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Page 1 of 5
Security warnings went unheeded
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Security warnings went unheeded
Knob
Tecimoksst
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Former FAA
special agent
foresaw
problems at
Logan Airport
tkfecetilta:
Stiovatigfte
Former FAA special agent
Brian Suilivan
By Chris Hansen
NBC NEWS
Transportation Secretary Norman
Mineta announced Sunday that he has created
two new task forces to work on improving air
security. One will look at ways to prevent
terrorists from gaining access to cockpits, the
other will try to come up with a system to stop
terrorists from getting aboard planes as two
groups did, with such apparent ease Tuesday, at
Boston's Logan Airport. Perhaps both of those
protective systems would have already been in
place at Logan, and elsewhere, if anyone had
listened to one man.
Sept. 16
—
• E-MALL THIS
http://www.msnbc.conilnews/629905.asp
COMPLETE STORY
09/1712001
�Security warnings went unheeded
Clods Hansen
NM CO USP6NQEM1
`Think what the
result would be of
a coordinated
attack which took
down several
domestic flights
on the same day...
[W]ith our current
screening system,
this is more than
possible. Given
time, considering
current threats, it
is almost likely.'
— LETTER
SULLIVAN WROTE
TO SEN. JOHN
KERRY
Page 2 of 5
FOR most of us, it was a scenario we had never
imagined, but not for Brian Sullivan.
"When I saw that plane hit the tower, I knew I
failed," says Sullivan. "I failed to get their attention."
A former special agent for The Federal Aviation
Administration for 10 years, Sullivan was responsible
for checking out the security of FAA radar towers
and air traffic control facilities. But after he retired
from the FAA in January, he became concerned
about the security at Logan International Airport in
Boston, as well as other airports throughout the
nation.
"I knew the system was vulnerable enough to
take down several domestic flights on any given
day," says Sullivan. "And I felt in my heart, please
don't tell me that there haven't been any hijackings
in the past five to ten years — they just decided they
weren't going to exploit the system."
He became so alarmed he decided the public
needed to know. So this spring he and another former
special agent helped a local television crew expose
security problems at Logan.
"We were successful in penetrating the security
screening check points at Logan nine out of 10
times," says Sullivan. "And if we were successful at
doing it, potential terrorist could do it."
This was hardly the first time that questions had
been raised about security at Logan. Between 1997
and 2000, undercover FAA inspectors found that
Logan airport security employees routinely failed to
detect test items like pipe bombs and guns. They
were also able to gain access to planes parked over
night, and other restricted areas without even being
questioned. In all, there were 136 security violations.
"When we did this video report, and it appeared
on television, there was a natural reaction on behalf
of the FAA and Massport," says Sullivan. "Two
weeks later after the dust settled, the people I was
involved with went back and re-tested with basically
the same result."
Besides helping the TV journalists, Sullivan says
he expressed his concerns to the FAA administrator's
hotline. He also says he sent a letter to Massachusetts
Sen. John Kerry, a letter that now seems all too
prophetic.
From the letter:
"With the concept of jihad, do you think it would
be difficult for a terrorist to get on a plane and
http://www.msnbc.cominews/629905.asp
09/17/2001
�,Security warnings went unheeded
a Add local news and
Nagr weather to the MSNBC
home page.
Page 3 of 5
destroy himself and all other passengers? Think for a
moment how vital the air transportation industry is to
the overall economic well being as a nation. Think
what the result would be of a coordinated attack
which took down several domestic flights on the
same day. The problem is, with our current screening
system, this is more than possible. Given time,
considering current threats, it is almost likely."
Sullivan says Sen. Kerry responded to his letter
and asked the Department of Transportation's
Inspector General look into the matter.
"I think Sen. Kerry did get it to the right people
and they were about to take action."
The FAA also responded, but in a way that left
Sullivan unconvinced that anything would happen
anytime soon.
From that letter:
"The New England Region Civil Aviation
Security Division continues to work with the air
carriers and airport officials at the Boston Logan
International Airport to address security issues raised
by the video presentation."
That letter Sullivan provided to us is dated
August 20. Just three weeks later, the results of the
scenario that Sullivan had warned about were there
for everyone to see.
After the
disaster,
ERICA,
Massachusetts airport
authorities said that
• U.S. prepares for war
Logan Airport met all
• Latest on suspects
security requirements
• Afghan-Pakistan news
and had been as
• Report from rescue site
secure as any other
• News on air travel
airport in the country.
• The funerals commence
Sullivan doesn't buy
• Newsweek: Bin Laden
it.
• Newsweek: Prejudices
"There were
• Dateline: Flight 93
many others out there
• WSJ: Rebuilding towers?
• Victims in the terror attack
that saw this potential
• Readers share thoughts
and have been
• Video, photos
begging the
• COMPLETE COVERAGE
government to get us
to a level of requisite
security a height of security," says Sullivan, "where a
terrorist who was doing surveillance would have
looked and said, wait a minute, we need to move
onto a softer target. Obviously, they thought Logan,
Newark, and Dulles were places they could exploit.
The only thing Sullivan hadn't thought of was
http://www.msnbc.com/news/629905.asp
09/17/2001
�Page 4 of 5
,Secur ty wamings went unheeded
that the hijackers would choose to crash the planes
into two towers filled with people.
"How can I put my mind — my thought, my
mind, in their head, in the mind of a sick bastard who
believes so much in jihad that if I kill the infidel,
women, children, people at work, if I kill the infidel,
I go to heaven? I don't think so," says Sullivan.
These days,
N1More from Dateline
Sullivan watches
the images of
Schedule
•
devastation,
• Horrepage
heartbroken not just
• Newsletter
what he sees, but at
what he couldn't
prevent.
Now., of course, no security expense is spared.
Three hundred state troopers have been called in.
Logan Airport is on high alert, proof that Sullivan
may have been wrong about one thing he said in his
letter to his Senator: "We don't have to wait for a
tragedy to occur to act."
An FAA spokesman confirms that Brian Sullivan
raised security concerns prior to the hijackings, but
the spokesman was not able to provide details
Sunday on how the agency followed up.
NEWS
(STORY] ik/ta:ina Sr-c
(STORY'
(stew
(NOME
waril;inco,
• nh
Dateline: Saving a life and a bride
Oscar coverage on MSNBC Cable
Dateline': A heroic last stand
Dateline: Politics of terror
MSN'AC
MSNBC VIEWERS' TOP 10
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09/17/2001
�
Dublin Core
The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/.
Title
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Boston Federal Aviation Administration Filings
Subject
The topic of the resource
litigation
airport security
Description
An account of the resource
These court filings provide evidence that the terrorists responsible for the September 11th attacks were observed assessing airport security prior to the events. For example, Mohammed Atta was spotted in May '01 taking still photographs, notes and video of the screening checkpoints at Logan. He was reported to law enforcement at the airport, but they failed to follow up.
Contributor
An entity responsible for making contributions to the resource
Brian Sullivan, FAA Special Agent (Retired)
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Dublin Core
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Title
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Security Warnings Went Unheeded
Subject
The topic of the resource
Airports--Security measures--United States
Airline passenger security screening
Terrorism--United States--Prevention
Description
An account of the resource
A news article that discusses the many ways in which Brian Sullivan attempted to enact safer security measures at airports prior to the September 11, 2001 attacks. Sullivan, a former special agent for the Federal Aviation Administration (FAA), worked with a local television crew to expose gaps in security at Logan Airport in early 2001. Unfortunately, Sullivan's work did not provide the impetus to rework security measures, so in August 2001, he wrote a letter to Senator John Kerry to express his concerns. Kerry asked the Department of Transportation's Inspector General to investigate, but the FAA responded that they were continuing "to address security issues raised by the video presentation." Three weeks later, the September 11, 2001 attacks occurred.
Creator
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Chris Hansen
Source
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NBC News
Date
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September 16, 2001
Contributor
An entity responsible for making contributions to the resource
Brian Sullivan, FAA Special Agent (Retired)
-
Dublin Core
The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/.
Title
A name given to the resource
Boston Federal Aviation Administration Filings
Subject
The topic of the resource
litigation
airport security
Description
An account of the resource
These court filings provide evidence that the terrorists responsible for the September 11th attacks were observed assessing airport security prior to the events. For example, Mohammed Atta was spotted in May '01 taking still photographs, notes and video of the screening checkpoints at Logan. He was reported to law enforcement at the airport, but they failed to follow up.
Contributor
An entity responsible for making contributions to the resource
Brian Sullivan, FAA Special Agent (Retired)
Text
A resource consisting primarily of words for reading. Examples include books, letters, dissertations, poems, newspapers, articles, archives of mailing lists. Note that facsimiles or images of texts are still of the genre Text.
How has your life changed because of what happened on September 11, 2001?
form question
Back in 2016, I submitted several documents which you now include in your Boston Federal Aviation Administration Filings collection.
One of these is listed as Exhibit 16 Checkpoint Operators Guide Standard Operating Procedures.
When I submitted that document, I was unaware that the Transportation Security Administration had redacted a couple of very important pages.
Those pages can now be found at the link below.
It is my hope that you can enter those pages into your 9/11 Digital Archive because they include the fact that box cutters, mace and pepper spray were items that the airline industry's COG specifically identified as items not allowed to enter the sterile area.
If you recall, these specific items were used by the terrorists on 9/11. The FAA (and later the TSA), and airlines wanted to keep public knowledge of this fact to a minimum, albeit the likely reason these pages were initially redacted.
From the airlines perspective, the fact that precluded items made it on to the hijacked planes might adversely impact their liability.
Now that all that litigation has come to a close, it would be good to maintain these pages as part of your digital 9/11 history.
The planesafe website is associated with the National Air Disaster Alliance Foundation.
http://www.planesafe.org/planesafe_archive/pdfs/handcarried_items.pdf
Thank you for your time and consideration.
Brian F. Sullivan
FAA Special Agent (Ret)
1-508-224-7775
Dublin Core
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Title
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Exhibit 16 Checkpoint Operators Guide
-
https://911digitalarchive.org/files/original/5f2632a01d18e904772878d3e9d9ce25.PDF
d5dfef6a2c03666acdadcc7f9919f05c
PDF Text
Text
March 18, 2003
The President
The White House
Washington, DC 20500
Re:
OSC File No. DI-02-0207
Dear Mr. President:
In accordance with 5 U.S.C. § 1213(e)(3), I am transmitting a report provided to me
pursuant to 5 U.S.C. § 1213(c) and (g)(2) by the Honorable Norman Y. Mineta, Secretary of
Transportation. The report sets forth the findings and conclusions of the Secretary upon
investigation of disclosures of information by Bogdan Dzakovic, who was formerly employed
as a Special Agent on the Federal Aviation Administration's (FAA) "Red Team."
Mr. Dzakovic alleged that officials within FAA's Civil Aviation Security (CAS) Division in
Washington, D.C. deliberately covered up or suppressed Red Team findings that reflected
negatively on the airline industry.
After determining, pursuant to 5 U.S.C. § 1213(6), that the information Mr. Dzakovic
provided established a substantial likelihood of an abuse of authority and a substantial and
specific danger to public safety, I referred his allegations to the Secretary of Transportation for
investigation pursuant to 5 U.S.C. § 1213(c), on February 5, 2002. Thereafter, the Secretary
delegated his authority to conduct an investigation and to review and sign the agency report to
the Honorable Kenneth M. Mead, Inspector General, Department of Transportation (DOD.
The DOT's Office of Inspector General (OIG) conducted an investigation of
Mr. Dzakovic's disclosures. Inspector General Mead sent a report to this office on August 16,
2002. As described in greater detail below, the OIG's Report substantiates the crux of
Mr. Dzakovic's disclosure: that the FAA's Red Team program was grossly mismanaged, and
that the result was the creation of a substantial and specific danger to public safety. The OIG
Report did not, however, find that CAS management deliberately covered up or suppressed
Red Team findings.
OSC forwarded the OIG's Report to Mr. Dzakovic for comments on August 28, 2002.
We received comments from Mr. Dzakovic on November 5, 2002, and from his attorney on
December 4, 2002. Thereafter, on the basis of the comments, we asked Inspector General
Mead to clarify some of the findings in the OIG Report to which Mr. Dzakovic took exception.
�The President
Page 2
In addition, in a letter dated January 30, 2003, - I requested that Secretary Mineta
provide specific information about the actions the new Transportation Security Administration
(TSA) had taken or was committing to take in response to the OIG's findings. See 5 U.S.C.
§1213(d) (5) (specifying that the agency report must include a description of corrective actions
to be taken or planned as a result of the investigation). I also asked Secretary Mineta to
provide further information regarding Mr. Dzakovic's employment situation because Mr.
Dzakovic had advised OSC that he had not been given meaningful duties since he made the
disclosures that were the subject of the OIG Report. Finally, I asked Secretary Mineta to
provide a description of the action that had been taken to hold appropriate individuals
accountable for the acts of mismanagement identified in the OIG Report. See 5 U.S.C.
§1213(d) (5) (A) (agency report should include description of any disciplinary action taken as a
result of the investigation).
By letter of February 24, 2003, Admiral James M. Loy, the Under Secretary of
Transportation for Security, responded on behalf of Secretary Mineta. We provided
Mr. Dzakovic an opportunity to review Admiral Loy's letter and to comment on its contents.
We have carefully examined the original disclosures and reviewed the agency's
response and Mr. Dzakovic's comments. Pursuant to 5 U.S.C. § 1213(e)(2), I have
determined 'that: 1) the OIG's investigation and the findings in the OIG's Report appear
reasonable; 2) the information supplied in TSA's letter fulfills the statutory requirement that
the agency identify the corrective actions it intends or plans to take in response to the findings
in the OIG Report; 3) the agency -response to our inquiry regarding accountability does not
appear reasonable because it does not identify the individuals responsible for the management
failures identified in the DIG Report, nor does it explain what measures have been taken to
hold them accountable; and 4) OSC will resolve the issue of whether Mr. Dzakovic has
suffered retaliation for his disclosures through the investigation of his pending prohibited
personnel practice complaint with this office.
In accordance with 5 D.S.C. §1213(e)(3), I am transmitting for your consideration,
copies of the OIG Report, the letter from Admiral Loy, and Mr. Dzakovic's comments.
I.
A.
The Whistleblower's Disclosures
Background: The Red Team
Mr. Dzakovic began working for the FAA in 1987 as a Federal Air Marshal. In 1995,
he became a special agent on the FAA's Special Assessments Team, commonly known as the
"Red Team." The Red Team was disbanded after the events of September 11, 2001. when
DDT's aviation security program was restructured and overhauled, and the TSA created.
�The President
Page 3
According to the Red Team's charter document, entitled "Concept of Operations," the
FAA established the Red Team in 1990 to fulfill commitments that former FAA Administrator
Admiral James B. Busey made in testimony before the President's Commission on Aviation
Security and Terrorism, the House Foreign Affairs Committee, and the House Government
Operations Subcommittee. Those commitments to improve airline security were made in the
aftermath of the 1988 bombing of Pan Am Flight 103. The "Concept of Operations"
document states that the purpose of the Program was to "assess that aviation security
requirements are applied and effective under actual operating conditions."
The Red Team was comprised of a small, elite team of security agents who traveled to
major airports throughout the country and abroad to conduct airport security testing -- chiefly,
covert penetration testing. The core purpose of the Red Team's testing was to provide the
FAA with realistic data on the state of aviation security. According to the OIG Report, the
Red Team (which consisted of approximately 4-8 personnel at any given time), operated as
part of a larger special assessment staff, whose responsibilities included using the Red Team's
findings to develop enhanced security measures and formulate long-range strategic policy.
Before the passage of the Aviation and Transportation Security Act of 2001, air carriers
were accountable to the FAA for compliance with FAA security regulations by air carrier
employees and their contract security screeners. The FAA's day-to-day regulatory oversight
of airport security was provided by CAS Field Offices (CASFOs) nationwide, and CAS
Liaison Offices (CASLOs) internationally.
The Red Team's covert testing was separate and apart from the testing conducted by the
CASFOs and CASLOs. The latter testing was subject to standardized FAA protocols that the
agency established in the context of its civil enforcement program. According to the DIG
Report, those protocols were established with an eye toward "fairness" to the airline industry.
When tests were conducted by local FAA staff as part of the civil enforcement system,
simulated explosive devices would be placed in uncluttered bags, in a way that would be
readily visible to X-ray machine operators. The Red Team, on the other hand, would disguise
such devices within cluttered bags, to simulate what a real terrorist might do. It used "out of
the box" testing techniques.
B.
Mr. Dzakovic's Allegations
In his disclosures to OSC, Mr. Dzakovic alleged that the Red Team's test results often
differed dramatically from the results generated by other FAA security teams, and showed the
state of airport security to be in far worse condition. The crux of Mr. Dzakovic's disclosures
was that FAA management deliberately suppressed negative Red Team findings or otherwise
manipulated tests and data in order to protect the airline industry. He cited several incidents in
support of this overall characterization of FAA management's actions.
�The President
Page 4
First, Mr. Dzakovic alleged that Admiral Cathal Flynn, former Associate Administrator
for CAS, and Leo Boivin, former Manager of the Red Team, instructed Red Team agents to
forgo returning to airports that yielded especially poor testing results. For example,
Mr. Dzakovic cited an incident that occurred in 1998 at the Luis Munoz Mann International
Airport in San Juan, Puerto Rico (San Juan Airport), discussed in greater detail below.
Mr. Dzakovic also alleged that in August 1999, Mr. Boivin ordered members of the
Red Team to start providing advance notice to local FAA field offices before visiting airports
for security testing, in violation of the Red Team's usual protocol. Mr. Dzakovic expressed
the belief that Mr. Boivin intended to manipulate the Red Team's results in order to protect the
airline industry.
In addition, Mr. Dzakovic alleged that Tony Fainberg, then-Manager of the FAA CAS
Office of Policy and Planning, abused his authority by instructing Mr. Dzakovic to exclude
data from a study he conducted on the reliability of the Threat Image Projection (TIP) software
program. TIP is an FAA-designed computer program that superimposes computerized images
of weapons onto X-ray machines that screen carry-on luggage. It is used to train and test
baggage screeners and to keep them alert while on the job_ Mr_ Dzakovic stated that during a
November 1998 and January 1999 study, he was directed to exclude certain data in order to
make TIP seem more effective than it actually was.
II.
The Office of Inspector General's Findings
Mr. Dzakovic's allegations were investigated by the DOT 01G. The OIG interviewed
Mr. Dzakovic, other current and former FAA employees, and employees of the newly formed
TSA. They also reviewed the Red Team's mission files, documents provided by Mr.
Dzakovic, and other pertinent documentation.
A.
Gross Mismanagement of the Red Team Program
The OIG Report substantiated Mr. Dzakovic's allegation that the FAA grossly
mismanaged the Red Team Program and failed to employ its findings to improve airport
security. As Mr. Dzakovic alleged, the OIG found that the Red Team consistently found and
reported -- throughout its existence -- high rates of test failure, reflecting often stark localized
and systemic security vulnerabilities." Notwithstanding these findings, the security
vulnerabilities continued, even after September 11, 2001, when the Red Team stood down and
the OIG began to conduct undercover testing at the President's request. The OIG itself noted
"an alarmingly high incidence of testing failures" during this interim period while TSA
developed its own covert testing program. The OIG found that, even though the Red Team
consistently reported serious security problems to CAS headquarters, its testing "generally did
not have the desired effect of creating sustained improved performance by airport screening
companies."
�The President
Page 5
The OIG Report identified a series of significant "programmatic weaknesses" that led
to this result. The "programmatic weaknesses" ranged from a failure to implement standard
operating procedures for conducting testing to a failure to establish procedures to ensure that
negative test findings were effectively addressed and corrected.
First, the Report notes that the Red Team lacked standard operating procedures that
clearly governed the conduct of its operations. The only document the OIG found that
described the mission, operation, and activities of the Red Team was drafted by Mr. Boivin in
1994 and entitled "Concept of Operations." As the OIG Report explains, this document failed
to describe, with any degree of specificity, key aspects of Red Team operations -- such as the
types of tests to be conducted, the criteria to be used for the selection of testing locations, or
the content of Red Team reports.
Further, the Red Team did not have standard operating procedures that governed the
use of its reports to improve airport security. Moreover, CAS management apparently did not
consider "follow-up testing" to be part of the Red Team's mission. Instead, follow-up on Red
Team test results (including additional testing) was considered to be the responsibility of other
elements within CAS: specifically, the CASFOs and the CASLOs. CAS did not, however,
implement an effective system for ensuring that the Red Team's findings were acted upon by
these offices or that corrective actions taken had their intended results.
On the contrary, the OIG found that the coordination between Red Team management
and other elements in Civil Aviation Security that were responsible for following up on Red
Team findings was inadequate. For example, CAS headquarters received the Red Team's
written reports, but did not track the resolution of deficiencies identified through Red Team
testing at the local level. In fact, CAS headquarters issued letters of correction to air carriers
that were based on Red Team findings, but did not routinely share those letters with the Red
Team or with the CASFOs and CASLOs, which were supposedly responsible for follow-up.
This failure to integrate the Red Team's findings with oversight at the local level
undermined airport security. As the OIG explained, "receipt of these documents by the
CASFOs and CASLOs -- charged with responsibility for providing direct, day-to-day security
oversight -- would have enhanced their ability to provide effective follow-up." Further,
"coordination and tracking of the resolution of deficiencies identified through Red Team
testing, by CAS headquarters, would have led to consistently improved performance by the
screening companies." Thus, while "FAA did take some follow-on actions, namely letters of
correction to air carriers and fines, these follow-on actions were not readily visible and, given
the consistently poor results of testing over time, the intended outcome of sustained
improvement in airport security was not apparent."
�The President
Page 6
In sum, as the OIG noted, a "robust covert testing program such as the Red Team is
essential for effective oversight of airport security." The OIG Report describes a poorly
managed and ineffective covert testing program. Accordingly, the DIG has substantiated
Mr. Dzakovic's contention that the Red Team program was grossly mismanaged and that the
result was a serious compromise of public safety.
B.
Failure of Red Team to Conduct Follow-Up Testing
As noted above, Mr. Dzakovic alleged that Admiral Flynn and Mr. Boivin instructed
Red Team agents to refrain from conducting follow-up testing at airports that yielded poor test
results.
The OIG did not substantiate this allegation. As described above, the OIG concluded
that "follow-up testing was not one of the Red Team's prescribed roles."' Similarly, the Red
Team had no standard operating procedures governing how airports would be selected for
testing. Thus, as with the suppression allegation, the report suggests that the failure of the Red
Team to conduct follow-up tests is a reflection of poor management decisions and the overall
mismanagement of the program, rather than a deliberate effort to cover up security problems. ?
1.
In his comments on the OIG Report, Mr. Dzakovic suggested that the OIG had
overlooked evidence that would support his allegation that CAS management deliberately
decided not to do any further testing when test results were so poor. For example,
Mr. Dzakovic observed that the Red Team never again did nationwide checkpoint testing after
its extensive testing of screening checkpoints domestically in 1997 and 1998 garnered what he
characterizes as "abysmal results."
The OIG stated that this finding was based on the testimony of Admiral Flynn and
Mr. Boivin, and is supported by information contained in the Red Team's "Concept of
Operations" document.
The OIG Report noted that the Red Team had, on occasion," returned to the same airports
to perform additional tests. Mr. Dzakovic has observed that when the Red Team went back to
airports it had visited in the past, it did so to conduct different types of tests and not to see if
any improvements had been made in systems previously found deficient. When we questioned
the OIG about this point, the OIG advised us that it found evidence in one case (a handwritten
note in a mission folder) that a return trip was scheduled specifically for follow up purposes.
Because of its conclusion that follow-up testing was not part of the Red Team's mission, the
OIG did not otherwise inquire into whether the tests conducted on its occasional return trips
were for new inspection items or to follow up on previously failed checks.
2
�The President
Page 7
We asked the OIG to address Mr. Dzakovic's Contention on this point. The OIG
advised us that the aggressive testing of screening checkpoints in 1997 and 1998 to which Mr.
Dzakovic referred was "special emphasis testing." It was specifically requested by CAS
Operations to help determine the validity of CASFO testing results. The OIG advised us that,
although the Red Team did not do a similar nation-wide test again, it continued throughout its
existence to test for compliance with the "Air Carrier Standard Security Program," which
included checkpoint testing (X-ray, metal detector, and hand wanding).
2.
As further evidence of the deliberate cover-up of negative results, Mr. Dzakovic
noted that there was no FAA follow up when there was a 100% failure rate for the checked
baggage X-ray screening system testing the Red Team conducted in Frankfurt, Germany, in
1996. This testing mission was described in a May 21, 1996, letter from Admiral Flynn to
German authorities. According to the letter, the Red Team originally intended to conduct 60
assessments of the checked baggage X-ray screening system. There were no detections of the
simulated explosive device in the test suitcases for the first 13 assessments. Testing was
suspended to give the U.S. carriers a chance to improve their performance. A few months
later, testing resumed and there was a failure to detect in another 18 test suitcases.
Accordingly, Mr. Flynn advised that he had decided to conclude the testing project
.
We asked the OIG to clarify the follow up actions FAA took in response to the
Frankfurt test results. The OIG advised us that CAS had expected that the results of the Red
Team testing at Frankfurt would be poor. At the time, the OIG stated, X-ray machines
produced poor quality black and white images, that made it difficult for screeners to distinguish
the items in a cluttered suitcase. In fact, the OIG explained, CAS had directed the Red Team
to conduct the testing in Frankfurt for the specific purpose of obtaining data that could be used
to demonstrate to Congress that funding was needed for the development and deployment of
advanced EDS (Explosives Detection System). The OIG advised us that this system is
presently deployed.'
The OIG also provided further information relevant to its finding that, in fact, follow
on actions had been initiated in Frankfurt, Germany, although, "as in other instances, it was
not communicated to Red Team members." It advised us that, following the Frankfurt tests,
Robert Blunk, the then-CAS Regional Division Manager for Europe, Africa, and the Middle
East, along with his inspectors, conducted training of the air carriers' screeners using the stillimage X-ray photographs of all of the threat bags that had contained inert explosive devices.
