifth plane, El Al 219, the air
marshals thwarted the hijackers.
But where had the hijackers come from? Israel airline El Al had
become suspicious and barred the hijackers from their flight. Their tickets
were endorsed over to PanAm. PanAm was subsequently alerted and removed the
two men from the plane and searched them and the area around their seats.
The men very calmly complied and did not seem nervous nor did they behave
oddly. Their weapons were hidden in their crotches. No one searched there.
In June 1985, TWA 847 from Athens to Rome was hijacked a half hour
into the flight by two men with guns and hand grenades. Two terrorists
identified as part of an Islamic jihad commandeered the U.S. plane to
Beirut. When Beirut refused permission to land, the hijackers responded, "We
are suicide terrorists! If you don't let us land, we will crash the plane
into your control tower or fly it to Baabda and crash into the Presidential
Palace!" After refueling and additional stops, passengers with Jewish names
were taken off the plane, held hostage by the jihad, and later rescued by
American Delta Forces. An American passenger was murdered and eventually the
plane was blown up.
PanAm Flight 73 on September 5, 1986, from Bombay to New York was
attacked. PanAm held forth that it had good security, but, in fact, their
security was fake. They fooled the passengers but not the terrorist
hijackers. They drove a vehicle through a gate onto the tarmac, boarded the
aircraft and opened fire on passengers. The court found the airline was
negligent.
On December 7, 1987, on Pacific Southwest Airlines, a fired USAir
(now US Airways) employee used his old badge to skirt security and take a
gun on the plane. He killed the boss that fired him in the cabin of the
plane, then forced his way into the cockpit and killed the pilots and
crashed the plane. The court held the airline responsible for their
negligence in failing to implement proper security.
On April 7, 1994, a disgruntled FedEx pilot who thought he was about
to be fired, took advantage of an aviation industry perk available to fellow
pilots--the jump seat. With an employee badge, he had no problem stashing
hammers, a spear gun and a knife on board. He fractured the pilots' skulls
and intended to crash the FedEx plane into the FedEx Memphis hub, thereby
bringing down the company he felt had treated him unfairly. He had counted
on the crew quickly losing consciousness. They did not, and the engineer and
copilot restrained the hijacker while the pilot miraculously landed the
plane.
On October 31, 1999, an EgyptAir pilot, muttering an Islamic prayer
. . . or curse . . . plunged a plane, departing New York's JFK airport, into
the ocean. On board were dozens of Americans as well as three dozen Egyptian
military officers fresh from training in the U.S. (who have remained a
carefully shielded mystery of that tragedy).
Almost 31 years later to the day, after four planes were hijacked
and blown up in an Islamic jihad staged in Jordan, four U.S. planes were
hijacked in what Osama Bin Laden would call, in congratulatory messages, a
jihad. U.S. law enforcement authorities said that on the same day there was
yet another plane with box cutters pre-positioned, and that two men with
shaved bodies (indicating preparation to die) were one the plane. They were
arrested and held as material witnesses. Was it to have again been five
planes, on almost exactly the same day, in 2001 as in 1970?
The courts have consistently held the airlines responsible for their
lapses in security, and insurance companies' efforts to avoid liability on
the argument that such criminal acts are war, riots, or insurrections have
failed. Terrorism, hijacking and blowing up planes are exactly the crimes
that security measures are supposed to protect against. It is a known
danger, and a foreseeable risk. The airlines, airports, and insurance
companies know what the law does about their gross negligence, so they
sought to skirt the law through lobbying.
This realization is perhaps why American and United Airlines and
their gaggle of lobbyists and lawyers were so intent on changing the law,
after the fact, to strip passengers and those on the ground of their rights
to seek discovery, proper compensation without offset of collateral sources
already paid for by the victims, and exemplary damages. The airlines and the
government implored us to get back to normal. Yet, very secretively, the law
was changed to try to stop the normal legal process.
I firmly believe our nation is above such despicable behavior, and I
believe when the light of judicial inquiry is shed on what happened in
America in the wake of such a Black September, these ex post facto laws will
not stand. I believe that victims are being severely harmed by any further
delay in exercising their rights, and that instead of giving the families
time to heal, the guilty are using the extra time to change the laws as fast
as possible to cut off any legitimate inquiry into their behavior.
