By Joe Brancatelli
February 23, 2011 -- It took the Obama Administration three nominees and 18 months to get John Pistole installed as top man at the TSA--an agency shaped by George W. Bush appointee Kip Hawley, who didn't care about business travelers, Congressional oversight, public opinion, or anything other than the TSA's internal agenda.

Meet the new boss. Same as the old boss.

In nearly four years as the nation's public face of airport security, Hawley systematically insulated the TSA from any semblance of governmental balance. Whenever Hawley wanted to do something, he did it, even if was self-evidently ludicrous or ignored the letter or spirit of the 2001 law that created the agency. And while Hawley left the TSA a better organization than he found it—not a high bar given that it had been founded in haste and desperation after the September 11 terrorist attacks—most observers expected the Obama administration to steer a kinder, gentler path that focused on a more rationale approach to airport security.

But almost since the day Pistole took over as TSA administrator last summer, he has employed what can only be called the Hawley Doctrine: The Transportation Security Administration is above the law, accountable to no one, disinterested in any security mechanism that does not serve the bureaucracy, and is oblivious to political realities.

A former deputy director of the FBI, Pistole didn't exactly wow the masses during his first public controversy last Thanksgiving. That's when a public uprising against the graphic images produced by new TSA screening machines led many flyers to conclude the agency imposed punitive body searches on anyone who refused to use the technology. That issue has almost disappeared from public view, but the TSA still faces at least a half-dozen lawsuits, and it has sped up development of technology that won't render the traveler's body so clearly.

In recent weeks, however, Pistole has gone to war with Congress over the scope, size, and essential nature of the TSA. And, inexplicably, he often seems on the wrong side of the law and the wrong side of public opinion, which currently favors a smaller, less intrusive government footprint.

The 2001 law that created the agency was clear: The TSA was formed to federalize security screening of passengers and cargo, which until then had been handled by an indifferent, ineffective collection of private rent-a-cop outfits. But the law also had an opt-out provision baked right into the federalization process: The TSA was required to train and test private screeners at five airports. It was then required to create a permanent process to allow commercial airports to use private-sector screeners if they chose.

The so-called Screening Partnership Program has been a modest, but undeniable, success. With TSA guidance, 16 of the country's approximately 500 commercial airports use private-sector personnel rather than TSA employees. Airports as large as San Francisco International and as small Key West International are part of the plan, and no traveler I've ever spoken with has even noticed a difference. Moreover, the TSA has never challenged the effectiveness of the private screeners who worked under SPP.

After November's election, however, Florida Representative John Mica, the front man for Republicans in transportation affairs, began urging airports to "opt out" of federalized screening. Pistole's reaction to Mica's call was shocking. Late in January, he turned down miniscule Springfield-Branson Airport's request to go private and then locked down the airport opt-out program altogether.

"I examined [SPP] and decided not to expand the program beyond the current 16 airports, as I do not see any clear or substantial advantage to do so," Pistole said. In a memo to TSA employees, Pistole went even further. "To preserve the TSA as an effective, federal counterterrorism security network, SPP will not be expanded…unless a clear and substantial advantage to do so emerges."

The problem with Pistole's decision? The law states that the TSA should create a privatization path for airports. There's nothing that permits the administrator to deny applications based on his assessment of privatization's impact on TSA as an "effective, federal counterterrorism security network," either.

Pistole also opened an old wound at a congressional hearing earlier this month when he said the TSA is mulling a "trusted traveler" program. Trusted traveler—which would offer faster access to security and perhaps even some security bypass for travelers who had undergone extensive prescreening and background checks—is also part of the bill that created the TSA.

There's just two problems with Pistole's tentative embrace of trusted traveler: The TSA under Hawley strangled all attempts to create such a bypass program, and the TSA was supposed to make trusted traveler a private-sector initiative, not another government-run proposition.

Hawley's antipathy to trusted traveler was well known. The most preposterous example of his distaste: TSA's double-ID rule for some young travelers.

The privately operated Clear trusted-traveler plan issued biometric identity cards to its members. Yet Hawley ruled the cards somehow did not meet TSA muster and Clear members would also have to show a second form of ID at screening checkpoints. That was silly enough, but Hawley was dragged before a congressional oversight committee to explain one of the TSA's most bizarre contradictions. Travelers under the age of 18 were not required to show any form of ID at checkpoints. Yet the TSA required under-18 travelers who were Clear members to provide two forms of ID. Hawley absorbed a hail of invective from members of Congress during the hearing, but never changed the double-ID rules until Clear agreed to add a photo to its biometric identity cards.

Clear went bankrupt in 2009 and closed. So did the other private trusted-traveler programs. Pistole's interest in trusted traveler now is intriguing because a company bought Clear's assets out of bankruptcy last year and has revived the program at two airports, in Denver and Orlando. The firm hopes to be up and running at 10 airports this year and claims to have reactivated about 60,000 of Clear's old base of 200,000 customers. Whether Pistole's new vision of trusted traveler includes private operators such as Clear is unknown.

Yet Pistole's biggest battle may be ahead. Early this month, he cleared the way for TSA workers to vote on union representation. That has infuriated Republican members of the House and Senate and reignited a fight that dates to the TSA's 2001 creation. Some Republicans initially opposed the TSA because they predicted it would lead to unionized federal workers. (Republicans, of course, assume that union members are almost uniformly Democratic voters.)

Republican Senator Jim DeMint of South Carolina blocked the 2009 nomination of Obama's first nominee for TSA administrator, Erroll Southers, because DeMint was convinced Southers would allow TSA workers to unionize. (Southers eventually withdrew after he admitted inappropriately using security assets in a family matter.) And Republican Senator Roger Wicker of Mississippi earlier this month unsuccessfully tried to ban unions at the TSA.

The bigger issue, of course, is why Pistole would fight a union battle now. Besides the current public debate over unions for public employees, there's the issue of the propriety. After all, Pistole claims he wants the TSA to be "an effective, federal counterterrorism security network." But the nation's two most important federal counterterrorism networks, the Secret Service and the FBI, from whence Pistole came, have never been unionized.

The Fine Print…
Pistole's stand on TSA unions is further mystifying because he told a congressional hearing this month that he would fire any worker who went on strike or engaged in a work slowdown. "There's no right to [strike]," he said. "I won't allow anything that would adversely affect security." TSA workers will vote on whether to unionize in March.
ABOUT JOE BRANCATELLI Joe Brancatelli is a publication consultant, which means that he helps media companies start, fix and reposition newspapers, magazines and Web sites. He's also the former executive editor of Frequent Flyer and has been a consultant to or columnist for more business-travel and leisure-travel publishing operations than he can remember. He started his career as a business journalist and created JoeSentMe in the dark days after 9/11 while he was stranded in a hotel room in San Francisco. He lives on the Hudson River in the tourist town of Cold Spring.

THE FINE PRINT This column is Copyright © 2011 American City Business Journals. All rights reserved. Reprinted with permission. JoeSentMe.com is Copyright © 2011 by Joe Brancatelli. All rights reserved.