When TSA Decided to Junk the Constitution To Make Things Easier for Their Police State, They Hadn't Reckoned on the EAA

As we continue to bring you more coverage of aviation's answer to the TSA's draconian and unilateral seizure of unconstitutional power, we present many of the same arguments again. The Experimental Aircraft Association has filed its answer (reprinted below in its entirety) to the TSA's "guilty until proven innocent, and you can't see the evidence (if any)" rule. It is well-reasoned and -documented. Read it print it, and read the case citations, too -- you can learn a lot about how to fight tyranny, by reading references to the Constitution...

March 25, 2003
Re: Docket No. TSA-2002-13732 (Threat Assessment Regarding Citizens of the United States Who Apply for FAA Certificates)
Docket No. FAA-2003-14293-310 (Ineligibility for Airman Certificate Based on Security Grounds)

Dear Sir or Madam:
The Experimental Aircraft Association ("EAA") submits these comments on behalf of its members in opposition to the above referenced final rules of the Transportation Security Administration ("TSA"). 

The EAA is an international organization which was formed in 1953.  The EAA's members include pilots, flight students, aircraft owners, aircraft builders and restorers, and aviation enthusiasts.  The EAA presently has over 168,000 members in more than 1,000 chapters worldwide, including 155,462 United States citizens.

I.          Introduction

On January 24, 2003, the Department of Transportation published and adopted, without prior notice or public comment, a final rule titled "Threat assessments regarding citizens of the United States holding or applying for FAA certificates, ratings, or authorizations" (the "final rule").  See 68 Fed. Reg. 3756, now codified at 49 C.F.R. § 1540.115.  As summarized in its publication, the final rule "establishes a procedure by which the TSA will notify the subject individual and the Federal Aviation Administration (FAA) of TSA's assessment that an individual who holds or is applying for an FAA airman certificate, rating, or authorization poses a security threat."   See Fed. Reg. 3756.

The final rule is intended to further the federal government's "important and immediate interest in protecting national security and providing the nation with a safe and secure transportation system."  See Fed. Reg. 3756.  Although the EAA supports and appreciates the nature of the federal government's active investigation of threats to the nation's security, it vigorously opposes this rule as adopted, because it deprives the millions of United States citizens subject to it of their fundamental right to due process, which cannot be so severely abrogated, even in these uncertain times.

II.        The TSA's Final Rule Governing Threat Assessments Of U.S. Citizens

The final rule was enacted pursuant to the Aviation and Transportation Security Act, ("ATSA"), which Congress enacted on November 19, 2001 in response to the terrorist attacks of September 11, 2001.  ATSA created the TSA and transferred responsibility for civil aviation security from the FAA to the TSA.  The TSA operates under the direction of the Department of Transportation's Under Secretary of Transportation for Security (the "Under Secretary").   ATSA directs the Under Secretary, in consultation with the Security Oversight Board, to "establish procedures for notifying the Administrator of the Federal Aviation Administration, appropriate State and local law enforcement officials, and airport or airline security officers of the identity of individuals known to pose, or suspected of posing, a risk of air piracy or terrorism or a threat to airline or passenger safety."  See 49 U.S.C. §114(h)(2).  Likewise, ATSA requires the FAA to "make modifications in the system for issuing airman certificates related to combating acts of terrorism."  See 49 U.S.C. 44703(g).  Although the final rule was promulgated pursuant to these directives and may aid in achieving the ultimate goals established therein, the means by which it does so exceed the authority granted to the TSA and fail to protect the basic due process rights of United States citizens subject to it.

The final rule applies when "TSA has determined that an individual who is a United States Citizen and who holds, or is applying for, an airman certificate, rating, or authorization issued by the Administrator, poses a security threat."  See 49 C.F.R. § 1540.115(a).  As set forth in section (c), an individual poses a "security threat," when the individual is suspected of posing or is known to pose: (1) a threat to transportation or national security; (2) a threat of air piracy or terrorism; (3) a threat to airline or passenger security; or (4) a threat to civil aviation security.  See 49 C.F.R. § 1540.115(c) (emphasis added).

