Random Acts of Protection
AMTRAK POLICE CHIEF JOHN O’CONNOR was incredulous. In late February 2011, he learned that a Transportation Security Administration (TSA) Visible Intermodal Prevention and Response (VIPR) team had descended on the Amtrak station in Savannah, Georgia, and started screening passengers who streamed into the station after getting off the train. “I could not believe that something had been set up to screen people getting off trains, which made no sense at all to me,” O’Connor tells Security Management. “What they attempted to do was set up a sterile environment but they did it in a location where people passing through that sterile environment were coming off the trains. It really didn’t make a whole lot of sense,” he says. “That would be like screening people getting off of airplanes.”
It was a public relations disaster for the TSA, particularly in light of O’Connor’s response, which was to immediately stop cooperating with the team. But the Savannah brouhaha only caused a minor hiccup in relations between TSA and Amtrak.
“We quickly put our heads together with the TSA and agreed that all future VIPR screening operations would require a planned agreement as to the method of operations, and they were quickly resumed after that, and we have not had a repeat of that experience,” O’Connor says.
The teams’ many members bring a multitude of skills to the job. For example, a team may include federal air marshals, surface transportation security inspectors, transportation security officers, behavior detection officers, and explosives detection canine teams—although not all are on every team. But perhaps the key feature of the teams is their mobility. They can deploy quickly to random transportation locations, the theory being that in doing so, they are helping to keep would be terrorists off guard.
The number of times the teams have deployed on Amtrak property has increased dramatically from 231 in 2010 to 817 in 2011. That’s just Amtrak. Including all types of transit, there were about 10,400 VIPR deployments in 2011, up from 8,300 in 2010. O’Connor says that VIPR operations at Amtrak this year are on track to surpass 2011. That’s true for transit as a whole; the VIPR program is rapidly expanding nationwide and is considered a success within TSA and among its partners.
Civil libertarians are not so sanguine about the program; they see it, as they do many other homeland security initiatives, as infringing on freedoms; other critics simply question whether the teams yield a good bang for the buck.
According to official TSA lore, VIPR teams began as a response to the terrorist atrocities against surface transportation targets in Madrid and London in 2004 and 2005, respectively. The program’s creator, former TSA Administrator Kip Hawley, tells Security Management that that’s not the whole story.
In November 2005, Hawley learned al Qaeda was plotting another big attack in the United States. The plot was known as Operation Glidepath. “One of the problems was we knew it was serious, we knew it was coming, we knew it was in the domestic U.S., but we didn’t know where, when, or how,” he says.
A senior official in the intelligence community warned Hawley that TSA especially should be on high alert. (Hawley could not divulge any more information on the plot.)
From that particular warning, VIPR was born. “I wanted to do something that would be the equivalent of pop-up patrols that nobody would know when they were coming or be able to figure out rhyme or reason,” according to Hawley. “It also had to be in all modes of transportation. The idea was to go create quite a stir, and say, ‘Hey, look at this, TSA is using federal air marshals in rail and ferries and stuff like that.’”
Because Hawley believed that the threat was real and imminent, there was no time to talk to state and local law enforcement around transportation hubs and get their buy-in. “We didn’t have time to properly work with law enforcement to explain what this was,” he says. “It looked to them like it was just another TSA expansion of jurisdiction.... So we had quite a rough start, but I pushed it because of the threat environment.”
In the beginning of VIPR, there was no dedicated funding; Hawley was simply borrowing assets from across TSA to fund and populate the teams. That, however, was taking personnel away from other core TSA responsibilities, like having air marshals on international flights.
To avoid having to rob Peter to pay Paul, the TSA sought more resources for the VIPRs from Congress. Three years later, in 2008, Congress finally responded by funding 10 VIPR teams. Hawley says that decision was based on other specific and previously unrevealed al-Qaeda threats to the transportation realm in 2007 and 2008.
The VIPR teams’ responsibilities at their inception included aviation as well as surface transportation. But in 2009, says Catherine Houlihan, Office of Security Operations section chief for VIPR Coordination, Congress directed the program to concentrate its efforts on surface transportation security. Lawmakers liked what they saw and added an additional 15 surface transportation teams in fiscal year 2010, expanding the program to 25 operational teams.
In FY 2012, Congress appropriated nearly $12 million for 12 more VIPR teams staffed by more than 200 new hires. The expansion will bring the total to 37. (The bills refer to funding of teams, but the number of teams isn’t necessarily indicative of the number of people involved, because the size of any given team can vary widely depending on the operation. More on this ahead.)
“The VIPR program is TSA’s mechanism to put boots on the ground outside of the aviation domain,” says Jim Hart, supervisory air marshal in charge of the VIPR Program.
