Mfr Nara- T7- Faa- Butterworth Bruce- 9-29-03- 00084

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MEMORANDUM

fJ1 P(L() 30/ otIS

FOR THE RECORD

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Event: Bruce Butterworth, former Director for Policy and Planning (ACS-1) at the FAA Type of event: Interview Date: September 29, 2003 Special Access Issues: None Prepared by: Lisa Sullivan Team Number: 7 Location: GSA Commission Office Participants - Non-Commission: Bruce Butterworth Participants - Commission: John Raidt, Bill Johnstone, and Lisa Sullivan Background (Unc) From 1975-1980, Bruce Butterworth worked for the House Committee on Government Operations, Majority Staff (Congressman Burton). He moved to the Department of Transportation where, following the crash of Pan Am 103 in December of 1988, he acted as a liaison to the FAA for the Office of the Secretary (Secretary Jim Burnley). In 1991 he became Director for Security Policy and Planning (ACP-l) at the FAA. In July 1995, he was promoted to Director of Security Operations (ACO-l). He remained in that post until September 2000. At that time, he left the FAA and took a job as the head of security for the Holocaust Museum in Washington, DC. He was in this role on 9111/01. This past year he moved to the NASA Goddard Flight Center as the Deputy Director for Planning and Development and Applied Engineering and the Technology Directorate. (Unc) The only contact he had with aviation security after leaving the FAA was in obtaining assistance on the updating of security checkpoints for the Holocaust Museum. Butterworth obtained from the FAA TIP-ready x-ray machines built for airport checkpoints which were then deployed at the Museum. The FAA had extra machines on hand because, according to Butterworth, airports were unwilling to install them. A Memorandum of Understanding (MOU) dated September 11,2001 signed by Mike Canavan of the FAA and Butterworth formalized the transaction of the machines. Job Description

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COMMISSION SENSITIVE (Unc) As Director of FAA Security Policy and Planning, Butterworth outlined four 'main job functions: 1. Formal and informal rulemaking: This encompassed implementation of the Pan Am 103 Commission recommendations (p.L. 101-604). Butterworth thought the more significant of the two functions was the informal rulemaking under the Air Carrier and Airport Standard Security Programs because it did not take as long and the rules were narrower in focus. Changes to the air carrier standards program were easier to implement than changes in formal security rules. Because the air carrier standards program was sensitive security information and stayed within FAA, the rulemaking moved faster because DOT and OMB were not "rattling around in the process." 2. Oversight of Research and Development (R and D): He targeted funding each year. Rand D generally received an allocation of $36 million a year. 3. Physical security of FAA assets. 4. Contingency planning: ACP's fourth function was to devise plans in response to credible and specific intelligence is received regarding a threat to an airport, for instance. This included the issuance of Aviation Security (AVSEC) alert levels. (Unc) Butterworth also acted as the informal liaison to Capitol Hill, given his prior work experience on the House side. ' (Unc) The Policy office, which decided what policies should be pursued, had 32-42 staff, while the Operations office, which implemented policy, had approximately 1,000 staff, mostly field agents. Security Directives - Rulemaking (Unc) ACS-l would sign off on Security Directives once the three divisions (Intelligence, Policy, and Operations) conferred on the content that went out to the air carriers and airports. The FAA Administrator was kept informed, but generally did not participate in the issuance of the directives. It was Paul Busick's responsibility to keep the Office of the Secretary informed of FAA policy changes. Butterworth said that Busick took a strong position on enforcement of security regulations for the civil aviation system. Butterworth reported that he "almost lost his job" because of it. (Unc) Carriers always wanted to see intelligence reports for themselves; to determine if they were real. Butterworth said that changes to aviation security policies under normal conditions (rather than in response to a crisis) face rulemaking difficulties, usually as a result of cost-benefit analysis. Other constraints on the process he attributed to interactions between "senior level people," who wanted to "make sure the rule is good, and at the same time protects the industry'S interests. For example, it took the FAA four years (approximately 1993-1996) to pass a rule protecting SSI from public disclosure. This is one instance in which cost-benefit analysis was not a factor. Butterworth recognized the need for the FBI and the CTS to beef-up their assessments of the threat in order to move the industry.