The FBI statistics shouted a warning to anyone who would bother to
read them. And the FBI made those warnings--that hijackings, bomb threats
and other terrorist threats against aviation were on the rise, and in record
numbers in some parts of the world--available to the FAA. These statistics
were even published in the FAA Administrator's Fact book, available on the
FAA website, until it was taken down after September 11, 2001.
Yes, the airlines rushed to shield themselves from liability-they
had good reason. The risks were known, rising, and getting more deadly, and
the laws would hold them responsible for the security of their passengers.
Were there specific warnings and recommended courses of action for
the
airlines and the government to follow?
It's one thing to be caught in a rising crime wave, but it's another
to know what to do about it. What did the airlines know, and when did they
know it?
Actually they knew a lot. The airlines knew they had lax security,
leaving passengers and others at risk. Such warnings were frequently
repeated and are documented in writing. It is now an undeniable fact that
the airlines knew their security was inadequate.
One of the sad, bad things about working in aviation and security as
long as I have, is that you see the airlines are recidivists. They will
continue to cut corners and take risks relying on redundancies and the law
of averages. Their risky reliance on the odds is best illustrated by words,
repeated even on the FAA website, that you would have to fly a few thousand
years before you would be involved in a plane crash. Anyone who's had a
freshman course in statistics knows it doesn't work that way--the risk is as
great for the first time flier, and now, for the first time in history, the
risk is greater of dying in a plane crash while sitting at your desk in a
New York office building. No one who died on September 11 was old enough to
die in a plane crash according to the statistics of the airlines and the
FAA.
Why do airlines take unreasonable risks?
In showing the American public sleight-of-hand statistics, the FAA
and the airlines have obscured their own safety rules. In studying what went
wrong in the terrible Challenger tragedy, it was discovered that the day of
the tragedy was not the first time the shuttle was launched against safety
warnings and in dangerously low temperatures. Instead of saying "whew, we
were lucky that time, we will never do that stupid move again," those
responsible discounted the risk of blasting off in sub-optimal conditions.
In other words, because they tempted the statistics before and skated by,
they diminished the risk warnings and launched in even colder temperatures.
The same thing happened to U.S. aviation security. The realization
that air carriers and other aviation interests must have and follow some
security standards and recommended practices led to the Chicago Convention
which established the International Civil Aviation Organization in 1944.
That Convention required each country to take action to prevent persons from
getting weapons and explosives on board planes. Every ICAO Convention
thereafter addressed security concerns. Following the hijacking of TWA 847
in 1985, and the bombing of PanAm 103 in 1988, a Presidential Commission was
appointed to make recommendations on improving security to prevent such
attacks. In 1989, the Secretary of Transportation addressed ICAO stating:
"People around the world are calling for leadership and decisive action to
eliminate the gruesome, common threat of terrorism in the skies." Years ago,
the first President Bush's Commission on Aviation Security and Terrorism
concluded: "The U.S. civil aviation security system is seriously flawed and
has failed to provide the proper level of protection for the traveling
public." But those recommendations and warnings following TWA 847 and PanAm
103 were largely ignored. By 1997, we had another Presidential Commission to
study what to do about security. That commission stated as follows:
The Federal Bureau of Investigation, the Central
Intelligence Agency and other intelligence agencies have been warning that
the threat of terrorism is changing in two important ways. First it is no
longer just an overseas threat from foreign terrorists. People and places in
the United States have joined the list of targets.
Murderous hijackers crashed the planes on September 11, but the
negligence of airlines, security companies and others may have presented
them the opportunity and means to carry out their crimes
Make no mistake, I blame the murderous criminals killing people on
airliners, hijacking planes and crashing them into buildings to kill as many
people as possible, and the people, organizations and governments who
sponsor terrorism. But a business inviting the public to come and purchase
goods and services like airplane tickets, carries with it the legal
obligation to provide safety and security, and at a minimum to follow the
federal regulations and laws so passengers and others are not slaughtered.
What do we know?