In addition, the OIG informed us, Mr. Blunk held meetings with the then most senior official
in the German Ministry of Transportation. These meetings were held to emphasize the need
In his comments, Mr. Dzakovic attributed the poor test results to inattentive operators,
rather than inadequate technology. He also was critical of the more advanced technology as
expensive and ineffective.
3
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Page 8
for a "multi-layer approach" to security—i.e. one that relies on many, rather than a single,
means of security testing.
According to the OIG, when presented with the 1996 test results, Germany agreed to
develop and implement a multi-layer approach. The OIG also advised that Germany is reputed
to presently have a highly refined security system.
Finally, we also asked the OIG for further information concerning
3.
Mr. Dzakovic's allegation that, over time, the range of tests that the Red Team was
performing became progressively narrower until the Team eventually was only performing
CTX Explosives Detection System (CTX) testing. Mr. Dzakovic had advised us that an
examination of the Red Team's "statistical binder" would demonstrate a pattern of abandoning
particular kinds of tests when failure rates were high.
At our request, the OIG examined and analyzed the statistical binder. The OIG advised
us that the Red Team conducted four primary types of testing during its existence: positive
passenger baggage match (PPBM)(a test to ensure that an airline notes a passenger's failure to
board an aircraft, and removes his or her luggage); testing to identify opaque objects in
checked bags; the Air Carrier Standard Security Program, which includes checkpoint X-ray,
metal detector, and handwandings); and CTX testing. It also found that the Red Team was
often asked to conduct "special emphasis testing." This special emphasis testing included
"conventional-new system comparison testing" in 1992, 1996, and 1997; "limited access
control testing" in 1999, 1995 and 1997; the TIP study and checkpoint verification testing in
1998; and evaluation of K-9 explosive detection dogs in 2000.
The OIG advised us that more aggressive penetration-type testing by the Red Team was
needed. It did not, however, find any pattern showing that a particular type of testing was
discontinued after it consistently produced poor results. Rather, the OIG stated, the Red Team
continued to conduct all forms of testing throughout its existence, despite consistent reports of
problems noted and high failure rates.
In short, the review of the statistical binder provides support for Mr. Dzakovic's
allegation (and the OIG's finding) that CAS management failed to use the Red Team's test
results to improve aviation security; it does not appear to support Mr. Dzakovic's allegation
that CAS management abandoned particular forms of testing deliberately in response to poor
results.
C.
Advance Notification of Red Team Visits
In support of his allegation of a deliberate cover-up or suppression of poor test results,
Mr. Dzakovic alleged that, in August 1999, Mr. Boivin instructed the Red Team to notify
�The President
Page 9
FAA Federal Security Managers (FSMs) 5 in advance Of security testing. The OIG investigated
this allegation. It confirmed that Mr. Boivin had issued such an instruction in connection with
Red Team testing of CTX machines.
When questioned about the pre-notification policy, Mr. Boivin asserted that he
instituted the practice as a cost-saving measure because, when Red Team agents arrived at
airports unannounced, they often found that CTX machines were out of service awaiting
maintenance or were shut down in the absence of a trained operator. He explained that prenotification consisted of contacting a Federal Security Manager to inquire whether the airport
had an operational CTX machine and, if so, whether a trained operator was available.' Mr.
Boivin advised that the Federal Security Manager was not given an exact date or time of the
testing. He maintained that the Red Team did not provide advance notice for any form of
testing other than the testing of CTX machines. The OIG Report states that several Red Team
members corroborated the information provided by Mr. Boivin.
The OIG analyzed the testing data to determine whether the pre-notification policy for
CTX testing resulted in the skewing of test results. According to the report, there was no
appreciable difference in Red Team testing results after, as compared to before, the prenotification policy was instituted in August 1999. In fact, the OIG concluded that the overall
test failure rate actually increased slightly after the advanced notification policy was announced
by Mr. Boivin.
In his comments on the OIG Report, Mr. Dzakovic expressed skepticism over the
legitimacy and sufficiency of the rationale Mr. Boivin provided to the OIG for the advanced
notice of CTX testing. He stated that he did not recall the Red Team encountering a problem
with inoperable CTX machines before the pre-notification policy was instituted. Further, he
observed that when a CTX machine was inoperable, the air carrier was required to have a
manual back-up system in place for screening selected luggage. Therefore, according to
Mr. Dzakovic, even if the Red Team had on occasion encountered inoperable CTX machines
The OIG Report advises that Federal Security Managers were "CAS specialists assigned as
on-site liaisons to large airports and resident air carriers for the purpose of monitoring and
coordinating security activities, as well as assisting in the development and implementation of
comprehensive security plans."
The OIG Report explains that the use of CTX machines by air carriers was voluntary until
1997, and between 1997 and September 2001, "CTX usage was required for passenger
baggage selected for additional screening by the Computer-Assisted Passenger Pre-screening
System, and then only if there was a machine available, a qualified operator, and the machine
was functional."
�The President
Page 10
during testing trips, they were still faced with the equally important task of testing the air
carrier's manual back-up screening system!
We requested additional information from the OIG regarding the plausibility of
Mr. Boivin's explanation for the pre-notification policy. The OIG stated that they found
Mr. Boivin's explanation plausible in light of their own experience with earlier-generation
CTX machines, which they found unreliable. They advised that they had often encountered
inoperable CTX machines in the course of performing their own security testing. They did not
inquire further into Mr. Boivin's asserted justification because of this experience, because of
their analysis of the test results, and because the FSMs were FAA employees who were not
responsible for air carrier CTX performance.
The OIG also responded to Mr. Dzakovic's observation that the Red Team could have
tested back-up systems even if the CTX machines were not operable. The OIG advised us
that, at the time, there were no back-up systems for CTX machines. It also explained that
testing back-up systems generally was not considered an option on these missions; rather, the
Red Team was specifically tasked with collecting test results from operable CTX machines. In
retrospect, the OIG acknowledged, had the Red Team operations been better managed, its
mission plans could have been written to cover such contingencies."
Mr. Dzakovic also maintained that Mr. Boivin's pre-notification policy was inconsistent
with the fundamental mission and purpose of the Red Team. He explained that the Red Team
was primarily established for the purpose of conducting "realistic" airport security testing, a
necessary component of which is the absence of advanced notification. In support, he cited the
Red Team's 1994 "Concept of Operations" document, which expressly provides that Red
Team testing should be unannounced.
Mr. Dzakovic also maintained that Mr. Boivin's pre-notification instructions were not
limited to CTX testing, as found by the OIG, but extended to other forms of testing as well.
He advised us that he could provide a witness to substantiate this allegation. The witness
initially agreed to be interviewed by the OIG, albeit on an anonymous basis, over the phone.
Ultimately, however, the witness declined to submit to such an interview, asserting that he/she
feared retaliation.
' When OSC inquired further, Mr. Dzakovic advised that the Red Team's Operation Plans for
these testing missions did not provide for testing back-up systems because the Red Team was
unable to anticipate when a CTX machine would be inoperable. Therefore, only the test
results from operating CTX machines could be officially reported; when back-up systems were
tested-- which only occurred incidentally, due to an inoperable CTX machine--the test results
were always recorded under the "non-test" category.
�The President
Page 11
When we inquired about this issue, the OIG agited that the pre-notification policy
violated guidelines set forth in the Red Team's Concept of Operations document. However,
the OIG explained that, as the author of the Concept of Operations policy and the manager of
the Red Team, Mr. Boivin was authorized to change the policy. It noted that policy change by
e-mail (as occurred here) was poor practice and reflected the manner in which the Red Team
was apparently managed.
Mr. Dzakovic also questioned the OIG's finding that the Red Team reported a slightly
higher test failure rate after the pre-notification policy was instituted. He contended that he
personally encountered an anomalous 100% success rate during the two testing trips he
conducted upon prior notification and asserted that the OIG must have failed to include the
results of these two trips in their calculations. He also opined that the higher test failure rates
following pre-notification noted by the OIG could be attributed in part to other factors, such as
the transition during this time to test objects that were more difficult for screeners to recognize
and the decision by most of the agents to discontinue providing pre-notification in spite of
Mr. Boivin's instructions. In fact, Mr. Dzakovic stated that Ed Kittel, then-Acting Manager of
the Red Team, abolished the pre-notification policy shortly after it was instituted by Mr.
Boivin.
When we asked the OIG to respond to Mr. Dzakovic's observations, they stated that
their analysis of the Red Team's findings after institution of the pre-notification policy included
all Red Team trips, including the two mentioned by Mr. Dzakovic. They advised that
considering the number of CTX tests that were conducted and the inconsistency among Red
Team members in complying with the pre-notification requirement, it would be impossible to
base a firm conclusion concerning the effect of pre-notification on two tests. The OIG
observed that, in fact, Mr. Dzakovic had participated in testing missions reporting 100%
success rates before the pre-notification policy was in place, and that, in August 1999,
immediately following implementation of the policy, Mr. Dzakovic participated in a mission
that reported a failure.
D.
San Juan Airport Incident
The OIG interviewed Mr. Dzakovic, Mr. Boivin, and Carrie Hancasky, former Red
Team Special Agent, concerning events that occurred during the Red Team's April 1998 visit
to the San Juan Airport. Mr. Dzakovic had alleged that an airline had failed a PPBM test and
that when Carrie Hancasky, a fellow Red Team member, approached the airline station
manager, he had remarked that "When it gets this busy, we can't do security." He further
alleged that when he called Mr. Boivin to alert him to the situation and the remark, Mr. Boivin
told him to discontinue the testing and not to document the remark. Mr. Dzakovic states that
he wrote a report but, in accordance with Mr. Boivin's direction, did not include the remark.
�The President
Page 12
The OIG was unable to substantiate Mr. DzakOvic's allegations. Ms. Hancasky could
not recall whether the station manager had made the remark described by Mr. Dzakovic. She
did recall that the air carrier's automated PPBM system was disabled at the time due to a
power outage. She testified that the air carrier chimed to have conducted manual PPBM
checks instead.
According to the OIG Report, Mr. Boivin testified that he could not recall this
particular testing mission, but he nevertheless denied instructing Mr. Dzakovic to omit the
station manager's remark from the trip report. He asserted that, had he been informed about
such a remark, he would have directed Mr. Dzakovic to report it to the local CASFO for
investigation and potential enforcement action.
The OIG reviewed the Red Team's written report for this testing mission. The report
documented the Red Team's decision to suspend testing pending restoration of the air carrier's
out-of-service automated PPBM system. It also raised the question of whether Ms. Hancasky's
checked bag ever left the Miami Airport, the Red Team's point of departure. According to the
Red Team report, the agency responded to this incident by notifying the San Juan CAS Field
Unit, and the field unit, in turn, conducted a follow-up investigation. In the course of the
follow-up investigation, the field agents discovered that Ms. Hancasky's bag had never left
Miami. The FAA nonetheless issued a Letter of Correction to the air carrier for failing to
follow proper manual PPBM procedures.
We asked the OIG to explain why Mr. Boivin suspended further testing at the San Juan
airport following this incident. The OIG advised us that the testing was stopped in accordance
with the Red Team's Concept of Operations because a serious security situation had been noted
and because, as required by the Concept of Operations, Ms. Hancasky identified herself to the
airline station manager. The OIG stated that her self identification rendered her unable to
effectively perform additional testing. The OIG further told us that while Mr. Dzakovic
maintained that the station manager did not know that he was an FAA inspector, the airport
was aware that FAA had been conducting testing. Accordingly, the validity of additional test
results would be called into question.
E.
Manipulation of TIP Testing
The OIG also investigated Mr. Dzakovic's allegation that Mr. Fainberg had directed
him to manipulate data in the study he had conducted on the effectiveness of the TIP software
program in November 1998 and January 1999 in Reno, Nevada. The OIG could not
substantiate this specific allegation because of conflicting testimony, although it did find other
irregularities in the testing methodology used. The OIG Report notes that Mr. Fainberg's
analysis of TIP was "simply a paper study that was not definitive," and that a validation study
of TIP was conducted at the FAA's Technical Center in 2000. It also observes that TIP was
still in the research and development phase during the time of Mr. Fainberg's study, that it has
�The President
Page 13
continued to evolve, and that another generation of TIP is currently being developed at the
FAA's Technical Center. Finally, the OIG observed that TIP was never intended to be a
substitute for covert testing with realistic threat objects.
III. TSA's Statement Regarding Corrective Action
As noted above, I asked Secretary Mineta to identify the steps TSA had taken or was
planning to take to address the findings in the OIG Report. Admiral Loy responded by letter
of February 24, 2003.
In that response, Admiral Loy outlined a number of specific steps that TSA has taken,
and policies it has implemented, in an effort to ensure that TSA's covert testing program will
be an effective one, and that the mistakes of FAA CAS management will not be repeated.'
Admiral Loy's letter states that covert testing is the responsibility of the Special
Operations Program within TSA's Office of Internal Affairs and Program Review (OIAPR).
His letter outlines the steps that OIAPR took to create a skilled special operations team, which
included, among other things, consulting with the OIG to discuss its findings regarding the Red
Team. Admiral Loy's letter identifies the airport security systems that the Special Operations
Team is currently testing and its plans for future testing. In addition, Admiral Loy's letter
describes how the Special Operations Teams will select airports for testing.
The letter outlines the protocol that has been established for providing information on
the results of covert tests, including immediate feedback to screeners and their supervisors, as
well as training. According to Admiral's Loy's letter, OIAPR has established a protocol for
the distribution of its reports and recommendations for corrective action. In addition, OIAPR
has created a recommendation tracking system and will follow up if a timely response is not
received from program officials. OIAPR will also maintain a database to analyze overall
trends and patterns, monitor performance, and compare an airport's performance over time.
Other changes instituted by TSA are described in Admiral Loy's letter.
In responding to my concern about accountability for those individuals responsible for
the mismanagement of the Red Team program, Admiral Loy states that the former members of
the Red Team have been given other positions within TSA, FAA, or other DOT offices, and
that none has been assigned to OIAPR. "By not allowing any of the former Red Team
members the opportunity to conduct covert testing," he states, "any concerns regarding the
Much of what is in Admiral Loy's letter has been identified as "Sensitive Security
Information" under the provisions of 49 C.F.R. 1520. Accordingly, the public file will
contain a redacted version of Admiral Loy's letter (5 U.S.C. §1219), and those portions of its
contents that are designated "Security Sensitive" will be not be discussed in this letter.
8
�The President
Page 14
continued mismanagement of the program or continued questionable performance by the
former Red Team members on TSA's covert testing program have been removed."
With respect to Mr. Dzakovic's employment situation in particular, Admiral Loy
reports that when TSA was created, the former FAA CAS became part of TSA, and Mr.
Dzakovic was assigned to TSA's Office of Aviation Operations to perform "various duties
assisting the new Federal Security Directors." Thereafter, in late January of 2003, Mr.
Dzakovic was assigned to a new job which Admiral Loy states will use his skill at assessing a
threat situation, disseminating information to appropriate Federal officials, and functioning
effectively in a crisis.
Admiral Loy's letter concludes with a strong commitment that TSA will not repeat the
mistakes of the past. He notes that the days of the old FAA Red Team are gone." "Also
gone," Admiral Loy states, "are the performance levels of the past and the construct of having
a Federal agency report on the performance of regulated industry employees by sending reports
to headquarters that were never acted upon." Admiral Loy observes that he has "insisted that
we completely discard" what he calls a "failed system." He commits to make system-wide
adjustments based on lessons learned in the testing operations; he also promises to "raise the
bar routinely in the interest of continuous improvement."
IV. The Whistleblower's Comments
Mr. Dzakovic provided extensive comments on the OIG and TSA reports. Although
Mr. Dzakovic concurred with the OIG's finding of gross mismanagement within CAS, he
disagreed with several of its conclusions regarding his incident-specific allegations. He
criticized the OIG's investigation of these allegations as superficial and stated that he did not
believe that the OIG had given him an adequate opportunity to provide support for those
allegations.
As discussed above, at our request, the OIG provided further clarification of its
findings in response to many of Mr. Dzakovic's comments. In response to our inquiry
regarding the conduct of the investigation, the DIG advised us that it had conducted two
interviews of Mr. Dzakovic and considered all relevant documentary evidence. Nonetheless,
at our request, the OIG agreed to re-interview Mr. Dzakovic. That interview took place on
March 6, 2003. We understand that the interview did not yield any additional information that
would change the OIG's findings and conclusions regarding the matters we transmitted for
investigation.
In Mr. Dzakovic's opinion, the OIG Report understates the extent to which CAS
management mishandled and ignored the Red Team's findings. He emphasizes that the Red
Team repeatedly alerted CAS management to serious vulnerabilities in aviation security, yet
they continually failed to take decisive action to correct these vulnerabilities. He maintains that
�The President
Page 15
management's inaction was inexcusable, especially in light of the FAA's awareness of a
growing terrorist threat during the months leading up to the September 11, 2001, attacks.
In his initial comments, Mr. Dzakovic expressed concerns about whether aviation
security would improve under TSA. He stated that, "Not one manager within FAA is being
held accountable for supporting the dysfunctional and dangerous way FAA conducted security
and for ignoring intelligence warnings leading up to 9/11." He expressed concern that several
former FAA CAS managers currently employed by the TSA might perpetuate within TSA
many of the systemic problems that plagued its predecessor agency, FAA CAS.
In his comments on the letter from Admiral Loy, Mr. Dzakovic is largely critical of the
new Special Operations Program created by TSA. Among other things, he is of the view that
the methods for testing that TSA is employing do not sufficiently replicate terrorist threats, and
that TSA is using an "audit" model of testing, rather than an "adversary" model. He concedes
that TSA is "doing well" on the dissemination and feedback of test results, although he is
concerned about whether TSA has established adequate management tools to ensure that
identified problems are corrected. Finally, Mr. Dzakovic takes strong exception to Admiral
Loy's assertion that his current position is a meaningful one.
V.
Special Counsel's Comments and Recommendations
In its report, the OIG stated that it was unable to substantiate Mr. Dzakovic's allegation
that FAA management had deliberately suppressed negative Red Team findings, or directed
Red Team personnel not to conduct follow up tests in order to protect the airline industry. As
Mr. Dzakovic expressed in his comments on the OIG Report, he takes strong exception to this
interpretation of the intentions and actions of CAS management.
From Mr. Dzakovic's standpoint, the distinction between deliberate suppression and
negligent mismanagement is an important one. He was continually frustrated by the failure of
the FAA to use the Red Team's efforts to improve aviation security and by the persistently
poor results obtained when the Team conducted covert testing. After years of such frustration,
it is not surprising that Mr. Dzakovic concluded that the Red Team's findings were being
intentionally ignored.
In the end, however, whether the FAA deliberately suppressed negative Red Team
findings (as Mr. Dzakovic believes) or grossly neglected to respond effectively to those
findings (as the OIG's Report demonstrates), the result was the same -- aviation security was
seriously compromised. The more important question, we would submit, is whether the
agency now responsible for ensuring aviation security -- TSA -- will be effective, where FAA
was not.
�The President
Page 16
Of course, the very creation of TSA was designed to address the inherent conflict
presented where airline contract screeners, rather than government personnel, were on the
front lines of aviation security. Further, Admiral Loy's letter describes the implementation of
specific corrective action by TSA in response to the OIG's findings of mismanagement of the
Red Team. His letter articulates a strong commitment not to repeat the mistakes of the past,
and to make TSA's covert testing program a robust and effective one.
I note that the corrective actions identified in Admiral Loy's letter appear to implement
the recommendations set forth in the OIG's Report at pages 4-5, with one exception. The DIG
recommended that TSA develop standard operating procedures that address testing operations.
It is unclear from Admiral Loy's letter, however, whether such operating procedures have
been developed or are planned in the future. This issue can be addressed in the context of any
oversight of TSA that occurs in the wake of this investigation.
Based upon his previous experience, Mr. Dzakovic remains deeply skeptical about
whether, in fact, TSA will do any better than its predecessor, the FAA. He has raised a
number of questions about the adequacy of TSA's Special Operations Testing Program in his
comments to Admiral Loy's letter. I would recommend that the issues Mr. Dzakovic has
raised also be addressed in the context of subsequent oversight proceedings.
The issues of accountability that I raised in my letter to Secretary Mineta should also be
examined in any follow-up to this process. Admiral Loy's letter seems to imply that the
former Red Team members (presumably including Mr. Dzakovic) were somehow responsible
for the Red Team's mismanagement. Thus, TSA purports to address the accountability issue
by not assigning former Red Team members to TSA's covert testing team.
The OIG's findings, however, did not implicate the members of the Red Team in any
malfeasance. Instead, the OIG's findings of "programmatic weaknesses" implicated those at
higher levels within FAA CAS who mismanaged the Red Team and failed to take effective
action to improve airport security. Admiral Loy's letter does not address what has been done
with respect to these individuals, some of whom Mr. Dzakovic alleges continue to have roles
in aviation security, either at TSA or as private contractors.
Moreover, while there may be legitimate reasons to make a "fresh start" at TSA, it is
unclear why a valued senior member of the FAA Red Team, like Mr. Dzakovic, has been
entirely shut out from participation in formation or operation of the new program. Admiral
Loy's letter states that Mr. Dzakovic has been assigned to a new position that will make full
use of his experience. Mr. Dzakovic, however, continues to assert that this new assignment
(like the one that preceded it) is retaliatory. He states that he is now performing "make-work"
that does not befit someone of his training and experience.
�The President
Page 17
Mr. Dzakovic's allegations of retaliation are the subject of a pending prohibited
personnel practice complaint before OSC. Those allegations will be vigorously investigated.
Finally, let me publicly recognize and thank Mr. Dzakovic for the courage he has
displayed in coming to OSC with his disclosures. I appreciate the fact that he is not entirely
satisfied with the result of the OIG's investigation, or this process generally. Nonetheless, by
coming forward, he has brought public attention to issues of great national importance. I
would respectfully urge you to continue to take advantage of his expertise and insight into
aviation security matters, as you consider the import of the findings of this investigation.
CONCLUSION
With the exception of the matters described above, I have determined, pursuant to
§ 1213(e)(2), that the findings in the agency's report appear to be reasonable and contain all of
the information required by statute.
As required by § 1213(e)(3), I have sent a copy of the OIG Report, Admiral Loy's
letter, and Mr. Dzakovic's comments to the President and the Chairmen of the Senate
Committee on Commerce, Science and Transportation, the Senate Committee on Governmental
Affairs, the House Committee on Transportation and Infrastructure and the House Committee
on Government Reform. We have also filed a copy of the report and a redacted copy of the
letter from Admiral Loy in our public file and closed the matter.
Respectfully,
Elaine.Kaplan
Enclosures
�
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litigation
airport security
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Letter to President Bush from Elaine Kaplan
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Airports--Security measures--United States
War on Terrorism, 2001-2009
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A letter from Elaine Kaplan to President George Bush discusses the implications of allegations made by whistleblower Bogdan Dzakovic, a former Special Agent on the Federal Aviation Administration's (FAA) Red Team, that officials within FAA's Civil Aviation Security Division did not accurately report on the findings of the Red Team. The letter includes copies of a report from the Office of Inspector General; a letter from Admiral James M. Loy, the Under Secretary of Transportation for Security; and Dzakovic's comments.
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Brian Sullivan, FAA Special Agent (Retired)
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March 18, 2003
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Boston Federal Aviation Administration Filings
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airport security
Description
An account of the resource
These court filings provide evidence that the terrorists responsible for the September 11th attacks were observed assessing airport security prior to the events. For example, Mohammed Atta was spotted in May '01 taking still photographs, notes and video of the screening checkpoints at Logan. He was reported to law enforcement at the airport, but they failed to follow up.
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DVD
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94 minutes
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Rob DelGaudio
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Please Remove Your Shoes
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2010
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Brian Sullivan, FAA Special Agent (Retired)
Subject
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Airports--Security measures--United States
Airline passenger security screening
Terrorism--United States--Prevention
Hijacking of aircraft
TWA Flight 847 Hijacking Incident, 1985
Pan Am Flight 103 Bombing Incident, 1988
September 11 Terrorist Attacks, 2001
War on Terrorism, 2001-2009
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The film describes airport security measures prior to and after September 11, 2001 and discusses the failure of both the Federal Aviation Administration (FAA) and the Transportation Security Administration (TSA) to adequately protect airline passengers. Includes information about TWA Flight 847, Pan Am Flight 103, Air France Flight 8968, the Bojinka plot, Northwest Airlines Flight 327, Northwest Airlines Flight 253, and activities of the Red Team.
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https://911digitalarchive.org/files/original/09f6bd743353e0d89f754d8a92f684d2.pdf
cfda6f60d99e23270723ee12dd0125d1
PDF Text
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�
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Boston Federal Aviation Administration Filings
Subject
The topic of the resource
litigation
airport security
Description
An account of the resource
These court filings provide evidence that the terrorists responsible for the September 11th attacks were observed assessing airport security prior to the events. For example, Mohammed Atta was spotted in May '01 taking still photographs, notes and video of the screening checkpoints at Logan. He was reported to law enforcement at the airport, but they failed to follow up.
Contributor
An entity responsible for making contributions to the resource
Brian Sullivan, FAA Special Agent (Retired)
Document
A resource containing textual data. Note that facsimiles or images of texts are still of the genre text.
Dublin Core
The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/.
Title
A name given to the resource
Criminal Acts Against Civil Aviation
Date
A point or period of time associated with an event in the lifecycle of the resource
2000
Contributor
An entity responsible for making contributions to the resource
Brian Sullivan, FAA Special Agent (Retired)
Rights
Information about rights held in and over the resource
Public Domain
Subject
The topic of the resource
Hijacking of aircraft
Airports--Security measures--United States
Terrorism--United States--Prevention
Description
An account of the resource
This report was published by the Federal Aviation Administration (FAA) Office of Civil Aviation Authority. Included is a review of incidents against aviation across multiple geographic regions, an analysis of worldwide aviation incidents, an examination of the trends from 1996 through 2000 of worldwide civil aviation incidents, and attacks at airports. There are six different categories of aviation incidents listed: hijackings, airport attacks, general aviation commandeering, shooting at planes, charter aviation, and attempted bombing of aircraft. Statistical data is represented in pie chart form.