Once the TSA's Assistant Administrator for Intelligence ("Assistant Administrator") determines that an individual poses a security threat, an "Initial Notification of Threat Assessment" ("Initial Notification") is issued to the individual and the FAA.  The Initial Notice need only include two perfunctory statements: (i) a statement that the Assistant Administrator personally has reviewed the materials upon which the Initial Notification was issued, and (ii) a statement that the Assistant Administrator has determined that the individual poses a security threat.  See 49 C.F.R. § 1540.115(e).  Although not set forth in the rule itself, as explained in the Discussion of the final rule, this initial "notice" of the Assistant Administrator's "assessment" is the basis for the FAA to delay the issuance of or to suspend the individual's certificate, rating, or authorization pending completion of the TSA's process.  See 68 Fed. Reg. 3756, 3757.  See also 14 C.F.R. §§ 61.18, 63.14, and 65.14 (declaring individuals whom the TSA has determined pose a security threat ineligible to hold certificates, ratings, and authorizations authorized under those parts).  However, a giant leap in logic is required to conclude that because the TSA has the authority to notify the FAA that an individual is suspected of posing a security threat, that the individual's certificate must be immediately and automatically suspended by the FAA.  See 49 U.S.C. § 114(h)(2).

After the Initial Notice is issued, the individual subject to the threat assessment is given 15 calendar days in which to serve upon the TSA a written request for copies of the "releasable materials upon which the Initial Notification was based."  See 49 C.F.R. § 1540.115(e)(2).  Within 30 calendar days of receipt of such request or "such longer period as the TSA may determine for good cause," the TSA must serve a response to the request.  See  49 C.F.R. § 1540.115(e)(3) (emphasis added). 

The final rule's Discussion of the TSA's "response" is somewhat misleading, for the rule permits the TSA to provide no substantive response at all to the individual's request.  The TSA will not include in its response any "classified information" as defined in Executive Order 12968 section 1.1(d), and it "reserves the right not to disclose any other information or material not warranting disclosure or protected from disclosure under law."  See 49 C.F.R. § 1540.115(e)(3), (g) (emphasis added).  As explained in the Discussion of the final rule, the "other information" includes sensitive security information ("SSI"), sensitive law enforcement and intelligence information; sources, methods, means, and application of intelligence techniques; and identities of confidential informants, undercover operatives, and material witnesses.  See 68 Fed. Reg. 3756, 3758.[1]  Additionally, because of the "mosaic" like nature of foreign intelligence gathering, the final rule establishes that no one other than those officials making the initial threat assessment determination will be able to judge the risk which the release of such information would entail.  See Fed. Reg. 3756, 3759.[2]

Within 15 calendar days after the service of the TSA's "response," the individual may serve upon the TSA a written reply to the Initial Notification.  See 49 C.F.R. § 1540.115(e)(4).  "The reply may include any information that the individual believes TSA should consider in reviewing the basis for the Initial Notification."  See id.  Within 30 calendar days of its receipt of such a reply, or "such longer period as TSA may determine for good cause," the TSA must serve a final determination.  See 49 C.F.R. § 1540.115(e)(5) (emphasis added). 

In reaching a final determination, the Deputy Administrator of the TSA conducts a de novo review of the Initial Notification, the materials upon which it was based, the individual's reply, if any, and any other materials or information available to the Deputy Administrator.  See 49 C.F.R. § 1540.115(f)(1).  If the Deputy Administrator determines that the individual poses a security threat, the Under Secretary then reviews the Initial Notification, the materials upon which the Initial Notification was based, the individual's reply, if any, and any other materials or information available to the Under Secretary.  See 49 C.F.R. § 1540.115(f)(2).  If the Under Secretary determines that the individual poses a security threat, the Under Secretary serves upon the individual and the FAA a "Final Notification of Threat Assessment," ("Final Notification").  The Final Notification, similar to the Initial Notification, includes (i) a statement that the Under Secretary personally has reviewed the Initial Notification, the individual's reply, if any, and any other materials or information available to the Under Secretary, and (ii) has determined that the individual poses a security threat.  See 49 C.F.R. § 1540.115(f)(2).  This Final Notification forms the basis for the FAA's revocation of, or denial of, the individual's certificate, rating, or authorization.  See 14 C.F.R. §§ 61.18, 63.14, and 65.14.

