TSA Chief: 'We'll Never Eliminate Risk'

Ever since new airport security procedures went into effect in late October, the Transportation Security Administration has been at the center of controversy. The combination of enhanced image screening with invasive patdowns for those who opt out has rankled civil liberties advocates and some of the flying public. John Pistole, the head of the TSA, is a 26-year veteran of the FBI -- an expert in counterterrorism and for six years the bureau's deputy director. As TSA administrator since July, he finds himself having to defend the new measures. James Fallows and Jeffrey Goldberg spoke with Pistole on Monday. An edited version of the interview is below; their posts about the conversation are here and here.

John Pistole.jpg

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James Fallows: I'd like to start with a question both Jeff and I have raised, which is the whole question of the balance between security, on the one hand, and liberty and privacy concerns, on the other. Is it TSA's job to set that balance? Or how do you think that balance is set?

John Pistole: The way I view it is for TSA to develop the security protocols that afford the best security, while recognizing that there is a balance. The best security would be something way beyond what we're doing.

Jeffrey Goldberg: The best security would be to just not allow people on planes. That's perfect security.

Pistole: That's "risk elimination." And we're not in the risk-elimination business, we're in risk mitigation, informed by the latest intelligence, informed by our friends [in the intelligence agencies], and informed by the results of our covert testing.

Those things inform judgments and actions and then we take that information -- I take that information -- and then ask the experts how can we address these threats? They come up with different things based on all the information they have, and then they make a recommendation, and then it's up to me to say, OK, does that exceed what I think is appropriate in terms of privacy?

So that's my responsibility. To say, does this give us security, without violating something that would be a Fourth Amendment issue? That's what I did in this situation [the latest controversy] -- being informed by my prior background [with the FBI], and seeing this as different from a law-enforcement Fourth Amendment search, for example on the pat-down, and the privacy of the AIT (the controversial scanner).

How do we go about deploying this privacy screening? Separate officer, separate room, not retaining the images. You've seen these posters, and you realize, it's not as graphic (as has been reported). A lot of the media reporting showed these graphic images, and they rotated through 360 degrees so you get almost a crotch shot - that's not what these are. A lot of informed people describe these, I think in some of your writing, as the "naked" machine, or the porno -

Fallows: -- Jeff has a description ["porn machine"] that I don't use --

Goldberg: -- Fallows is very statesmanlike.

Pistole: I thought of bringing something in that actually was pornographic. I could say to you, then, "This is porno, this is not." I'll recognize it when I see it.

Goldberg: Exactly, the Supreme Court standard.

Do you agree with the civil libertarian view that airports -- not just because of the TSA -- but airports have become these Fourth Amendment-free zones? This is the fundamental concern, that you're giving up your Fourth Amendment rights when you buy a ticket.

Pistole: I don't agree with that. But I do agree with the difference between what most people think of in terms of a reasonable search-and-seizure for purposes of law enforcement, versus a public-safety administrative search. I don't know if people are drawing that distinction, either, from a legal standpoint or a practical application. I think people don't look at the public safety aspect. They look at it strictly from -- as I did for almost 27 years (in the FBI) -- a law enforcement search perspective, in which I need probable cause, and I've got to be reasonable in that search.

Goldberg: It is true that you now have more power as a TSA administrator to search people without probable cause than you ever had as an FBI official.

Pistole: Oh sure, yeah. If people take an affirmative act of engaging in, in this case, aviation -- they want to get on a plane -- they're taking an affirmative act to do that. Then, yes, there is authority to do the administrative search for public safety purposes. As I've said a number of times, I think reasonable people could disagree as to the precise technique used on each person. So for you, it may be patting around the knees or the armpits. You might be sensitive there. For others, it is groins. For women, it is breasts, for which procedure hasn't changed. Our protocols on the breast have been the same for years now.

Fallows: You were quoted in the Atlanta Journal Constitution as saying that you were opposed to the "cookie-cutter" approach to security. I think that the criticism from the public now is that it seems like we're seeing a cookie-cutter approach--disabled people, old people --

Goldberg: -- Nuns --

Pistole: If they are nuns. That's the question. So how do we verify who that person is?

Fallows: So how is what you're doing now not a cookie-cutter approach?

Pistole: So, starting with pilots. Pilots were the biggest group of those I assessed as being low risk to civil aviation. I mean come on, they're in charge of the yoke, they can put the plane down, like the co-pilot in Egypt Air in 990 did. I worked that investigation in October 1999. It was just a horrific recovery effort -- men, women, children, body parts, everything.

No amount of physical screening is going to identify what was going on in that co-pilot's head. So why are we doing physical screening? Instead of physical screening, we do an identity management base system to say, OK, this ID matches up with this airline's current records as of five minutes ago or whatever it is, so if they got fired yesterday... And then the airline has the responsibility -- shared responsibility -- to make sure [of the identity] of anybody that is a licensed pilot with their airline, that they're actually supposed to be in control of the aircraft, pilot or copilot.