Among the core characteristics of VIPR teams stressed by Hart and his subordinates are their flexibility and scalability, which are reflected in the team’s amorphous composition. The teams are made up of two operational components: law enforcement and screening.
The number of people on each team can fluctuate a great deal. (For security reasons, the exact number of people on a team is not revealed for specific operations.) Some operations may have a team with only two members to randomly screen passengers, says Hart, but others may have 100 people or more, using the full menu of VIPR assets. They even have the capability, thanks to the Domestic Nuclear Detection Office, to deploy with personal radiation and nuclear detection capabilities when their partners request it.
Their mission to protect surface transportation can take VIPR teams to unanticipated places. Surface transportation does not consist only of rail and buses but also includes highways, ferries, and even pipelines. Teams can be deployed to transportation hubs connected to National Special Security Events like the Super Bowl or the forthcoming Democratic and Republican National Conventions, says David Kohl, deputy secretary air marshal in charge of the VIPR program.
Randomization. As noted earlier, the rationale behind creating VIPR teams was to create a randomized surge and screening capacity in an effort to complicate terrorist operational planning. The logic behind it is simple: if terrorists fear a VIPR operation might swoop into the location they plan on attacking, they might be deterred from attacking that location and move to an easier target where the casualty counts will precipitously drop. The idea of unpredictability is one of the reasons that VIPR teams have popped up at bus stops in San Juan, Puerto Rico, says Hawley. Sometimes the team is there as a force multiplier, a show of force to be seen more than to intervene. That was the case during a recent Amtrak/VIPR operation in Washington, D.C.’s Union Station, when a number of VIPR officers made an appearance as morning commuters, shoppers, tourists, and diners moved through one of the busiest transportation hubs in the country, just blocks from the Capitol. Because the station is so “open and porous,” says Hart, law enforcement needs “that visible deterrent.”
Basing a program primarily on deterrence, however, raises eyebrows among civil rights groups. “Where is the evidence of any deterrent effect?” asks Christopher Calabrese, legislative counsel at the American Civil Liberties Union (ACLU). There isn’t any clear evidence, admits TSA, and therein lies the problem for Steven Lord, director of homeland security and justice issues for the Government Accountability Office (GAO). “It’s a slippery slope. If you use that argumentation, then it will justify almost any type of operation,” he explains. “We don’t think you should justify programs simply on the basis of some deterrent value, because it’s difficult to measure.”
It’s a dilemma all professional security managers are familiar with. No one can prove a negative. But Amtrak’s Chief O’ Connor says there is anecdotal evidence that VIPR teams do achieve some sort of deterrence effect, noting: “There have been a handful of incidents where we have found things like handguns or some narcotics stashed away in the vicinity of where screening occurred.”
Calabrese counters that a program created for counterterrorism cannot be justified in the name of suppressing low-level crimes. As to whether deterrence is needed, homeland security professionals don’t doubt the threat. Hart points to many domestic plots, including the disrupted 2010 plot to strike the New York subway system around the 9-11 anniversary as evidence of it. What’s actually more perplexing is that attacks on surface transportation targets haven’t become routine.
Houlihan notes that surface transportation may become a higher-priority target for terrorists now and going forward because aviation security has been hardened and because of the disruption of core al Qaeda, which has reportedly degraded the organization’s ability to carry out sophisticated and spectacular attacks. “Hopefully, it’s not some sort of calm before a storm,” she says.
There’s also a role for VIPR teams to play if terrorists do successfully strike a surface transportation target. “We also see ourselves in a resilience and support mode as well,” says Hart. If New York City’s Penn Station suffered a suicide bomb attack, for example, VIPR teams would swarm into the space and provide whatever help was needed.
Hart repeatedly stresses that VIPR teams now only deploy when invited by a transportation partner. After the initial threat passed, says Hawley, the program was reconceptualized as partner driven. He says the VIPR program had to go to “charm school” and learn to assure state and local partners that not only was the program now cooperative but the locals were in the driver’s seat.
It worked. Currently, the biggest consumers of VIPR services, says Hart, are the same metropolitan areas with the heaviest riderships, although he wouldn’t specify. Partners can stop VIPR operations on their property anytime they want. “We don’t want to wear out our welcome,” Hart explains. “We want to be good partners and work with them at their direction.” Partners generally lay out the terms of the operation beforehand.
“Before any activity takes place on Metro property, we have that level of understanding that says specifically what it is we want to get done and how we’re going to go about doing it,” says Chief Michael Taborn of Washington, D.C.’s Metro Transit Police Department. Currently, the Metro Transit Police Department requests about two VIPR operations per week, according to Taborn.