If the Deputy Administrator does not determine that the individual poses a security threat, or if upon review, the Under Secretary does not determine that the individual poses a security threat, the TSA serves upon the individual a "Withdrawal of the Initial Notification," ("Withdrawal"), and provides of copy of the Withdrawal to the FAA.  If an Initial Notification is withdrawn, the FAA will withdraw its certificate suspension.  See Ineligibility for an Airman Certificate Based on Security Grounds, 68 Fed. Reg. 3771, 3773.

III.       Discussion

A.       The Final Rule Deprives Individuals Of Fundamental Due Process Rights
The Fifth Amendment to the U.S. Constitution provides that "...no person shall be deprived of life, liberty, or property without due process of law."  "To be entitled to procedural due process, a party must show a liberty or property interest in the benefit for which protection is sought."  See Greenwood v. FAA, 28 F.3d 971, 975 (9th Cir. 1994).  Once such an interest is shown, and the Fifth Amendment applies, the extent of the due process required depends upon the particular interests affected.  See Mathews v. Eldridge, 424 U.S. 319, 332-35 (1976); Greenwood, 28 F.3d at 975; Reid v. Engen, 765 F.2d 1457, 1463 (9th Cir. 1985).  The most critical procedural protections are adequate notice and an opportunity to be heard prior to the deprivation.  However, other important procedural protections include an opportunity to review and rebut evidence, the ability to confront and cross-examine witnesses, the provision of adequate time to prepare a defense, a post-deprivation hearing, and meaningful review of the decision.  See, e.g., Cleveland Bd. of Education v. Loudermill, 470 U.S. 532, 546-47 (1985); Greene v. McElroy, 360 U.S. 474, 496 (1959).

Courts have recognized that government-issued licenses, including FAA certificates, constitute a property interest, the deprivation of which must be accompanied by appropriate procedural due process protections.  See, e.g., Pastrana v. U.S., 746 F.2d 1447, 1450 (11th Cir. 1984) ("Petitioner's pilot's certificate, as predicate to his employment as a pilot, is a cognizable property interest protectable by the procedural due process requirement of the fifth amendment.  Petitioner has a continuing legitimate claim of entitlement to the pilot certificate, and absent an extraordinary situation involving an important governmental interest, is entitled to appropriate notice and hearing before being denied use of that pilot certificate"); Tur v. FAA, 4 F.3d 766, 769 (9th Cir. 1993) ("Petitioner undoubtedly has a protectable property interest in his airman's certificate").  Thus, given that an FAA certificate constitutes a protectable property interest, and that the pursuit of a livelihood for which such a certificate is required is a protectable liberty interest, individuals whom the government seeks to deprive of a certificate must be afforded commensurate due process.  See Tur, 4 F.3d at 769.  As adopted, the final rule clearly violates the Fifth Amendment's due process guarantee, and thus will not withstand an inevitable constitutional challenge.[3] 

B.        The Final Rule Fails To Establish Any Procedural Or Substantive Standards, Criteria, Or Thresholds To Be Followed Or Employed In The Security Threat Assessment

