TSA report on what happened to me at Dulles Airport

In response to my requests under the Freedom of Information Act (FOIA) and Privacy Act, I’ve received a copy of the USA Transportation Security Administration’s Incident Report on my detention, interrogation, and search for asking questions of the people demanding identification credentials of prospective passengers between the airline check-in counter and the TSA “screening checkpoint” at Dulles Airport in May of this year.

The response to my FOIA request is incomplete, self-contradictory in places, inaccurate or lying in others, and has all names other than my own “redacted” (blacked out). It’s unclear if the “TSA Incident Report” is a report by a TSA staff person, or a report to the TSA by a contractor or other third party. Nonetheless, it contains some interesting clues about what happened to me and, more importantly, about TSA policies and procedures:

Perhaps most significantly, the author of the TSA incident report (name blacked out) claims that, “I explained to the passenger that Airserve was contracted through the airline to perform this function and if he refused to allow them to verify his boarding pass and his ID I would not be able to allow him to enter the checkpoint. The author of the report thus directly contradicts the claim made to me by TSA Privacy Officer Peter Pietra after he had “looked into” what happened (presumably including, at a bare minimum, reviewing the TSA Incident Report), that “You may choose, prior to entering the checkpoint, to show identification, submit to additional screening, or decline both and leave. Those are the same choices expressly discussed by the court in the Gilmore decision that you note in your blog.”

This deepens the mystery as to whether, in law and/or in fact, airline passengers are actually (supposed to be) permitted to choose not to show ID credentials, if they consent to a more intrusive search for weapons and explosives.

As of now, here’s the balance of claims on each side of this question:

All airline passengers are required to show ID, with no alternative:

• TSA Incident Report on what I was told: “If he refused to allow them to verify his boarding pass and his ID I would not be able to allow him to enter the checkpoint.”
  
  
• TSA spokesperson Nico Melendez: “TSA requires government issued ID to be available for viewing in order to gain access to the security checkpoint.”
  
  
• The TSA.gov Web site: “You must present a Boarding Pass and a Photo ID to get to the checkpoint and to your gate.” [Update, 4 August 2006: Presumably in response to this article and my correspondence with Mr. Pietra of the TSA, the TSA Web site has been revised. Although the page on Access Requirements with the mandatory language I quoted still exists unchanged and is still linked from the page on The Screening Experience , the link from the main page on Our Travellers has been removed and that page has been changed to read, “We encourage each adult traveler to keep his/her airline boarding pass and government-issued photo ID available until exiting the security checkpoint. The absence of proper identification will result in additional screening.”
  
  
• Standardized printed signs in all airports in the name and with the logo of the TSA: “Passengers must have a BOARDING PASS and PHOTO IDENTIFICATION”

Passengers may proceed as “selectees for secondary screening” instead of showing ID, if they consent to a more intrusive search for weapons and explosives:

• TSA Privacy Officer Peter Pietra: “You may choose, prior to entering the checkpoint, to show identification [or] submit to additional screening.”
  
  
• U.S. Court of Appeals for the 9th Circuit decision in Gilmore v. Gonzales : “The identification policy requires airline passengers to present identification to airline personnel before boarding or be subjected to a search that is more exacting than the routine search that passengers who present identification encounter…. Gilmore had a meaningful choice. He could have presented identification, submitted to a search, or left the airport. That he chose the latter does not detract from the fact that he could have boarded the airplane had he chosen one of the other two options.”
  
  
• Pleadings and oral argument by lawyers for the TSA and the other government defendants in Gilmore v. Gonzales before the U.S. Court of Appeals for the 9th Circuit.
  
  
• Pleadings and oral argument by lawyers for the TSA and the other government defendants in Gilmore v. Gonzales before the U.S. District Court for the Northern District of California.
  
  
• TSA spokesperson Amy Kudwa: “”Passengers are allowed to enter screening area without identification.”

(If you want to investigate this for yourself, you can report your experience confidentially to The Identity Project.)

There’s no mention anywhere in the TSA Incident report or attachments of my complaint that the person with the “AIRSERV” badge had claimed to me to be a TSA employee, and that I believed — and he had admitted in response to my further questions — that this claim was false. If the documents I received are, as the TSA claims, complete except for the blacked-out names and portions of sentences, none of the people I spoke to, including the self-described TSA supervisor on duty and the police, made any record of my report and complaint to them of the serious Federal crimes of impersonating a TSA employee and giving orders to members of the public under color of that false claim.

The list of “TSA Involved” on page 10 of the PDF includes “TSA/IAD SPOT Team”, confirming my published suspicion that at least some of the interrogation of me was part of the TSA’s “Screening Passengers by Observation Techniques” (SPOT) program. Is asking questions, or being willing to consent to more intrusive search for weapons and explosives as a condition of not showing ID credentials, among the “suspicious” behaviors targetted by SPOT?

