What To Do With Really Dumb Laws

A look at security laws for maritime and air cargo and why they can’t effectively be enforced


These private sector participants in the “Certified Cargo Screening Program” enabled the Department to declare victory. Through herculean cooperative efforts with industry, the Department accomplished 100 percent screening. But only sort of – inbound passenger air cargo was left largely unaddressed (as was cargo on non-passenger flights). The result was an odd situation in which inbound air cargo (presumably more risky) was not subject to the screening regime into which the Department had poured enormous resources. Recognizing the impracticality of full 100 percent screening, the Department aimed for and achieved a simulacrum – 100 percent screening for less risky cargo.

Then, on Oct. 29, 2010, al-Qaeda plotters sent two bombs in air cargo from Yemen destined for the U.S. That inbound cargo was not subject to the 100 percent screening regime.

Fortunately, the plot was uncovered by foreign and U.S. intelligence. And it demonstrated the folly of dedicating enormous resources to fulfilling the 100 percent screening mandate for domestic air cargo, rather than proceeding in a risk-based manner. When the Department responded to the air cargo bombing plot by announcing an intent to quickly expand the 100 percent screening mandate to inbound cargo, the private sector informed the Department that 100 percent screening for inbound cargo is a practical impossibility.

So the Department now is inching toward a risk-based approach to air cargo screening, akin to that used in the maritime environment. This move should be accelerated: the Department would be best served if in both the air and maritime environments it collects data about cargo and subjects the high-risk cargo to special security measures, rather than trying to treat all cargo equally. There is no reason to give the same level of scrutiny to all cargo from Wichita and all cargo from Yemen – the two sets of cargo don’t warrant the same level of resources, and trying to apply “100 percent” rules is simply not practical.

The Department should quickly do the same with regard to air cargo as it did with maritime. But it is being slowed by its continuing fixation on its supposed duty to implement literally an impractical law.

About the Author: Stephen Heifetz is a partner in the Washington office of the international law firm Steptoe & Johnson LLP. He previously served as Deputy Assistant Secretary for Policy Development at the Department of Homeland Security.

Takeaways:

  • Department of Homeland Security is inching toward a risk-based approach to air cargo screening
  • There is no reason to give the same level of scrutiny to all cargo from Wichita and all cargo from Yemen
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