Perhaps the most basic defect in the final rule is its lack of specificity as to what type or quantum of information is sufficient to trigger a security threat assessment by the Assistant Administrator and how such an assessment is actually conducted.  This concern arises from the fact that one may be deemed to pose a security threat based on nothing more than a suspicion.  For example, is the mention of an individual's name by another individual thought to be associated with a particular organization be sufficient to trigger an assessment?  Is membership in an organization critical of government or TSA policies sufficient to trigger an assessment?  Once an assessment is triggered, is the Assistant Administrator obligated to seek out corroborating or exculpatory information?  Is any effort made to establish the source (or credibility of the source) of the information reviewed?  Once an assessment is triggered, what amount of evidence provides a sufficient basis for a determination that an individual poses a security threat?  A review of the final rule leaves one with the inescapable impression that the Assistant Administrator's determination that an individual poses a security threat is based upon nothing more than a ministerial comparison of names found on a government "watch list" with those set forth in the FAA airmen registry.

The EAA acknowledges that it some cases, the determination that an individual poses a security threat may be clear.  However, that will not always be the case, as evidenced by the fact that the TSA has already reversed several of the initial 11 certificate revocations.  See 68 Fed. Reg. 3756, 3760.  The final rule's ambiguity and lack of standards governing how an assessment is triggered and upon what information a determination may be based create a system ripe for abuse.  Given the devastating professional and personal impact which even a Withdrawal may have on an airman, the final rule must be revised to ensure the integrity of the threat assessment process.  From a procedural prospective, the final rule must be revised in order to provide clear criteria and procedures for the Assistant Administrator to follow when commencing an assessment and notice as to what type of information is reviewed by the Assistant Administrator once an assessment is commenced.  From a substantive prospective, the TSA should consider revising the rule to provide standards for the type and amount of information reviewed, and for determining the credibility and reliability of such. 

C.        The Final Rule Does Not Provide An Individual With Meaningful Predeprivation Notice Or Opportunity To Be Heard

As discussed above, the most critical procedural protections to be afforded to an individual prior to the government suspending or revoking a government-issued license are adequate notice and a meaningful opportunity to be heard.  Although the final rule provides the individual with the right to respond to the Initial Notification, that right does not afford the individual sufficient procedural protection given the nature of the deprivation.

First, although the Initial Notification is labeled as an "initial" "notification" of an "assessment," as a practical matter, the individual's certificate will be suspended by the time the individual receives the Initial Notification.  Thus, the individual is not given any notice of the suspension, or an opportunity to respond to the suspension, until after the suspension is imposed.  Second, the Initial Notification provides little information beyond the very basic statements that an assessment has been performed, the Assistant Administrator has reviewed the evidence, and a determination that the individual poses a security threat has been made. Assuming that the TSA makes no substantive response to a request for the materials upon which the determination is based, the individual is not given sufficient notice of the action prior to the Final Notification either.

Most critical, however, is that the fact that at no time in the process, neither before nor after the Final Notification, is the individual given a meaningful opportunity to be heard.  At an absolute minimum, the individual must be given the opportunity for an in-person, informal meeting with a TSA representative and/or a government representative with personal knowledge of the information upon which the threat assessment is based.  Given that the TSA does not expect the number of individuals subjected to this process to be numerous, this procedural step will not create an administrative burden, and given the seriousness of the accusations, it is necessary to protect the individual's right to due process.  Although the informal meeting should occur prior to the suspension, it may also be held after the suspension, but prior to the final determination.  See, e.g., Gilbert v. NTSB, 80 F.3d 364, 367 (9th Cir. 1996) (written notice and option of an informal conference with FAA prior imposition of suspension fulfills due process requirements); Greenwood, 28 F.3d at 975 (provision of name of person to contact with questions and permitting individual opportunity to "explain the situation" fulfilled due process requirements for suspension);  Reid, 765 F.2d at 1463 (written notice and informal conference prior to suspension satisfied due process requirements for 120-day suspension of pilot certificate); Tur, 4 F.3d at 769 ("[B]efore petitioner's [airman's certificate] can finally be destroyed through permanent revocation of his certificate, he is entitled to a hearing"). 