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https://911digitalarchive.org/files/original/dcddd8a85ca5408b5f566ccd8b46e880.pdf
f294ad450aa7aec1f2f5b15e0ef6b1b1
PDF Text
Text
Case 1:21-mc-00101-AKH Document 1552-22 Filed 09/16/11 Page 1 of 4
EXHIBIT
20
�Case 1:21-mc-00101-AKH Document 1552-22 Filed 09/16/11 Page 2 of 4
�Case 1:21-mc-00101-AKH Document 1552-22 Filed 09/16/11 Page 3 of 4
�Case 1:21-mc-00101-AKH Document 1552-22 Filed 09/16/11 Page 4 of 4
�
Dublin Core
The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/.
Title
A name given to the resource
Boston Federal Aviation Administration Filings
Subject
The topic of the resource
litigation
airport security
Description
An account of the resource
These court filings provide evidence that the terrorists responsible for the September 11th attacks were observed assessing airport security prior to the events. For example, Mohammed Atta was spotted in May '01 taking still photographs, notes and video of the screening checkpoints at Logan. He was reported to law enforcement at the airport, but they failed to follow up.
Contributor
An entity responsible for making contributions to the resource
Brian Sullivan, FAA Special Agent (Retired)
Document
A resource containing textual data. Note that facsimiles or images of texts are still of the genre text.
Dublin Core
The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/.
Title
A name given to the resource
Report of the Special Advisory Task Force on Massport
Contributor
An entity responsible for making contributions to the resource
Brian Sullivan, FAA Special Agent (Retired)
Rights
Information about rights held in and over the resource
Public Domain
Date
A point or period of time associated with an event in the lifecycle of the resource
2001
Subject
The topic of the resource
Airports--Security measures--United States
Terrorism--United States--Prevention
Description
An account of the resource
The findings of the task force on Massachusetts Port Authority (Massport) presented to Massachusetts Governor Jane Swift on December 4, 2001. The findings call for enhanced security infrastructure and procedures within Massport, especially Logan International Airport. Security lapses at Logan International Airport that garnered significant media attention prior to September 11 are listed.
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https://911digitalarchive.org/files/original/82ed092dd94c61be8aa9cc0c91ccf815.pdf
57547dc3e48b9091ba919cf260a3257b
PDF Text
Text
Case 1:21-mc-00101-AKH Document 1552-18 Filed 09/16/11 Page 1 of 11
EXHIBIT
16
�Case 1:21-mc-00101-AKH Document 1552-18 Filed 09/16/11 Page 2 of 11
�Case 1:21-mc-00101-AKH Document 1552-18 Filed 09/16/11 Page 3 of 11
�Case 1:21-mc-00101-AKH Document 1552-18 Filed 09/16/11 Page 4 of 11
�Case 1:21-mc-00101-AKH Document 1552-18 Filed 09/16/11 Page 5 of 11
�Case 1:21-mc-00101-AKH Document 1552-18 Filed 09/16/11 Page 6 of 11
�Case 1:21-mc-00101-AKH Document 1552-18 Filed 09/16/11 Page 7 of 11
�Case 1:21-mc-00101-AKH Document 1552-18 Filed 09/16/11 Page 8 of 11
�Case 1:21-mc-00101-AKH Document 1552-18 Filed 09/16/11 Page 9 of 11
�Case 1:21-mc-00101-AKH Document 1552-18 Filed 09/16/11 Page 10 of 11
�Case 1:21-mc-00101-AKH Document 1552-18 Filed 09/16/11 Page 11 of 11
�
https://911digitalarchive.org/files/original/8e8116138dd4338945fc7335d4d95be2.pdf
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PDF Text
Text
HAND-CARR1EDlTEMS-5
Items NOT allowed to enter the sterile area:
Acids
Ammu,nition
Automatic weapons
Axes
BB guns
Batteries (wet cell)
Billy clubs
Biackjacks
Blasting caps
Bows & arrows
Box. cutters
Brass knuckles
Bull whips
Butane gas
Caustic materials
CO 3cartridges
Cattle pro&
Compressed air guns
Dry ice (4.4 lb-s.)
Dynamite
Fire extinguishers
Fireworks
Flammable liquids
Flare pistols
Gasoline
Gun. lighters
Checkpoint
Operations
Guide-7/94
r
t
I
I
I
�c
HAND-CARRIED ITEMS - 5
-Items NOT allowed to enter the sterile a’rea:
Gun powder
Hammers
Hand grenades
-7
Insecticides
Kerosene
Knives (blades over 4” or menacing)
Kubatons
Lighter fluid
Mace
Martial arts devices
Matches (targe qu,antity)
Meat cleavers
Numchucks
Oxygen tanks
Paint
Paint: thinner
Pellet guns
Pepper spray
Pistols
Plastic explosives
4
. Checkpoint
Operations
Guide-7/94
______l____l_____
�HAND.-CARRIED ITEMS - 5
Items .NOT alfowed to enter the sterile area’:
Religious knives
c Replica weapons
Revolvers
Road flares
SCUBA knives
SCUBA tanks
Sabers ’
Shot guns
Spear guns
St&-ter Distols
.
Straight razors
Stun suns
Swords
Tear aas
Throwing stars
Toy transformer robots
Tov weaaons
Turpentine
Checkpoint
. Operations
Guide-7/94
.I
.
(forms
toy gun)
I
�HAND-CARRIED
ITEMS-5
Items that may be permitted into the sterile area:
Baseball bats
Bowling balls
Cameras
Camcorders
Cricket bats
Darts
Golf clubs (two)
Fishing poles
Hockey sticks
Horse shoes
Knitting needtes
Laptop / notebook computers.
Letter openers
Parachutes - without cartridge
Personal audible alarms
Pocket utility knives (less than 4” blade)
Pool cues
Restraining devices
Scissors
Ski poles
Trade tools
Umbrellas
SPECIAL NOTE:
Some airlines may not allow some of these items on-board some flights, due
*fo the size of the object and/or available storage.space in the aircraft cabin.
Checkpoint
. Operations
-
�
Dublin Core
The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/.
Title
A name given to the resource
Boston Federal Aviation Administration Filings
Subject
The topic of the resource
litigation
airport security
Description
An account of the resource
These court filings provide evidence that the terrorists responsible for the September 11th attacks were observed assessing airport security prior to the events. For example, Mohammed Atta was spotted in May '01 taking still photographs, notes and video of the screening checkpoints at Logan. He was reported to law enforcement at the airport, but they failed to follow up.
Contributor
An entity responsible for making contributions to the resource
Brian Sullivan, FAA Special Agent (Retired)
Document
A resource containing textual data. Note that facsimiles or images of texts are still of the genre text.
Dublin Core
The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/.
Title
A name given to the resource
Checkpoint Operations Guide (COG) Standard Operating Procedures
Contributor
An entity responsible for making contributions to the resource
Brian Sullivan, FAA Special Agent (Retired)
Rights
Information about rights held in and over the resource
Public Domain?
Date
A point or period of time associated with an event in the lifecycle of the resource
Copyright 1994. Revised August 1999
Subject
The topic of the resource
Airports--Security measures--United States
Airline passenger security screening
Terrorism--United States--Prevention
Description
An account of the resource
Checkpoint Operations Guide (COG) was produced by the Air Transport Association of America and the Regional Airline Association, and was designed to provide guidance for passenger screening procedures. Included are standard operating procedures on hand carried items, including contraband, restricted items, hazardous materials, weapons, and explosive devices. Special procedures, such as exceptional screening, special screening situations (private screenings; armed federal, state, and local law enforcement officers; and passengers under escort), and verifying photo identification are detailed. The requirements for full-duty screeners are listed. The second file in this item contains additional pages that include items specifically identified as not allowed past security checkpoints. These items include box cutters, mace, and pepper spray, all of which were used by the terrorists on 9/11.
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https://911digitalarchive.org/files/original/74508e4d12a45994d059c3c5ca4fc2e1.pdf
464602e88553674576a03cb6374f9022
PDF Text
Text
Case 1:21-mc-00101-AKH Document 1473-27 Filed 06/27/11 Page 1 of 5
Exhibit 25
�Case 1:21-mc-00101-AKH Document 1473-27 Filed 06/27/11 Page 2 of 5
�Case 1:21-mc-00101-AKH Document 1473-27 Filed 06/27/11 Page 3 of 5
�Case 1:21-mc-00101-AKH Document 1473-27 Filed 06/27/11 Page 4 of 5
�Case 1:21-mc-00101-AKH Document 1473-27 Filed 06/27/11 Page 5 of 5
�
Dublin Core
The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/.
Title
A name given to the resource
Boston Federal Aviation Administration Filings
Subject
The topic of the resource
litigation
airport security
Description
An account of the resource
These court filings provide evidence that the terrorists responsible for the September 11th attacks were observed assessing airport security prior to the events. For example, Mohammed Atta was spotted in May '01 taking still photographs, notes and video of the screening checkpoints at Logan. He was reported to law enforcement at the airport, but they failed to follow up.
Contributor
An entity responsible for making contributions to the resource
Brian Sullivan, FAA Special Agent (Retired)
Document
A resource containing textual data. Note that facsimiles or images of texts are still of the genre text.
Dublin Core
The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/.
Title
A name given to the resource
Testimony of James Miller, Jr. Regarding September 11 Litigation
Contributor
An entity responsible for making contributions to the resource
Brian Sullivan, FAA Special Agent (Retired)
Rights
Information about rights held in and over the resource
Public Domain
Date
A point or period of time associated with an event in the lifecycle of the resource
May 23, 2008
Subject
The topic of the resource
Evidence
Witnesses
Airports--Security measures--United States
Airline passenger security screening
Terrorism--United States--Prevention
September 11 Terrorist Attacks, 2001
Description
An account of the resource
Pages 82 through 93 of interview of James Miller, Jr., conducted on May 23, 2008 by TC Reporting in affiliation with Merrill Corporation. Miller was asked about a co-worker who worked at the CTX machine, the necessity of screening all individuals who pass through security checkpoints, and complaints about flight crews not being properly screened. The majority of this portion of the interview discusses Miller's observation of a person or persons taking pictures at the main security checkpoint at Logan International Airport of the checkpoint itself, setup, and machines prior to September 11. Miller was supervisor to Theresa Spagnuolo.
-
https://911digitalarchive.org/files/original/88385b8a1ca86e508eec6b985b87b991.pdf
401205fc1c850143ef4fe1e8b690c43c
PDF Text
Text
Case 1:21-mc-00101-AKH Document 1473-26 Filed 06/27/11 Page 1 of 3
Exhibit 24
�Case 1:21-mc-00101-AKH Document 1473-26 Filed 06/27/11 Page 2 of 3
�Case 1:21-mc-00101-AKH Document 1473-26 Filed 06/27/11 Page 3 of 3
�
Dublin Core
The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/.
Title
A name given to the resource
Boston Federal Aviation Administration Filings
Subject
The topic of the resource
litigation
airport security
Description
An account of the resource
These court filings provide evidence that the terrorists responsible for the September 11th attacks were observed assessing airport security prior to the events. For example, Mohammed Atta was spotted in May '01 taking still photographs, notes and video of the screening checkpoints at Logan. He was reported to law enforcement at the airport, but they failed to follow up.
Contributor
An entity responsible for making contributions to the resource
Brian Sullivan, FAA Special Agent (Retired)
Document
A resource containing textual data. Note that facsimiles or images of texts are still of the genre text.
Dublin Core
The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/.
Title
A name given to the resource
Information Given by Theresa Spagnuolo During Interview Conducted by Alcohol, Tobacco, & Firearms Agent
Contributor
An entity responsible for making contributions to the resource
Brian Sullivan, FAA Special Agent (Retired)
Rights
Information about rights held in and over the resource
Public Domain
Date
A point or period of time associated with an event in the lifecycle of the resource
September 29, 2001
Description
An account of the resource
A synopsis of the interview of Theresa Spagnuolo, who worked as a pre-board screener at the American Airlines checkpoint in Logan International Airport, by Jeff Kerr, a special agent of Alcohol, Tobacco & Firearms. The synopsis discusses her awareness of the Federal Aviation Administration (FAA) regulations on knives in carry-ons and her previous employment as a supervisor for Globe Aviation Services, American Airlines. Spagnuolo witnessed a man, whom she later identified as Mohamed Atta, video taping the main security checkpoint. She discussed the matter with her supervisor, James Miller.
Subject
The topic of the resource
Evidence
Witnesses
Airports--Security measures--United States
Airline passenger security screening
September 11 Terrorist Attacks, 2001
-
https://911digitalarchive.org/files/original/10bf786d4ba057516182ae0057f8b409.pdf
a1a1515bc83c9d9e6f751ab5d1ee1550
PDF Text
Text
Case 1:21-mc-00101-AKH Document 1473-25 Filed 06/27/11 Page 1 of 7
Exhibit 23
�Case 1:21-mc-00101-AKH Document 1473-25 Filed 06/27/11 Page 2 of 7
�Case 1:21-mc-00101-AKH Document 1473-25 Filed 06/27/11 Page 3 of 7
�Case 1:21-mc-00101-AKH Document 1473-25 Filed 06/27/11 Page 4 of 7
�Case 1:21-mc-00101-AKH Document 1473-25 Filed 06/27/11 Page 5 of 7
�Case 1:21-mc-00101-AKH Document 1473-25 Filed 06/27/11 Page 6 of 7
�Case 1:21-mc-00101-AKH Document 1473-25 Filed 06/27/11 Page 7 of 7
�
Dublin Core
The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/.
Title
A name given to the resource
Boston Federal Aviation Administration Filings
Subject
The topic of the resource
litigation
airport security
Description
An account of the resource
These court filings provide evidence that the terrorists responsible for the September 11th attacks were observed assessing airport security prior to the events. For example, Mohammed Atta was spotted in May '01 taking still photographs, notes and video of the screening checkpoints at Logan. He was reported to law enforcement at the airport, but they failed to follow up.
Contributor
An entity responsible for making contributions to the resource
Brian Sullivan, FAA Special Agent (Retired)
Document
A resource containing textual data. Note that facsimiles or images of texts are still of the genre text.
Dublin Core
The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/.
Title
A name given to the resource
Testimony of Stephen J. Wallace Regarding September 11 Litigation
Contributor
An entity responsible for making contributions to the resource
Brian Sullivan, FAA Special Agent (Retired)
Rights
Information about rights held in and over the resource
Public Domain
Date
A point or period of time associated with an event in the lifecycle of the resource
July 17, 2007
Subject
The topic of the resource
Witnesses
September 11 Terrorist Attacks, 2001
Description
An account of the resource
Stephen Wallace recounts his observation of two middle eastern men while working at the Airport. He describes their actions, their dress and belongings, and his brief interaction with them.
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https://911digitalarchive.org/files/original/911122ad4c360127a098d25c9ad7fad6.pdf
8d4b5b705a90ed4ed8c0934a916b9b27
PDF Text
Text
Case 1:21-mc-00101-AKH Document 1473-24 Filed 06/27/11 Page 1 of 3
Exhibit 22
�Case 1:21-mc-00101-AKH Document 1473-24 Filed 06/27/11 Page 2 of 3
�Case 1:21-mc-00101-AKH Document 1473-24 Filed 06/27/11 Page 3 of 3
�
Dublin Core
The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/.
Title
A name given to the resource
Boston Federal Aviation Administration Filings
Subject
The topic of the resource
litigation
airport security
Description
An account of the resource
These court filings provide evidence that the terrorists responsible for the September 11th attacks were observed assessing airport security prior to the events. For example, Mohammed Atta was spotted in May '01 taking still photographs, notes and video of the screening checkpoints at Logan. He was reported to law enforcement at the airport, but they failed to follow up.
Contributor
An entity responsible for making contributions to the resource
Brian Sullivan, FAA Special Agent (Retired)
Document
A resource containing textual data. Note that facsimiles or images of texts are still of the genre text.
Dublin Core
The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/.
Title
A name given to the resource
Summary of Testimony given by Mr. Wallace to Alcohol, Tobacco and Firearms
Date
A point or period of time associated with an event in the lifecycle of the resource
September 29, 2001
Contributor
An entity responsible for making contributions to the resource
Brian Sullivan, FAA Special Agent (Retired)
Rights
Information about rights held in and over the resource
Public Domain
Subject
The topic of the resource
Witnesses
passenger security screening
September 11 Terrorist Attacks, 2001
Description
An account of the resource
Mr. Wallace gives testimony to his observations and experiences on May 10, 2001. He observed two middle eastern men photography and video taping security checkpoints. After engaging the two men, Mr. Wallace followed them to a security checkpoint before being called away.
-
https://911digitalarchive.org/files/original/d951840716d686e34f418169eb1cc442.pdf
7e355474c39841b1e4897af451d4ac61
PDF Text
Text
Case 1:21-mc-00101-AKH Document 1473-9 Filed 06/27/11 Page 1 of 19
Exhibit 8
�Case 1:21-mc-00101-AKH Document 1473-9 Filed 06/27/11 Page 2 of 19
�Case 1:21-mc-00101-AKH Document 1473-9 Filed 06/27/11 Page 3 of 19
�Case 1:21-mc-00101-AKH Document 1473-9 Filed 06/27/11 Page 4 of 19
�Case 1:21-mc-00101-AKH Document 1473-9 Filed 06/27/11 Page 5 of 19
�Case 1:21-mc-00101-AKH Document 1473-9 Filed 06/27/11 Page 6 of 19
�Case 1:21-mc-00101-AKH Document 1473-9 Filed 06/27/11 Page 7 of 19
�Case 1:21-mc-00101-AKH Document 1473-9 Filed 06/27/11 Page 8 of 19
�Case 1:21-mc-00101-AKH Document 1473-9 Filed 06/27/11 Page 9 of 19
�Case 1:21-mc-00101-AKH Document 1473-9 Filed 06/27/11 Page 10 of 19
�Case 1:21-mc-00101-AKH Document 1473-9 Filed 06/27/11 Page 11 of 19
�Case 1:21-mc-00101-AKH Document 1473-9 Filed 06/27/11 Page 12 of 19
�Case 1:21-mc-00101-AKH Document 1473-9 Filed 06/27/11 Page 13 of 19
�Case 1:21-mc-00101-AKH Document 1473-9 Filed 06/27/11 Page 14 of 19
�Case 1:21-mc-00101-AKH Document 1473-9 Filed 06/27/11 Page 15 of 19
�Case 1:21-mc-00101-AKH Document 1473-9 Filed 06/27/11 Page 16 of 19
�Case 1:21-mc-00101-AKH Document 1473-9 Filed 06/27/11 Page 17 of 19
�Case 1:21-mc-00101-AKH Document 1473-9 Filed 06/27/11 Page 18 of 19
�Case 1:21-mc-00101-AKH Document 1473-9 Filed 06/27/11 Page 19 of 19
�
Dublin Core
The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/.
Title
A name given to the resource
Boston Federal Aviation Administration Filings
Subject
The topic of the resource
litigation
airport security
Description
An account of the resource
These court filings provide evidence that the terrorists responsible for the September 11th attacks were observed assessing airport security prior to the events. For example, Mohammed Atta was spotted in May '01 taking still photographs, notes and video of the screening checkpoints at Logan. He was reported to law enforcement at the airport, but they failed to follow up.
Contributor
An entity responsible for making contributions to the resource
Brian Sullivan, FAA Special Agent (Retired)
Document
A resource containing textual data. Note that facsimiles or images of texts are still of the genre text.
Dublin Core
The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/.
Title
A name given to the resource
A series of Meeting Minutes related to Logan International Airport's Security Consortium
Date
A point or period of time associated with an event in the lifecycle of the resource
March 1999 - April 2001
Contributor
An entity responsible for making contributions to the resource
Brian Sullivan, FAA Special Agent (Retired)
Rights
Information about rights held in and over the resource
Public Domain
Description
An account of the resource
The first document is of the meeting of the Security Consortium at Logan International Airport and the creation of the Security Consortium Core Group. The subsequent documents are meeting minutes of the Core Group and their security improvements.
Subject
The topic of the resource
Airports--Security measures--United States
passenger security screening
Terrorism--United States--Prevention
-
https://911digitalarchive.org/files/original/f783454d69415f965085b7a959c9271b.pdf
22f37bbdc4d1bdc882b331497f683993
PDF Text
Text
Case 1:21-mc-00101-AKH Document 1473-3 Filed 06/27/11 Page 1 of 45
�Case 1:21-mc-00101-AKH Document 1473-3 Filed 06/27/11 Page 2 of 45
�Case 1:21-mc-00101-AKH Document 1473-3 Filed 06/27/11 Page 3 of 45
�Case 1:21-mc-00101-AKH Document 1473-3 Filed 06/27/11 Page 4 of 45
�Case 1:21-mc-00101-AKH Document 1473-3 Filed 06/27/11 Page 5 of 45
�Case 1:21-mc-00101-AKH Document 1473-3 Filed 06/27/11 Page 6 of 45
�Case 1:21-mc-00101-AKH Document 1473-3 Filed 06/27/11 Page 7 of 45
�Case 1:21-mc-00101-AKH Document 1473-3 Filed 06/27/11 Page 8 of 45
�Case 1:21-mc-00101-AKH Document 1473-3 Filed 06/27/11 Page 9 of 45
�Case 1:21-mc-00101-AKH Document 1473-3 Filed 06/27/11 Page 10 of 45
�Case 1:21-mc-00101-AKH Document 1473-3 Filed 06/27/11 Page 11 of 45
�Case 1:21-mc-00101-AKH Document 1473-3 Filed 06/27/11 Page 12 of 45
�Case 1:21-mc-00101-AKH Document 1473-3 Filed 06/27/11 Page 13 of 45
�Case 1:21-mc-00101-AKH Document 1473-3 Filed 06/27/11 Page 14 of 45
�Case 1:21-mc-00101-AKH Document 1473-3 Filed 06/27/11 Page 15 of 45
�Case 1:21-mc-00101-AKH Document 1473-3 Filed 06/27/11 Page 16 of 45
�Case 1:21-mc-00101-AKH Document 1473-3 Filed 06/27/11 Page 17 of 45
�Case 1:21-mc-00101-AKH Document 1473-3 Filed 06/27/11 Page 18 of 45
�Case 1:21-mc-00101-AKH Document 1473-3 Filed 06/27/11 Page 19 of 45
�Case 1:21-mc-00101-AKH Document 1473-3 Filed 06/27/11 Page 20 of 45
�Case 1:21-mc-00101-AKH Document 1473-3 Filed 06/27/11 Page 21 of 45
�Case 1:21-mc-00101-AKH Document 1473-3 Filed 06/27/11 Page 22 of 45
�Case 1:21-mc-00101-AKH Document 1473-3 Filed 06/27/11 Page 23 of 45
�Case 1:21-mc-00101-AKH Document 1473-3 Filed 06/27/11 Page 24 of 45
�Case 1:21-mc-00101-AKH Document 1473-3 Filed 06/27/11 Page 25 of 45
�Case 1:21-mc-00101-AKH Document 1473-3 Filed 06/27/11 Page 26 of 45
�Case 1:21-mc-00101-AKH Document 1473-3 Filed 06/27/11 Page 27 of 45
�Case 1:21-mc-00101-AKH Document 1473-3 Filed 06/27/11 Page 28 of 45
�Case 1:21-mc-00101-AKH Document 1473-3 Filed 06/27/11 Page 29 of 45
�Case 1:21-mc-00101-AKH Document 1473-3 Filed 06/27/11 Page 30 of 45
�Case 1:21-mc-00101-AKH Document 1473-3 Filed 06/27/11 Page 31 of 45
�Case 1:21-mc-00101-AKH Document 1473-3 Filed 06/27/11 Page 32 of 45
�Case 1:21-mc-00101-AKH Document 1473-3 Filed 06/27/11 Page 33 of 45
�Case 1:21-mc-00101-AKH Document 1473-3 Filed 06/27/11 Page 34 of 45
�Case 1:21-mc-00101-AKH Document 1473-3 Filed 06/27/11 Page 35 of 45
�Case 1:21-mc-00101-AKH Document 1473-3 Filed 06/27/11 Page 36 of 45
�Case 1:21-mc-00101-AKH Document 1473-3 Filed 06/27/11 Page 37 of 45
�Case 1:21-mc-00101-AKH Document 1473-3 Filed 06/27/11 Page 38 of 45
�Case 1:21-mc-00101-AKH Document 1473-3 Filed 06/27/11 Page 39 of 45
�Case 1:21-mc-00101-AKH Document 1473-3 Filed 06/27/11 Page 40 of 45
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Dublin Core
The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/.
Title
A name given to the resource
Boston Federal Aviation Administration Filings
Subject
The topic of the resource
litigation
airport security
Description
An account of the resource
These court filings provide evidence that the terrorists responsible for the September 11th attacks were observed assessing airport security prior to the events. For example, Mohammed Atta was spotted in May '01 taking still photographs, notes and video of the screening checkpoints at Logan. He was reported to law enforcement at the airport, but they failed to follow up.
Contributor
An entity responsible for making contributions to the resource
Brian Sullivan, FAA Special Agent (Retired)
Document
A resource containing textual data. Note that facsimiles or images of texts are still of the genre text.
Dublin Core
The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/.
Title
A name given to the resource
Testimony of Thomas J. Kinton Jr. Regarding September 11 Litigation
Date
A point or period of time associated with an event in the lifecycle of the resource
January 25, 2011
Contributor
An entity responsible for making contributions to the resource
Brian Sullivan, FAA Special Agent (Retired)
Rights
Information about rights held in and over the resource
Public Romain
Description
An account of the resource
This is a transcript of testimony given by Thomas J. Kinton Jr. about security at Logan International Airport. The locus of questions focus on security checkpoints.