Although the names of the uniformed police officers are blacked out on the grounds that to reveal them “could reasonably be expected to endanger [their] physical safety”, the report does reveal that what I had taken as likely to be Metropolitan Washington Police or some other Federal law enforcement officers were actually Metropolitan Washington Airports Authority (MWAA) Police, who operate exclusively under Virginia law. Corporal Norfleet of the MWAA Police records office told me that the MWAA has no “police report” on their detention of me. But now that I know who they were, I’ve requested additional records from the MWAA and the MWAA Police under the Virginia state FOIA, which applies to MWAA under the terms of the law authorizing the creation of the MWAA.

Given that the Federal government and Virginia have concurrent police jurisdiction over Dulles Airport, why did the TSA call for MWAA (Virginia) police rather than Federal law enforcement officers? In the past, the FBI has said that investigative detention is the basis for local law enforcement officers to hold prospective airline passengers, presumably because the Feds recognize that no valid Federal law or regulation is violated by declining to show ID credentials to the TSA or anyone else, or by asking questions. But what possible violation of Virginia law were they allegedly holding me to investigate? Surely the MWAA Police, and the TSA staff at airports and ID checkpoints in Virginia, should be aware of the 2002 opinion of the Attorney general of Virginia that even if there is a valid basis for investigative detention, refusal even to provide verbal self-identification, much less to provide ID credentials, is not a basis for arrest under Virginia law. All this tends to confirm that the real reason to call in local law enforcement officers is to provide a pretext for detention and illegally compelled identification (or illegal search of people and their belongings for identifying documents, as the TSA itself later conducted), while insulating the TSA from accountability.

Some of the inaccuracies in the report are indicative of mere carelessness or incompetence, although they do call into question the accuracy of the rest of the reported details. For example, on page 4 of the PDF my flight is described in 2 places as being to “TPA-Tampa International”, and on page 10 as being “IAD to SAN” (Dulles to San Diego), when in fact it was IAD to SFO (San Francisco).

The entire report characterizes me as an “Unruly/Disorderly”, although I was neither. Is asking questions deemed inherently “unruly” by the TSA, even when done politely? More significantly, the TSA report claims that, “the NCIC report reflected that the passenger had been arrested previously for similar reasons”, which is either a false claim about the NCIC report, or indicative of false data (not uncommon) in the NCIC records and report.

The TSA Incident Report perpetuates the uncertainty about whether the people demanding ID credentials claim to be working for, and under the “authority” of, the airline or the airport. Page 5 of the report refers to them as “airport representatives”, while page 7 refers to them as “contracted through the airline”. It shouldn’t actually matter, since the airline specifically advised me that any obligations in their contract with passengers are limited to interactions with airline employees (i.e. not including contractors). But the airline and the airport have very different contractual relationships, rights, and obligations with respect to prospective passengers. The failure to distinguish between the airline and the airport in the TSA report is indicative of the difficulty either Federal, local, or corporate entities have in finding any clear or consistent excuse for their demands that will withstand critical scrutiny, much less legal challenge.

The TSA Incident Report and its attachments were the only response to my FOIA/Privacy Act request. Mr. Ryan Law of the TSA FOIA/PA office said that only TSA records at Dulles Airport, and records of the TSA “Office of Security Operations”, had been searched for records that might be responsive to my request.

The TSA neither provided nor acknowledged the existence of any record of TSA Privacy Officer Pietra’s purported investigation of what had happened. Nor did the TSA provide any records from the TSA’s Office of Public Affairs, from whose spokesperson Nico Melendez I had requested and received comments for my original article.

When I asked today whether the TSA had searched for records related to Mr. Pietra and Mr. Melendez, Mr. Law of the FOIA/PA office interrupted, “Wait, I need to write these names down — this is new information” — even though I had quoted Mr. Melendez by name and affiliation in the article included in my FOIA/PA request, and even though it was Mr. Pietra who had chosen to construe my request for comment as a FOIA/PA request and had forwarded it to the FOIA/PA office.

Mr. Law declined to comment on why no search had been done for records of either of the two known TSA employees identified by full name and title in my request, leaving it unclear whether the deficiency in the search, and the incomplete “response” to my request, was due to incompetence, gross negligence, bad faith, malice, or some combination thereof. Mr. Ryan assured me today that he is now beginning a search for the records not yet provided.

[Follow-up, 28 September 2006: Kip Hawley is an idiot. ]

[Follow-up, 27 October 2006: TSA says their press releases are secret ]