Cooperation is seen as a key component by some of those weighing the VIPR teams’ value. The GAO’s Lord says the VIPR program can prove its worth by showing that it’s improving interagency law enforcement cooperation across the United States.
“We’re actually formulating a survey to be administered as well that conforms to the GAO governmental process to show our value,” says Hart. He’s confident that partners will give high marks to the VIPR program, particularly because teams are consistently asked back. He also “hangs his hat” on the number of operations that have occurred. As of May 2012, VIPR teams had performed a total of 29,500 operations overall.
“I think it actually helps to practice these joint operations,” with state and local providers, says Lord. It facilitates federal, state, and local interaction, he says. Another benefit, says Brian Michael Jenkins, director of the National Transportation Security Center, is that the program’s foundation is being laid before terrorists successfully strike a surface transportation target.
“Let’s go ahead and create these teams and get them used to being out there. Let them learn the systems. Let people get accustomed to it. Let’s work out...civil liberties concerns about this. Let’s get it right,” he says. “We can do this in a more leisurely environment so that if, heaven forbid, we have to suddenly really deploy heavily, we will have the groundwork laid already to do it.”
An additional reason VIPR operations have become important for partners is that they need all the help they can get as austerity sets in. “As things get more fiscally challenging, it’s something we can support them [with]...especially in a certain environment on a particular day [with] particular circumstances,” says Houlihan.
Last October, VIPR teams were the subject of much scrutiny after bloggers reported that TSA was erecting checkpoints on highways in Tennessee and screening vehicles. Hart, however, says that wasn’t actually what happened. VIPR personnel operating at different locations were invited by the Tennessee Department of Safety and Homeland Security to exercise with various state and local agencies to increase interagency cooperation.
Hart says the VIPR teams also used the opportunity to spread the word about reporting suspicious activity on highways and on buses.
That was not the only time the teams encountered opposition. In April, Houston METRO police announced an exercise with TSA at surface transportation hubs and on board buses across the city as part of the BusSafe program. In its original press release announcing the exercise, Houston METRO noted “random bag checks” would occur on buses and then retracted that statement. (TSA says no VIPR personnel boarded a bus.)
The local criminal defense association objected strenuously to the joint VIPR team-Houston exercise, arguing that the collaboration violated the rights of Houston’s poorest and least powerful citizens.
“According to [METRO Police Chief Victor Rodriguez], even without TSA interference, Houston has one of the safest transit systems in the world,” wrote Earl D. Musick, president of the Harris County Criminal Lawyers Association, to the Houston Chronicle. “So Chief Rodriguez invited an abusive federal agency into our community to perform illegal searches on the least powerful among us, and it wasn’t even necessary. We object.”
The ACLU’s Calabrese sees VIPR teams as just one more example of the steady erosion of Fourth Amendment protections in American life since 9-11. “We view it as another significant expansion into people’s personal privacy, another effort to force people to mindlessly accept that the government can poke and prod wherever it wants, whenever it wants. And it doesn’t even need a particularly good reason for it.”
And if justifying a program based on deterrence puts DHS and TSA on the slippery slope, Calabrese sees extending intrusive airport-style screening practices to other public areas as barreling off a cliff. “If you’re going to keep pushing this and pushing this, what you’re essentially doing is pushing it to a point where [the government] can say, “We want to protect safety, therefore, we can search you anywhere, anytime. Anytime we set up a checkpoint, you have to submit to a search.”
Passengers who refuse the search aren’t arrested, notes Hart, but they can’t board whatever mode of transportation they had planned to take. Instead, they are taken to the ticket counter by the stakeholder who requested the VIPR operation, and they are given a refund. Calabrese says this means that passengers are forced to relinquish their privacy in return for the ability to travel.
Calabrese acknowledges that air passengers must make that decision as well, but the ACLU has taken the position that “aircraft are special.” The first reason is that if a bomb goes off on an aircraft in flight, the probability that all on board die is much greater than in the surface transportation realm. The second is the lesson born from 9-11: aircraft can be reverse-engineered into a weapon that can kill thousands. Surface transportation hubs, however, are “regular public spaces,” says Calabrese, and a citizen’s right to be free from unnecessary searches should apply when in such a space.
Hart understands the concerns but disagrees that VIPR teams wield police-statelike powers. “At some point, I’m going to retire, and my wife and kids transit, and I don’t want them submitted to unnecessary overreach,” he says.
But what constitutes “unnecessary overreach?” It is subjective.
Hart says of the VIPR teams: “I don’t think this program is about that. We’re not very intrusive.” Still, he admits that it’s hard to know where to draw the line, saying, “When is enough, enough? I don’t know.”