A&SL: With a yearly budget of more than $8.5 billion and nearly 60,000 employees, the TSA is a sprawling agency charged with protecting the nation’s transportation systems to ensure freedom of movement for people and commerce. How does the Office of Chief Counsel support that mission?
TSA’s current Administrator, David Pekoske, recently told me, “The legal team is a wonderful enabler and architect of TSA’s operational performance.” Since TSA’s inception, attorneys have provided essential legal and policy advice to advance the agency’s security mission.
From the outset, attorneys have played a critical role in helping TSA meet tight security-related statutory deadlines. Under ATSA, TSA had to hire and train Transportation Security Officers to perform screening of passengers and accessible property at 450 domestic airports by November 19, 2002. TSA also had to purchase and deploy more than 2,000 high-resolution x-ray machines to perform checked baggage screening by December 31, 2002. TSA attorneys reviewed billions of dollars in contracts to support the rapid hiring of personnel and acquire new screening technologies; they stood side-by-side new Federal Security Directors to help roll out federal airport screening across the country; and they prepared policies, procedures, and enforcement guidelines for use by a new agency.
Attorneys have helped TSA launch other important initiatives. Their efforts have resulted in security regulations under which all airline passengers are pre-screened against Government watchlists; 100 percent of cargo on passenger aircraft is physically screened for explosives; and passengers who enroll in TSA’s PreCheck® program as trusted travelers receive expedited screening. As recent incidents have demonstrated, an ongoing cybersecurity threat to critical transportation infrastructure now exists, and TSA attorneys are assisting the agency to establish outcome-focused and performance-based measures for implementation by pipeline and rail operators, airports, and air carriers.
TSA attorneys are located at major U.S. airports, regional mission support centers, and TSA’s new Headquarters in Springfield, Virginia. Wherever they work, TSA attorneys train and advise our clients on law and policy, and ably represent the agency’s interests in a multitude of venues, including administrative forums, courts, and Congress. We are guided by TSA’s mission: protecting the nation’s transportation systems to ensure freedom of movement for people and commerce.
In 2023, several attorneys at TSA received Secretarial recognition for their legal work in connection with efforts to improve pay and working conditions for frontline employees, strengthen employee accountability processes, and assist Operation Allies Welcome. We are fortunate to have a talented and dedicated team.
A&SL: What are the essential skills needed in order to be an effective TSA Chief Counsel?
To be effective, it helps to have broad legal experience, a determined focus on operational success, and the ability to engage with others on a personal and professional level to develop mutual understanding and trust. Before being named TSA Chief Counsel in 2002, I had held three positions in the Senior Executive Service: Counsel to the Inspector General at the Department of Commerce; Associate Chief Counsel (Administrative and Ethics) at ATF; and Deputy Assistant General Counsel (Enforcement) at main Treasury.
Over a span of years, these executive positions provided me with perspective on how agencies are organized to best achieve their missions. At TSA, in order to protect the transportation sector, we must rely upon and gain the cooperation of our stakeholders in order to achieve our shared objectives of securing the movement of people and commerce.
For this reason—as head of the legal shop—one of my primary goals is that we build relationships with the lawyers who represent air carriers, airports, and other regulated entities. By engaging on matters of mutual interest and participating in the activities of various professional organizations, such as the American Bar Association’s Forum on Air and Space Law, we aim to bolster the security of the aviation sector.
A&SL: What challenges did the pandemic present for the TSA’s regulation of the aviation sector?
The disruption caused by the pandemic to the aviation sector and TSA cannot be overstated. During 2019, TSA was staffed to screen between 2.5-3 million air travelers per day, with passenger loads on an upward trend. After the pandemic began in 2020, passenger loads fell precipitously to one-tenth of those daily averages. Thousands of Transportation Security Officers contracted COVID-19, dozens of whom died.
Pursuant to Presidential proclamations issued by President Donald Trump in 2020 to mitigate the spread of COVID-19, attorneys worked on tight deadlines to draft TSA Security Directives and Emergency Amendments that restricted travel to the United States from high-risk locations abroad. The Security Directives (SDs) and Emergency Amendments (EAs) required all flights carrying persons to the United States (including any U.S. territory) from high-risk areas to be funneled to a handful of U.S. airport gateways for pre-entry passenger health screening.
Some rules were relaxed during the pandemic. Multiple amendments to security program requirements were issued upon request. TSA’s screening requirements were modified to permit passengers to carry more hand sanitizer in accessible property, and crewmembers to travel with larger quantities of commercial disinfectant. Aviation workers were permitted to access the checkpoint with expired IDs.