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FAA Leadership (Unc) Butterworth characterized the position of ACS-l as, the "president in charge of going to jail," implying FAA leadership intuited that a mistake or an accident was bound to occur, and the position that would take the blame for it between the FAA and the DOT would be ACS-I. (Unc) As for FAA Administrator Jane Garvey, Butterworth described her as "a distance person," as though she "didn't want her fingerprints on anything that was going on at FAA" with respect to security. Butterworth stated that watching her testimony at the 911 Commission hearing in May 2003 angered him.

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(Unc) In contrast, he said that her predecessor Administrator Hinson (early 1990s) was a good decision-maker is crises, but Butterworth considered him "very skeptical" about increasing security measures. Industry applied pressure on the FAA directly through the Administrator's office. He never saw the calls happen. Butterworth fought hard to improve cargo screening measures; to prevent them from being rolled back. Butterworth said that Administrator Hinson was not one-hundred percent in favor of enforcing cargo security measures because he was not fully convinced about the information used to support the new measures. He loosened restraints. (Unc) In response to crises, Butterworth said "ACS is a completely different organization." They act as a team, working al1 hours of the night. ACS was the primary link between with the National Security Council's NSG (he listed these names as people ACS liaised with during crisis-mode: Dick Clarke, Dan Benjamin, Steve Simon, and then . later Roger Pressy. "Actionable intelligence" initiated such an emergency response. Bojinka

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''{sS.D The classic example he used was the Manila Plot ("Bojinka"). Inthat instance, Butterworth thought that Civil Aviation Security "did a really good job." He referred to United Airlines as "the best of the carriers" with respect to security and reported that "Greenwald from United said at the time, "if they are lying to us," (meaning FAA) "then we'll get them," implying that Greenwald was going to trust the FAA's reports this time.

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'tSSI) Butterworth called security procedures at the airports "messy." He thought that was because airline Security Directors were "isolated" and did not know how to interact with the airlines, or their vulnerabilities. Butterworth thought that primarily, "Airlines hired security directors to deal with internal theft, such as ticket fraud and stealing."

Congressional Oversight (Unc) According to Butterworth, only two Members of Congress, Congressman Oberstar and Senator Frank Lautenberg (D-NJ), took "the right" position on aviation security onehundred percent of the time. Congressman Mica fought the "vehicle bomb measure" at Orlando airport. Former Congressman Duncan, as Chairman of the Aviation Subcommittee, is reported to have told the air carriersl industry stakeholders, "You all let me know what you want to have rolled back," in terms of regulation.

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(Unc) The industry would exercise its influence by getting Members of Congress to submit "veiled" questions to the FAA on security measures. There was no congressional pressure put on the stakeholders to increase security. It is Butterworth's opinion that Congress pressured the FAA (in the form of inquiry) to "roll back" the regulations. He said that the occasional question from a Hill staffer was often "veiled," They were not going to come out and say they were opposed to increasing safety of civil aviation, but it was clear they opposed increased spending on the measures. (Unc) When asked to elaborate, he said that there was no Member of Congress on the

"far right" of the regulatory issue. As a FAA policy-maker, he said, "You were the right. You had to create it." Even the victims' groups were largely ineffective such as from Pan Am 103. As for the effectiveness of interested union representation, he said that the Air Line Pilots Association (ALPA) was the most active on security issues. The Flight Attendants Association was not very effective.

New Special Assessments Testing (the "Red Team") (Unc) Butterworth instituted a program in 1995 of realistic testing of security measures. The 1996 FAA Reauthorization Act, included language for realistic testing of the system; Flynn and Butterworth got Sam Whitehorn (a staff member on the Senate Commerce Committee) to put the language in the legislation. Butterworth requested the Special Assessments Division (often referred to as the "Red Team") to mirror current threats with calibration of the x-ray machines in mind. Prior to the program he instituted the test methods used to assess the securit s stems "were ridiculous.' ,--~_~ ~ __ ~ ........ ....I The tests"

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conducted were poor assessments of how well the system would perform shouldanactual terrorist attempt to get an lED aboard a flight. Administrative law judg~.had·-said that

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~------------------------------------------------------~ ruling dated back to 1990-91 and heavily influenced FA..(\'s regular testing Butterworth

indicated that, because of the ALJ ruling, it would be difficult for the FAA to seek a civil fine if the test that the screener failed was not clear-cut. ...

