Tuesday, 14 March 2006

What's behind the TSA's witness tampering?

Google TSA lawyers and one of my blog posts is the first search result.

So CNN called me this morning to ask what I know about the USA Transportation Security Administration lawyer, Carla J. Martin, who was caught coaching witnesses on what testimony they should give in the court hearing on whether there is sufficient evidence to satisfy the legal requirements for the Feds to execute Zacarias Moussaoui, or whether he will be sentenced to life in prison.

I've never dealt with Carla J. Martin, Esq., the TSA lawyer whose meetings with witnesses from the Federal Aviation Administration (the agency out of which the TSA was created after 11 September 2001), and e-mail messages sharing transcripts of hearings with those witnesses, in violation of direct orders of the court, today caused the court to exclude their testimony, as well as other testimony concerning some of the allegations they planned to make against Moussaoui, from the sentencing hearing.

But there's a back story that's being overlooked in the rush to scapegoat Martin and attribute her misconduct to mere incompetence or personal ethical failing.

Competent, ethical, or not, Martin had reasons for what she did, and her actions were perfectly consistent with established goals and tactics that have characterized the TSA since its creation: avoidance of independent factual inquiry into, and judgment on, the likely efficacy (if any), in reducing loss of life from terrorism, of the actions taken by the TSA and its predecessor the FAA in the name of "security" and "preventing terrorism".

I won't try to recount the complicated procedural history of the case against Moussaoui. Suffice it to say that Moussaoui has pled guilty (under duress, some would argue) to conspiracy charges carrying a mandatory life sentence without parole. Federal parole has generally been abolished anyway, but is specifically forbidden for these charges.

The government has alleged, but Moussaoui has not conceded, that Moussaoui's lies to the FBI when he was arrested in August 2001 caused (and were intended to cause) more deaths on 11 September 2001 that would have been prevented had Moussaoui confessed to the FBI and fully informed on his co-conspirators. Under current Federal law, Moussaoui can only be executed if the government can prove this to a jury beyond reasonable doubt.

That's the purpose of the current "sentencing trial". It's an evidentiary, fact-finding hearing, before a Federal judge and jury, under the Federal rules of criminal procedure and evidence, on essentially the sole question of whether the measures the FAA claims they would have taken in the name of "aviation security" if they had gotten Moussaoui's full confession in August 2001 -- and which are essentially the same as measures the FAA and its successor the TSA have, in fact, taken since 11 September 2001 -- would actually have helped prevent the September 11th attacks or saved any lives if they had been done sooner.

That's what panicked Ms. Martin into into illegally coaching the witnesses from her agency and its predecessor: the prospect of a fair hearing and a judicial verdict on the likely efficacy for safety, security, and reduction of loss of life to terrorism of her agency's so-called "security" measures. According to news reports, she told the witnesses in her e-mail messages that she feared the judge might find that Moussaoui's lies didn't lead to any deaths, since the things the FAA would have done if they had known more about the attackers' plans wouldn't have prevented them.

Presumably she knew she might be caught violating the witness sequestration order. If she was (as, indeed, she has been), the result would be that the "death notice" would be dismissed, and Moussaoui would live out his life in prison. But she took that risk anyway, a decision that makes sense only if she was more eager to avoid a verdict that the FAA and TSA tactics wouldn't have made us any more secure than she was eager to avoid having the death notice dismissed and Mousaoui live.

The real worst-case scenario for Martin, which she and and the TSA apparently have now succeded in averting, was a judicial verdict that -- as the TSA's own advisory committee, Congressional auditors from the GAO, and every independent airline security expert I've ever spoken with have have already concluded -- the TSA has failed to make a case for its airline passenger surveillance measures as being justified on grounds of safety, security, prevention of terrorism, or saving of lives.

Which, of course, brings us to the real question below the surface of this case: If these aren't really measures that will make us safer, why is the TSA compelling things like the conversion of airline reservations and operational systems into an infrastructure of surveillance ? It's hard to avoid the conclusion that surveillance, not security, is the real goal that -- at least to some three-letter agencies of the government -- justifies the dollar expense (billions) and political cost of these programs.

[Addendum, 15 March 2006: If you found my Web site by Googling Carla J. Martin , Ms. Martin was one of the TSA attorneys on this brief in a Seattle case (arguing for keeping the policies for the TSA "no-fly" list secret from those who have been prevented from flying) that I wrote about here and here . But I didn't attend the hearing in that case, which was argued for the government by Joseph LoBue of the Department of Justice, nor do I know if Ms. Martin was present in court for that hearing.]

[Further addendum, 21 March 2006: Ryan Singel brings to my attention that a similar, but slightly different theory -- emphasizing the fears of the airlines more than those of the TSA -- has been put forward here and here at Talkleft.com.]

Link | Posted by Edward on Tuesday, 14 March 2006, 19:23 ( 7:23 PM) | TrackBack (0)
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