Upon taking office in January 2021, President Joseph Biden issued an Executive Order (EO) requiring face masks to be worn in airports, on commercial aircraft, and in various modes of surface transportation. The EO tasked federal officials, including those at the Department of Homeland Security (DHS)/TSA, to implement the mask requirement in accordance with U.S. Centers for Disease Control and Prevention (CDC) guidelines. This was a substantial TSA undertaking, and the Office of Chief Counsel provided input on and helped craft the CDC Order implementing the Executive Order (EO); a Secretarial Determination of National Emergency; Security Directives (SDs) for airports, air carriers, and surface modes; internal direction to Transportation Security Officers and Transportation Security Inspectors on mask requirements; and frequently asked questions for the public and regulated industries.
On December 10, 2021, the U.S. Court of Appeals for the D.C. Circuit affirmed TSA’s authority to issue the mask mandate. TSA litigators worked hand-in-hand with Department of Justice attorneys to defend TSA’s actions. In Corbett v. TSA, the D.C. Circuit ruled that Congress had clearly empowered TSA to issue security directives requiring individuals to wear masks on conveyances and in transportation hubs to help prevent the spread of COVID-19, which “qualifies as a threat to both safety and security.” On October 31, 2022, the Supreme Court declined to review the Corbett decision.
A&SL: Looking back, was there anybody in the practice of law who had a lasting effect on you?
I met one of my most important mentors while studying at New York University School of Law and interning at the New York City Law Department. During my internship, the New York Civil Liberties Union and the Legal Aid Society filed suit against six state and city officials and seventy-seven voluntary agencies and their directors over the provision of child welfare services to New York City children.
Mary P. Bass, a section head in the Law Department, asked me to work with her directly, doing some basic research for the City’s response to the lawsuit, Wildman v. Sugarman. Ms. Bass was a superb litigator, a skilled negotiator, an avid runner, and an upbeat person, with a delightful laugh.
That same year, Ms. Bass was named General Counsel and Vice Chancellor for Legal Affairs for the New York City Board of Higher Education. She asked me to continue interning for her at the Board of Higher Education. I worked at the Board part-time until I graduated from NYU and joined the District Attorney’s Office in Brooklyn.
In March 1979, President Jimmy Carter announced that he would nominate Mary Bass to be the first Inspector General of the Department of Commerce. When I called to congratulate her, she said, “I’ve been meaning to call you. How would you like to come to Washington?” By June, we were both in Washington, D.C., working on the seventh floor of the Commerce Department in the new Inspector General’s suite.
For me, it was an introduction to federal service at an unusually high level, as well as a master class on the politics of integrating a new “independent” organization into a well-established one. I could not have had a better teacher. Mary Bass also had ideas on staffing an office: “Hire energetic people,” she said. “It’s easier to tamp down than to pump up.” And, “Never be afraid to hire someone smarter than yourself. It will serve you well.” I like to think I have followed her advice in shaping the legal shop at TSA.
A&SL: Earlier in your career you served as an Assistant District Attorney in the Kings County District Attorney’s Office in Brooklyn. What was that like and what skills did you gain that continue to serve you today?
As a trial attorney in the Major Offenses Bureau, I prosecuted some of the county’s most serious felony cases. I gained the skills to judge credibility, to empathize with victims in distress and overworked police officers, to handle opponents effectively, to make persuasive arguments to judges and juries, and to go the distance needed to obtain a conviction.
During my last trial, an itinerant sailor testified against three defendants who had robbed him and shot him six times. Miraculously, he had survived to make an identification. He took the stand on a Friday. He was cross-examined by defense counsel who made certain he would need to return to court on Monday. They were conjecturing he wouldn’t return. I had the same fear. So, on Sunday, I drove over to his apartment to explain the importance of his finishing his testimony. I also had a subpoena served on a hospital for records that would confirm parts of his testimony. Come Monday, the sailor returned to finish his testimony, the hospital records were admitted, closing arguments were made, and the case was sent to the jury. When the jury delivered a guilty verdict that day, the defendants leapt out of their chairs, trying to reach the prosecutor’s table and the jury. Fortunately, court officers were prepared and the defendants were bodily carried out of the courtroom. They were dangerous and off the street.
A&SL: What advice do you have for new lawyers and law students interested in pursuing a career in transportation law, particularly at DHS, its subagency the TSA, or another federal transportation regulatory agency?
There are many practice areas at TSA that require specialized expertise. Attorneys may be hired with that expertise or have an interest in the area and develop expertise over time. It is good to take courses that focus on transportation, administrative law, litigation, constitutional law, contracts, labor law, ethics, law enforcement, cybersecurity, and national security. Join professional groups to make contacts. The first position you get will probably not be your last. Be flexible. That said, TSA’s legal shop is currently hiring and we welcome talented candidates.
A&SL: What are your interests outside of work?
Right now, I am a joyful grandmother with three wonderful grandchildren under the age of three. Family is the focus of most of my time outside of work. And I am grateful for it.