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said he had to fight very hard to sustain what he called a "robust" testing program. He noted that Flynn, whom "he respected enormously," hap concerns about the program Butterworth was trying to sustain. According to Butterworth, one could never tell with Flynn whether it was him or his sup.eriors who were putting limits on him. AT A rigorously fought it. Butterworth said he had to "walk it up slowly." Butterworth felt that the regular testing/enforcement system "embraced" the partnership ~oncept between the FAA and industry, but that it didn't do well enough in distinguishing "partnership from co-optation. ", ~S) Failure to meet the FAA standards should not necessitate firing personnel. Small fines did not effectively address the failures, either. For this reason, Butterworth devised a Performance Based Enforcement (1995-2000) policy. It was based on tW9 premises: the need to have testing results reflective across thy system, and that the air carriers face the same testing protocols. The enforcement policy hinged on FAA's actions toward the worst performers because many others in the system would base their compliance on what happened to this group. He said that they openly considered closing checkpoints that performed poorly and showed no improvement. Butterworth thought this wa'~ a good approach (Ort Steele agreed), but it was never implemented. " (eS) At one point, FAA leadership under Acting-Administrator Linda Daschle senta letter to the industry on selectee-onl ba match testin results inson refused to send the letter under his Administration). The letter from the FAA basically sa..l.....,.to-,,-e-c-a-rr-}-er-s-: !'P'w--e-a-re-c-o-n-s"'1 ,..e-r ..m-g-a--nu-m-yoo-er ....of options including revocation of your operating certificate as an air carrier." In Butterworth's view, she was the only Administrator he served under who threatened to get "tough" with the industry, and this particular letter represented the only occasion he was aware of where FAA leadership threatened de-certification as a result of security failings .

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tss) The

response from the air carriers was mixed. Crandall's (American Airlines) response was "acerbic." United was particularly embarrassed by their results. The FAA had no "will" left to follow through on the threat to pull certificates. There was no fall out.

FAA receptivity to Red Team findings:

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(e"S) Butterworth revealed that he had personal conflicts with Ken Mead, Inspector General of DOT. However, Butterworth thought that his testimony on Red Team assessments at the Commission's May 2003 hearing was good. He indicated that the charge that leadership "covered-up" the Red Team results was ludicrous. The Red Team results were provided to the industry. Irish Flynn and Ort Steele deserve credit for the continuous flow of information about performance to the industry; far more than the administration before them. The Red Teams customarily briefed the field agents following a test on their performance so that the x-ray machines could be recalibrated and their weaknesses addressed. Butterworth implied that it was the air carriers and other stakeholders that reluctantly accepted the information provided by the testing. They did not want to know. ECS) Because the performance problems were so fundamental to the system, Butterworth felt that the issuance of a rule or any other "dramatic" action on the part of FAA would not remedy the problems. There was no dramatic action that could be taken, not with the limited power that the FAA had at its disposal. ~S) Butterworth viewed potential threats to CAS in several groups: The first group refers to the professional terrorist with financial backing, possibly state-sponsored. In Butterworth's words, "All civil aviation security can do is to get this hijacker to pause for a minute. It is impossible to design against these people. One can't shake down everyone at the airports. It's not workable." This also applies to suicide hijackers, which the system pre-9-11 certainly was not prepared to handle. In Butterworth's former position, all one can do is, "Pray to God that your intelligence services are going to pick them up." (&S) He characterized the second group as the "deadly and dumb people," whose intent is not suicide and who want to remain anonymous as they attempt to beat the system. Operating under the presumption of non-suicide, the system attempted to deal with this group by closing off all avenues for the criminal to maintain anonymity.

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'(6S) The third group were "the nutcases;" individuals that try to walk onto a plane with a 38-caliber gun or a ticking briefcase, for instance. He indicated that the security system had better be able to stop this group .

