Recently, Delta Airlines (formerly Northwest) settled a lawsuit filed by six imams who claimed they were profiled for their religion rather than suspicious behavior. They were subsequently removed from a flight and questioned by authorities. In July, a federal judge sent a strong message that the airline lacked probable cause to remove the imams from the flight by ruling that Delta could be held liable for civil damages. Delta settled with the Muslim clerics out of court.
In my opinion, the airline should have stood firm and pursued the litigation to its end, including exhausting all appeals. The judge’s ruling undercut the airline’s partnership with the federal government to prevent another 9/11, and the pilots who had the imams removed from the plane deserved their employer’s support. The judge’s ruling creates two primary issues.
First, it is long settled policy that the pilot-in-command’s authority to determine who does or does not fly is absolute. This ruling interferes with that critical standard. In light of this ruling, pilots may be obliged to call the General Counsel instead of TSA or law enforcement authorities when they question whether their obligation to protect their passengers’ safety is jeopardized.
As a former senior TSA official who has testified before Congress on the obligations of the pilot-in-command, I don’t think very many airline pilots are satisfied with this ruling or the airline management’s need to respect the settlement. A similar event is likely to happen again, since I don’t see pilots at any time allowing their authority to be compromised.
Second, airlines are required by TSA to report instances of suspicious behavior as soon as practical after observing or becoming aware of it. The same principle applies. Does TSA want regulated parties to first call their General Counsel and debate the legal definition of suspicious behavior before making a report – potentially hours or even days later? Simply put, such delays are an invitation for new acts of terrorism in the aviation sector.
This settlement does nothing to enhance security and is a disservice to preventing new acts of terrorism. Everyone must be aware of the realities of using post-9/11 commercial air transportation and accept the need for certain security measures.