Secondary Questioning

Kathy Gill, at about.com, has attempted to verify the claim that it's Department of Transportation policy "to fine airlines if they have more than two young Arab males in secondary questioning because that's discriminatory" - as asserted here, for example, by Michael Smerconish. The source of the claim is a statement by 9/11 Commissioner John Lehman, who told Smerconish:

"We had testimony a couple of months ago from the past president of United, and current president of American Airlines that kind of shocked us all. They said under oath that indeed the Department of Transportation continued to fine any airline that was caught having more than two people of the same ethnic persuasion in a secondary line for line for questioning, including and especially, two Arabs," he said.

Something about this apparently didn't sound right to Kathy Gill, who went back to examine the testimony of United and American executives before the 9/11 commission.

I've read the transcript of the testimony at hearing seven of the 9-11 Commission, where United and American executives testified. Lehman's allegation is not reflected in this testimony. Relevant parts follow:

Mr Kerrey (Commissioner):
I must tell you that the law (U.S. Code Title 49, Section 44902) doesn't mention the FAA. The law says, quote, "An air carrier may refuse to transport a passenger or property the carrier decides is or might be inimical to safety."

Mr. Soliday (United, emphasis added [by Kathy Gill]):
"But if I could share some history with you, how that law has been applied to us is that when we have tried to deny boarding --most recently after 9/11, 38 of our captains denied boarding to people they thought were a threat. Those people filed complaints with the DOT, we were sued, and we were asked not to do it again."

Mr. Arpey (American, in response to question from Commissioner Lehman):
"In a post-9/11 environment, we had situations where our crew members were uncomfortable with passengers on board the airplane, they hauled them off the airplane and I think -- there was 10 or 11 of them -- and today we're being sued by the DOT over each one of those cases."

So what was actually reported during that testimony before the Commission is that airlines have been sued because pilots refused to transport certain passengers. (Remember the Arab-American Secret Service agent who wasn't permitted to fly even after law enforcement vouched for his identity? Do you suppose there was a lawsuit on his behalf?) The testimony had nothing whatsoever to do with racial quotas for secondary questioning.

Smerconish admits that, after the first time he wrote about the alleged policy, the Department of Transportation told him that the policy does not exist. (Apparently he never contacted them himself to ask.)

"...A member of the 9/11 Commission was incorrect in telling... that the Federal Aviation Administration used a quota restricting the number of foreign passengers that could be subjected to secondary screening at one time. Despite the testimony... cited in your column, secondary screening of passengers is random or behavior-based. It is not now, nor has ever been based on ethnicity, religion or appearance."

"Is that supposed to make us feel better?" Smerconish asks rhetorically. Yes, in fact, it is. Smerconish (and others propagating this story, like Michelle Malkin and Annie Jacobsen) talks about the alleged policy as if it prohibits the investigation of suspicious behavior. It should be reassuring to know that security screeners can question and search all the suspiciously-behaving Arabs they want, without fear of punishment. But apparently, Smerconish will only be satisfied if random screenings are completely replaced by Arab-only screenings.