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cBs) Why was the FAA so close-minded to the thought of suicide hijackers? Butterworth had no answer to that. He said that the entire security system was based on non-suicide. Industry

Influence - Dual Mandate

(e'S) In terms of industry influence, there was no question in Butterworth's mind that the stakeholders could get rid of anyone they wanted at FAA at anytime. Butterworth told the Commission that the FAA went "after him" for coming down too hard on the stakeholders. In the spring of 1998, he almost lost his job over it. Congressman Oberstar wrote a Jetter on Butterworth's behalf to ensure that he keep his job at the FAA. Butterworth believed that he was targeted because his policy directives were costing the industry too much money. For example, the industry fought his testing program "tooth and nail." (C§) Butterworth sought to move up to become Deputy Associate Administrator at FAA. Jane Garvey put a security director from Northwest Airlines on the search panel for the position. Busick and Klickenburg were also on the panel. According to Butterworth, Garvey "went to the industry and asked who they couldn't get along with."

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(SS) At the time, Northwest owed $2 million in fines to the FAA. Butterworth saw this as a clear conflict of interest. Because of thatl 9/11 Personal Privacy land "performance gaps" in the system, he withdrew filS name tor conslderatlOn tor promotion at that time. In Butterworth's opinion, "it was a story worthy of the Washington Post front page." This was a clear example of the contradictory, counterproductive nature of the "Dual Mandate". Oberstar was horrified that a strong director of operations was being targeted and industry was having a side. Flynn's strong support and Oberstar's intervention let him keep his job. (Unc) In summarizing his evaluation of the civil aviation security system during the time he served, Butterworth indicated that he didn't think a 'jury of his peers" would believe they had done everything it would have been prudent and responsible to do. Public Disclosure

of Air Carrier

Test Results

(BS) He also shared with the Commission an instance in which the regulated industry

exerted undue influence over the FAA. There was a presumption that after a certain period of time was given to an air carrier to fix security failures the information would be made public. He was working on a settlement agreement with Continental Airlines on fines for security failures. FAA had to have a press release with Continental announcing that it had agreed to pay x number of dollars for security violations. The negotiations on that deal went all the way to the Administrator, and he is not sure if it was ever resolved.

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from the 9/11 families:

t€S) Butterworth was asked the 9/11 family question with respect to the lowering of

fines. Butterworth said they were lowered as a result of the negotiation settlement

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COMMISSION SENSITIVE between FAA and the air carrier. The two lawyers would hash it out, and ultimately fines were lowered. Fines were lowered' as a result of the negotiation settlement. Two things the carriers care about: Where the airline was in relation to the rest of the pack (United was always way ahead), and deflecting negative publicity. The longer it took to resolve the issue the colder the trail got on the evidence of the carrier/screener malfeasance which made throwing the book at them difficult. As far as publicity in terms of security performance, policy on Public Disclosure is in the SSI rule. After a certain number of years, it is no longer security information. Butterworth indicated that he had wanted to create "mega-fines" for poor performers, but this was never done. (6S) Butterworth did not recall the 1992 special analysis prepared by the FAA stating that small knives are the most frequently used weapon in hijackings, nor did he know the origin of the 4-inch blade rule. ' Intelligence

