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Article of Interest

Inside the Office of Chief Counsel at the Transportation Security Administration
By: Christopher Gee, Attorney-Advisor, Transportation Security Administration

          "Really… so what exactly do you do every day?” This is the response I frequently get when I tell people that I am a lawyer for the Transportation Security Administration (TSA), a high-profile, highly scrutinized organization within the U.S. Department of Homeland Security. TSA was established in the aftermath of 9/11 and was charged with protecting the nation’s transportation systems while also facilitating the freedom of movement for people and commerce. Implementing this mission has come with a wealth of legal issues that agency lawyers work through with their respective stakeholders on a daily basis. In this article, I hope to provide a brief background on TSA’s creation, explain the role that agency lawyers have in supporting TSA’s mission, and highlight some of the unique legal challenges that only land on your desk when your employer is responsible for screening approximately 1.8 million people at more than 450 airports every day.

          TSA came into existence when President Bush signed the Aviation and Transportation Security Act (ATSA) in November of 2001.¹ TSA was given extensive authorities and an urgent mandate: Secure the nation’s transportation systems.² As anyone can imagine, this was an extraordinary task, resulting in the largest mobilization of a civilian government agency since World War II. Congress gave TSA a statutory deadline of one year to create and deploy the new federal aviation security apparatus to more than 450 existing locations nationwide;³ no small undertaking.

          Since creating TSA, legislators in Congress and policy makers in the Executive Branch have wrestled with the challenge of protecting the country’s transportation network while also continually seeking to improve the passenger experience and minimizing disruption to transportation operations. Satisfying these objectives in a threat environment that is constantly changing requires great focus and an ability to quickly adapt.

          The dynamic nature of TSA’s operational mandate is affirmed by several security-related incidents that have occurred since its creation. Many have required swift transformations of security policy and highlighted the agency’s need to be nimble and flexible, a characteristic not easily achievable for many large organizations. For example, on December 21, 2001, shortly after 9/11, Richard Reid, otherwise known as the “shoe bomber,” attempted to ignite an explosive device concealed in his shoe while onboard American Airlines Flight 63 from Paris to Miami. Then, in the summer of 2006, 24 people were arrested in the United Kingdom when terrorists were close to executing a plot to detonate liquid explosives on flights bound for North America. In another instance, on December 25, 2009, Umar Farouk Abdulmutallab, also known as the “underwear bomber,” attempted to detonate an explosive device that had been sewn into his underwear while approaching Detroit on Northwest Airlines Flight 253. (Abdulmutallab boarded his flight in Amsterdam.) These incidents have led to new and revised security protocols at airport checkpoints in an effort to stay ahead of emerging and evolving threats. These include removal of shoes for screening, prohibition of carrying certain liquids through security checkpoints, and advanced technologies and pat-downs designed to detect nonmetallic threats.

          TSA lawyers are not only involved with the many routine legal matters commonly involved in operating a large organization but also participate in the development of security programs, provide counsel as security incidents are unfolding, and advise TSA leadership on the legal considerations of potential responses. The legal division, referred to as the Office of Chief Counsel (OCC), is currently composed of approximately 200 lawyers practicing in a variety of disciplines located either at TSA headquarters in Arlington, Virginia, or in field offices across the United States. We provide legal advice and services across all areas of TSA operations, and similar to other large legal organizations such as law firms and corporate legal departments, OCC is divided into seven distinct practice groups that specialize in certain areas of law.

          Our Regulations and Security Standards Division helps draft TSA regulations and security policies and interprets existing regulations and relevant statutes. Lawyers in our General Law Division advise on a wide variety of issues including the Federal Tort Claims Act, ethics, fiscal law, employment and civil rights, labor issues, and the Freedom of Information Act, to name a few. The Legislation and Authorities Division provides technical legislative-drafting assistance to Congressional committees, reviews and clears congressional reports, and advises on TSA authorities and statutory interpretations.⁴ In the Procurement Division, lawyers advise on acquisition-related matters, contracts and agreements, and represent the agency in all acquisition matters before administrative bodies or courts. Lawyers in the Litigation Division represent TSA in administrative tribunals and coordinate with the Department of Justice on TSA-related civil and criminal matters arising in federal court. The Enforcement and Incident Management Division advises on a variety of issues including criminal enforcement, emergency operations, intelligence law, enforcement of civil penalties against regulated entities, and international law. And finally, lawyers in Field Operations are co-located with the TSA leadership at airports across the country and advise on a multitude of issues including employment actions, civil enforcement actions, criminal activity arising at security checkpoints, information law, and ethics.

          With such broad responsibilities, the legal team is designed to resist a traditional stovepipe structure common in large organizations. Instead, it aims to create a highly collaborative environment to maximize the various areas of expertise, which are often required to address multi-dimensional issues. For example, in the immediate aftermath of the liquid-bomb plot, regulatory lawyers assisted around the clock to develop new security protocols that fell within TSA’s statutory authorities. Lawyers in Field Operations ensured that passenger instructions and signage were clear and policies were being implemented properly at their respective airports, and our legislative practice group assisted with clearing Congressional briefing papers to ensure lawmakers were informed on the legality of new procedures that were being implemented nationwide.

          Following the attempted “underwear bombing” in 2009, the agency’s response included accelerating the installation of Advanced Imaging Technologies (AIT) at airports to enhance TSA’s ability to detect non-metallic threats. TSA also implemented pat-down procedures that provided both an alternative for passengers who opted out of AIT  and a method of resolving particular security concerns. The new protocols sparked strong reactions from the public concerning infringement of their constitutional rights and civil liberties. This resulted in federal lawsuits, increased Congressional scrutiny, and state legislatures in several jurisdictions,including Texas,  introducing legislation targeting certain TSA practices.⁵

          Again, TSA lawyers were heavily involved in the TSA’s implementation of the security enhancements as well as the response to the public’s concerns. Procurement lawyers were responsible for advising on the contracts for millions of dollars’ worth of technology that TSA acquired for security checkpoints throughout the country. Lawyers in the enforcement and litigation divisions were responsible for analyzing the legality of the new procedures and partnering with the Department of Justice in defending the practices in federal court. General Law lawyers assisted the TSA response to FOIA requests from media and other entities and worked with agency officials on concerns related to the health and safety of AIT machines. Multiple practice groups teamed up to assist with the outreach effort to state legislatures, conduct federal preemption and supremacy analysis on the numerous bills, and consult on contingency planning in the event one of the bills were to be passed into law.

          Needless to say, my experience as a lawyer with TSA, both in Washington D.C., and now in Texas, has provided me a front-row seat to many interesting legal issues and a greater insight into both the challenges and accomplishments of a relatively young federal agency with the extraordinary task of securing the nation’s transportation networks. As we mark eleven years since the 9/11 attacks this month, I am once again reminded of this important and serious undertaking and feel fortunate that I have the opportunity to participate.

^{[1] Aviation and Transportation Security Act, Pub. L. 107-71 (2001)
[2] 49 U.S.C. §114(d) (2001) gave TSA responsibility for security in all modes of transportation to include civil aviation and all modes of transportation exercised by the U.S. Department of Transportation (e.g., rail, cargo, highway, pipeline, and bus)
[3] 49 U.S.C. §44901 Note
[4] TSA’s primary committees of jurisdiction in the U.S. Congress are the Committee on Commerce, Science, and Transportation in the Senate and the Committee on Homeland Security in the House of Representatives.
[5] HB 1937 passed the Texas House of Representatives on a unanimous vote, but the bill died in the Texas Senate.}