1. Federal aviation security regulations were violated. Forget the
idiotic statements that the box cutters were legal. The law says "no
weapons." It does not say weapons under four inches are okay. As the FBI has
already stated, at least some of the weapons were pre-positioned on the
planes. The FBI is also holding others who were thought to be on a potential
targeted fifth plane. And the hijackers had ramp passes, security badges,
pilot credentials and even managed to occupy the jump seats on one or more
of the doomed jetliners--clearly the regulations pertaining to credentials
and SIDA (Security Identification Display Areas) were violated.
2. Airliner doors were flimsy and could be opened with the same key.
Is this reasonable, when in the months preceding September 11, 2001, there
were 16 cases of people breaking into the cockpit, most in the U.S., and
U.S. aviation had suffered at least ten terrorist attacks on jets by
breaking into the cockpit and killing or injuring the pilots?
3. Airlines relied on a "profiling system" based on what passengers
told them to decide who was a threat and who was not. Obviously this did not
work. What's worse, there was no scientific evidence before September 11 to
show that it did work. The airlines and the FAA adopted this system to avoid
the tougher security called for by the 1997 Presidential Commission.
4. Flight schools allowed criminals to obtain training to fly
wide-bodied jets . . . without learning to land or take off. At least one
alleged potential terrorist was thwarted when a flight school was suspicious
about such a highly improper training regimen. The school reported it, and
the "flight student" was arrested. Authorities theorize he was to have been
the 20th hijacker. Was complying with such a training request unreasonably
negligent?
5. Airport screening contractors were abominably incompetent. Even
Congress admitted this and provided them with no protection from legal
action and the award of punitive damages without limits.
6. Airports and airport contractors had lax security. The hijackers
obtained ramp passes and security badges, in obvious violation of security
procedures.
7. Jump seat privileges have been exploited and misused for years.
Jump seat privileges have even been abused by the FAA. I ordered a
government investigation of this in the early 1990s which showed widespread
known abuse.
8. Aviation was well known to be the target of terrorists. It has
happened to dozens of planes in the past, including several U.S. passengers
jetliners, and on U.S. soil. These attacks were known, foreseeable risks for
which airlines have been held responsible by U.S. and international courts.
9. Passenger jetliners are known to be vulnerable to onboard attacks
and yet they have left those on the ground, like air traffic control, law
enforcement and the airlines' home base, unable to know what was occurring
on the aircraft. In the year 2000, the National Transportation Safety Board
found that airliners were more vulnerable to criminal attacks because there
was no onboard video. The NTSB implored the FAA to require onboard video
cameras. The airlines balked, and the FAA did nothing.
10. It was well known long before September 11, 2000, that the
entire aviation security system could be skirted or breached at will. Yet
astoundingly, the airlines and other aviation providers refused to implement
better security. As Inspector General of the U.S. Department of
Transportation, I completed two major nationwide investigations of airline
and airport security. We could breach security at will and were able to get
guns, knives, mock bombs and explosives into the secure areas at every
airport we tested. My employees were able to circumvent the security, get
security codes within seconds of being unleashed at airports, and get on
planes, into cargo holds, into the cockpits, and into every area of every
airport tested--even after airlines and airports were alerted by the FAA
that we were coming! I published official government reports in 1993 and
1996. I testified at Congressional hearings. I wrote a book, Flying Blind,
Flying Safe, which discussed such shocking security lapses. It became a New
York Times best seller. But that is not all, my successor at the Office of
Inspector General repeated the investigations, publishing yet another
scathing report in 2000. The General Accounting Office, which audits and
investigates for Congress, found the same thing. Even the FAA's own internal
"Red Teams" found and reported on horrible security. The airlines were
repeatedly warned.
Conclusion
On September 11, 2001, airlines and others had actual knowledge of
how bad their security was. And that, says the law, makes them responsible.
What they don't want anyone to find out is the extent of their negligence.
And that is why they raced to Congress to get immunity.
You, the families of victims, are now the only defense against such
lawlessness. I bid you Godspeed, a strong will, great faith, and support
from our mighty Constitution. You will need stamina, belief in your cause,
supportive friends and fellow fighters, selflessly and steadfastly
volunteered by the National Air Disaster Alliance and Foundation, good
lawyers, and the belief that you can change the deplorable state of affairs,
in part, in loving memory of your family members lost, and so that they will
not have died in vain. And, as always, I pledge my support in whatever way I
may be helpful.