As AOPA President, Phil Boyer has spent 12 years fighting for the rights of GA pilots.
They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety. — Benjamin Franklin
We've been confronted by security threats throughout our nation's history. Sometimes — like locking up Japanese-American citizens in relocation camps, or using the power of Congress to destroy the reputations and livelihoods of supposed Communist sympathizers — we've given up some of our rights in a quest for safety. It was always a mistake.
But we haven't learned. Our country is making that mistake again. On January 24, without prior public notice or comment, our government published three "direct final rules" that take away pilots' rights. These rules direct the FAA to immediately suspend, revoke, or refuse to issue an airman certificate to anyone the Transportation Security Administration (TSA) determines poses a threat to air transportation security.
Under these new rules, the government can deprive you of your pilot certificate without going through the due process that is the right of every American citizen. All it takes is for an assistant TSA administrator to make a "determination" that an airman (this could be a pilot, mechanic, air traffic controller, or anyone else who is FAA-certificated) poses a risk of air piracy or terrorism or is a threat to airline or passenger safety. To make matters worse, the TSA rule doesn't tell us the criteria used to determine whether an airman is a threat. TSA then notifies the FAA and the airman. The FAA immediately revokes your pilot certificate, and you have 15 days to appeal. But TSA doesn't have to tell you what evidence it has against you. That information can be classified, because revealing it might affect national security.
But guess who you appeal to? That's right, TSA, the same people who decided you're a threat. There is no independent review, no impartial adjudicator. TSA is the cop, prosecutor, judge, jury, and appeals court. The FAA is the executioner. Clearly, this is wrong. Clearly, this is a violation of basic constitutional rights. And just as clearly, AOPA is fighting it.
Let there be no misunderstanding. AOPA recognizes the importance of preventing terrorists from using aircraft to attack the United States. Your association has been at the forefront in finding ways to protect general aviation from terrorist use. AOPA's Airport Watch, our pilot ID petition, and our work with others on a 12-point security plan all come to mind as proactive steps we've taken to enhance our national security.
But we cannot, we will not, give up our basic rights in order to protect ourselves from some vague and secret "threat."
We are demanding that the government suspend enforcement of these rules and give the public the chance to comment. The comments can be used by TSA and the FAA to address the rights of citizens and pilots as they formulate new, more reasonable rules. (A few more weeks can't make any difference. The government took 16 months to think about these rules before suddenly rushing them into effect.)
While TSA and the FAA claim that "Congress made us do it," our reading of the law is that they went way beyond what Congress intended. In the Aviation Transportation Security Act of 2001, Congress did tell TSA to assess and make plans for dealing with threats and to coordinate with other agencies. Congress told TSA to develop procedures to notify the FAA about potential threats. However, Congress did not specifically tell FAA to revoke a certificate based solely on TSA's notification. We don't think it was Congress's intent that the government take away our pilot certificates without the constitutional protections of due process.
We're already at work with Congress to stop the enforcement of these rules, and AOPA will take this through our court system to restore pilots' rights. Again, your association supports reasonable, lawful efforts to combat terrorism. There are things that can be done to make these rules palatable and protect your rights.
First, TSA must add to the rule the criteria for determining whether an individual is a security threat. Other TSA and FAA rules include established criteria for assessing threats. For example, the TSA rule for obtaining unescorted access to the security identification display area (SIDA) at an air carrier airport has a specific list of disqualifiers.
Second, due process must be guaranteed for every accused airman. The FAA has always had the authority to revoke or suspend an airman's certificate on an emergency basis if there is a threat to public safety. But the airman can appeal that decision to an independent third party — first an administrative law judge and then the NTSB. That's due process. TSA and the FAA can implement Congress's intent in the security act in a lawful manner and at the same time afford every pilot the due process historically provided by the federal transportation code.
We must apply common sense. An AOPA member and fellow aviator, who once held one of the nation's most security-sensitive pilot jobs, wrote me the other day, saying, "If someone is really a security threat, they should be in jail! Why would someone who is deemed a threat to our country be at large to use his pilot privileges? And if he sits in a jail cell, the fact that he has a pilot certificate in his pocket is completely irrelevant."
Finally, as a nation, we must stop scapegoating general aviation and GA pilots for the sins of terrorists. It was the failure of our intelligence systems and control of our borders that permitted the September 11 attacks. Revoking a pilot certificate isn't going to prevent a future attack.
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