When we see the very visible reminders of the reality of the terrorist threat within our borders such the TSA officers at airports, Border Patrol and Customs agents and enhanced access controls almost everywhere, there is something that is also happening that is not as visible. We overlook that a significant amount of mitigating the threat of a terrorist attack comes from regulating private sector activities. These regulations have real impact, real costs and real effects on us all. Precisely how these regulations are drafted (and what consultation with industry – if any) is a key issue that should be watched. This process is currently being instituted very differently from how it was done in the years immediately following 9/11.
Following the 9/11 terrorist attacks speed was of the essence and homeland security leaders were given extraordinary authorities to put security programs in place. Often this was done in a kind of regulatory negotiation process with impacted parties. The results were not always perfect (just ask any airline or airport) but the objective of enhancing security while keeping people and commerce moving was achieved. Even at the time, there were those who objected to the authorities Congress gave to DHS and believed that normal regulatory and legal processes for rulemaking should have been followed.
Today we seem to have journeyed far enough from 9/11 to come to a place in which we institute security regulations the old fashioned way. Lots of bureaucratic study, endless comment periods, stacks of economic analysis that academic economists can’t even understand, legal commentary and adherence to process and procedure that produce more frustration than better security. I suggest the pendulum has swung too far in favor of regulatory niceties and away from negotiated outcomes that make security better faster.
A case in point is the proposed rule for security regulation of large general aviation aircraft. The first thing is that the rule purports to regulate aircraft that aren’t large in weight or size (and therefore aren’t a high threat) by any common sense standard. Years in the making, this proposed rule is a triumph for those who would make security better by government process. Recently, the head of one of the major general aviation trade associations told me that the rule was death – meaning that implementation of the rule could cause the cessation of operations for large segments of the general aviation community.
This situation ought to be remedied by a creative process of negotiation. We need an alternative that supports both security and commerce. That combination is what will defeat the terrorists.