Finally, with respect to the individual's opportunity to be heard, the final rule provides the individual with only 15 days after the Initial Notification in which to submit a request for releasable materials.  Additionally, the individual's reply must be filed within 15 days after service of the TSA's response.  In the Discussion of the final rule, the TSA acknowledges that this process provides shorter time periods for the individual and the TSA to act than in many administrative proceedings.  See Fed. Reg. 3756, 3758.  Although the short time periods permitted for the TSA to act are not an issue (other than the fact that they can be extended indefinitely at the TSA's discretion), the brief time periods provided for the individual to act raise serious due process concerns.  Although the individual will be provided with little, if any, information in the Initial Notification or in the TSA's response to a request for materials, and thus may have absolutely no idea of the nature of the allegations against him, the individual is expected to be ready for each next step in the process within 15 days.  The final rule must be revised so that the individual has the option of requesting extensions or waiving time at each step of the threat assessment process in order to have sufficient time to investigate and/or respond to the allegations, if possible.  See Tur, 4 F.3d at 769-70 ("due process requires that individuals have the option of waiving their right to expedited proceedings in order to receive meaningful review of their claims").

D.       The Final Rule Permits The TSA To Withhold All Information Upon Which The Determination Is Based 

The final rule's fundamental flaw is that it does not require the TSA to provide the individual subject to the threat assessment with any information upon which its determination is based.  Although the final rule purports to require the TSA to respond to a written request for releasable materials upon which the Initial Notification was based, the TSA will not provide classified information, and it "reserves the right not to disclose any other information or material not warranting disclosure or protected from disclosure under law."  See 49 C.F.R. § 1540.115(g).  Thus, as a practical matter, the TSA is not required to provide the individual with any information, as the rule provides it with absolute discretion as to whether the information "warrants" disclosure.

Although the EAA recognizes that the TSA may in many instances review and possess some highly sensitive material which cannot be provided, before the TSA can revoke a certificate or deny  issuance of the same, the affected individual must be given at least some modicum of information upon which the threat assessment is based.  Failure to provide any basis for the threat assessment is fundamentally unfair and clearly in violation of indispensable due process rights, as it is nearly impossible for the impacted individual to refute the determination without such.  In fact, access to the government's evidence is even more important in the context of the TSA's threat assessment process, where the information relied upon may be nothing more than anonymous tips, hearsay, innuendo, inference, and suspicion.  See, e.g., Greene, 360 U.S. at 496 (discussing due process afforded to individual in revocation of security clearance and stating: "[T]he evidence used to prove the Government's case must be disclosed to the individual so that he has an opportunity to show that it is untrue.  While this is important in the case of documentary evidence, it is even more important where the evidence consists of the testimony of individuals whose memory might be faulty or who, in fact, might be perjurers or persons motivated by malice, vindictiveness, intolerance, prejudice, or jealousy"); Bennett v. NTSB, 66 F.3d 1130, 1136 (10th Cir. 1995) (noting that Green "teaches that when the Fifth Amendment applies, the Government may not penalize an individual without first providing an opportunity for rebuttal, including cross-examination"). 

The EAA proposes that the final rule be revised so that when the TSA's determination is based upon information which it either cannot disclose or chooses not to disclose, the information will be reviewed in camera by (1) an administrative law judge of the NTSB, (2) a judge of the Foreign Intelligence Surveillance Court, see 50 U.S.C. § 1803, or (3) a judge appointed for the sole purpose of reviewing such materials.  The judge could order the disclosure of some or all of the information to the individual, or if none of the information is subject to disclosure, could at least provide an independent review of the sufficiency of the information upon which the threat determination is based.  Although an ex parte judicial review of the government's information is not an ideal solution for protecting the individual's due process rights, it is a tolerable compromise, given the government's claims of national security.  See generally, Frank Askin, Secret Justice and the Adversary System, 18 Hastings Constitutional Law Quarterly 745 (1991). 