For me that's the first step. Then you start looking at who are the other trusted travelers. What about flight attendants? So we made some modifications to the type of physical screening they go through. We haven't advertised that, but we've made some modifications to how they are screened, and we're looking at the possibility of doing something similar to what we did with the pilots.

I've had members of Congress say, "Look, I am a member of Congress. I am not a terrorist; This is absurd. Why do I have to go through a physical screening? It's an insult." And I say, "Well, in the legislation that authorizes TSA every year, they specifically include provisions that members of Congress will go through physical screening." By the way, I go through screening every time, I went through AIT three times last week in L.A., Long Beach, and Las Vegas.

Goldberg: Secretary Napolitano doesn't, though.

Pistole: No she has a security detail and she doesn't. And she usually goes on Coast Guard aviation, so yes, that's a different construct.

Goldberg: Talk about the difference between commercial aviation, and general aviation, or private aviation -- corporate jets, private planes and the like.

Pistole: There's a number of issues here. Much of our approach is risk-based. To say, "OK, what was the last threat from general aviation?" And we did have this guy down in Texas last year fly into the IRS building [in Austin]. Killed himself and unfortunately an IRS agent. But being smaller aircraft, typically, than a full jumbo jet or something similar, with the fuel capacity and the damage that could be done, there are certain risk-assessments that have to be done. We're trying to look at what makes sense from a risk management perspective, while also trying to promote the free flow of people and goods. And what's the balance there, just like what's the right balance on a pat-down, in terms of security and privacy?

Fallows: I wanted to follow-up the question about the TSA's role in setting the balance. It sounded to me as if you were saying that it partly is your job as TSA administrator to set a balance.

Pistole: Yes. That's part of my job, to identify the issues, then discuss it with a broader community -- within the department, and elsewhere -- as to: Does this make sense? What equities will be affected by this decision? How does that work?

Fallows: You've mentioned the new rules for pilots, and the unpublicized new ones for flight attendants, as an adjustment of the balance. Those are relatively recent changes, right? Does that reflect a response to the pushback of recent months?

Pistole: So when I came in [to this job] on July 1, I asked for a review of any number of things. Who do we screen and why? What's on the prohibited item list, and why? Are we harmonized with the EU [European Union], in particular, because of all the traffic in those areas. For example with the EU, they say to us, you don't have 100% staff screening at your airports, talking about "insider risk."

Goldberg: The EU has 100% staff screening?

Pistole: That's what they say. We say, we have a 100% check -- but it's identity based, along with random checks. So we know every worker, with their background checks. If somebody's on a watch list, they don't have access.
Goldberg: But a worker can get access to the tarmac without going through a physical screening?

Pistole: Yes, in many airports.

Goldberg: "Many" airports?

Pistole: Yes, there is a small number where we do 100% staff screening, but to do that for the tens of thousands, hundreds of thousands of airport workers. I mean, people who work in the kiosks, the stores, food vendors, and then the airline employees, the mechanics, and all those people--that's a big lift in terms of additional screening. And other than drug smuggling, we haven't seen terrorists exploit that. They tried to last year, Al Qaeda of the Arabian Peninsula, dealing with some Brits. There's a little bit written about that, but they tried to use a prominent airline insider, an employee, to recruit a couple of other airline employees to do something bad. So we see that as a risk, but it subsides.

Fallows: One of the general critiques of the TSA approach is that it's not scalable. That is, somebody has a shoe bomb, which cost him a thousand dollars. Then it costs us a billion dollars to respond to that. Somebody has an underwear bomb, which is cheap, and it costs us a lot of money to react to. How do you approach this problem?

Pistole: As terrorists become more precise in their design and concealment, they make this "proportionality" question even greater. They did two toner-cartridge bombs--why not do four, six, eight ten, that are just waiting to go.

Goldberg: But you do get the impression over time that the TSA and other agencies are constantly chasing the last plot? On Thanksgiving it was dips and cream-based sauces on the list of banned items. It gets to be a level where they have you running in circles.

Pistole: And that's the question. Do we not address yesterday's threats? I don't think anybody would agree that we shouldn't have hardened cockpit doors, that we had to deal with box cutters. At least until technology gets to the point -- which I'm hopeful is very soon -- that we can carry liquids on, or you can keep your shoes on -- even coming into TSA headquarters! - or you don't have to take your jacket off, or you can keep your laptop in their bags, the current rules will be necessary. And I'm hoping to get to the point where the invasiveness of screening becomes less and less, as it becomes more identity-based. Of course I know your [Goldberg's] experience from Israel, at least what I've read about, so that is a construct that without profiling becomes a challenge.

NEXT: Why Pistole is open to profiling passengers -- and how the TSA already does it

Presented by

James Fallows & Jeffrey Goldberg

James Fallows and Jeffrey Goldberg are national correspondents for The Atlantic.

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