Subject
The topic of the resource
Airports - Security measures - United States
passenger security screening, Evidence
September 11 Terrorist Attacks, 2001
-
https://911digitalarchive.org/files/original/df948834c9af9748d90a5297fcc81ea4.pdf
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PDF Text
Text
Case 1:21-mc-00101-AKH Document 1473-2 Filed 06/27/11 Page 1 of 4
Exhibit 2
�Case 1:21-mc-00101-AKH Document 1473-2 Filed 06/27/11 Page 2 of 4
�Case 1:21-mc-00101-AKH Document 1473-2 Filed 06/27/11 Page 3 of 4
�Case 1:21-mc-00101-AKH Document 1473-2 Filed 06/27/11 Page 4 of 4
�
Dublin Core
The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/.
Title
A name given to the resource
Boston Federal Aviation Administration Filings
Subject
The topic of the resource
litigation
airport security
Description
An account of the resource
These court filings provide evidence that the terrorists responsible for the September 11th attacks were observed assessing airport security prior to the events. For example, Mohammed Atta was spotted in May '01 taking still photographs, notes and video of the screening checkpoints at Logan. He was reported to law enforcement at the airport, but they failed to follow up.
Contributor
An entity responsible for making contributions to the resource
Brian Sullivan, FAA Special Agent (Retired)
Document
A resource containing textual data. Note that facsimiles or images of texts are still of the genre text.
Dublin Core
The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/.
Title
A name given to the resource
A Memo from Joseph Lawless to Virginia Buckingham about Airport vulnerabilities.
Subject
The topic of the resource
Airports - Security measures - United States
passenger security screening
Terrorism - United States - Prevention
Description
An account of the resource
In this memo, Joseph Lawless informs Virginia Buckingham of airport vulnerabilities. While still in the early stages of their security assessment of all their facilities, Lawless identifies existing vulnerabilities in the Airport Operations Area (AOA).
Date
A point or period of time associated with an event in the lifecycle of the resource
April 27, 2001
Contributor
An entity responsible for making contributions to the resource
Brian Sullivan, FAA Special Agent (Retired)
Rights
Information about rights held in and over the resource
Public Domain
-
https://911digitalarchive.org/files/original/283dc2c9b907ab01c1a7f491e3cc7041.pdf
49944a0d096476e012c9c3a0406acc96
PDF Text
Text
Case 1:21-mc-00101-AKH Document 1473-10
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Exhibit 9
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�
Dublin Core
The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/.
Title
A name given to the resource
"Physical Security Assessment: Boston Logan International Airport"
Subject
The topic of the resource
Post 9/11 FAA reports on security breaches
Description
An account of the resource
This FAA report gives an overview of the security at Boston Logan International Airport in the months prior to September 11, 2001. The reports argue that Boston Logan International Airport were as secure as any other airport in the country before 9/11 and overviews the security measures taken with passengers and their luggage before flights were to take off. The document also discusses further security measures that should be looked into to make Boston Logan and all other American airports safer for travel and less susceptible to terrorist attack.
Date
A point or period of time associated with an event in the lifecycle of the resource
November 6, 2001
Contributor
An entity responsible for making contributions to the resource
Brian Sullivan
Rights
Information about rights held in and over the resource
Public Domain
Language
A language of the resource
English
Dublin Core
The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/.
Title
A name given to the resource
Boston Federal Aviation Administration Filings
Subject
The topic of the resource
litigation
airport security
Description
An account of the resource
These court filings provide evidence that the terrorists responsible for the September 11th attacks were observed assessing airport security prior to the events. For example, Mohammed Atta was spotted in May '01 taking still photographs, notes and video of the screening checkpoints at Logan. He was reported to law enforcement at the airport, but they failed to follow up.
Contributor
An entity responsible for making contributions to the resource
Brian Sullivan, FAA Special Agent (Retired)
Document
A resource containing textual data. Note that facsimiles or images of texts are still of the genre text.
Dublin Core
The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/.
Title
A name given to the resource
"Physical Security Assessment: Boston Logan International Airport"
Subject
The topic of the resource
Post 9/11 FAA reports on security breaches
Description
An account of the resource
This FAA report gives an overview of the security at Boston Logan International Airport in the months prior to September 11, 2001. The reports argue that Boston Logan International Airport were as secure as any other airport in the country before 9/11 and overviews the security measures taken with passengers and their luggage before flights were to take off. The document also discusses further security measures that should be looked into to make Boston Logan and all other American airports safer for travel and less susceptible to terrorist attack.
Date
A point or period of time associated with an event in the lifecycle of the resource
November 6, 2001
Contributor
An entity responsible for making contributions to the resource
Brian Sullivan
Rights
Information about rights held in and over the resource
Public Domain
-
https://911digitalarchive.org/files/original/ec68d7666e56e187ac23bf53a13506bb.pdf
1549aa52aee1b6199775a037f3099d4c
PDF Text
Text
�����
Dublin Core
The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/.
Title
A name given to the resource
Boston Federal Aviation Administration Filings
Subject
The topic of the resource
litigation
airport security
Description
An account of the resource
These court filings provide evidence that the terrorists responsible for the September 11th attacks were observed assessing airport security prior to the events. For example, Mohammed Atta was spotted in May '01 taking still photographs, notes and video of the screening checkpoints at Logan. He was reported to law enforcement at the airport, but they failed to follow up.
Contributor
An entity responsible for making contributions to the resource
Brian Sullivan, FAA Special Agent (Retired)
Document
A resource containing textual data. Note that facsimiles or images of texts are still of the genre text.
Dublin Core
The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/.
Title
A name given to the resource
Transcript of FOX 25 News', May 6, 2001, Broadcast on Airport Security
Subject
The topic of the resource
News Broadcast before 9/11 that expressed concern over airport security
Description
An account of the resource
A transcript from a FOX 25 broadcast on airport security, which aired just months before the September 11th attacks. This transcript overviews the different ways in which the news station's investigators were able to get dangerous objects past security in Rhode Island and Massachusetts airports. The report concludes that airports were not secure enough and open for a hijackings or terrorist attack.
Date
A point or period of time associated with an event in the lifecycle of the resource
May 6, 2001
Contributor
An entity responsible for making contributions to the resource
Brian Sullivan
Rights
Information about rights held in and over the resource
Public Domain
-
https://911digitalarchive.org/files/original/99c48f5f1f6ccb2a78dcc7e7e1a4cd46.pdf
2ae079ea1821e6f518c580a839155aed
PDF Text
Text
Case 1:21-mc-00101-AKH Document 1473
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
------------------------------------- x
:
:
:
:
IN RE SEPTEMBER 11 LITIGATION
:
:
:
------------------------------------- x
Filed 06/27/11 Page 1 of 4
No. 21 MC 101 (AKH)
This document relates to :
Bavis v. United Airlines Inc.et al.,
02 CV 7154
DECLARATION OF MARY SCHIAVO IN SUPPORT OF PLAINTIFF’S
MEMORANDUM OF LAW IN OPPOSITION TO THE MASSACHUSETTS PORT
AUTHORITY’S MOTION FOR SUMMARY JUDGMENT
MARY SCHIAVO declares as follows:
1.
I submit this declaration under 28 U.S.C. §1746 in support of the motion of
Plaintiff Mary Bavis on the applicable standard of care.
2.
I am a member of Motley Rice LLC which represents Plaintiff Mary Bavis.
3.
I attach as Exhibit 1 a copy of excerpts from the transcript of the Deposition of
Joseph M. Lawless, dated March 30, 2007.
4.
I attach as Exhibit 2 a copy of the Joseph M. Lawless memo to Virginia
Buckingham, dated April 27, 2001.
5.
I attach as Exhibit 3 a copy of excerpts from the transcript of the Deposition of
Thomas J. Kinton, conducted on January 25, 2011.
6.
I attach as Exhibit 4 a copy of excerpts from the transcript of the Deposition of
Virginia Buckingham Lowey, conducted on December 15, 2006.
7.
I attach as Exhibit 5 a copy of the letter from Virginia Buckingham Lowey and
Thomas J. Kinton to Chip Barclay, dated September 25, 2001.
�Case 1:21-mc-00101-AKH Document 1473
8.
Filed 06/27/11 Page 2 of 4
I attach as Exhibit 6 a copy of the Report of the Special Advisory Task Force on
Massport, presented to Governor Jane Swift, dated December 04, 2001.
9.
I attach as Exhibit 7 a copy of the Federal Aviation Administration’s
Recommended Security Guidelines for Airport Planning Design and Construction.
10.
I attach as Exhibit 8 AVSEC Dep Exhibit 344, LAMCO Meeting Minutes, dated
April 11, 2001, and various other Massport Logan International Airport, Security Consortium
Meeting minutes.
11.
I attach as Exhibit 9 a copy Counter Technology, Inc.’s Physical Security
Assessment: Boston Logan International Airport, dated November 06, 2001.
12.
I attach as Exhibit 10 a copy of the letter from Edward C. Freni to Ginny
Buckingham, subject: Meeting with United Airlines, dated May 08, 2001.
13.
I attach as Exhibit 11 a copy of an e-mail from Barbara Platt to Christopher Doria
and Phillip Orlandella, subject: Update, dated Thursday, April 19, 2001.
14.
I attach as Exhibit 12 a copy of the Memorandum for the Record, Interview with
Joseph Lawless, dated November 05, 2003.
15.
I attach as Exhibit 13 the letter from Edward C. Freni to Larry Aldrich, re:
Customer Service Standards Program, dated March 02, 2001.
16.
I attach as Exhibit 14 a copy of the Memorandum for the Record, Interview with
Virginia Buckingham, dated November 05, 2003.
17.
I attach as Exhibit 15 a copy of the transcript of the FOX News Report on Logan
Airport, dated February, 2001.
2
�Case 1:21-mc-00101-AKH Document 1473
18.
Filed 06/27/11 Page 3 of 4
I attach as Exhibit 16 a copy of the letter from Michael A. Canavan to Joseph M.
Lawless, dated May 21, 2001 and Joseph M. Lawless’ letter response to Michael A. Canavan,
dated June 04, 2001.
19.
I attach as Exhibit 17 a copy of the letter from Joseph M. Lawless to Michael A.
Canavan, dated June 04, 2001.
20.
I attach as Exhibit 18 a copy of the Logan International Airport Terminal Lease
between the Massachusetts Port Authority and United Airlines, Inc., dated December 01, 1998.
21.
I attach as Exhibit 19 a copy of relevant pages from the Massport Airport Security
Program.
22.
I attach as Exhibit 20 excerpts of the 9/11 Commission Report.
23.
I attach as Exhibit 21 an excerpt of the Security Briefing Agenda, MP103636.
24.
I attach as Exhibit 22 a copy of the Federal Bureau of Investigation’s interview of
Stephen Wallace, dated September 17, 2001.
25.
I attach as Exhibit 23 excerpts from the transcript of the Deposition of Stephen J.
Wallace, dated July 17, 2007.
26.
I attach as Exhibit 24 a copy of the Federal Bureau of Investigation report on
Theresa Spagnuolo, dated September 29, 2001.
27.
I attach as Exhibit 25 a copy of excerpts from the transcript of the Deposition of
James Miller, Jr., dated May 23, 2008.
28.
I attach as Exhibit 26 a copy of “Hijackers’ Ringleaders Scouted out Airports,”
Boston Herald, Dave Wedge, dated May 29, 2002.
29.
I attach as Exhibit 27 relevant pages of the redacted and non-SSI Checkpoint
Operations Guide, Standard Operating Procedures.
3
�Case 1:21-mc-00101-AKH Document 1473
30.
Filed 06/27/11 Page 4 of 4
I attach as Exhibit 28 copy of the Memorandum for the Record, Interview with
Thomas Kinton, dated November 06, 2003.
31.
I attach as Exhibit 29 a collection of letters from Mary Carol Turano to Jack C.
Bullard outlining violations of C.F.R. Air Carrier Standard Security Program.
32.
I attach as Exhibit 30 an additional copy of excerpts from the transcript of the
Deposition of Joseph M. Lawless, dated March 30, 2007.
33.
I attach as Exhibit 31 AVSEC Dep Exhibit 221, Public Safety Staff Meeting
Minutes, dated April 13, 2001.
34.
I attach as Exhibit 32 14 C.F.R. §§107.1 – 107.3, §107.5, §107.9, §107.11,
§§107.13 – 107.15, §107.17, §107.19, §107.20, §107.27, §107.29, and §107.31.
I declare under penalty of perjury that the foregoing is true and correct.
Dated: June 24, 2011
/s/Mary Schiavo__________
Mary Schiavo
4
�
Dublin Core
The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/.
Title
A name given to the resource
Boston Federal Aviation Administration Filings
Subject
The topic of the resource
litigation
airport security
Description
An account of the resource
These court filings provide evidence that the terrorists responsible for the September 11th attacks were observed assessing airport security prior to the events. For example, Mohammed Atta was spotted in May '01 taking still photographs, notes and video of the screening checkpoints at Logan. He was reported to law enforcement at the airport, but they failed to follow up.
Contributor
An entity responsible for making contributions to the resource
Brian Sullivan, FAA Special Agent (Retired)
Document
A resource containing textual data. Note that facsimiles or images of texts are still of the genre text.
Dublin Core
The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/.
Title
A name given to the resource
Declaration of Mary Schiavo in Support of Plaintiffs Memorandum of Law in Opposition To the Massachusetts Port Authority's Motion for Summary Judgement
Description
An account of the resource
A Declaration of Mary Schiavo presenting evidence and exhibits on the FAA findings surrounding Boston International Airport before September 11th. This document is a listing of the exhibits presented to the Massachusetts Port Authority.
Date
A point or period of time associated with an event in the lifecycle of the resource
June 27, 2011
Contributor
An entity responsible for making contributions to the resource
Brian Sullivan
Rights
Information about rights held in and over the resource
Public Domain
-
https://911digitalarchive.org/files/original/ec4116507f91d44e18d3aaa70743fd71.pdf
923e465591dd8010d90918ea7d2cb963
PDF Text
Text
Case 1:21-mc-00101-AKH Document 1471
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
------------------------------------- x
:
:
:
:
IN RE SEPTEMBER 11 LITIGATION
:
:
:
------------------------------------- x
Filed 06/25/11 Page 1 of 15
No. 21 MC 101 (AKH)
This document relates to :
Bavis v. United Airlines Inc.et al.,
02 CV 7154
PLAINTIFF MARY BAVIS’S STATEMENT OF DISPUTED MATERIAL FACTS
PURSUANT TO LOCAL RULE 56.1
Pursuant to Local Rule 56.1, Plaintiff Mary Bavis respectfully submits this response to
Massport’s Statement of Undisputed Material Facts:
RESPONSE
1.
Uncontested
2.
Uncontested
3.
Massport’s primary role and federally mandated job as an airport operator
was to provide for the safety of persons and property traveling in air transportation and intrastate
air transportation against acts of criminal violence and aircraft piracy. 14 C.F.R. § 107.3.
4.
Uncontested
5.
Uncontested
6.
Uncontested
7.
Massport’s lease with United and Massport’s Airport Security Program
provided the authority for it to act and to dictate air carrier operations, including security
operations. Although the lease states that the Tenant (Untied) had to take “all security
precautions and provide all personnel and equipment necessary to comply with all applicable
�Case 1:21-mc-00101-AKH Document 1471
Filed 06/25/11 Page 2 of 15
laws and regulations for passenger screening” it also provided Massport with the ability to
review and veto the contractors selected by United to carry these responsibilities out, stating that
the tenant “shall use contractors acceptable to the Authority.” (Logan International Airport
Terminal Lease between The Massachusetts Port Authority and United Airlines, p. 22, ¶6.8, at
Exhibit 18.) The lease goes on to require air carriers “take such security precautions, at Tenants
sole expense with respect to the Premises and Ramp Area and the Tenant’s operations and
service personnel, related thereto, as the Authority in its sole and absolute discretion may, from
time to time require. (Id.) (emphasis added). In fact, a tenant would be in default if it failed “to
comply with any applicable law, rule, or regulation concerning security, and such failure
continues for 48 hours after written notice from the Authority.” (Id. at p. 56) These lease terms
clearly show Massport possessed the contractual authority to approve of its tenant’s security
contractors, to dictate security operations to the air carriers as necessary and to terminate the
agreement based on security failures it found.
Massport’s Logan Airport Security Program makes clear that Massport could
inspect the air carriers’ operation of the checkpoints to ensure they were effective. It states,
“Massport requires all tenants who lease areas on or abutting the AOA to be active participants
in the Airport Security Plan. Periodic inspections are conducted by Massport personnel to ensure
that proper security is maintained.” (Logan Airport Security Program, Section I-1 A. 3) In fact,
Massport did institute independent testing of checkpoints in April of 2001 order to enhance
checkpoint screening effectiveness. (AVSEC Dep. Exhibit 221 at MP100789-100792 attached at
Exhibit 16.)
Defendant cites here to paragraph 10 of the Lawless declaration, wherein he states
“Massport was not aware of each airline’s specific screening policies” and “Massport never
2
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Filed 06/25/11 Page 3 of 15
received a copy of the COG.” However, in his deposition, Lawless testified that as part of his
duties, he “familiarized” himself with the screening companies at Logan. (Deposition of Joseph
Lawless, March 30, 2007, p. 19 at Exhibit 1.) Furthermore, Massport obviously had awareness
of screening policies and COG procedures because weeks after 9/11, Massport was able to make
detailed recommendations to Secretary Mineta’s Rapid Response Team about checkpoint
screening requirements, stating that the FAA should "[i]mmediately standardize items restricted
from the secured areas - The FAA and the air carriers are using inconsistent standards in
determining which items are restricted from the secured areas.” The recommendation further
stated “[t]here must be a standardized list between the FAA and carriers to avoid confusion
among law enforcement personnel and security checkpoint personnel about the types of items
that should be confiscated during the screening process.” (See AVSEC Dep. Exhibit 218 at
MP101051 attached at Exhibit 5.)
Massport’s ability to control aspects of the airlines operations is further evidenced
by the fact that Massport instituted customer service reforms called the Guaranteed Passenger
Standards program which required air carriers operating at Logan to clear passengers through
security in 5 minutes from the time the passenger entered the security queue. (AVSEC Dep.
Exhibit 340, Memo from Virginia Buckingham to Ed Freni regarding “Meeting with United
Airlines – May 9, 2001”attached at Exhibit 10.) In creating this standard, Massport took data
and goals from the air carriers and developed the performance standards. (AVSEC Dep. Exhibit
500, e-mail re Guaranteed Passenger Standards Program press release, attached at Exhibit 11.)
In developing and defending the program, Massport cited to its “proprietary rights as owner and
operator of the airport” for its authority to institute changes to air carrier operations, and it noted
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that the Logan leasing terms required tenant air carriers to provide a “reasonable level of
customer service.” (AVSEC Dep. Exhibit 215 at MP102166 attached at Exhibit 13.)
8.
Massport also undertook efforts to “handle” passengers allowed aboard
aircraft. The declaration of Joseph Lawless, cited by Defendants in this paragraph, states that
“Federal law did not impose on airport operators and airlines joint responsibility for screening
and did not require Massport to undertake any screening.” However, Massport involved itself in
the checkpoint screening operations when it began to test checkpoints itself, after a news story
ran on the local Fox news channel showing how easily the checkpoints could be breached by
individuals carrying prohibited items. (AVSEC Dep Exhibit 221, Public Safety Staff Meeting
Minutes, April 13, 2001, Exhibit 31; Affidavit of Michael Pilgrim ¶¶37-43). Mr. Lawless stated
in his deposition that he tried to implement programs to improve the efficiency of checkpoint
security between 1997 and 2001. (Deposition of Joseph Lawless, March 30, 2007, p. 19-21,
Exhibit 1.)
9.
Massport could review passenger manifests if it chose to and could
involve itself in any airline operation that affected the safety of Boston Logan airport or any of
its passengers or customers. (Deposition of Thomas Kinton attached at Exhibit 3; Logan
International Airport Terminal Lease between The Massachusetts Port Authority and United
Airlines, p. 22, ¶6.8, attached at Exhibit 18; 14 C.F.R. 107.3 attached at Exhibit 32.)
10.
As owner of Logan airport, Massport’s role was to “adopt and carry out a
security program that…provide[d] for the safety of persons and property traveling in air
transportation and intrastate air transportation against acts of criminal violence and aircraft
piracy.” (Affidavit of Michael Pilgrim, ¶19-21; 14 C.F.R. §107.3 attached as Exhibit 32.) In
addition, under 14 C.F.R. 107.13, Massport delegated checkpoint security to the airlines.
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However, Massport could only delegate checkpoint security to the airlines if the airline’s
procedures facilities and equipment were adequate to perform the security control functions.
(Affidavit of Michael Pilgrim, ¶ 21; 14 C.F.R. 107.13). Massport had notice that the checkpoint
screening was inadequate through LAMCO meetings, FAA citations, media reports, its own
observations, and the CTI audit team. (Affidavit of Michael Pilgrim, ¶ 21; AVSEC Dep.
Exhibits 382 (Logan Security Consortium Meeting Minutes, March 5, 1999) attached at Exhibit
8; 344 (LAMCO Meeting Minutes, April 11, 2001) attached at Exhibit 8; FAA violation letters
AALTSA061003, AALTSA060950, AALTSA060953 attached at Exhibit 29; Memo from
Joseph Lawless to Virginia Buckingham, April 27, 2001 attached at Exhibit 2; “Physical
Security Assessment: Boston Logan International Airport” November 6, 2001, attached at
Exhibit 9.)
11.
On and before September 11, 2001, United Airlines had its own Air
Carrier Standard Security Program (ACSSP) which United developed and proposed to the FAA
for approval. It contained procedures required by the FAA but could also contain procedures
unique to the carrier’s locations of operations. The ACSSP contained some procedures for
screening passengers but additional procedures were contained in the Checkpoint Operations
Guide and airport security procedures in place at the various airports at which United operated.
12.
Plaintiff does not contest that airlines were responsible for securing their
own aircraft and that Massport had no responsibility for sweeping the interior of the aircraft
between flights. With regard to screening and detecting items carried aboard planes, under 14
C.F.R. 107.13, Massport delegated checkpoint security to the airlines. However, Massport could
only delegate checkpoint security to the airlines if the airline’s procedures facilities and
equipment were adequate to perform the security control functions. (Affidavit of Michael
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Pilgrim, ¶ 21; 14 C.F.R. 107.13). Massport had notice that the checkpoint screening was
inadequate through LAMCO meetings, FAA citations, media reports, its own observations, and
the CTI audit team. (Affidavit of Michael Pilgrim, ¶ 21; AVSEC Dep. Exhibits 382 (Logan
Security Consortium Meeting Minutes, March 5, 1999) attached at Exhibit 8; 344 (LAMCO
Meeting Minutes, April 11, 2001) attached at Exhibit 8; FAA violation letters AALTSA061003,
AALTSA060950, AALTSA060953 attached at Exhibit 29; Memo from Joseph Lawless to
Virginia Buckingham, April 27, 2001 attached at Exhibit 2; “Physical Security Assessment:
Boston Logan International Airport” November 6, 2001, attached at Exhibit 9.)
13.
Massport refused to accept background checks for new air carrier
employees after it became aware that the air carrier’s security background checks were woefully
inadequate. In its place, Massport, at the direction of Mr. Lawless, instituted with the FBI more
thorough background checks for airline and security contractor employees. Mr. Lawless wrote a
letter the the FBI stating, “The air carriers do not have the resources or the desire to go beyond
the minimum requirement of the law and conduct further investigation into the applicant. In
exercising our option under the fingerprinting law, under Title 14, Code of Federal Regulations,
Part 107, that allows airports not to accept air carrier certification for an applicant criminal
background check we have prevented applicants with disqualifying crimes from gaining
unescorted access privileges.” As such, Massport was involved in selecting and hiring
checkpoint screeners. (AVSEC Dep Exhibit 388 at MP101026 attached as Exhibit 17; Affidavit
of Michael Pilgrim, ¶ 28; Lawless Deposition Transcript, p. 133, ln 11-21 attached as Exibit 30.)
14.
Massport also audited checkpoints after a news story ran on the local Fox
news channel in April of 2001 showing how easily the checkpoints could be breached by
individuals carrying prohibited items. (AVSEC Dep Exhibit 221, Public Safety Staff Meeting
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Minutes, April 13, 2001, Exhibit 31; Affidavit of Michael Pilgrim, ¶¶37-44). The FAA also
conducted security tests and audits and provided copies of violation letters to the airport
operators on whose premises the violations occurred. Massport received notice of many
violations by both United and American Airlines and by Massport in the months preceding
September 11, 2001. (Affidavit of Michael Pilgrim, ¶48).
15.
Massport’s security program for Logan airport states that it is responsible
for the security of the airport, and that it would conduct periodic inspections to ensure that proper
security was maintained. See Logan Airport Security Program (“ASP”) (attached to the
declaration of Joseph Lawless (“Lawless Decl.”) as Exhibit A) at I-1(A)(3). On September 11,
2001, Massport did not implement its assigned responsibilities under FAR Part 107, as its
assigned responsibilities included providing “for the safety and security of persons on an
aircraft…against an act of criminal violence, aircraft piracy, and the introduction of deadly or
dangerous weapon…onto an aircraft.” (14 C.F.R. 107.3 at Exhibit 32.)
16.
Massport’s security program for Logan airport states that it is responsible
for the security of the airport, and that it would conduct periodic inspections to ensure that proper
security was maintained. See Logan Airport Security Program (“ASP”) (attached to the
declaration of Joseph Lawless (“Lawless Decl.”) as Exhibit A) at I-1(A)(3). Massport’s Security
Program also demonstrates that Massport had a greater role to play in determining the necessary
security for its operations under the Contingency Security Plan: “The FAA or Logan
International Airport and affected airlines will determine when increased security measures are
necessary in response to recognized threat conditions or situations and will identify the
appropriate threat level." (emphasis added) See Massport’s Airport Security Program, § V-1
attached as Exhibit 19.)