E.         The Final Rule Fails To Provide Meaningful Review Of The TSA's Determination

In the Discussion of the final rule, the TSA expresses its commitment to providing adequate process to those individuals who are subject to a security assessment, and submits that the "three levels of administrative review" ensure such.  See 68 Fed. Reg. 3756, 3758.  However, the added level of review provided by the Under Secretary in the case of United States citizens is grossly inadequate, and deprives the affected individual of any sort of independent, judicial evaluation of the TSA's decision.

Although the final rule does not provide for such, individuals who have already been subjected to a security threat assessment have appealed to the NTSB.  Appeal to the NTSB and then to the appropriate United States Court of Appeals normally provides adequate review for FAA certificate actions; however, in the context of FAA actions based upon TSA security determinations, even this right to appeal may be rendered meaningless by the TSA's refusal to provide any of the information upon which its determination is based, because without that information, there can be no review of the TSA's decision.  See Stephen Power, U.S. Bars 2 Pilots For Saudi Airline As Security Threats, Wall Street Journal, February 14, 2003 at A2 (discussing NTSB administrative law judges' assumption of truth of government's assertions and inability to hold hearing because of government's refusal to provide evidence upon which revocation of pilots' licenses is based).  Simply stated, the successive review of secret evidence by numerous officials within the same agency does not adequately ensure an individual's due process rights, and prevents any type of meaningful check on the agency's power.

The final rule must be revised to expressly provide a right to appeal to the NTSB, and must further provide for some form of disclosure or in camera review of the information upon which the security threat determination is based.

F.         The Final Rule Provides The TSA With Unchecked Discretion

Finally, in its present form, the final rule provides the TSA with virtually unbridled discretion.  Although the TSA understandably requires some flexibility and discretion in order to carry out its particular duties, the final rule provides the TSA with unnecessary and unregulated power over FAA-issued certificates, ratings, authorizations, and the individuals who hold or seek them.  For example, as discussed above, the TSA's assessment can be based upon nearly any type of information, no matter how unreliable, and the final rule provides the TSA with discretion to provide none of it to the impacted individual.  Moreover, the final rule provides that in responding to a written request for materials, and in making a final determination after service of the individual's reply, the TSA must act within a certain time period or such longer period as TSA may determine for good cause.  Thus, in essence, the TSA need not ever respond to an individual's request for information or issue a final determination.

Although the EAA does not assume that the TSA will act in such a way as to violate the constitutional rights of individuals subject to the final rule, as adopted, the final rule grants the TSA totally unchecked discretion by which it can literally deprive individuals of their livelihood.  No one doubts the importance of the TSA's mission of overseeing the nation's transportation security, but given the important individual rights implicated by the final rule, the rule must be revised so that the TSA is guided by specific criteria and follows defined procedures when it chooses to label a United States citizen as a "security threat" and thereby deprives that citizen of a property interest protected by the Constitution.

IV.       Conclusion And Recommendations

In its vigor to combat previously unthinkable threats to this nation's security, the TSA has promulgated a rule which violates fundamental notions of fairness and due process.  However, neither the TSA nor Congress can abrogate the Fifth Amendment's vital guarantee of due process.  Although the government certainly may be afforded some additional discretion in times of conflict, total disregard of its citizens' constitutional rights is impermissible and abuse of its discretion must be prohibited.[4]

The TSA's final rule governing threat assessments of United States citizens must be revised to ensure that the due process rights of individuals subject to a threat assessment are respected.  That a small number of individuals has thus far been, or is likely to be, subject to scrutiny under this rule is irrelevant, because it is the rights of each individual citizen which the Fifth Amendment protects.  The shroud of secrecy which cloaks the TSA's threat assessment process contravenes basic due process rights, and prohibits any meaningful check on the TSA's broad discretion.

