Politics & Policy

When Skies Become Unfriendly

Let's not hobble flight crews' ability to restrain potentially dangerous passengers.

Should rowdy airline passengers be prosecuted under the USA PATRIOT Act?

On the surface, the question seems to answer itself: PATRIOT, enacted by Congress in the wake of 9/11, was intended to protect against a terrorist attack, not the drunk in seat 16A. Dig a bit deeper, however, and there are good reasons to hold people accountable when they prevent pilots or flight attendants from doing their jobs.

Let’s start with a little history. It’s been a federal crime to interfere with airline crews since 1961. The PATRIOT Act made a minor adjustment to that law: It’s illegal now to attempt or conspire to do what the statute already barred actually doing. The basic idea is prevention: We shouldn’t have to wait until a hijacker slits a flight attendant’s throat to impose criminal liability. We should be able to prosecute him for the steps he takes along the way to complete the assault — ignoring an order to return to his seat, pulling a box cutter out of his pocket, and so on.

Recently, several newspapers (including the Los Angeles Times) have run stories about passengers who engaged in loud arguments or other rowdy behavior and were charged with violating the PATRIOT Act. The stories suggest that the law needs to be changed so that minor acts of misconduct will not land a passenger in jail.

The PATRIOT Act has attracted such notoriety in some quarters that journalists naturally blame everything they can on it. But the reality is that most of these people could have been prosecuted even if PATRIOT never existed. PATRIOT isn’t putting them behind bars; the 1961 law is.

The question then becomes whether that JFK-era statute makes sense in today’s world. It’s important to bear in mind that the law isn’t limited to terrorists; it reaches anyone who interferes with a crewmember (which means that headlines like “Mother Declared Terrorist Threat for Spanking Children on Airplane” are inaccurate). There are at least two good reasons why it’s written so broadly.

The first is to promote passenger safety. A lot can go wrong at 35,000 feet, and it’s hard for pilots and flight attendants to keep everything in order if they’re distracted by a scuffle between two passengers. As one federal court put it back in 1975, the statute’s goal is to prevent “crimes which, if committed on the terrain below, might be considered relatively minor, but when perpetrated on an aircraft would endanger the lives of many.” It goes without saying that belligerent passengers aren’t as dangerous as terrorists. But they can still distract the crew (not to mention frighten their fellow passengers), and any distraction is a potential safety risk.

The second reason is flexibility. When an incident takes place, it won’t always be clear whether it’s a garden-variety fracas or the early stages of something more sinister. We might just be dealing with a shouting match, or terrorists might be staging a fight, hoping to lure the captain from the cockpit and gain control of the aircraft. Flight attendants shouldn’t have to wait until the true nature of the disturbance reveals itself to warn passengers they’re violating federal law.

That’s not to say the 1961 law is perfect. More people are probably being charged with violating it now than before 9/11, and, as with any broad statute, it can be applied too severely. There’s always a risk that innocent passengers could be ensnared — or, more likely, passengers whose behavior is not exemplary but who aren’t terrorists, either. So what do we do about it?

It would be ill-advised to enact new legislation restricting the statute to terrorist assaults, as some have suggested. We’ve already seen how the law promotes in-flight safety and preserves necessary flexibility. Plus, this statute has been around for nearly half a century and has worked quite well. It would be regrettable if Congress were to leave airline crews with fewer protections in 2009 than they enjoyed on 9/11 — or in the 1960s, for that matter.

A better solution is prosecutorial prudence. Federal prosecutors don’t need to throw the book at every lout who’s had one too many, or every harried mother trying to discipline her kids. The Justice Department could issue guidelines to its field offices instructing them on what kinds of offenses are significant enough to be prosecuted. As for relatively minor infractions, there are other ways to deal with them. An offender might be assessed a fine to cover the airline’s costs of handling the disturbance, or the airline might refuse to let him fly with it again.

A new administration is calling the shots in Washington, and it wants to reconsider some of the counterterrorism policies adopted by its predecessor. But prosecuting unruly passengers is a practice of much older vintage. The federal law against flight-crew interference has been backed by a bipartisan consensus since President Kennedy signed it his first year in office. It should stay that way.

– Nathan A. Sales is a law professor at George Mason University. He previously served at the Department of Justice (where he helped write the PATRIOT Act) and the Department of Homeland Security.

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