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The airlines were not exclusively assigned to checkpoint screening. Under
14 C.F.R. 107.13, Massport delegated checkpoint security to the airlines. However, Massport
could only delegate checkpoint security to the airlines if the airline’s procedures facilities and
equipment were adequate to perform the security control functions. (Affidavit of Michael
Pilgrim, ¶ 21; 14 C.F.R. 107.13 attached as Exhibit 32.) Massport had notice that the checkpoint
screening was inadequate through LAMCO meetings, FAA citations, media reports, its own
observations, and the CTI audit team. (Affidavit of Michael Pilgrim.) Massport’s security
program for Logan airport states that it is responsible for the security of the airport, and that it
would conduct periodic inspections to ensure that proper security was maintained. See Logan
Airport Security Program (“ASP”) (attached to the declaration of Joseph Lawless (“Lawless
Decl.”) as Exhibit A) at I-1(A)(3).
18.
Massport was required to provide law enforcement that was adequate to
support its security program and the passenger screening system. (14 C.F.R. 107.15 at Exhibit
32). The Special Advisory Task Force on Massport, convened after September 11, 2001 to
review Massport in the aftermath of September 11th attacks, found “one specific problem with
security at Logan is the staffing of the State Police Troop F. Under the current union rules,
seniority is the basis for staffing, per the collective bargaining agreement. This protocol fails to
acknowledge the specific law enforcement requirements needed by a major international airport
like Logan and provides no mechanism to select the most qualified, capable and highly trained
officers to enforce security procedures at the airport.” (Report of The Special Advisory Task
Force on Massport, p. 8-9, AVSEC Dep Exhibit 220, attached as Exhibit 6.)
19.
Massport alleges here that the “flexible response” of LEOs in the airport
allowed for “high visibility throughout the airport and to observe activity in both the sterile and
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non-sterile areas.” However, Massport LEOs were not present or aware that the 9/11 hijackers
openly and repeatedly surveyed Logan checkpoint operations in the spring and summer of 2001.
American Airlines employee at Logan, Steven Wallace, testified that he caught Mohammed Atta
and another hijacker at Massport’s Logan Airport on May 11, 2001 and reported it to the
checkpoint and the law enforcement officer at the checkpoint. (Affidavit of Michael Pilgrim,
¶61-62; Deposition of Steven Wallace, p.103-113, 118-121, 143-144 attached at Exhibit 23;
FBI Interview of Wallace; 265A-NY-280350-302-39589,” FBI0370-FBI371 attached as Exhibit
22.) Similarly, Theresa Spagnuolo, a checkpoint screener for Huntleigh on the morning of
September 11th, told the FBI that she observed a Middle Eastern man videotaping the
checkpoints in approximately May of 2001 and identified the man as Flight 11 hijacker
Mohammed Atta. (Report on Theresa Spagnuolo on 9/29/01, FBI0150-FBI0151 at Exhibit 24.)
Likewise, sometime before September 11, 2001, James Miller, a former Globe duty manager at
Logan Airport, observed one or more Muslim-appearing persons photographing the “whole
checkpoint setup.” He reported their activities. (See Deposition of James Miller, May 23, 2008,
pp. 85-90 at Exhibit 25.)
20.
Massport’s flexible response approach, like Massport’s entire security
plan, was developed by Massport, was required to be unique to its local conditions and security
threats as a Category X airport, and was submitted by Massport to the FAA for approval. No
other Category X airports have been shown in the evidence herein with the same threat
environment, known threats, and documented security weaknesses, to have adopted such an
approach.
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21.
Filed 06/25/11 Page 10 of 15
Massport initiated other FAA approved security projects and some for
which it did not seek FAA approval. (Deposition of Thomas Kinton, p. 153 attached as Exhibit
28.)
22.
14 C.F.R. Part 107 were minimum standards (Deposition of Thomas
Kinton, p. 34 ln 11-19 attached at Exhibit 28.) Thus, to the extent Massport acted at all, it was
within its jurisdiction under Part 107.
23.
Massport had a role in checkpoint security performance, selecting
screening companies hired by airlines, hiring and supervising checkpoint screeners. (Affidavit of
Michael Pilgrim, ¶ 20, 21, 39-41, 44, 46, 47, 60) Massport’s activities including the following:
a)
Massport instituted independent testing of checkpoints in April of
2001 order to enhance checkpoint screening effectiveness. Mr. Lawless stated in his deposition
that he tried to implement programs to improve the efficiency of checkpoint security between
1997 and 2001. (Deposition of Joseph Lawless, March 30, 2007, p. 19-21, Exhibit 1.)
b)
Under the lease, Massport had the authority to veto the airlines’
selection of security companies. The lease states that the Tenant (Untied) had to take “all
security precautions and provide all personnel and equipment necessary to comply with all
applicable laws and regulations for passenger screening,” but it also provided Massport with the
ability to review and veto the contractors selected by United to carry these responsibilities out,
stating that the tenant “shall use contractors acceptable to the Authority.” (Logan International
Airport Terminal Lease between The Massachusetts Port Authority and United Airlines, p. 22,
¶6.8, at Exhibit 18.)
c)
Massport, at the direction of Mr. Lawless, instituted with the FBI
more thorough background checks for airline and security contractor employees. Mr. Lawless
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wrote a letter to the FBI stating, “The air carriers do not have the resources or the desire to go
beyond the minimum requirement of the law and conduct further investigation into the applicant.
In exercising our option under the fingerprinting law, under Title 14, Code of Federal
Regulations, Part 107, that allows airports not to accept air carrier certification for an applicant
criminal background check we have prevented applicants with disqualifying crimes from gaining
unescorted access privileges.” Thus, Massport was involved in selecting and hiring checkpoint
screeners. (AVSEC Dep Exhibit 388 at MP101026 attached as Exhibit 17; Affidavit of Michael
Pilgrim, ¶ 28; Lawless Deposition Transcript, p. 133, ln 11-21 attached as Exhibit 1.)
d)
Massport was required to provide law enforcement support to the
security checkpoints under 14 C.F.R. 107.15. (14 C.F.R. 107.15 attached as Exhibit 32;
Affidavit of Michael Pilgrim, ¶ 60-62.).
24.
Massport claims that it strived to provide the most up to date security
equipment and that it exceeded federal requirements. In truth it had no idea how sensitive or
effective Boston Logan’s magnetometers were because it never tested them—until after
September 11, 2001. Massport does know that on occasion they were unplugged and Massport
does know that in such event there was no real checkpoint security. (Deposition of Virginia
Buckingham, p. 133-134 attached at Exhibit 4.)
25.
Massport thought its F Troops served an active role at the checkpoints in
determining whether items were weapons and whether they could pass through security.
(Checkpoint Operations Guide attached at Exhibit 27; Deposition of Thomas Kinton attached at
Exhibit 3.)
26.
At several times over many years prior to September 11, 2001, the FAA
considered and decided not to transfer all or some of airline security responsibilities to airport
11
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operators or the government. Many changes had occurred over the years, but airlines and airports
both still had responsibilities on September 11, 2001.
27.
Massport’s statement is not supported by its citation. According to the
deposition citation, Mr. Lawless’s point of contact for dealing with the FAA was Steven Longo.
He was assigned to Logan as a federal security manager, he reported directly to the FAA
headquarters in Washington, and he facilitated intelligence meetings. Plaintiff does not contest
these statements from Mr. Lawless’s deposition. Otherwise, Defendant’s statement is
unsupported.
28.
Again, Massport’s cited deposition transcript states that the PSI would
have routine contact with the corporate office for the airline, they had crisis management
responsibilities, some compliance review, and they would work with the carrier on “certain
issues, compliance with the regulations” and providing guidance and interpretation on the FARs,
ACSSP, and Security Directives, acting as a go-between. Plaintiff does not dispute the above
statements as they appear in the transcript.
29.
Uncontested
30.
If issues were identified during checkpoint audits, the FAA sent a letter to
Massport notifying it that a checkpoint violation had occurred. (See for example,
AALTSA061003, AALTSA060950, AALTSA060953 attached at Exhibit 29.) If the FAA
issued a fine for a checkpoint violation, that fine was levied against Massport. (Affidavit of
Michael Pilgrim, ¶ 48). Thus, Massport was involved in working with the FAA to address issues
identified during checkpoint audits.
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31.
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The FAA proposed penalties for security violators. Thereafter, Massport
and/or the airlines at Logan could agree and pay the fine, dispute the charge and oppose the fine,
or negotiate the fine.
32.
Under 14 C.F.R. 107.13, Massport delegated checkpoint security to the
airlines. However, Massport could only delegate checkpoint security to the airlines if the
airline’s procedures facilities and equipment were adequate to perform the security control
functions. (Affidavit of Michael Pilgrim, ¶ 21; 14 C.F.R. 107.13 attached as Exhibit 32.)
Massport had notice that the checkpoint screening was inadequate through LAMCO meetings,
FAA citations, media reports, its own observations, and the CTI audit team. (Affidavit of
Michael Pilgrim.) Massport instituted independent testing of checkpoints in April of 2001 in
order to enhance checkpoint screening effectiveness. (AVSEC Dep. Exhibit 221 at MP100789100792 attached at Exhibit 16.) Mr. Lawless stated in his deposition that he tried to implement
programs to improve the efficiency of checkpoint security between 1997 and 2001. (Deposition
of Joseph Lawless, March 30, 2007, p. 19-21, Exhibit 1; Affidavit of Michael Pilgrim, ¶39-44).
33.
September 11, 2001 began with 10 hijackers passing uninterrupted and
unhindered, through Logan airport and onto two airplanes with weapons – hardly a normal day.
See 9/11 Commission Report, August 26, 2004, p. 2-6, 17-19 attached at Exhibit 20.) Massport
employees, United employees, and Huntleigh employees did not identify any suspicious activity
to suggest that a terrorist attack was underway, although they missed many opportunities to do
so. (See Affidavit of Michael Pilgrim in its entirety).
34.
Uncontested
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35.
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The 9/11 Commission Report in a footnote stated it did not have evidence
of the hijackers’ selection of airports and surmised it was because of the availability and location
of 767s and 757s. (See Burton Decl. Ex. V at 451 n.1).
36.
On September 11, 2001, two of the flight 175 hijackers checked in at the
ticked counter appearing less than ordinary. They were “obviously unused to travel…they had
trouble understanding the standard security questions, and [the ticket agent] had to go over them
slowly until they gave the routine, reassuring answers.” Burton Decl. Ex. V at 1-2.
37.
Uncontested
38.
Uncontested
39.
Uncontested
40.
On September 11, 2001, none of the hijackers were reported, but prior to
September 11, 2001 at least two of the hijackers had been reported including to Massport police.
(Deposition of Stephen Wallace, p.103-113, 118-121, 143-144 attached at Exhibit 23.)
41.
The September 11, 2001 attack was carried out by hijackers who had
devoted substantial time to surveillance of Boston Logan and other airports as well as United and
American Airlines. The hijackers were noted by the 9/11 Commission report to be poor pilots
and not particularly careful as shown by their activities at Boston Logan in the months before the
hijackings. They did not hide their identities or resort to disguises and were able to kill over
3000 people by taking advantage of the negligence of Boston Logan airport, United Airlines,
American Airlines, and their subcontractor screeners.
42.
Uncontested
43.
Uncontested
14
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44.
Filed 06/25/11 Page 15 of 15
There is evidence that Massport failed to provide police presence at the
checkpoints and failed to investigate one or more repeated instances of September 11, 2001
hijackers conducting surveillance at Boston Logan Airport. (Deposition of Steven Wallace,
p.103-113, 118-121, 143-144 attached at Exhibit 23; Report on Theresa Spagnuolo on 9/29/01,
FBI0150-FBI0151 at Exhibit 24; Deposition of James Miller, May 23, 2008, pp. 85-90 at Exhibit
25.)
Dated: June 24, 2011
Respectfully submitted:
By: /s/_Mary Schiavo_______
Mary Schiavo
Ronald L. Motley
Joseph F. Rice
Donald A. Migliori
Vincent I. Parrett
Elizabeth Smith
James R. Brauchle
Motley Rice LLC
28 Bridgeside Boulevard
Post Office Box 650001
Mount Pleasant, SC 29465
Telephone: (843) 216-9000
Facsimile: (843) 216-9450
Attorneys for Plaintiff Bavis
Attorneys for the Plaintiff Mary Bavis
15
�
Dublin Core
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Title
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Boston Federal Aviation Administration Filings
Subject
The topic of the resource
litigation
airport security
Description
An account of the resource
These court filings provide evidence that the terrorists responsible for the September 11th attacks were observed assessing airport security prior to the events. For example, Mohammed Atta was spotted in May '01 taking still photographs, notes and video of the screening checkpoints at Logan. He was reported to law enforcement at the airport, but they failed to follow up.
Contributor
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Brian Sullivan, FAA Special Agent (Retired)
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Title
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Plaintiff Mary Bavis's Statement of Disputed Material Facts Pursuant to Local Rule 56.1
Description
An account of the resource
A Testimony account from Mary Bavis about security in Massport before and on September 11th. Bavis gives an overview of daily security procedures in the airport and on the planes between flights. Bavis also discusses the role of background checks of passengers and crew before 9/11.
Date
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June 25, 2011
Contributor
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Brian Sullivan
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Public Domain
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8e8b5751432b5a3ec3167b9194a78753
PDF Text
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Dublin Core
The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/.
Title
A name given to the resource
Boston Federal Aviation Administration Filings
Subject
The topic of the resource
litigation
airport security
Description
An account of the resource
These court filings provide evidence that the terrorists responsible for the September 11th attacks were observed assessing airport security prior to the events. For example, Mohammed Atta was spotted in May '01 taking still photographs, notes and video of the screening checkpoints at Logan. He was reported to law enforcement at the airport, but they failed to follow up.
Contributor
An entity responsible for making contributions to the resource
Brian Sullivan, FAA Special Agent (Retired)
Document
A resource containing textual data. Note that facsimiles or images of texts are still of the genre text.
Dublin Core
The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/.
Title
A name given to the resource
Affidavit of Michael K. Pilgrim
Description
An account of the resource
In his affidavit, security aviation specialist Michael K. Pilgrim gives a point-by-point synopsis of security at Boston Logan Airport before and after 9/11. Pilgrim attests that the airport had one of the most advanced security systems in the United States, even though it was still severely flawed and easy to manipulate.
Date
A point or period of time associated with an event in the lifecycle of the resource
June 25, 2011
Contributor
An entity responsible for making contributions to the resource
Brian Sullivan
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Information about rights held in and over the resource
Public Domain
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https://911digitalarchive.org/files/original/bcfa69e47540e98068e1dde2ff9b9be2.pdf
2d9c8645d4f5cc34263f24758575bc4a
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Text
Case 1:21-mc-00101-AKH Document 1469
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
:
:
:
IN RE SEPTEMBER 11 LITIGATION
:
:
:
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Filed 06/24/11 Page 1 of 51
No. 21 MC 101 (AKH)
This document relates to :
Bavis v. United Airlines Inc.et al.,
02 CV 7154
PLAINTIFF’S MEMORANDUM OF LAW IN OPPOSITION TO THE
MASSACHUSETTS PORT AUTHORITY’S MOTION FOR SUMMARY JUDGMENT
�Case 1:21-mc-00101-AKH Document 1469
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TABLE OF CONTENTS
INTRODUCTION.................................................................................................................................... 1
STANDARD OF REVIEW .................................................................................................................... 2
ARGUMENT............................................................................................................................................. 3
A. The standard of care is reasonable care under the circumstances, not strict compliance
with the far’s, although a genuine issue of material fact exists whether massport complied
with the minimum standards of the far’s ..................................................................................... 3
B. There are genuine issues of material fact whether massport breached its duty under a
reasonable care standard ................................................................................................................ 6
C. Massport had a duty under far part 107 to correct known security deficiencies at logan
airport, including deficiencies at the security checkpoints and there are genuine issues of
material fact whether massport did so ......................................................................................... 9
D. Massport had a duty as a landlord to ensure that its facility was safe and secure ............... 10
E. A genuine issue of fact exists regarding whether the hijackers breached the sida or aoa in
furtherance of the september 11, 2001 attacks ......................................................................... 13
RESPONSE TO MASSPORT’S STATEMET OF UNDISPUTED FACTS ............................ 16
WHAT THE EVIDENCE HEREIN HAS SHOWN ...................................................................... 29
SELECTION OF MASSPORT’S BOSTON LOGAN AIRPORT .............................................. 40
RESPONSE TO PRELIMINARY STATEMENT ......................................................................... 41
CONCLUSION ....................................................................................................................................... 45
i
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TABLE OF AUTHORITIES
CASES
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) ......................................................................... 2
B.F. Goodrich v. Betkoski, 99 F.3d 505, 521 (2d Cir. 1996) ........................................................................ 3
Basso v Miller, 40 N.Y.2d 233, 352 N.E.2d 868, 386 N.Y.S.2d 564 [1976] .............................................. 11
FAA v. Landy, 705 F.2d 624 (2d Cir. 1983).................................................................................................. 5
First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 288-289 (1968).................................. 2
Gallo v. Prudential Residential Servs., 22 F.3d 1219, 1224 (2d Cir. 1994) ................................................. 3
In re Air Disaster at Lockerbie Scotland, 37 F.3d 804, 815 (2d Cir. 1994) ..................................................... 5
In the Matter of World Trade Center Bombing Litigation, 776 N.Y.S.2d 713 (2004) ......................... 11, 12
Jacqueline S. v City of New York, 81 N.Y.2d 288, 295, 614 N.E.2d 723, 598 N.Y.S.2d 160 .................... 11
Japan Airlines Company, Ltd., v. Port Authority of New York and New Jersey, 178 F.3d 103 (2d Cir.
1999) ......................................................................................................................................................... 9
Jiggetts v. Tristar Patrol Serv., 2011 U.S. App. LEXIS 10528 at 2 (2d Cir. 2011) ..................................... 3
Kush v City of Buffalo, 59 N.Y.2d 26, 449 N.E.2d 725, 462 N.Y.S.2d 831 [1983].................................... 11
McNally v. Port Auth. (In re WTC Disaster Site), 414 F.3d 352, 379-80 (2d Cir. 2005) ............................. 4
Nallan v Helmsley-Spear, Inc., 50 N.Y.2d at 519-520 ......................................................................... 11, 13
Quaratino v. Tiffany & Co., 71 F.3d 58, 64 (2d Cir. 1995) .......................................................................... 3
Sanchez v State of New York, 99 N.Y.2d 247, 784 N.E.2d 675, 754 N.Y.S.2d 621 (2002) ....................... 11
Torres v. United States, 2011 U.S. Dist. LEXIS 38939 (S.D.N.Y. 2011) .................................................... 2
Statutes
49 U.S.C. § 44701 ......................................................................................................................................... 4
49 U.S.C. § 44702 ......................................................................................................................................... 4
ATSSSA........................................................................................................................................................ 3
Other Authorities
9/11/01 Commission Report ................................................................................................................. 40, 41
Regulations
14 C.F.R. §107 ..................................................................................................................................... passim
FAR 108 ........................................................................................................................................................ 1
ii
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PLAINTIFF’S MEMORANDUM OF LAW IN OPPOSITION TO THE
MASSACHUSETTS PORT AUTHORITY’S MOTION FOR SUMMARY JUDGMENT
Plaintiff, Mary Bavis, respectfully submits this memorandum of law in opposition to
Defendant Massachusetts Port Authority’s (“Massport”) Motion for Summary Judgment.
INTRODUCTION
On September 11, 2001, Massport had the overarching responsibility for security at
Boston Logan airport. Massport was required to adopt and carry out a security program that
provided;
for the safety and security of persons and property travelling
in air transportation and intrastate air transportation against
an act of criminal violence and aircraft piracy.
14 C.F.R. §107.3(1). Massport itself states in its security program that it is responsible for the
security of the airport, and that it would conduct periodic inspections to ensure that proper
security was maintained.
See Logan Airport Security Program (“ASP”) (attached to the
declaration of Joseph Lawless (“Lawless Decl.”) as Exhibit A) at I-1(A)(3). Massport was also
required to provide Law Enforcement Officers “in numbers and in a manner adequate to support
the Logan International Airport Security Program and each passenger-screening system (security
checkpoint) required by FAR 108.5(a)(1) and 129.25.” Id. at IV-1(A). In addition, Massport
was responsible for securing the SIDA and the AOA to ensure that no unauthorized persons
gained access to these areas.
Massport had notice that security at the checkpoints and other areas of Logan Airport was
abysmal.1 Despite having this notice and having the overarching responsibility for security at the
1
Exhibit 1, Deposition Transcript of Joseph Lawless, p. 136, ln 10-22 (“I knew that security checkpoint were
weak”); Exhibit 2, AVSEC Dep. Exhibit 213, April 27, 2001 Memorandum from Joseph Lawless to Virginia
Buckingham (outlines weaknesses in Massport’s checkpoints, SIDA and AOA security systems).
1
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airport, the evidence shows that Massport failed to adequately remedy Logan’s security
weaknesses. This failure proximately caused the September 11, 2001 attacks and the death of
Mark Bavis. The evidence demonstrates that a genuine dispute exists regarding the facts of
Massport’s liability, and its motion must be denied.
Also submitted in support of Plaintiff’s Opposition is the Affidavit of Michael Pilgrim.
Mr. Pilgrim has more than 30 years of experience in management, design, installation and
establishing and reviewing airport security systems from the standpoint of their level of
protection against terrorist threats. Both before and after September 11, 2001, he analyzed the
aviation security systems at Dulles and Logan airports.
STANDARD OF REVIEW
Summary judgment may not be granted unless “there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Federal Rule of Civil
Procedure 56(a) (2011). The moving party has the burden of showing the absence of a genuine
issue of material fact. Torres v. United States, 2011 U.S. Dist. LEXIS 38939 (S.D.N.Y. 2011).
The dispute as to an issue of material fact “is not required to be resolved conclusively in favor of
the party asserting its existence; rather, all that is required is that sufficient evidence supporting
the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing
versions of the truth at trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) citing
First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 288-289 (1968).
In
determining whether a material fact exists, the court must resolve all ambiguities in the nonmoving party’s favor." Jiggetts v. Tristar Patrol Serv., 2011 U.S. App. LEXIS 10528 at 2 (2d
Cir. 2011).
2
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When a court is confronted with facts that permit several different
conclusions, all inferences from the underlying facts must be
drawn in the nonmovant's favor. . . . The trial court must bear in
mind that ‘credibility determinations, the weighing of the evidence,
and the drawing of legitimate inferences from the facts are jury
functions, not those of a judge.’
The trial court's task is ‘carefully limited to discerning whether
there are any genuine issues of material fact to be tried, not to
deciding them. Its duty, in short, is confined at this point to issuefinding; it does not extend to issue-resolution.’
B.F. Goodrich v. Betkoski, 99 F.3d 505, 521 (2d Cir. 1996) citing Quaratino v. Tiffany & Co., 71
F.3d 58, 64 (2d Cir. 1995), Anderson, 477 U.S. at 255 (1986), and Gallo v. Prudential
Residential Servs., 22 F.3d 1219, 1224 (2d Cir. 1994).
Plaintiff has already provided briefing to this Honorable Court in Plaintiff’s
Memorandum of Law on the Applicable Standard of Care, Document #1458 and incorporates by
reference that memorandum which also applies herein.
ARGUMENT
A.
THE STANDARD OF CARE IS REASONABLE CARE UNDER THE
CIRCUMSTANCES, NOT STRICT COMPLIANCE WITH THE FAR’S,
ALTHOUGH A GENUINE ISSUE OF MATERIAL FACT EXISTS
WHETHER MASSPORT COMPLIED WITH THE MINIMUM STANDARDS
OF THE FAR’S
Nothing in ATSSSA suggests that Defendants’ liability for the United Flight 175
hijacking and crash should be adjudicated by applying a standard of care different from the
traditional state-law standard of reasonable care under the circumstances, which had long been
applied in pre-September 11th cases involving negligent aviation security.
Section 408(b)(2) of ATSSSA makes clear that “[t]he substantive law for decision in
any such . . . suit shall be derived from the law, including choice of law principles, of the State in
3
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which the crash occurred unless such law is inconsistent with or preempted by Federal law.” As
explained by the Second Circuit, “what ATSSSA itself displaces is not the substantive standards
governing liability, but only the state-law damages remedies.” McNally v. Port Auth. (In re WTC
Disaster Site), 414 F.3d 352, 379-80 (2d Cir. 2005).
Neither Congress nor the Second Circuit has suggested that the standard of care of
reasonableness under the circumstances is inconsistent with or preempted by the Federal
Aviation Regulations (FARs)’ minimum security standards.2
Indeed, federal statutory law
required Defendants to act reasonably in providing the highest possible degree of security in the
public interest. 49 U.S.C. § 44701(d)(1)(A); 49 U.S.C. § 44702(b)(1)(A). And to act reasonably
2
While Defendants argue that FAA regulations are not minimum safety standards, but rather mandatory, inviolate
requirements that prohibited Defendants from providing greater safety, Defendants' position is irreconcilable with
the plain text of the Federal Aviation Act ("FAAct"), which provides, among other things, that:
(a)
... The Administrator of the Federal Aviation Administration shall promote safe flight of civil aircraft
in air commerce by prescribing—
(1)
(2)
(d)
regulations and minimum standards in the interest of safety for— (A) inspecting, servicing, and
overhauling aircraft, aircraft engines, propellers, and appliances; ….
(5)
(b)
minimum standards required in the interest of safety for appliances and for the design, material,
construction, quality of work, and performance of aircraft, aircraft engines, and propellers;
regulations and minimum standards for other practices, methods, and procedure the
Administrator finds necessary for safety in air commerce and national security.
