The fundamental premise of democratic government is that one must allow the government to control the governed, particularly to ensure the protection of the people.
by Dr. Ruwantissa Abeyratne
( January 10, 2017, Montreal, Sri Lanka Guardian) On 6 January the area proximate to the baggage terminal in Terminal 2 of Fort-Lauderdale Hollywood International Airport was the scene of a mass shooting perpetrated by a mentally deranged passenger who had arrived from Alaska. Five people were killed while six others were injured in the shooting. About 36 people sustained injuries in the ensuing panic. Reportedly the suspect was taken into custody after surrendering to responding police officers. The Federal Aviation Administration issued what is called a “ground stop” notice stopping all but emergency flights. 20, 000 pieces of baggage were strewn across the terminal and several hundred passengers were stranded, some of whom (perhaps also with employees of the airport) were seen loitering on the tarmac for several hours – a rare sight in commercial aviation.
The killer clearly had a known history of mental disability of a grave nature. In November 2016 he had visited the field office of the Federal Bureau of Investigation (FBI) in Anchorage and informed of hearing voices in his head directing him to commit acts of violence. He had also reported that his mind was being controlled by the US Government which was making him watch videos by the Islamic State (ISIS) stating that the CIA was forcing him to join ISIS. The authorities had merely advised him to seek medical attention and notified the local police. The matter seemingly was dropped at that.
It is reported that the killer may have had the gun he used to kill during his rampage at Terminal 2 in his checked bag. This was apparently legal, where the regulations of the Transportation Security Administration allows a person within the United States to transport unloaded firearms in a locked hard-sided container as checked baggage only. He must declare the firearm and/or ammunition to the airline when checking his bag at the ticket counter. The container must completely secure the firearm from being accessed. Locked cases that can be easily opened are not permitted. The authorities must also be aware that the container the firearm was in when purchased may not adequately secure the firearm when it is transported in checked baggage.
This is all well and good as this right is protected by the 2nd Amendment to the United States Constitution which allows a person to bear arms.
The problem arises with the special circumstances of the case, where a known nut case, who certainly had a right to carry arms in his checked baggage, was not treated with caution as a possible threat when he got off the aircraft and claimed his bag amidst the hundreds of passengers at the baggage carousel (this is of course assuming the gun used in the mass killings was the same as the weapon in the luggage). The essential ingredient in aviation security – anticipatory intelligence – seemed not to have worked. If there were a red flag – conveyed to the airport authorities in Fort Lauderdale – which directed the authorities not to convey the bag to the assailant in the airport premises things may have been different for the hapless victims.
The fundamental premise of democratic government is that one must allow the government to control the governed, particularly to ensure the protection of the people. John Jay wrote that “[A]mong the many objects to which a wise and free people find it necessary to direct their attention, that of providing for their safety seems to be first”. The US Supreme Court handed down in 2008 its decision in the case of District of Columbia v. Heller, in which the Court held that the Second Amendment applied to protect an individual’s right to possess firearm for traditionally lawful purposes, such as self-defense within the home. The Patriot Act of 2001 (the full title of which is Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism) adopted in response to the attacks of 11 September of that year covers all aspects of the surveillance of suspected terrorists, those suspected of engaging in computer fraud or abuse, and agents of a foreign power who are engaged in clandestine activities. President Bush in a 2005 speech explained that the main aim is to protect the people and explained that The Patriot Act was essential to ensuring the protection of the American people against terrorists. The Act obviated the wall between law enforcement and intelligence officials so that they could share information and work together to help prevent attacks.
In 2016 under the Obama Administration The Health Insurance Portability and Accountability Act (HIPAA) Privacy Rule and the National Instant Criminal Background Check System (NICS) was enacted which identities of individuals who are subject to a Federal “mental healthprohibitor that disqualifies them from shipping, transporting, possessing, or receiving a firearm. All these precautions which seem to have not worked in this case seemingly bring to bear a certain lack of coordination and collaboration between all concerned – The FBI, medical authority who conducted (or ought to have conducted) an assessment of the mental state of the assailant and the airport authorities.
The other mystery is why there were a couple of hundred people hanging around the tarmac? Who directed them there or ordered them there? Was this because of a particular threat? It has been reported that at least some passengers ran out the skyway and down stairs onto the tarmac, where they were told to drop their carry-on bags and dash out to the runway. They eventually were taken to a hangar and bused to Port Everglades. That’s where they spent most of the night. Obviously these steps were taken out of necessity. It is noteworthy that there are specific measures recommended by the International Civil Aviation Organization: Annex 14 to the Chicago Convention in Chapter 9 carries provisions regarding emergency procedures. Also The Airport Services Manual, Part 7 as well as The Airport Emergency Planning have useful measures contained therein. Other documents are The Safety Management Manual on Emergency Response Planning. There is no doubt that Fort Lauderdale Airport was aware of these provisions and used them well.
To sum up, it seems advisable for those charged with ensuring security at airports are provided with full information of potential offenders whether it concerns outgoing or incoming passengers or staff. It must be remembered that airports and airlines are intertwined and should improve their coordination and cooperation. With regard to damage caused to passengers, under international treaty (Warsaw Convention of 1929 and Montreal Convention of 1999) the airline with whom the passenger has concluded the contract of carriage is liable for death or injury caused. This liability extends to the time the passenger picks up her baggage after arrival. However, in instances where airport services are involved the airport may be jointly or severally liable by the adjudicating court if the court finds that the airport was in the position of an agent of the airline.
The author is President/CEO, Global Aviation Consultancies Inc., and Senior Associate, Air Law and Policy, Aviation Strategies International. He is former Senior Legal Officer at the International Civil Aviation Organization.