{S-SI) Butterworth indicated that aviation looked "juicy" to the attackers because of the reported low level of security performance. Butterworth was "blown away" after 9-11 to learn of the high level of activity and the sheer number of terrorist groups operating inside the United States prior to 9-11. Such revelations called into question, in his mind, the United States' commitment to identifying and tracking such groups domestically. He said that while at the FAA, he operated under the assumption that the Bureau would "pick them up; that they had enough tracks out there." ~I) Butterworth recalled taking several steps to get the Administration to focus on tracking terrorists and improving intelligence gathering. In 1996, the Baseline Security Working Group was established in response to a NIE statement that listed group identities and locations of terrorists, and that specified a terrorist threat to civil aviation. (Butterworth recalled that initially the Administration wouldn't agree to set up a BWG, but that Butterworth contacted Rep. Oberstar, who wrote to Leon Panetta, and this led to the removal of Administration objections.) There was an obvious need to improve intelligence reporting to the FAA. Butterworth cited the same examples mentioned by Flynn in his interview with the Commission, including the briefing of the staff of the Senate Select Intelligence Committee on threats to aviation security. ~S) Butterworth recalled that FAA Administrator Hinson went to'CIA Director John Deutch to express concern about intelligence and the growing threat and that his concerns were dismissed by Deutch. He also recalled FBI agent John O'Neill's testimony to the Senate Intelligence Committee wherein he was unwilling to corroborate FAA claims about credible threats to civil aviation. 168) Butterworth was asked how the FAA was able to assess whether the FBI had done a thorough job of following up on aviation related cases, and that the agency was 'being duly diligent. It was Butterworth's opinion that "if you screw with the Bureau they won't tell you anything;" that individuals suspected of terrorist activity were turned over to the FBI; and that it was not the FAA's place to follow up with the Bureau in such cases.

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COMMISSION SENSITIVE These presumptions directly affected the quality of the FAA's working relationship with the FBI, and how it processed "intelligence" received from the FBI. The attitude, was, "take what you can get," from the Bureau. FAA did ask FBI to beef up its assessments in order to make security presentations to industry more credible.

"?f;S) In Butterworth's

view, part of the intelligence flow problem was on the FAA side, which didn't necessarily wish to receive information that would cause problems for the industry. FAA Security was often concerned about preventing roll-backs of existing security measures, and perhaps hoped that the information on increasing threats was not "real. "

1CS) Butterworth admitted that more could have been done on the part of FAA as a regulator of the industry to "beef up" civil aviation security. In hindsight, he thinks they could have pushed for more intelligence, come down harder on checkpoints and enforced searches of selectee-only carry-on baggage. The rule only required that a selectee's checked bags were screened.

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CAPPS (Unc) Butterworth had the impression that it was a good security measure. Many steps were taken to pass the political, civil liberties test. Airlines were in favor of CAPPS at that time. Miscellaneous

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Butterworth said that there were three incidents of people with terrorist affiliations working at airports. The information was given to the FBI but he doesn't know how it ' was pursued. He indicated that Claudio Manno would know what happened in these cases. Recommendations

(Unc) Butterworth said there is no clear set of solutions to the problems plaguing the system. More specifically: • To address the vulnerabilities associated with the passengers, their checked bags, and their carry-ons, Butterworth suggested setting up two processes: one for high risk and one for low risk passengers. Trying to treat every passenger with the same diligence overburdens the system, and inevitably, the system will prove ineffective in stopping the people it is designed to stop. The system needs to "have a selectee-base and screen the hell out of them." .($.1) Butterworth supports more aggressive performance testing of the system.

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He supports more applied R&D for detection equipment. Butterworth recommended that cargo should go on all-cargo flights. Take it off the passenger airlines, and subsidize the industry. He believes TSA needs to show a willingness to take a strong position on certification issues. A lack of willingness to do so undercuts the system, giving poor-performing stakeholders an advantage. supports maintain the original quality of the Federal Air Marshal force at the higher current deployment level. In Butterworth's view, the flow of performance information should include staff of congressional offices, as well as the insurers of the airlines. If they are made 'privy to such information, the regulators won't need to threaten public disclosure. Insurance premiums will go up if they are aware that the carrier has low performance results, and thus economic factors can be brought to bear on improving security. Butterworth said the fundamental problems within the civil aviation system are rooted in the lack of intelligence. He also thought that the FAA officials were too beholden to the industry. There should be a prohibition on seeking a job with an air carrier for 4-5 years after leaving FAA.

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(Unc) In conclusion, Butterworth indicated his belief that the current system is "corrupt." To achieve aviation security, one does need a "working coalition" with industry, but the federal regulators "need to remember who you are, and FAA forgot." Butterworth worries that TSA could fall into the same trap. Also, Congress needs to be told about security problems, and listen more attentively to the problems in aviation security. He believes that the 2001 Aviation and Transportation Security Act (ATSA) made an important contribution by removing the primacy of cost-benefit analysis in aviation security rule-making .

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