Prescribing minimum safety standards. The Administrator may prescribe minimum safety standards
for—
(1)
an air carrier to whom a certificate is issued under section 44705 of this title [49 U.S.C. §
44705]; and
(2)
operating an airport serving any passenger operation of air carrier aircraft designed for at least
31 passenger seats.
***
... When prescribing a regulation or standard under subsection (a) or (b) of this section ..., the
Administrator shall—
(1) consider
(A)
the [federal statutory] duty of an air carrier to provide service with the highest
possible degree of safety in the public interest .
49 U.S.C. § 44701 (emphasis added)
4
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in providing the highest degree of security is consistent with the state-law standard to act
reasonably under the circumstances.
It is a matter of law in the Second Circuit that compliance with FAA regulations does not,
in and of itself, establish due care. Although the majority of the cases deal with airline operators
who are defendants, it does not make the law inapplicable under the facts of the present case.
Massport, as an airport operator, falls under the same regulatory scheme as the airlines, albeit
two separate sections Federal Aviation Regulation (FAR) sections, with overlapping
responsibilities. It is law that compliance with Federal Aviation Regulations, specifically in
regard to aviation security, is not the end -all with regard to standard of care.
In FAA v. Landy, 705 F.2d 624 (2d Cir. 1983), the Second Circuit made quite clear that,
“the regulations outline minimum standards of safety,” id. at 636.
Although the FAA regulations occupy a key role in the trial of this case, it must
be kept in mind that Pan Am and Alert's compliance with them is not dispositive
of the outcome. As . . . the court instructed the jury, proof of full compliance with
the ACSSP would not necessarily provide appellants with a complete defense
against a claim of willful misconduct. FAA regulations only establish minimum
requirements for air carriers. A jury could conceivably find certain circumstances
under which an air carrier had committed willful misconduct even though
it followed FAA regulations to the letter.
In re Air Disaster at Lockerbie Scotland, 37 F.3d 804, 815 (2d Cir. 1994) ("Lockerbie").
Massport personnel concede the FAA requirements were minimums.
11
Q. And they develop that security plan in,
12 what, response to their local or area needs and
13 conditions?
14
A. Yes. It's -- what I would refer to as
15 sort of minimum standard that we had to comply with.
16 We certainly went above and beyond in many instances,
5
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17 but there were certain things you had to comply with
18 in order to be certificated by the Federal Aviation
19 Administration, and that is what was in these plans3
Additionally, prior to September 11, 2001, Massport had implemented a Guaranteed
Passenger Service Initiative. This program gave Massport the authority to not only regulate
checkpoint operations but also to punish the airlines for non-compliance. Exhibit 3 at pp. 148:1525, 149:1-12. This program was authored and instituted by Massport. Massport stressed to the
air carriers at Boston Logan that Massport had the authority to implement such a program.
Massport’s Airport Security Program recognized Massport’s authority to increase security
measures on an airport-wide basis given Massport’s assessment of current terrorist threats. Id. at
pp. 131:21-25, 132:1-2. Massport had broad discretion to increase security at the airport above
and beyond what was stated in the Federal Aviation Act and under the Federal Regulations. Id. at
134:11-17.
As such Massport’s duty was not confined to the Federal Aviation Regulation but is
governed by a reasonable care under the circumstances standard.
B.
THERE ARE GENUINE ISSUES OF MATERIAL FACT WHETHER
MASSPORT BREACHED ITS DUTY UNDER A REASONABLE CARE
STANDARD
There are questions of material fact of Massport’s compliance with both its regulatory
and reasonable care obligations in regard to security. Massport, as the airport operator, was
required to provide adequate law enforcement presence to support its security program and the
airline passenger checkpoints.
3
Exhibit 3, Deposition of Thomas Kinton, at p. 34
6
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Each airport operator shall provide law enforcement
officers in the number and in a manner adequate to support(1) Its security program; and
(2) Each passenger screening system required by part 108
or Sec. 129.25 of this chapter.
14 C.F.R. § 107.15(1-2)
Massport misstates their security duty was limited to response to incidents at a passenger
screening checkpoints and fences, doors and badges. It is clear from the Federal Aviation
Regulation language that Massport was to provide both quantity and quality to adequately
support the passenger screening system. On the morning of September 11, 2001, there was not a
permanently stationed law enforcement officer at the Terminal C checkpoint. Instead, Massport
directed its law enforcement officers to be a “flex response” meaning the officers would only
respond to the checkpoint if there was an incident or request from the airline. Massport concedes
a high visibility of law enforcement was important.4 Yet at the only point in the terminal where
all passengers must travel before entering the sterile area, there were no law enforcement officers
present. Massport could have had officers at the checkpoints and after the checkpoints, and in
fact Massport at times previous did post law enforcement officers at the checkpoints. An officer
certainly could have recognized Mohammed Atta whom Massport police saw on May 11, 2001,
and who was identified immediately to the Massport police as surveilling and videotaping
security. Massport officers could have engaged in random checks of bags and identification of
passengers after the passengers had passed the checkpoint. Massport instituted these procedures
following the events of September 11, 2001, even though they had not been given any additional
mandate from the Federal Aviation Administration.5 The lack of a law enforcement presence at
the security checkpoint and the limited deployment of officers before September 11, 2001,
4
5
Exhibit 3, at. p. 56:5-16
Exhibit 4, Deposition of Virginia Buckingham, p. 144:21-25; Exhibit 5, AVSEC 218 - MP10150- MP10153
7
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creates a genuine issue of material fact whether Massport adequately supported the passenger
screening checkpoint on September 11, 2001.
Additionally, whether Massport acted reasonably under the circumstances to protect its
passengers from acts of criminal violence and air piracy is a highly disputed fact. Massport had
the ability and authority to increase its security based on its perception of threat to safety.6
Throughout the year 2001 prior to September 11th, Massport was well aware of a growing and
real threat to aviation. Massport personnel were warned by the FBI and FAA. With this
knowledge of increased threat to aviation, Massport did nothing different in terms of increased
security other than make a lot of plans which were awaiting implementation on September 11,
2001. Massport’s failure to increase its security protocols with the knowledge of an increased
threat creates a genuine issue of material fact whether Massport acted reasonably in light of the
circumstances.
Massport on the morning of September 11, 2001, did not own nor utilize closed circuit
television at Logan Airport. The Federal Aviation Administration well before September 11,
2001 had recommended to airports that, “the use of closed-circuit television systems in an airport
can enhance and increase the level of security. Depending upon the airport’s needs, this system
may be focused primarily on the terminal or may be airport-wide….”7 The Director of Aviation
from Massport told the staff of the 9/11 Commission that cameras could act as a deterrent.8
Armed with the recommendation and knowledge of the deterrent effect of cameras, Massport
failed to install them. Without a doubt if Massport had checkpoint cameras they would have had
surveillance tape of Mohammed Atta and other hijackers surveilling the airport on May 11 and at
6
Exhibit 6, AVSEC EX 220, “Report of the Special Advisory Task Force on Massport”
Exhibit 7, AVSEC EX 774, Recommended Security Guidelines for Airport Planning Design and Construction, at
p. 115
8
See Exhibit 3, at p. 233:18-23
7
8
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other times. They could have reviewed the tapes after employees at Boston Logan Wallace,
Spagnoulo and Miller reported hijacker Atta survelling Boston Logan months before September
11, 2011. Atta’s picture and name could have been known and posted at every checkpoint. He
could have been placed on no fly lists and watchlists. He could have been stopped from flying
by Massport. Kinton testified thatMassport had that power.
Massport did not comply with FAR 107.15, by failing to adequately support the
screening checkpoint. Massport did not act reasonably under the circumstances in failing to
enhance security to include the installation and use of closed circuit television. On that point
alone, Massport’s Motion for Summary Judgment should be denied because the facts not only
show a lack of reasonableness, but an abject failure to do its statutory law enforcement duties.
C.
MASSPORT HAD A DUTY UNDER FAR PART 107 TO CORRECT KNOWN
SECURITY DEFICIENCIES AT LOGAN AIRPORT, INCLUDING
DEFICIENCIES AT THE SECURITY CHECKPOINTS AND THERE ARE
GENUINE ISSUES OF MATERIAL FACT WHETHER MASSPORT DID SO
Massport claims that it had no duties with regard to the checkpoints and, thus, cannot be
held liable for the checkpoint failures. However, the same argument was advanced by the Port
Authority as the owner and operator of JFK airport and was rejected by the Second Circuit.
Japan Airlines Company, Ltd., v. Port Authority of New York and New Jersey, 178 F.3d 103 (2d
Cir. 1999). In Japan Airlines, the Plaintiff sued the Port Authority for damages inflicted on one
of its aircraft by ice and snow on or near the runway at JFK, claiming the Port Authority failed to
properly clear the ice and snow. Id. The Port Authority argued that it could not be found
negligent for failing to clear the ice and snow beyond the edges of the runway because it was not
specifically required to do so. Id. at 109. The Second Circuit disagreed, citing to the Port
Authority’s overall duty to maintain the airport in a safe manner:
9
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The Port Authority’s status as an airport operator required it to
maintain JFK in a reasonably safe manner for the benefit of
passengers and carriers using the airport. It is obligated to ensure
that the airport conditions are safe for landing and departing
aircraft, and to give proper warning of any condition that would
affect the safe operation of an aircraft.
Id. The Port Authority then tried to claim that it met this standard, but it was not required to
clear the sides of the runways beyond the edge. The court stated that since the Port Authority
was aware of the narrowness of its runways in relation to the size of the aircraft landing at JFK, it
should have assumed responsibility for the areas beyond the edge of the runways, and its failure
to do so was “a violation of their duty to provide carriers and their passengers with safe operating
conditions.” Id. at 110.
Although Massport claims here that it had no specific duties regarding the checkpoints,
its overarching duty to provide for the “safety of persons travelling in air transportation” is
paramount. 14 C.F.R. 107.3(1). Massport knew the checkpoints were failing, yet it did little or
nothing to remedy these failures. As in Japan Airlines, this is a violation of Massport’s duties,
for which it can be found negligent.
D.
MASSPORT HAD A DUTY AS A LANDLORD TO ENSURE THAT ITS
FACILITY WAS SAFE AND SECURE
Massport owned Logan Airport including the terminals, parking garages, aprons,
taxiways, runways, and surrounding land.
Massport leased space to various commercial
enterprises at Logan including the various airlines and other commercial vendors such as
restaurants and other retail shops. Massport is the landlord of Logan Airport and as such owed a
duty to Mark Bavis to protect him from acts of criminal violence and air piracy. A landowner or
landlord who holds its land open to the public is under a legal duty to exercise reasonable care
under the circumstances to maintain the premises in a reasonably safe condition. In the Matter of
10
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World Trade Center Bombing Litigation, 776 N.Y.S.2d 713 (2004), citing Kush v City of Buffalo,
59 N.Y.2d 26, 449 N.E.2d 725, 462 N.Y.S.2d 831 [1983]; Basso v Miller, 40 N.Y.2d 233, 352
N.E.2d 868, 386 N.Y.S.2d 564 [1976].) The duty includes taking minimal security precautions
against reasonably foreseeable criminal acts by third parties. Nallan v Helmsley-Spear, Inc., 50
N.Y.2d at 519-520; see also Jacqueline S. v City of New York, 81 N.Y.2d 288, 295, 614 N.E.2d
723, 598 N.Y.S.2d 160. The criminal act perpetrated by the hijackers, namely the carriage of
weapons and subsequent hijacking were not only foreseeable but foreseen by Massport.
Massport was aware of the threat of terrorist attacks against civil aviation.9 Further, Massport
was aware the passenger screening being conducted by the screeners was woefully inadequate.10
The hijacking of an aircraft and/or criminal violence was foreseeable to the entire
traveling public, and certainly to Massport. The reason passenger screening was implemented
was to prevent violence and hijacking, as well as prevent the carriage of dangerous weapons on
board an aircraft. Foreseeability includes what a landlord actually knew, as well as what it
reasonably should have known. Sanchez v State of New York, 99 N.Y.2d 247, 784 N.E.2d 675,
754 N.Y.S.2d 621 (2002). Massport knew of the increased threat of a hijacking or terrorism
against civil aviation. Massport had been briefed an attack was not a question of if “but a
question of when”.11
On September 11, 2001, Massport was operating under AVSEC Threat
Level III which meant there was information to indicate a terrorist group or other hostile entity
with a known capability of attacking civil aviation was likely to carry out attacks against U.S.
targets. Massport takes the position the use of the airplane as a bomb was not foreseeable,
however, this position is misplaced, for two reasons.
First, under the Federal Aviation
Regulations Massport has to prevent against criminal violence and air piracy, of which on
9
See Pilgrim Affidavit ¶ 11,12, 26, 41, 42
See Pilgrim Affidavit ¶ 40, 44, 46
11
Exhibit 8, Meeting Minutes, at p. MP100706
10
11
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September 11, 2001, Massport failed to do so, despite a wealth of information such a hijacking
or attack was foreseeable. To establish foreseeability in New York there is not a requirement to
demonstrate that the criminal activity be at the exact location or be of the same type of criminal
conduct to which a plaintiff was subjected. See In the Matter of World Trade Center Bombing
Litigation at 735. Massport had specific knowledge of the threat and based on the evidence of
their knowledge, a genuine issue of material fact exists. Second, Mark Bavis was a passenger on
the hijacked plane. Whether or not the plane was crashed into a building or stormed by special
forces to regain control, passengers are harmed and sometimes die when planes are hijacked.
The argument that Massport didn’t know the plane would be used as a bomb is especially
meritless in a passenger case. Passengers are put at risk of death any hijacking.
As an airport operator and landlord, Massport had a duty to assure the airlines were
providing adequate screening. Massport knew the airlines were doing a poor job.12 Massport’s
Director of Public Safety, informed the head of Massport in April 2001, about security
vulnerabilities including the checkpoints.13 In May, 2001, a local FOX newscast demonstrated
the weakness of the checkpoints.14 Massport was so concerned with checkpoint screening, they
proposed their own testing procedures of the checkpoints.15
Based on Massport’s knowledge of
the screening deficiencies, a genuine issue of material fact is present regarding the foreseeability
of a breach of the security checkpoint.
Since there is a genuine issue of material fact as to whether a hijacking and/or attack was
foreseeable, the inquiry now turns to whether Massport acted reasonably in regards to their
safety precautions. “The reasonableness of safety precautions is almost always a factual issue
12
See Pilgrim Affidavit ¶ 40
See Pilgrim Affidavit ¶ 41
14
See Pilgrim Affidavit ¶ 37-40
15
See Pilgrim Affidavit ¶ 47
13
12
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for the jury.” Id. at 726. The type of safety measures that building operators and managers are
reasonably required to provide is almost always a question of fact for the jury Nallan v HelmsleySpear, Inc., 50 NY2d 507, 520, 522 (1980). Massport argues they were constrained to the
Federal Aviation Regulations, however, as previously discussed, the Federal Regulations
establish minimum standards. Massport had the ability to install close circuit television which
they admitted would act as a deterrent. Massport could have placed officers permanently at the
passenger checkpoints and had officers beyond the checkpoints conduct random identification
checks and baggage searches, as they did post September 11, 2001. The reasonableness of
Massport’s actions or inactions is a genuine issue of fact, negating Massport’s Motion for
Summary Judgment.
E.
A GENUINE ISSUE OF FACT EXISTS REGARDING WHETHER THE
HIJACKERS BREACHED THE SIDA OR AOA IN FURTHERANCE OF THE
SEPTEMBER 11, 2001 ATTACKS
To the extent that United or Huntleigh claim that the hijackers were able to obtain their
weapons by breaching the Security Identification Display Area (“SIDA”) or the Air Operations
Area (“AOA”), or by working in concert with others who breached these areas, or by buying
their weapons in the airport or by obtaining the weapons from a Red Carpet Club or restaurant
after clearing security, there is a genuine dispute as to material facts, and Massport’s motion
must be denied. United and Huntleigh advanced this claim before this Honorable Court in
myriad hearings and in depositions and arguments.
As Massport acknowledged in its brief, it
had the duty under federal law to secure the SIDA and the AOA and to issue badges to persons
authorized to enter the SIDA. See Memorandum of Law in Support of the Massachusetts Port
Authority’s Motion for Summary Judgment, p. 4. It was Massport’s responsibility to ensure that
no unauthorized person gained access to these areas. Furthermore, Massport’s ASP required all
13
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Massport employees to notify the Massachusetts State Police if a suspicious, unknown, or
unauthorized person was located within the AOA or SIDA.16
Massport was further required to
maintain records of unauthorized persons who were apprehended in the AOA. Id.
The evidence shows that breaches to the SIDA and AOA were commonplace at Logan
prior to September 11, 2001. In April of 2001, Joseph Lawless, then Director of Public Safety at
Massport, wrote a memo to Virginia Buckingham, director of Massport at the time, regarding
vulnerabilities at the airport that could subject it to terrorist attacks, including problems with
AOA security and the access control system.17 The memo stated, “Airports have historically
been targets of terrorism” and “there are existing vulnerabilities that must be addressed.” Id. at p.
1. With regard to the AOA, the memo stated that “the variety of perimeter control barriers and
the lack of perimeter controls in other areas make it extremely difficult, if not impossible to
defend.” Id. The following incident is noted:
A fourteen (14) year old climbed the security fence in the North
cargo area of the airport and in broad daylight, traversed the AOA
for one half mile, undetected. The youth unscreened, illegally
boarded a British Airways 747, and flew to London. The youth
could have easily introduced an explosive device or weapon onto
that aircraft. Id.
The memo further stated “There have been numerous instances of clam diggers, fishermen,
hunters and boatsmen entering the AOA from the waterside. An intrusion detection system
combined with CCTV and a reengineered perimeter line would greatly enhance today’s
security.” Id. at p. 2. As of September 11, 2001, Massport had not instituted such an intrusion
detection system.
Mr. Lawless’ memo also notes serious problems with the access control system at Logan:
16
17
See ASP (attached to Lawless Decl. as Exhibit A) at III-13, ¶4.
See Exhibit 2
14
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When the access control system was installed more than ten years
ago, a decision was made to allow tenants to control access to the
AOA, through their controlled space. That decision has resulted in
an inconsistent and sometimes ineffective control of access to the
AOA…alarms are supposed to be monitored by the air carriers.
Indications are the carriers are not performing these security
functions.
On numerous occasions, these doors can be
compromised because the alarms have been bypassed, or, no one
responds to the alarm…Emergency doors, rooftop hatches, crawl
spaces and utility tunnels are additional areas that require access
controls. Massport installed access control equipment, antipiggybacking technology and CCTV are the most likely solutions
to these problems. Id.
Again, as of September 11, 2001, Massport had not installed any of these measures.18
Finally, the memo notes vulnerabilities in Logan’s identification and control procedures:
The airport is responsible to granting AOA unescorted access
privileges to employees…Employees of the airport can come and
go freely after they have received their unescorted access
privileges. Vendors are allowed to be escorted onto the AOA
without being screened. Limiting employees to certain entrances
and screening all employees and vendors through metal detectors
and x-rays would enhance the overall security of the airport.19
Notably, Mr. Lawless mentions here that other airports were exceeding the requirements in this
area, stating “Other airports do screen all employees entering the AOA. There is no requirement
to do this.” Id.
In May of 2001, Counter Technologies, Inc. (CTI) began an extensive study on the
security vulnerabilities at Logan.20 A few months later, a report from CTI consulting was issued,
outlining a number of deficiencies that were in existence on and before September 11, 2001:
•
The access control and alarm intrusion detection system is
extremely slow and is not being used to its fullest
capabilities.
18
Exhibit 3, Deposition of Thomas Kinton at p.167 ln. 18-24
See Exhibit 2, at p. 2
20
Exhibit 9, AVSEC Dep. Exhibit 42, Report, “Physical Security Assessment: Boston Logan International Airport,”
First Draft, November 6, 2011, Section III. A.
19
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•
•
•
•
•
•
•
Filed 06/24/11 Page 19 of 51
Poor perimeter access control measures have allowed
several detected breaches that could have resulted in very
serious incidents. One can only speculate as to the number
of undetected breaches of security since BOS lacks both a
perimeter access control system and a CCTV system.
Before September 11, there was no LEO [law enforcement
officer] presence along the perimeter and the AOA.
Unauthorized access to the property can be easily obtained
via watercraft from the Boston Channel…
Before September 11, trees and foliage found along the
perimeter fence hindered monitoring of the perimeter and
facilitated undetected and easy access to the airside…
Before September 11, several sections of the perimeter
fence were in need of repair…
Gate guards assigned to control access to perimeter
construction projects do not properly enforce BOS rules
and regulations regarding proper SIDA access or proper
escorting of personnel.
Emergency doors, rooftop hatches, crawl spaces and utility
tunnels are not integrated in the access control system.
Id. at Section III. D
Certainly, this evidence shows that a genuine issue of material fact exists regarding whether
Massport failed to carry out its responsibilities to secure the SIDA and AOA and whether these
failures contributed to the September 11th attacks. The jury should be allowed to hear this
evidence and determine Massport’s liability for the death of Mark Bavis.
RESPONSE TO MASSPORT’S STATEMET OF UNDISPUTED FACTS
Plaintiff submits herewith its required paragraph by paragraph response to Massport’s
statement, but also wishes to discuss some serious factual disagreements herein. In its Statement
of Undisputed Material Facts, Massport declares it did not "involve itself in the any way with the
airlines'...operations" and that "[a]irlines operating at Logan Airport maintained and controlled
all aspects of their operations...."21 That statement simply isn't true. Massport, developed
21
Airlines operating at Logan Airport maintained and controlled all aspects of their operations, including
ticket sales, check-in counters, passenger screening checkpoints, boarding gates, and baggage handling. (Ex. D to
the May 27, 2011 Declaration of Allen W. Burton (“Burton Decl.”) at 20, 76–78; Lawless Decl. ¶¶ 10–15.)
16
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security initiatives that directed air carriers to improve open additional security lanes to reduce
security lines and passenger’s vulnerability to attack while waiting in line, and enhance their
security operations. Air carrier leasing terms and Massport’s Airport Security Plan (“ASP”)
provided the authority for Massport to act and dictate air carrier operations, including security
operations.
In February 2001, Massport instituted a series of checkpoint actions called the
Guaranteed Passenger Standards program, which among other mandates, required air carriers
operating at Logan to clear passengers through security in 5 minutes from the time the passenger
entered the security queue.
This program was created in response to growing passenger
frustrations at Logan.22 Massport stated that it took data and goals from the air carriers and
developed the performance goals, and did so without regard to its effect on security.23 Joseph
Lawless, who was Massport’s Director of Public Safety on 9/11, told the 9/11 Commission he
was not consulted about the customer service program and no one considered its impact on
security:
Lawless was asked about the Customer Service Program that
Logan sought to launch in early 2001 that would assure that
customers got through the various stages of the traveling process,
including checkpoint security, in a timely fashion. Lawless said he
was never asked his opinion about the program or how it might
impact security. He didn't know whether the intent of the program
was to increase staffing at the checkpoints to expedite the process,
or simply to make the process faster no matter what. He
remembers observing people with stopwatches timing various
aspects of passenger processing, but did not notice anyone timing
the checkpoints.24
Massport did not receive passenger manifests or involve itself in any way in the airlines’ in-flight services or
operations. (Lawless Decl. Ex).
22
Exhibit 10, AVSEC EX 340, MP102162-MP102163
Exhibit 11, AVSEC EX 500, MP102159-MP102160
24
Exhibit 12, 9/11 Commission Staff Memorandum for the Record, November 5, 2003 Interview with Joseph
Lawless
23
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Air carriers objected to the program believing Massport’s actions to be "unlawful." Massport
believed otherwise and cited its "proprietary rights as owner and operator of the airport" for its
authority to institute changes to air carrier operations. It noted the Logan lease terms required
tenant air carriers to provide a "reasonable level of customer service."25 Massport's CEO on
9/11, Virginia Buckingham, told the 9/11 Commission that after "... Massport staff observed the
[pre-boarding] process, they realized the problem was inadequate staffing at the checkpoints and
the goal [of the Guaranteed Passenger Standards Program] was to 'embarrass' the airlines into
hiring more staff, with a potential threat of removal of gates for those who did not comply."26
Her statement also contradicts Massport's assertion in ¶ 23 of its Undisputed Facts that “it had no
role in checkpoint security performance, selecting screening companies hired by airlines, or
hiring, training, or supervising checkpoint screeners.”
More importantly, about the same time that Massport instituted its checkpoint wait and
additional checkpoint lanes initiatives, local news reports were documenting how ineffective
Logan checkpoint screening was and how easy it was to gain access to restricted areas of the
airport including access to airplanes. 27 Massport had been previously informed by the FBI that
known terrorists had worked in and around Logan Airport and had likely conducted surveillance
of the airport.28 In response, Massport sought to enhance checkpoint screening effectiveness by
conducting independent weapons testing of checkpoints. In April 2001, Massport proposed the
beginning of the testing of checkpoints, seemingly unconcerned that its No More than 5 Minute
Checkpoint Wait program ran counter to efforts to enhance security.29 The program encountered
25
Exhibit 13, AVSEC EX 215, MP102166-MP102167
Exhibit 14, 9/11 Commission Staff Memorandum for the Record, November 5, 2003 Interview with Virginia
Buckingham
27
See Exhibit 2; Exhibit 15, AVSEC EX 398, “February 2001 Transcript of Fox News Report”
28
See Exhibit 2; Exhibit 12
29
Exhibit 16, AVSEC EX 221, MP100789- MP100792; Exhibit 1, at p. 19-21
26
18
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objections from the air carrier, which included charges Massport had overstepped its regulatory
role. According to Lawless, air carrier objections (but not FAA objections) led Massport senior
executives to cancel the testing program.30 Despite the program being canceled, Massport firmly
believed it could test and direct air carriers to enhance checkpoint screening, and that belief was
backed by the FAA approval of its plan and the plan’s implementation immediately after
September 11, 2001.
