The Federal Air Marshal Service is squelching the First Amendment rights of its rank-and-file employees by not allowing them to speak out about alleged security lapses in the commercial airline industry, the American Civil Liberties Union charged in a lawsuit Thursday.
The lawsuit, which claims the policy of not allowing air marshals to speak to the press or public is unconstitutional, was filed Thursday on behalf of Frank Terreri, an air marshal based in Los Angeles. Terreri, currently on non-flying administrative status due to a disciplinary proceeding unrelated to the current lawsuit, has been in a long-running dispute with air marshal officials to correct several policy areas he believes compromise commercial air travel.
“One of the fundamental lessons of the horrific events of 9/11 and the heroic efforts of the 9/11 widows to force the Bush administration to set up the 9/11 commission is that secrecy can be the enemy of accountability and good security,” said Peter Eliasberg, an ACLU lawyer in the group’s Southern California office.
“Unfortunately, the Federal Air Marshal Service has not learned this lesson,” Eliasberg said. “Instead of promoting accountability they have set up a series of rules that are so restrictive that our client, Mr. Terreri … can’t appear here today or speak with any of you any day or any time.”
David Adams, a spokesman for the Federal Air Marshal Service, declined to comment on the specifics of the litigation, saying the agency hadn’t yet seen anything from the court. However, on the general issue of whether air marshal policies restricting speech were unconstitutional, Adams said, “We never violate anybody’s civil rights; however, we are strictly adhering to Department of Homeland Security policies on these issues.”
No conflict here
The interest of air security and First Amendment rights present no conflict, said Allan Ides, a constitutional law professor at Loyola Law School in Southern California, who also is representing Terreri in the case.
Air marshals like Terreri “are essentially muzzled,” Ides said. “We are not talking about classified or sensitive security information, but only about commentary on matters already of public record, much of it which has been disclosed to the public by federal air marshal administrators,” Ides said.
Terreri has authored several e-mails sent to his co-workers about security lapses he alleges put the flying public and air marshals themselves at risk. These alleged lapses include making air marshals board planes in full view of other passengers; making them easily identifiable; and creating a dress code that makes air marshals stand out on flights. In addition, Terreri has been critical of information contained in newspaper, magazine and television broadcasts about the marshal service, all of which were done with the approval of air marshal officials, that he believes have compromised the “operational security” of the air marshals themselves.
Air marshal officials deny any such compromises have taken place and refute allegations that internal policies, which remain classified, such as the agency’s dress code, are too restrictive.
Such classified policies effectively isolate them from “the critical review the First Amendment was designed to promote,” Ides said. “The purpose of this lawsuit is to alter that course and return us to the constitutional model of robust public debate.”
Former FBI agent , who became well known as a whistleblower in 2002 for her criticism of FBI policies, weighed in on the subject Thursday.
“Terreri wants to tighten holes in the security of the commercial airline industry. This is infinitely important to the safety of airline passengers and, ultimately, everyone,” Rowley said at a news conference, appearing on videotape. “But the overly restrictive policies of the Federal Air Marshal Service that he must follow are putting us all in danger and prohibiting the dissemination of important information and debate,” she said.
Rowley is well known for her 13-page memo to FBI Director Robert Mueller in 2002 outlining several areas where the bureau’s counterterrorism efforts fell flat prior to 9/11. Her memo was eventually leaked to the media, setting off a firestorm of congressional inquiry.
Pointing to her own experience when she wrote the memo, Rowley said, “I had no idea how close I came to losing my job. If my letter had not been leaked to the press, I probably would have been unceremoniously fired, and that information might not have made it into the public sphere.”
