Given the toxic legal climate in the United States for business in general, it should have surprised no one that a federal judge has ruled that families who lost loved ones in the September 11 attacks can sue United Airlines, American Airlines, Boeing and the Port Authority of New York and New Jersey. That the plaintiffs and their lawyers are not suing the worst offender of the tragedy—the U.S. Government—says volumes about the surreal nature of American jurisprudence today.
According to Federal Judge Alvin Hellerstein in his ruling that the suits could continue, the airlines
had a duty to protect their passengers, crew and victims on the ground by better screening passengers. The . . . defendants controlled who came onto the planes and what was carried aboard. . . . They had the obligation to take reasonable care in screening.
Boeing, the manufacturer of the planes, is also culpable, wrote Hellerstein, who, in effect, blamed Boeing and the airlines for what occurred:
While it may be true that terrorists had not before deliberately flown airplanes into buildings, the airlines reasonably could foresee that crashes causing death and destruction on the ground was a hazard that would arise should hijackers take control of a plane…. The intrusion by terrorists into the cockpit, coupled with the volatility of a hijacking situation, creates a foreseeable risk that hijacked airplanes might crash, jeopardizing innocent lives on the ground as well as in the airplane.
According to the lawsuit, Boeing manufactured a “defective” product because it did not have secure doors to the cockpit, which allowed the hijackers easy access to the controls of the four planes. Apparently, the judge agreed that Boeing should bear that responsibility. (While this was only a hearing to see whether or not the suits could take place in federal court, the judge’s ruling sounds like an out-and-out indictment of the defendants, and one can imagine that it will be nearly impossible for the airlines and the others to receive a fair trial in his court.)
Of course, the attorneys who have filed in this case are ecstatic, one of them being Mary Schiavo, who was a Department of Transportation inspector general (and huge critic of the airlines) during the Clinton Administration. “It’s the first time that a judge has said the airlines had a duty to protect those on the ground and that this was foreseeable,” said Mitchell Baumeister, a New York lawyer who represents about 60 families.
While the attorneys and their hand-picked judge actually are clouding the issue here (as I will explain later), their lawsuit—and their public comments—do not tell us what really happened on that fateful day, and why this tragic event occurred. Suffice it to say that 9/11 had the imprint of the U.S. Government from the planning of the attacks, the truncated pre-attack investigation that permitted the terrorists to move about unmolested, to the boarding of the plane, and to the conduct of the crew and passengers before the planes were turned into flying bombs. In this case, the airlines and Boeing have a legitimate defense when they proclaim they were simply following orders.
(The Port Authority is being blamed for evacuation procedures and for having locked doors to the roof, although it is doubtful that any rooftop rescues, dramatic as they might seem to be, would have been possible, given the prevailing conditions that day. Again, even here the stamp of the U.S. Government can be found, as the Environmental Protection Agency, in its jihad against asbestos, during construction halted the asbestos insulation of the girders holding up the twin towers at about two-thirds up the buildings. We will never know whether or not the asbestos would have withstood the intense heat of the jet-fueled fires.)
The first thing to remember is that airline traffic in the USA is heavily regulated by the Federal Aviation Administration, which governs all procedures, including construction of the planes themselves. (Airlines have some say about routes and fares, which is about the extent of the vaunted industry “deregulation.”) That means the placement of every wire, every piece of steel, and every doorway on the Boeing planes used as weapons of mass destruction that fateful day was approved and overseen by the FAA.
While it makes for good press for attorneys and judges, the idea that Boeing on its own could have ordered “secure” cockpit doors is a laugher. Any unilateral attempt by any aircraft maker to act without FAA direction is always met with swift action against the manufacturer; to put it another way, it would have been illegal for Boeing to make planes with impenetrable (if that is even possible) cockpit doors before 9/11, something that Schiavo and her fellow attorneys (and Judge Hellerstein) already know. Furthermore, as John Lott has pointed out, there are many questions of whether or not FAA-approved (now) secure doors are even secure.
Even without the secure door issue, let us now look at the role played by government regulations and actions that helped lead to the hijackings. We know now that many of those involved had expired visas or other legal problems, yet the government did nothing.
In fact, as James Bovard writes, at least one flight school official had tipped off FBI agents about a possible hijacking conspiracy, yet through unbelievable bungling, the FBI in the end did nothing. In other words, the idea of someone hijacking planes and using them as bombs was not considered out of the realm of the possible, but U.S. law enforcement agents failed in their duties to stop this conspiracy in its tracks (for which they are immune from any lawsuits).
The lawsuit claims that United and American should have kept the perpetrators off the planes, but even here, they were following the law. For example, at the time box cutters—the apparent weapons of choice for the hijackers—were FAA approved, so it would have been illegal for the airline security agents to have confiscated them. Second, suppose that the screeners had found not only the box cutters, but also the Islamic death shrouds that the hijackers were carrying. To have kept them off the planes almost certainly would have meant that the airlines were violating U.S. anti-discrimination laws, and no doubt anyone who might have intervened would also have found himself on the receiving end of a federal discrimination lawsuit.
Third, once the hijackers made their actions known aboard the planes, everyone on board obeyed the law by following the hijackers’ orders. Ironically, the passengers on the UAL’s doomed Flight 93 broke the law by attacking their assailants. Yes, it is doubtful that the passengers would have been criminally charged had the flight somehow landed safely, but nonetheless, prosecution of Todd Beamer and others who charged the cockpit would have been a legal (but not politically feasible) option for U.S. authorities. To put it another way, in the eyes of U.S. law, Todd Beamer was not a hero; he was a felon.
That Hellerstein has permitted the lawsuits to go forward is further proof that it does no good in the USA for private citizens to follow the law. Instead, federal authorities tend to make up the “law” as they go. Moreover, the government at all levels is doing its level best to keep airlines from preventing another such hijacking. From dragging its feet in permitting pilots to be armed, to turning air screeners into government employees (the creation of the Transportation Security Administration), to the inane methods used by the TSA to screen “potential” hijackers (like 90-year-old grandmothers in wheelchairs, who are regularly searched by screeners through “random” selections), the government is using massive amounts of resources to create an illusion that it is “doing something” about preventing airline hijackings.
(My assessment of the government’s role in the 9/11 atrocities does not include a critical look at U.S. foreign policy, not to mention its relationship to Saudi Arabia, which produced 15 of the 19 hijackers. The irresponsibility of U.S. foreign policy is in itself worthy of an examination that would dwarf any of the absurdities committed by transportation regulators, which is why I do not write about it in this article.)
One can be assured that should airline hijackers once again engage in a 9/11-type attack, the only entities that will receive official blame will be those private firms that were following the law. Yes, in hindsight, by following U.S. Government policies from beginning to end, United and American airlines inadvertently aided those individuals who snuffed out nearly 3,000 lives through their vicious actions. Yet, in hindsight, we also know that to have thwarted those attacks would have turned some employees of United and American into felons. Perhaps Mary Schiavo should be suing herself for her own role in creating this mess when she worked for the Department of Transportation, but instead she stands to become a wealthier person because of the twisted state of U.S. law.