Other Massport actions show it intended to dictate security operations to the air carriers.
For example, Massport refused to accept the background checks for new air carrier employees
after it became aware that air carrier's security background checks were woefully inadequate. In
its place, Massport, at the direction of Lawless, instituted with the FBI more thorough
background checks for airline and security contractor employees. Thus, Massport had direct
influence on who could work at Logan.31 The enhanced background checks also contradict ¶ 23
of Massport’s Undisputed Facts claiming it “had no role in checkpoint security performance,
selecting screening companies hired by airlines, or hiring, training, or supervising checkpoint
screeners.”
Additionally, in its day-to-day operations Massport’s own actions in 2001contradict its
assertions in 2011 that it had limited involvement in air carrier security operations. Massport
held regular security meetings with Logan air carriers and screening companies. The meetings,
involving the Logan International Airport Security Consortium (“LIASC”) and the Logan
Airlines Manager’s Council (“LAMCO”), discussed air carrier, screening, and airport security
operations and problems. See for example meeting minutes at Exhibit 8, AVSEC EXs 382, 350,
494, 345, and 344. If Massport truly did “not involve itself” with air carrier security operations,
30
31
Exhibit 1, at p. 146.
Exhibit 17, AVSEC EX 388 at MP101026
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no meetings would be necessary.
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Massport’s concern about air carrier security operations, its
attempts to correct air carrier security operations demonstrates it was “involved” and took an
active role in air carrier security operations, as it should have as owner and operator of the
airport, and as clearly required by FAR 107.
Massport’s authority to direct air carrier operations and security stemmed not only from
its overarching duties set forth in FAR 107, but also from the air carrier lease sign by United.
The lease specifically states the air carrier, in the course of taking all “security precautions and
provid[ing] all personnel and equipment necessary to comply with all applicable laws and
regulations for passenger screening and other security services for passengers using the Gates,
including, without limitation, laws, rules and regulations promulgated by the Federal Aviation
Administration ("FAA") …shall use contractors acceptable to the Authority.”
Authority
meaning Massport - (emphasis added.) This lease term is the specific authority with which
Massport rejected incomplete background checks for some air carrier employees. The lease also
required air carriers “take such security precautions, at Tenant's sole expense with respect to the
Premises and Ramp Area and the Tenant's operations and service personnel, related thereto, as
the Authority in its sole and absolute discretion may, from time to time, require.” (Emphasis
added.)32. In fact, the tenant would be in default if it failed “to comply with any applicable law,
rule or regulation concerning security, and such failure continues for 48 hours after written
notice from the Authority….”
Id. at MP100121.
These lease terms clearly show Massport
possessed the contractual authority to approve of its tenant’s security contractors, to dictate
security operations to the air carriers as necessary and to terminate the agreement based on
security failures it found. Confirming this interpretation of Massport’s power as landlord, The
32
Exhibit 18, “Logan International Airport Terminal Lease between The Massachusetts Port Authority and United
Airlines, Inc. December 1, 1998” at MP100085
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Special Task Force on Massport in its post 9/11 recommendations specifically argued Massport
should “vigorously enforce” its authority as landlord to raise security beyond what the FAA may
establish.33
The general suggestion throughout Massport’s Undisputed Facts that it could do no more
than those meager duties it claimed were delineated to it is contradicted by several instances
which went beyond its FAR 107 obligations.34 Massport developed the “Laser Program” in
which Logan officers audited critical areas on a random basis. This added security procedure
exceeded existing regulatory requirements. Massport also developed an advanced K-9 program
and created a custom firefighting protocol specific to Massport.
Both of these programs
exceeded existing regulatory standards. Id. at p. 7. As it should have, Massport acted to ensure
the safety of its passengers and not to simply meet a regulatory responsibility. This point was
made by Buckingham when she explained to the 9/11 Commission that even though regulation
had separated security duties between the air carrier and airport, the flying public saw ultimate
security responsibility falling to the airport, which is why Massport began reviewing air carrier
security operations.35
Similarly, ¶10 of Massport’s Undisputed Facts also claims Massport’s regulatory duties
were limited to providing an “on-the-ground airport environment for the airlines to operate in
and carry out its specific federally assigned security duties.”36 And yet, Massport’s Airport
Security Program shows Massport had a greater role to play in determining the necessary
33
Exhibit 6, at p. ii
For example, see Massport Undisputed Facts ¶ 15: “15. On September 11, 2001, Massport implemented its
assigned responsibilities under FAR Part 107 (applicable to airport operators) by following the procedures set forth
in Logan Airport’s Airport Security Program (“ASP”), which was specifically approved by the FAA. (Lawless Decl.
Ex. A; Lawless Decl. ¶ 9; Burton Decl. Ex. F at 32:6–24.)
35
“Buckingham was frustrated that the legal framework was clear on who was responsible for what with respect to
airport security, but to the public it was all the airport's responsibility. That was why Massport was concerned with
matters such as screening vulnerabilities, baggage handling and passenger waiting time at the gate.”; See Exhibit 9
36
10. As owner of Logan Airport, Massport’s role was to provide the on-the ground airport environment for the
airlines to operate in and carry out its specific federally assigned security duties. (Lawless Decl. ¶¶ 9, 16–18.)
34
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security for its operations under the Contingency Security Plan: “The FAA or Logan
International Airport and affected airlines will determine when increased security measures are
necessary in response to recognized threat conditions or situations and will identify the
appropriate threat level."37
Massport’s regulatory duties went beyond providing a suitable
premise in which air carriers could operate.
Massport’s Undisputed Facts labors to leave the impression its duties were distinct and
separate from the air carriers.38 This notion runs counter to the repeated industry mantra that
aviation security was a collaborative effort between the airport, air carrier and FAA with
overlapping roles and responsibilities—a “layered” system of defense.39 A “layered system of
systems” security philosophy was known to Massport. Lawless’ security files included the
FAA’s Alexis M. Stefani March10, 1999 testimony before Congress, in which Strefani stated:
An important message of our testimony today is that aviation
security is a layered and integrated system of systems, and
effective security relies on a careful blend of technology,
procedures, a well-trained security work force, and oversight.
FAA and industry need to continue to work cooperatively to
maximize the use of explosives detection equipment, improve the
proficiency of explosives detection equipment operators, and
increase and support training on security awareness.40
One security task that both Massport and the air carriers shared, and which Massport
utterly, completely, and disastrously failed to perform was an awareness and investigation of
suspicious behavior occurring at the airport.
37
Even though Massport stated the “flexible
Exhibit 19, Massport’s Airport Security Program, § V-1, MP10045
For example, Massport’s Undisputed Facts ¶ 17: “17. The ASP did not alter the delineation of duties set forth in
the Federal Aviation Act so as to impose on Massport duties that were exclusively assigned to the airlines under
FAR Part 108, such as passenger screening. (Lawless Decl. Ex. A at III, IV, and VI; Lawless Decl. ¶ 10.)”
39
Exhibit 20, 9/11 Commission Final Report, p.83: The FAA set and enforced aviation security rules, which airlines
and airports were required to implement. The rules were supposed to produce a “layered” system of defense. This
meant that the failure of any one layer of security would not be fatal, because additional layers would provide
backup security. But each layer relevant to hijackings—intelligence, passenger prescreening, checkpoint screening,
and onboard security—was seriously flawed prior to 9/11. Taken together, they did not stop any of the 9/11
hijackers from getting on board four different aircraft at three different airports.
40
Exhibit 21, AVSEC EX 391, MP103636
38
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response” of LEOs in the airport allegedly allowed for high “visibility throughout the airport and
to observe activity in both the sterile and non-sterile areas,”41 Massport LEOs were not present,
or not aware, or ignored that the 9/11 hijackers openly and repeatedly surveyed Logan
checkpoint operations in the spring and summer of 2001.42
In May 2001, air carrier employees and checkpoint screeners became aware that two
Middle Eastern men outside the main security checkpoint were acting suspiciously. Stephen
Wallace, an American Airlines employee, noticed on May 11, 2001 that he was being observed
by two men with pilot’s bags. At the time, Wallace was setting up an information kiosk
identifying dangerous items not permitted on planes. Wallace noticed that one of the men was
videotaping and taking pictures of the checkpoint while the other was on a cell phone. Wallace
was so suspicious of the men’s behavior that he asked if they had any of the dangerous goods in
their bags. The men spoke only Arabic and moved away from Wallace. Wallace then followed
the men as they left toward the American Eagle checkpoint where they proceeded through the
screening.
Wallace left the suspicious men at the checkpoint and assumed they flew to
Washington, D. C.
Wallace would later identify American Air carrier Flight 11 Hijacker
Mohammed Atta as one of the two men he saw that day. And according to Wallace’s deposition,
he informed two Massport employees including Massport law enforcement and a checkpoint
screener about the two suspicious men.43
41
Massport’s Undisputed Facts ¶ 19: “19. State Police officers were not stationed in fixed posts at passenger
screening checkpoints. Instead, Massport employed a “flexible response,” in which the State Police dispatched
officers to checkpoints when alerted by airline and security company personnel. The State Police would be called to
a checkpoint where a screener identified an illegal weapon passing through the x-ray machine, a screener was
confronted with an unruly passenger, or a person breached security and entered the sterile area. The “flexible
response” approach enabled officers to have visibility throughout the airport and to observe activity in both the
sterile and non-sterile areas, and facilitated quick responses to incidents throughout the airport. (Lawless Decl. ¶ 17.)
42
Interestingly, the Report of the Special Task Force on Massport suggests that union rules prevented Massport from
fielding the most qualified, best trained officers for airport duty. See Exhibit 15, pp. 8-9.
43
Exhibit 22, “FBI Interview of Stephen Wallace,” FBI0370-FBI0371; Exhibit 23, Deposition of Stephen Wallace,
July 17, 2007 at p. 103-13, 118-21, 143-44
23
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Similarly, Theresa Spagnuolo, who was a checkpoint screener for Huntleigh on the
morning of September 11th and formerly a pre-boarding for Globe Aviation Services (“Globe”),
told the FBI that she observed a Middle Eastern man some “four month ago” (corresponding to
May 2001) videotaping the main security checkpoint. Finding the behavior highly suspicious
she told her supervisor. Spagnuolo later identified the Middle Eastern man she saw as American
Air carrier Flight 11 hijacker Mohammed Atta.44
Likewise, sometime before September 11, 2001, James Miller, a former Globe duty
manager at Logan Airport, observed one or more Muslim-appearing persons photographing the
“whole checkpoint setup.” He reported their activities.45
Even passengers at Logan noticed the hijackers’ odd behavior. Jan Shineman told the
FBI that she spotted Mohammed Atta at Logan on September 9th “checking out” flights.
Shineman thought Atta was “so out of place,” --he had no luggage, asking repeated questions
and acting arrogantly.46 Even though Massport understood that the airport itself was a target47
and was previously under surveillance by terrorists who worked in and around the airport,
48
the
testimony of AA employee Wallace and checkpoint screeners Miller and Spagnuolo and
recollections of passengers like Shineman demonstrate Massport did not train or otherwise
44
Exhibit 24, “FBI Interview of Theresa Spagnuolo,” FBI0150-FBI0151
Exhibit 25, Deposition of James Miller, May 23, 2008, pp. 85-90
46
Exhibit 26, AVSEC EXHIBIT 498, “Hijackers' ringleaders scouted out airports,” Boston Herald, May 29, 2002
47
Exhibit 1, pp. 151-152.
48
See Exhibit 12, “In February 1996, the FBI again approached Lawless, this time about a U.S. Airways baggage
handler who was a member of Hezbollah who had been trained at a paramilitary camp in Lebanon, The subject had
been issued an airport badge that gave him access to the Air Operations Area (AOA). Again, the FBI requested that
Lawless terminate the individual's access and employment. He contacted US Airways and both access and
employment were terminated.” AND “In 1999/2000 Lawless was contacted by the Mass. State Police regarding a
cab driver who frequented Logan. He later read in the newspaper that the person was connected to the Cole attack
and a plan to bomb an embassy. MASSPORT was asked to search records on him. Lawless said he felt as though the
cabbie was surveying the airport. The individual's name is Riad Hijazzi. He believes he is now in Jordanian
custody.” AND “Early in 1994 Lawless was approached by a special agent out of the FBI's Boston
field office who wanted to talk about an employee at MASSPORT who officials suspected was a member of
Hezbollah. The subject was working (temporary) as an interpreter greeting passengers at the international terminal.
The agent recommended that MASSPORT rescind the subject's access pass and fire him. Lawless looked in to the
matter, consulted his counsel, and did exactly as suggested by the FBI within two days of the initial meeting.”
45
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sufficiently inform its employees or its air carrier tenants and screening contractors how to spot
suspicious behavior and did not have procedures in place to report and fully investigate
suspicious behavior when spotted. On May 11, when spotted and pointed out to them, Massport
stood by and watched Mohammed Atta pass through security and did nothing – not even a glance
at his name or a ticket or drivers license.
Compounding Massport’s inability to spot and inability, ignorance or unwillingness to
investigate or otherwise act on suspicious activity was Massport’s failure to implement CCTV in
critical areas of the airport. The lack of CCTV, particularly at the checkpoints, is further
evidence of Massport’s failure to provide “on-the-ground airport environment for the airlines to
operate in and carry out its specific federally assigned security duties.” While not required by
regulations to have CCTV, Massport failed to install closed circuit TV to monitor checkpoints
and other sensitive public areas despite its knowledge that terrorists had surveyed the airport
previously and had worked in and near the airport. Lawless saw the need for CCTVs in 1996 but
his requests were not funded. By September 11, 2001 Massport had only agreed to a feasibility
study for their use.49 The decision to not have CCTV and to use a “flexible response” approach
with LEOs left sensitive areas of a large airport out of view and was an obvious security concern.
Kinton admitted both would have had a deterrence effect.50
In paragraph 10 of Lawless' Declaration51 in support of Massport’s motion, he stated
“Massport was not aware of each airline's specific screening policies…. air carrier and security
screening companies also maintained the Checkpoint Operations Guide (the"COG"), which
49
See Exhibit 12
Exhibit 3, at pp. 238: 18-23
51
10. The FAA assigned passenger screening responsibilities to the airlines under FAR Part 108. Massport's FAAapproved ASP therefore did not include passenger screening responsibilities for Massport. Each airline operating at
Logan Airport had its own FAA-approved security program called the Air Carrier Standard Security Program (the
"ACSSP"), and Massport was not aware of each airline's specific screening policies. In addition, airlines and
security screening companies also maintained the Checkpoint Operations Guide (the "COG"), which provided
guidelines for the operators of the passenger screening checkpoints. Massport never received a copy of the COG.
50
25
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provided guidelines for the operators of the passenger screening checkpoints.” And “Massport
never received a copy of the COG,” despite the fact that Massport was tasked with responding to
the checkpoint to opine and decide on weapons and other prohibited items passing through the
checkpoint into the sterile area.52
Yet, when asked by Plaintiffs at his March 30, 2007 deposition, Lawless testified that as
part of his duties, he “familiarized” himself with the screening companies at Logan.53 Further
still, weeks after 9/11 Massport was able to make detailed recommendations to Secretary
Mineta’s Rapid Response Team about checkpoint screening requirements: the FAA should
"[i]mmediately standardize items restricted from the secured areas - The FAA and the air carriers
are using inconsistent standards in determining which items are restricted from the secured
areas.” The recommendation further stated “[t]here must be a standardized list between the FAA
and carriers to avoid confusion among law enforcement personnel and security checkpoint
personnel about the types of items that should be confiscated during the screening process.”54
Clearly, Massport was aware of the federal screening requirements and the different screening
procedures its tenant air carrier’s used and its obligation to see that they met the requirements of
FAR 107 and 108.
More importantly, despite what Massport may or may not have known about specifically
screening procedures, Massport was aware that ultimately screening was ineffective at Logan.55
Knowing that, Massport had an obligation to correct the screening deficiencies, which it tried to
do, initially, but then “dropped the ball.” Massport started several initiatives but failed to follow
through. Some Massport security programs languished until after September 11, 2001 when they
52
Id. at pp 47:14-25, 48:1-25, 49:1-18; Exhibit 27, Checkpoint Operations Guide, pp. 5-8 to 5-10
Exhibit 1, at p. 19
54
Exhibit 5, AVSEC EX 218, MP10150- MP10153
55
See Exhibit 2
53
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were quickly implemented. The fact Massport did not follow through is a reason for and a
substantial cause of the screening failures on 9/11.
Finally, Lawless claims in ¶ 23 of his declaration that he was never “informed of any
evidence indicating that the terrorists breached any security layer that was a Massport airport
security responsibility under FAR Part 107.” Massport’s inability to deter the hijackers from
surveying the airport and its inability to take true corrective action and adequately address its
numerous well publicized security vulnerabilities contributed to the ease with which the Flight
175 and Flight 11 hijackers operated at Logan on 9/11.
Two independent studies of Massport’s vulnerabilities (published after 9/11) found
significant security failures at the airport. The first study, conducted by CTI and begun before
9/11 at Massport’s insistence, found in its first draft that Massport had failed to address a number
of well known security vulnerabilities: “[a] major challenge facing Massport and BOS will be the
understanding of why no action has apparently occurred on the many previous safety and
security recommendations submitted from multiple sources, including its own Department of
Public Safety, and what can be done to ensure constructive change move forward.”56 The report
further found that before September 11, Logan “lacked the majority of elements required to meet
recommended minimum safety and security standards established by the FAA, the Department
of Transportation, the U.S. Secret Service, the Federal Bureau of Investigation and the U.S.
Department of Defense.” Id. at MP100647. From the a long list of identified deficiencies, CTI
citied specific regulatory obligations associated with control of the airport as missing and
deficient, “[t]here is no security CCTV surveillance system.… access control and alarm intrusion
detection system is extremely slow and is not being used to its fullest capabilities….” and
56
Exhibit 9 at MP100645
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“[p]oor perimeter access control measures have allowed several detected breaches that could
have resulted in very serious incidents.”
The report rightfully wonders, “[o]ne can only
speculate as to the number of undetected breaches of security since BOS lacks both a perimeter
access control system and a CCTV system.” Id. Later drafts of the CTI study were subsequently
softened after Massport executives met with their lawyers after September 11, 2001 and
commanded CTI change its conclusions.57
The other study, conducted by the Special Advisory Task Force on Massport, also known
as the Carter Commission, found that similar security failures, “[s]ecurity at Boston Logan
International Airport has suffered many of the weaknesses found throughout the U.S. system,
although some other airports have been more aggressive about implementing enhanced security
measures.”58 Massport’s inability to effectively improve security was in large part a result of
what the Task Force identified as poor leadership and ineffective management, namely “that
Massport suffers from a certain degree of "mission creep", poor leadership, a lack of
accountability to the public, and an inefficient organizational structure.” Citing this as “common
threads running through virtually all of our findings” the Task force found these leadership
deficiencies “central to our thought process in formulating recommendations to correct these
weaknesses.” Id., at p. i.
Soon after 9/11, Lawless was demoted to Massport’s Director of Maritime Security. The
change in job suggests an unsatisfactory performance as Massport’s Director of Public Safety.
57
Exhibit 3, at pp.62:1-25, 63:1-25, 64:1-25, 65:1-25, 66:1-7; Exhibit 28, Memorandum for the Record, Thomas
Kinton Interview with 9/11 Commission, November 6, 2003
58
Exhibit 6, at p. 5
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WHAT THE EVIDENCE HEREIN HAS ESTABLISHED
It is indisputable that pursuant to Federal Aviation Regulations Massport as the airport
operator was responsible for airport security under 14 CFR Part 107. Pilgrim Aff. ¶ 19. Under
14 CFR §107.3 Massport could not operate Logan airport unless it adopted and carried out a
security program that provided for the safety of persons and property traveling in air
transportation and intrastate air transportation against acts of criminal violence and air piracy and
is in writing and signed by the airport operator or any person to whom the airport operator has
delegated authority. Pilgrim Aff. ¶ 19. The law makes it abundantly clear that the airport
operator, and in this case Massport, is responsible for the security of the entirety of the airport.
The Federal Aviation Regulations, in clear unequivocable language allowed them to delegate,
but not escape, their responsibility for security. Pilgrim Aff. ¶ 19-21. It is obvious that Massport
retains responsibility for the entirety of Boston Logan airport when one considers 14 CFR
107.3.b.5 provides that an air carrier having security responsibility delegated to it by an airport,
over an exclusive area that the airport uses, must have a procedure in place to notify the airport
when the procedures, facilities and equipment it uses are not adequate to perform the security
control functions in the airport. If the airport did not retain overarching security responsibility,
even though it delegated to the airlines certain responsibilities such as operating the checkpoints
(which United Airlines further delegated to Huntleigh), then the provision concerning
notification would be meaningless. The fact that Massport retained security responsibilities for
all parts of Boston Logan Airport, including the checkpoints, is evidenced by various Massport
efforts. Those efforts of Massport which were required by 14 CFR Part 107, included for
example holding security meetings at the airport, receiving notices of not only their own security
violations but also those of the airlines as well, commissioning a study well before September
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11, 2001, to tell Massport how to improve its security, which study included the checkpoints in
the concourses, and having the responsibility for law enforcement including law enforcement at
the checkpoints throughout the airport.
On September 11, 2001, and at all times relevant before September 11, 2001, Logan was
classified as a Category X Airport. Pilgrim Aff. ¶ 22; Exhibit 3, at pp. 8. Category X Airports
are the nation’s largest and busiest airports which are considered potentially attractive targets for
criminal and terrorist activity. Pilgrim Aff. ¶ 22; Exhibit 3, at pp. 8. As a Category X airport
on and before September 11, 2001, Logan was subject to and required to comply with more
stringent security policies and procedures than non- Category X airports. Pilgrim Aff. ¶ 23;
Exhibit 3, at pp. 8.
Despite it being a Category X airport, and having the overarching responsibility for all
the security at the airport including to ascertain that the security which was delegated to airlines
was adequate to meet its part 107 responsibilities, officials at Massport, knew, personally
discovered, were advised of, and even commissioned studies to further examine the vast security
weaknesses at Logan airport. Pilgrim Aff. ¶ 26; Exhibit 3, at pp. 9-10 In particular from 1999 to
2000, Logan had the fifth highest number of security breaches in the nation despite the fact it is
the 18th busiest airport. From 1997 to 1999 there were 136 security violations at Logan. During
1997-1999 screeners at Logan failed to detect 102 guns, 49 dynamite bombs, 10 hand grenades
and 9 toy pistols. Pilgrim Aff. ¶ 25. It is obvious that the FAA certainly recognized FAR §107
as requiring Massport to have the overarching responsibility for security including that which
Massport delegated to airlines, and that Massport maintained a duty to ensure itself that all of
Boston Logan was adequately secured, because the FAA sent to Massport notices of the
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violations of the airlines serving Massport as well as the violations of Massport.59 Based upon
FAA data Boston Logan was by a substantial margin the nation’s most porous airport, amply
evidenced by tests by FAA agents posing as passengers while attempting to carry weapons
through security checkpoints. Pilgrim Aff. ¶ 25. After a security breach in 1999, the citations for
security violations at Massport ballooned to more than 42, more than any other airport authority
in the United States. Pilgrim Aff. ¶ 25.
Massport tries in its brief to depict Massport’s role in airport security on September 11,
2001, as miniscule—nothing more than issuing badges, making sure the airport fences and doors
were locked and sending Massport police if someone called. The falsity of the picture painted by
Massport in its Motion for Summary Judgment is clearly exposed by the fact that in March 2001,
Massport hired Counter Technologies, Inc. (CTI) to review the airport security.
Massport
assigned CTI to conduct a top to bottom security audit of all Massport facilities. Pilgrim Aff.
¶26. Massport clearly had the power, responsibility and regulatory authority to do so--- they did
it. CTI worked very closely with Joseph Lawless, Director of Public Safety for Massport at
Logan. Pilgrim Aff. ¶ 26; Exhibit 1, at pp. 9-10, Exhibit 3, at pp. 62-66 . No one took issue with
CTI work, interviews, findings, or conclusions until after September 11, 2001, and then not until
after Thomas J. Kinton, Jr., Acting Director of Massport, met with Massport lawyers after
September 11, 2001. Id.. At that late date (and with his team of defensive lawyers), then Kinton
took issue with the CTI work. Id. at p. 62-63. In the initial report issued on November 6, 2001,
concerning airport operations before September 11, 2001, the report concluded the public safety
authority responsibility manpower and objectives must be clearly enhanced, delineated and
expressed without ambiguity to all Massport entities in an effort to bring Boston (Logan) up to a
59
Exhibit 29, Examples of Violation letters
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minimum of security standards as quickly as possible. Pilgrim Aff. ¶ 26. But the security lapses
at Massport’s Logan airport, which compromised security on and before September 11, 2001,
were not limited to the checkpoint screening operations. That is a very important point which
the defendant Massport chooses to ignore in its brief. The Federal Aviation Regulations require
that both Massport and the airlines not only prohibit and or detect any weapon or prohibited item
from entering the sterile area, but also places the burden on Massport and (not or) the airlines to
deter hijackers, terrorists, and saboteurs. Deterrence is also included not only in the duties of the
defendants on or before September 11, 2001, but is a crucial part of an effective security
program.
There were many parts of the security program that Massport did not delegate to any
other entity and in fact could not delegate to any other entity. First and foremost is Massport’s
FAR required law enforcement presence. Law enforcement officers play a key role not only in
the airport generally, but as specified in the FARs and in the Checkpoint Operations Guide
(COG) also at the security checkpoint.
When any weapon or item of contraband is found,
suspected or failed to be stopped and allowed to enter the sterile area, it was the Massport law
enforcement office that responded to the security checkpoint. For a period of time before
September 11, 2001, Massport had law enforcement officers at each checkpoint for deterrence
and to help in the assessment of items as weapons. However that presence was eliminated before
September 11, 2001, and Massport no longer provided law enforcement officers at each
checkpoint. By September 11, 2001, Massport officers had to be called to the checkpoint if
something came up. Id. at. 45-47. That law enforcement presence at the checkpoint was part
and parcel of the intended effectiveness of the COG.