The EAA submits that the final rule is unconstitutional and recommends that it be revised as follows in order to protect the due process rights of United States citizens subject to it:

• Establish clear criteria as to when a security threat assessment is triggered or should be commenced;
• Establish procedures to be followed by the Assistant Administrator in conducting a security threat assessment;
• Establish criteria and standards governing the type, amount, source, and credibility of information which may be reviewed by the Assistant Administrator in conducting a security threat assessment;
• Establish procedures through which the Assistant Administrator will be required to collect additional, independent, and/or corroborating information regarding the individual;
• Provide the individual an opportunity for an in-person, informal conference with a TSA representative and/or a governmental official with personal knowledge of the information upon which the security threat assessment is based, to occur prior to the TSA's final determination;
• Provide the affected individual the option of requesting an extension of time or waiving time requirements set for requesting releasable materials and submission of a written reply;
• Provide that prior to the TSA's final determination and/or upon appeal, information upon which the TSA's determination is based which either cannot be disclosed or is not provided by the TSA, is subject to in camera review by an administrative law judge of the NTSA, a judge of the Foreign Intelligence Surveillance Court, or a judge appointed for the sole purpose of reviewing such materials, for the purpose of ordering the disclosure of such materials and/or reviewing the sufficiency of the information;
• Expressly provide for the right to seek review of the TSA's final determination through appeal to the NTSB and as otherwise provided by law;
• Limit the TSA's discretion to extend indefinitely time provisions governing its response to a request for releasable materials and the issuance of a final determination.

The EAA recognizes that the final rule evidences the TSA's attempt to respond to the ever-changing environment in which it was created following the attacks of September 11, 2001.  However, in seeking to protect the citizens of this country from those who intend it harm, the government must take care to avoid abrogating the very fundamental freedoms upon which this county was founded and has thrived.

Sincerely, EXPERIMENTAL AIRCRAFT ASSOCIATION; Tom Poberezny, President

Notes:
[1] In fact, the Discussion of the final rule states:

In most cases, the determination that an individual poses a security threat will be based, in large part or exclusively, in on classified national security information, unclassified information designated as SSI, or other information that is protected from disclosure by law . . . If the Assistant Administrator has determined that an individual who is the subject of a threat assessment proceeding poses a threat to transportation security, that individual will not be able to obtain clearance to have access to any classified national security information upon which the assessment is based, and TSA has no authority to release such information to that individual. See  68 Fed. Reg. 3756, 3758.

[2] The Discussion of the final rule states:
Those without access to information about the progress of federal investigations are not in a meaningful position and therefore cannot make judgments about the risk of release of information about that investigation that TSA has relied upon in making a security threat determination. See 68 Fed. Reg. 3756, 3759.

[3] As set forth above, the final rule was adopted without the benefit of prior notice and prior public comment.  Although the Under Secretary is authorized to issue such regulations without providing notice or an opportunity for comment, the manner in which this rule was formulated and implemented deprived individuals subject to it of any type of notice as to the procedure which may be used to suspend, revoke, or delay issuance of their FAA certificate, rating, or authorization.  Moreover, given that the authority for promulgating this regulation was granted fourteen months prior to its adoption, and that the FAA already has in place an emergency procedure pursuant to which airman certificates may be revoked, the lack of notice and opportunity for public comment is unreasonable.  Although permissible, the furtive manner in which this regulation was adopted, particularly when viewed in light of its substantive provisions, further undermines the confidence of those subject to it that it will be fairly applied and administered.

[4] See Ex Parte Milligan, 71 U.S. 2, 120-21 (1866):
The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances.  No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government.  Such a doctrine leads directly to anarchy or despotism, but the theory of necessity on which it is based is false; for the government, within the Constitution, has all the powers  granted to it, which are necessary to preserve its existence; as has been happily proved by the result of the great effort to throw off its just authority.

See also Korematsu v. United States, 323 U.S. 214, 247-48 (1944) (Jackson, J., dissenting) ("If the people ever let command of the war power fall into irresponsible and unscrupulous hands, the courts wield no power equal to its restraint.  The chief restraint upon those who command the physical forces of the country, in the future as in the past, must be their responsibility to the political judgments of their contemporaries and to the moral judgments of history").

FMI: www.eaa.org