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At Logan Airport, Massport was responsible for the law enforcement presence which
they assigned to F Troop. Id. at. p. 30. F Troop was assigned to the terminals and other areas of
the airport property. Id. at p. 31. F Troop responded to, answered to, reported to and was under
the authority of Massport. Id. at pp. 31-32. F Troop’s duties were set forth in the security plan
developed by Massport. Id. at p. 33. The Logan airport security plan was unique to Logan. Id.
at p. 34.
Logan developed their unique security plan in response to local area needs or
conditions. Kinton testified that they developed the plan not only to respond to the minimum
FAA standards that they had to comply with but with the goal for Boston Logan and Massport to
go above and beyond the minimums. Id. at p. 34. Many of their plans were unique to Logan
location including what Kinton called the “flex response “to security checkpoints. Id. at p. 34.
Furthermore, F Troop was supposed to look for and address anything in the airport that was out
of the ordinary that would lead them to believe that there was something suspicious was going
on. “That is what they were trained to do and that is what they were looking for .” Id. at p. 4041. In times gone by when Massport staffed each security checkpoint with a law enforcement
officer, Id. at p. 45, the law enforcement officer was supposed to respond to any issue concerning
a security incident. Id. at p. 46. In years gone by when law enforcement officers were at the
checkpoint they would obviously have had better knowledge of persons who attempted to take
items through the checkpoint, of prohibited items and of surveillance by hijackers of
checkpoints.
However, because by September 11, 2001, Massport no longer staffed the
checkpoints with their law enforcement offices, Massport created an additional vulnerability for
security because the F Troop had no knowledge of attempts to take prohibited items through the
security checkpoint unless the checkpoint security screeners called them to the checkpoint. The
lack of security officers at the checkpoint, the lack of the involvement of law enforcement
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officers in the search for weapons or other prohibited items and the ignorance of F Troop officers
and Massport about surveillance by Atta and other terrorists was clearly caused or contributed to
by Massport’s Flex Plan. Logical conclusion based upon Exhibit 3, at p. 46.
Even under the F Troop Flex Plan, when officers were called to the checkpoint, they were
supposed to “deal with the situation.” If the situation warranted arresting the person, they were
supposed to do it, or they could “clear the person to fly if it warranted that.” “They could deny
them the right to fly” and they could have them “go re-book” Id. at p. 47. The law enforcement
officer made the decision to deny someone the right to fly. Id. at p. 47-48. Therefore when they
were at the checkpoint Massport F Troop made the decision on who got to fly based on their
alleged (but not in evidence) professional training to ascertain whether the person was a threat. F
Troop could deny such persons the right to fly. Id. at p. 48. By removing the law enforcement
officers from the security checkpoints, which Massport had in prior years when the terrorist
threat was not as high as on September 11, 2001, and before many security violations at
Massport Logan had come to public light, Massport removed a key component not only from
airport security but specifically from checkpoint security. Kinton himself admitted the law
enforcement presence would have been deterrence.
According to the COG and Kinton, F Troop made the determination of what weapons
would be allowed into the sterile area and what items were or were not menacing or were
weapons. The COG makes it clear that it was law enforcement officers who handled deadly or
dangerous weapons and prohibited item. The screeners were merely to “ensure that deadly or
dangerous weapons and other prohibited objects are not handled until the LEO/GSC arrives.”
Furthermore, they were to “collect witness information and retain evidence pending the arrival of
the LEO.” Furthermore, F Troop was to be called to handle and make decisions about prohibited
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items such as knives, razors, grenades, automatic weapons, guns, blasting caps, stun guns,
dynamite, explosives and other weapons.60 The security screeners were to “freeze the [image on
a screen] for the law enforcement officers and others to look at so we could see if something
warranted shutting the concourse down and having people re-screened and going to look for the
individual to search for the carry-on or personal items if there was a weapon.”61
Therefore the
security screeners relied in whole or in part on the Massport’s F Troop to tell them what did and
did not fly.
By September 11, 2001, the lack of law enforcement presence at the checkpoints had
clearly degraded the efficacy of checkpoint screening. Since hijackers Atta and others conducted
surveillance and tested Boston Logan security, it is an unassailable fact, as evident by the
outcome, that Massport failed to deter the hijack plot. It is reasonable to assume a jury will
likely logically conclude those failures were both a violation of FAR 107 and likely caused or
contributed to Boston Logan being selected for the September 11, 2001 hijackings.
Law
enforcement officers were called to the checkpoint to make decisions and whether to confiscate
items. Id. at p. 49. Law enforcement officers made decisions whether to confiscate something
that was illegal in the state of Massachusetts and they could even do more based on what the
item was.
Id. at p. 49. Unfortunately however, the F Troop officers shared a common
shortcoming with the security screeners.
Therefore under the Flex Plan, since Massport’s
officers were not at the checkpoints, and the screeners were unable to identify weapons and had
no idea what mace was. Massport’s officers could not adequately perform their jobs because
they were not called to evaluate missed items.
60
61
See Exhibit 27, at p. 5-8 to 5-10
See Exhibit 3 at p. 44
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Kinton acknowledged that the visibility of law enforcement officers, besides assisting at
the security checkpoint, was part and parcel of an important component of security at the airport
Id. at p. 56. Being seen at the airport, in the terminals at the curbs and on the ramps was an
important part of Massport’s security at Logan because it went to another component of airport
security -- deterrence. Id. at p. 56. It was sadly apparent there was no deterrence at Massport on
September 11, 2001.
Massport had no one on its staff responsible for reviewing what items were sold behind
security in the concourse at Massport. United Airlines has at several depositions in this litigation
(for example Mr. Malotky) argued that the hijackers could have purchased their weapons after
clearing security in the terminal areas or obtained knives from restaurants, stores, etc., in the
concourse. Massport did not concern itself with what was sold in the sterile areas of Boston
Logan airport. No one from Massport was responsible to review what items vendors sold. Id. at
p. 73. Massport was merely concerned about street pricing meaning they did not want Massport
customers to pay more for products at the airport than they paid for products outside of the
airport, but no one was tasked to review what was actually sold. Id. at p. 74. Massport had no
idea if anyone sold knives or box-cutters at the airport on or before September 11, 2001. Id. at p.
76. Kinton said if he was walking through the airport and happened to notice a big knife like a
machete, he would certainly do something about it, or maybe if the vendors were selling bullets
he would do something because it is not “stuff you sell in an airport” but there was no procedure
at Massport’s Boston Logan to weed out or to stop the sale of prohibited items such as weapons,
mace, box cutters razors, tools, or Swiss army knives, in the sterile area of the airport. Massport
was clueless about what was being sold unless someone happened to notice machetes, bullets or
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gasoline being sold in the concourse. Id. at p. 77-78. The only thing Massport was checking
about goods for ale in the concourse was price. Id. at p. 78.
While September 11, 2001 is the saddest day in aviation security history, May 11, 2001 is
a close second, because on May 11, 2001, Massport and its F Troop failed to do their job at the
security checkpoint, which without a doubt permitted September 11, 2001 to occur. Massport
breached its unequivocal statutory duties and its duties to carry out its law enforcement function.
On September 11, 2001, at least two airport employees reported to the security checkpoint and to
Massport police officers that Mohammed Atta and another terrorist had been spotted at Logan
airport surveilling airport security. They were photographing airport security and were caught
doing so. That fact was reported to Massport’s F Troop. Massport’s F Troop did nothing.62
Massport had the obligation to investigate suspicious events at Logan airport. Id. at p. 93.
Airport personnel were trained to report suspicious activities to Massport’s F Troop. Id. at p. 94.
F Troop was supposed to “show up and investigate.” Id. at p. 94. Looking at and photographing
a checkpoint was an event that was supposed to be reported to F Troop. Id. at p. 94. That event
was reported to F Troop.63
However, when Mohammed Atta went through the security
checkpoint after being reported to F Troop that he was photographing, videotaping and
surveilling the checkpoint, Massport F Troop did nothing.
Massport’s F Troop permitted Atta to pass through security without stopping him, asking
his name, checking his ticket, writing down his name, taking a picture, looking at a drivers
license or passport, opening his bags, doing a secondary screen, or stop and frisk-- nothing.
According to Kinton’s own testimony they had the authority to stop a passenger, prohibit a
passenger from boarding, cause a passenger to have to re-book, investigate suspicious activities
62
63
See Exhibit 23 at 112: 1-25,Exhibit 3, at p. 95
See Exhibit 1; Exhibit 3, at p. 94
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and certainly and without a doubt unequivocally investigate someone surveilling a checkpoint.
Id. at p. 94. However, Kinton never learned of such events. Kinton claimed he never even heard
of the event until preparation for his deposition in January 2011, and had no personal knowledge
of any response or investigation by F Troop. He only knew what his lawyers told him in
preparation for his deposition. Id. at p. 95. He had no knowledge until preparing for his
deposition in 2011 that the worst hijacker terrorist in the history of the world walked past
Massport’s F Troop without so much as a request for identification.
Had Massport been
equipped with close circuit television, which Thomas Kinton admitted was a deterrent effect and
would have been a deterrent to criminal activity, there would have been video surveillance of
Atta and his surveillance activities. Massport could have installed the television surveillance at
any time. The Massport lease with United Air Lines expressly permitted and gave Massport the
authority at any time to enter upon any of United areas to install cables and wiring or other such
equipment.64
Despite their disavowing any responsibility for checkpoint security in their motion for
summary judgment, the actions of Massport clearly show that they realized FAR 107 only
permitted them to delegate the operation of its checkpoint equipment but not Massport’s
responsibilities for security in all areas of Boston Logan. For example, Massport knew of the
weaknesses of their security and came up with the idea to use undercover police to do checkpoint
testing. Such activities are clearly not those of an entity who has no responsibility for checkpoint
security (and of course that it is impossible because the COG clearly required the checkpoint
operator to call the law enforcement office to the checkpoint when any weapon is found.)
Massport devised a plan well before September 11, 2001, with F Troop to test airport security.
64
See Exhibit 18
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Massport came up with this plan, jointly with the FAA, so obviously it was not a renegade plan
for which Massport had no authority or jurisdiction.65 While the plan was devised well before
September 11, 2001, Massport didn’t get around to effectuating its plan until after September 11,
2001. After September 11, 2001, the plan went quickly into place. Id. at pp. 100-101, 104-105.
The airline’s complaints which before September 11, 2001 put Massport on pause, after
September 11, 2001 were ignored—because Massport always had the authority and duty to act.
Massport’s duty and authority at the checkpoints is evident by another plan hatched by
Massport. In this plan, Massport was going to penalize airlines that allowed security lines to back
up more than 5 minutes. Massport informed the airlines that if there were additional security
lanes that were available but not open, and the passenger line had backed up so that the wait
times exceeded 5 minutes, the airlines had to open those additional security lanes and get the
security lines moving so passengers did not stand in line more than 5 minutes. If the airlines did
not do it, Massport would punish the airlines. Id. at pp. 123-125. Massport told the airlines that
they would impose a fine or penalty on the airlines, including potentially taking away gates. Id.
at pp. 123-125. Again with that plan the airlines “pushed back” and despite Massport’s public
pronouncements, Massport did not follow through on its plan, but clearly Massport had the
authority, Massport understood it had a duty, and Massport clearly affected the operations of
checkpoints. Kinton also testified that lines at the security checkpoint also posed a security risk
because hijackers and terrorists had bombed and killed persons standing in lines at airports.
Therefore Massport could command airlines to take actions at the checkpoints because it
endangered Massport’s passengers.
65
See Exhibit 3, at p. 100
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In his statement to the 9/11 Commission Kinton, revealed the FBI had approached
Massport about members of Hamas and Hezbollah working at Logan for Massport and an airline,
as well as a cab driver at the airport associated with the U.S.S. Cole bombing by terrorists). See
Exhibit 28, Kinton 911 Interview pg. 1-2. The FAA came to Kinton five or less times preSeptember 11, 2001, and provided him with security threat information. So important was that
information that Kinton stated he had to read it in front of the FAA and sign for it. He recalled
those warnings referenced al Qaeda.
Id
pg 2.
Astonishly erroneous, Kinton told the
9/11Commission there were no instances of surveillance at BostonLogan by the hijackers. Id.
Pg.7.
SELECTION OF MASSPORT’S BOSTON LOGAN AIRPORT
Defendant Massport claims that the only reason Massport’s Boston Logan Airport was
selected by Mohammed Atta and the other September 11, 2001 masterminds and hijackers, was
because it had 757s and 767s. Their cited authority for such a statement is the 9/11 Commission
Report. However the 9/11 Commission Report’s footnotes reveal that the 9/11 Commission’s
source of information about the hijackers selection of airports is an FAA report on high risk
Category X airport(of which Boston was one), a newspaper article, a visit to the Portland airport
and the statement of none other than Thomas J. Kinton, Jr., Boston Logan’s Acting Executive
Director on September 11, 2001. Kinton did not testify before the 9/11 Commission and he
stated in 2011 he did not know about Mohammed Atta and others were surveilling Logan airport.
He stated he was first told by his lawyers in preparation for his deposition in 2011—ten years
after the fact. The 9/11/01 Commission Report footnote which Defendants cites as its source
about Boston Logan’s selection notes only a public newspaper article published after September
11, 2001, and the 1999 FAA handbook and FAA testing and assessment data bearing the date
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October 24, 2001. Thus, the sources cited by the 9/11 Commission report all point to Boston
Logan as having security deficiencies.
See Kinton Statement to 9/11 Commission, 9/11
Commission Report, pg. 451, footnote 11. The most logical conclusion based on the facts, and
which a jury will likely conclude, was that Boston Logan’s lax security caused or contributed to
the hijackers’ selection of Boston Logan airport.
RESPONSE TO PRELIMINARY STATEMENT
Although Plaintiff has shown myriad disputed facts herein above, Plaintiff wishes to
correct the mischaracterizations in Massport’s preliminary statement. Defendant attempts in its
motion for summary judgment to characterize this case as solely about what the United Airlines
and its subcontractor Huntleigh did at the security checkpoint. But, Massport was responsible
for the entirety of security at its airport. 14 CFR § 107. The FARs allowed them to delegate to
airlines. Part of the operation of checkpoints security screening provided of course that the
airline had adequately performed that function. That is clearly set forth in 14 CFR §107.3.
Massport attempts to divert the attention from the totality of the security picture by claiming
Massport could only be responsible if a terrorist climbed an airport fence or got an airport badge,
or F Troop failed to come to the checkpoint on the morning of Sept. 11, 2001, to look at a
weapon. Massport would have this Honorable Court believe that despite being charged by the
United States Federal Aviation Administration and Federal Aviation Regulations with the overall
security of Boston Logan Airport that when faced with actual knowledge that security was
inadequate at Boston Logan, Massport could escape responsibility by claiming it did not have to
act because federal law did not require it. Regulations in no way permit, condone, support or
suggest such a hapless excuse by Massport to its security responsibilities. Plaintiff does not rely
solely on the negligence of the screening of Huntleigh or United Airlines in this litigation, but
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instead, and completely in accordance with federal regulations, looks at the totality of the
security picture.
Most notably on page 11 of its brief, Massport cites no federal law for the
proposition which they advance that Massport was not responsible for the overall security at
Boston Logan.
Massport argues that attorney Mark Moller who represented a small number of plaintiffs
in this case conceded at oral argument that if discovery revealed that passenger screening were
separated from Massport’s managerial duties the “airport operator may be out as a defendant.” It
is important to note that former liaison counsel Moller made that statement in May 2003. At that
time this Honorable Court had seized from the plaintiffs the Checkpoints Operations Guide, the
Air Carrier Standard Security Program and the Massport CTI report. The court locked up the
same in the courthouse, and no discovery had been yet allowed in the case. Since that time, the
discovery has revealed as discussed herein that Massport played an integral role in checkpoint
operations and had command additional programs that affected passenger screening. Massport’s
F Troop was called to evaluate and determine what could and could not go through security
checkpoints, to decide what was a weapon, and to decide if certain passengers could be allowed
to go through the checkpoint, could be denied boarding, or would be sent back to ticketing to
rebook, as testified by Thomas J. Kinton of Massport.
Furthermore on page 11 of defendant’s preliminary statement Massport argued that since
Massport escaped paying for its negligence in any settlements to date, and that all but two
plaintiffs voluntarily dismissed their cases against Massport, that suggests Massport is not liable.
All other plaintiffs have dismissed Massport and every other defendant because they have
settled. All defendants denied liability in the settlements. The fact that Massport has not to date
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paid for its negligence is better explained by the indemnity provisions in its leases with United
and American Airlines than on a lack of duty, knowledge, causation, failure and liability.66
Defendant claims this case is just about failure to detect weapons at the passenger
checkpoint. Plaintiff in no way argues this case is merely about a failure to detect weapons, but
instead is about the failure to have an effective security program to protect passengers from
terrorist hijackers who completed their plan, not started their plan, on Sept. 11, 2001. Massport
would have this court believe that the Sept. 11 2001, plan started and finished with the hijackers
transporting weapons through the security checkpoint on that day. The hijackers surveilled and
tested Massport (and United and American Airlines ) before completing their terrorist plots on
Sept. 11, 2001. Contrary to Massport’s assertion on page 13 of their brief, the federal law did
not assign passenger screening or responsibility solely to the airlines, leaving no room to assign
duties to other industry participants, because in the airlines’ own Checkpoints Operation Guide,
discussed herein, which guide was at every checkpoint at Boston Logan airport, Massport was
assigned checkpoint duties which included screening weapons and opining on what and who
could enter the security screening area.
Furthermore FAR §107 made it clear that Massport had the overarching security
responsibility and could delegate but only to the extent that the airline had adequate security in
placed to perform its duties. Massport found out long before September 11, 2001, that security
was inadequate and it developed its own plans to assist at the checkpoints, including testing and
punishment. Massport concluded on page 13 and 14of its brief that the jurors could not find
Massport negligent for carrying out its federally mandated security responsibilities because
there’s no showing that the hijackers penetrated a Massport fence or door, had a Massport badge
66
See Exhibit 18, at p.43
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or that the police failed to respond on September 11, 2001. Massport’s claims of miniscule
responsibilities are overwhelmingly disputed by 14 CFR §107, by Massport’s own security
plans, by the testimony of Massport’s own officials, by the plans Massport put in place with the
concurrence of the FAA to test the key security checkpoints, by jobs assigned to Massport’s F
Troop at the checkpoints, by Massport’s failure to have surveillance cameras in place and by the
failure to have an adequate presence of police officers at the security checkpoints as Massport
had in years past. Massport, at page 14, argued plaintiff’s res ipsa loquitur briefing concerning
the application of res ipsa loquitur to United Airlines defeats its own argument when it states res
ipsa loquitur can only apply when plaintiff can demonstrate the injuries were caused by
instrumentalities which were in defendant’s exclusive control. Plaintiffs did not argue that the
checkpoint was in the exclusive control of United Airlines but rather argued United Airlines was
in the exclusive control of United’s and of the United security program and aircraft. Weapons
could not be on board a United Aircraft without negligence of United. That is why Plaintiff
argued res ipsa should be applied to United Airlines. Finally Massport argues that summary
judgment is appropriate as no material facts are in dispute.67
67
Massport also argues that because of the joint stipulation of facts states the airlines were
responsible for the checkpoint screening and Massport was not responsible for passenger
checkpoint screening, Massport should be dismissed. As Massport’s counsel well knows, after
months and perhaps years being unable to agree, this Honorable Court ordered all parties to
agree to a Statement of Facts. Counsel for all parties gathered in New York and even though
many drafts had been circulated before the meeting, we still spent 2 days arguing. We reduced
the statement to the barest bones—no explanatory or qualifying statements were included,
including on this point, as the sides could not agree—which counsel surely ought to remember.
Defendants would not agree to Plaintiff’s explanation of how the checkpoint responsibilities
were parceled and vice versa, including that Massport also had responsibilities. Thus, we agreed
to submit only the very limited statement with the explanation to the court in the cover letter that
both sides would later submit to the court their own alternative proposals for the inclusion in the
narrative. A letter so explaining the situation accompanied the preliminary statement of facts.
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CONCLUSION
Clearly there are facts are in dispute, unless Massport agrees with the following:
1. Massport’s Five Minute Checkpoint Plan and threatened sanctions on airlines
weakened checkpoint security and pressured screeners to rush.
2. Massport’s commissioning of the CTI report in March 2001 showed Massport had
and knew it had an overarching responsibility for the totality of security at Boston
Logan Airport including failures at security checkpoints.
3. Massport knew it could exceed the FARs and did so taking actions it perceived
would improve checkpoint operations and overall security at Logan.
4. Massport devised its Checkpoint Five Minute Rule without evaluation of the
effect on security.
5. Massport’s F Troop was responsible under the COG to evaluate knives, razors,
guns, explosives and other weapons at the checkpoints. According to the COG,
checkpoint screeners were not to touch them—F Troop was called to do so. The
September 11, 2001, hijackers tested security at Boston Logan several times
before September 11, 2001. It is reasonable to conclude the hijackers tested
security with their weapons (which Massport claims went through the
checkpoints).
It is F Troop which would have evaluated anything that was
detected and Massport which would have had the opportunity to investigate as the
hijackers tested and surveilled the airport..
45
�Case 1:21-mc-00101-AKH Document 1469
Filed 06/24/11 Page 49 of 51
6. Massport was to have police throughout the airport as a deterrent to hijackers and
terrorists.
Before September 11, 2001, they changed their staffing and took
officers away from the checkpoints in favor of the “Flex Plan.” This was one of
several ways in which Massport failed to meet the FAR 107 requirement for
deterrence.
7. Massport with the FAA, devised a plan to have F Troop test security. The airlines
objected but Massport moved ahead.
Massport had the authority and the
responsibility to do so because Massport was aware security was inadequate at
Boston Logan. Massport did not get around to actually doing the testing before
September 11, 2001, but did so immediately after September 11, 201, without
asking the airlines. That action shows Mass port could have and should have
acted before September 11, 2001.
8. Massport was responsible through its F Troop to investigate suspicious activity at
Boston Logan including hijacker surveillance of the airport including at security
checkpoints. The FBI told Massport about possible connections at Logan to
Hamas, Hezbollah, and a U.S.S. Cole bombing terrorist.
At least 3 airport
employees spotted Atta and other hijackers at Boston Logan before September 11,
2001. On May 11, 2001, Massport’s F Troop watched Atta go through security.
There was no investigation as required. This security failure weakened security at
the checkpoint in two ways—exhibiting to employees that no action would be
taken when they reported surveillance of Massport’s security, and exhibiting to
hijacker Atta that his plan was working and even Massport’s F Troop law
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Filed 06/24/11 Page 50 of 51
enforcement would do nothing even when told Atta was conducting surveillance
and photographing the checkpoints.
9. Before September 11, 2001, Massport knew closed circuit television coverage of
checkpoints had a deterrent effect. Massport knew it was Massport’s job to install
it. Massport knew it had the authority to install it. Massport’s lease with the
carriers, including but not limited to United,
allowed Massport to do so.
Massport just never got the job done before September 11, 2001, but it did so
immediately did so after September 11, 2001—too late to help passenger and
Massport customer Mark Bavis. If Massport had installed the CCTV, on May 11,
2001, United, Huntleigh, the FBI, the CIA the FAA, the INS, Customs, the
Department of State, and anyone else on which Massport seeks to unload its
egregious negligence, would have had a picture, name or a ticket and passenger
indentification of the most deadly hijacker in history surveilling an airport
checkpoint. Massport failed and F Troop did not even look at his ticket or
driver’s license.
On that evidence alone a jury will reasonably and
overwhelmingly find Massport shares liability for the death of passenger Mark
Bavis.
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WHEREFORE Massport’s Motion for Summary Judgment should be denied.
Dated: June 24, 2011
Respectfully submitted,
MOTLEY RICE LLC
By:
48
__/s/______________________________
Mary Schiavo
Ronald L. Motley
Joseph F. Rice
Donald A. Migliori
Vincent I. Parrett
Elizabeth Smith
James R. Brauchle
Motley Rice LLC
28 Bridgeside Boulevard
Post Office Box 650001
Mount Pleasant, SC 29465
Telephone: (843) 216-9000
Facsimile: (843) 216-9450
Attorneys for Plaintiff Bavis
�
Dublin Core
The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/.
Title
A name given to the resource
Boston Federal Aviation Administration Filings
Subject
The topic of the resource
litigation
airport security
Description
An account of the resource
These court filings provide evidence that the terrorists responsible for the September 11th attacks were observed assessing airport security prior to the events. For example, Mohammed Atta was spotted in May '01 taking still photographs, notes and video of the screening checkpoints at Logan. He was reported to law enforcement at the airport, but they failed to follow up.
Contributor
An entity responsible for making contributions to the resource
Brian Sullivan, FAA Special Agent (Retired)
Document
A resource containing textual data. Note that facsimiles or images of texts are still of the genre text.
Dublin Core
The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/.
Title
A name given to the resource
Plaintiff's Memorandum of Law in Opposition to the Massachusetts Port Authority's Motion for Summary Judgment
Rights
Information about rights held in and over the resource
Public Domain
Contributor
An entity responsible for making contributions to the resource
Brian Sullivan, FAA Special Agent (Retired)
Subject
The topic of the resource
Airports--Security measures--United States
Airline passenger security screening
Terrorism--United States--Prevention
September 11 Terrorist Attacks, 2001
Description
An account of the resource
Plaintiff Mary Bevis filed this legal memorandum in response to defendant Massachusetts Port Authority's (Massport) motion for summary judgment. Bevis is claiming negligence on the part of Massport in not providing adequate security measures despite Massport's knowledge of previous failures of security.
Date
A point or period of time associated with an event in the lifecycle of the resource
June 24, 2011