UNITED STATES OF AMERICA

TRANSPORTATION SECURITY ADMINISTRATION

Washington , D.C.

In the Matter of                          )

Threat Assessments Regarding)

Citizens of the United States     )        Docket No. TSA-2002-13732

Who Hold Or Apply For FAA        )

Certificates                                 )

 _________________________________________________________________

 WRITTEN COMMENTS OF DON SCHELLHARDT, ESQUIRE

 TABLE OF CONTENTS

 Page                     

Identification Of The Commenter                                                 1

 Overview Of The Legal Issues                                                      3

 Are The Current Rules Constitutional Under

    Normal , “Business As Usual” Conditions?                                4

 Is The American Republic Now Facing

   “A Clear And Present Danger” Of

   Sufficient Gravity To Justify Some

   Abridgements Of Constitutional Rights

   And Procedures?                                                                         9

 Are The Specific Rules Under Discussion

    Constitutionally Acceptable Under A

    “Clear And Present Danger” Standard?                                  16

 Recommendations & Conclusions                                              17

----------------------------------------------------

WRITTEN COMMENTS OF DON SCHELLHARDT, ESQUIRE

    I am Don Schellhardt, a citizen of the United States . I do not have a pilot’s license, nor do I have any immediate plans to acquire one.  As a citizen, however,

I have a vested interest in the preservation of Constitutional rights and procedures.  In addition, I have some specialized expertise and experience which is relevant and material in the context of the present proceedings. 

             In this regard, I am an attorney, trained at George Washington University ’s National Law Center , with Bar Memberships in 2 States.    I have been licensed to practice law for the past 28 years.  

             The majority of my career has been spent as a “political lawyer” in and around Washington , D.C.     My focus there was on building the cases for, and in selected cases writing, new legislation and/or new regulations, especially in the infrastructure-oriented fields of energy and the environment.  My Washington area employers have included a Member of Congress, a Congressional Committee, the Overseas Private Investment Corporation,  the American [Natural] Gas Association and the U.S. Environmental Protection Agency.  This is not the resume of a radical.

Since leaving metropolitan Washington , D.C. , I have continued to engage in both legislative and regulatory advocacy.    Most of this advocacy has involved representation of clients on matters coming before the Federal Communications Commission, especially regarding the establishment and expansion of a Low Power FM Radio Service.   However, I have also testified before Congress on FCC-related issues.    In addition, I have appeared before State and local decision-making bodies, in Colorado and Virginia , as an advocate for responsible land development and  more effective programs to help autistic children and adults.  My courtroom experience is also relevant to the present proceedings.    My life in court has included work as a trial lawyer with Blue Ridge Legal Services and later as a Commonwealth-certified, solo-practicing Guardian Ad Litem For Children, with both practices based in Harrisonburg , Virginia .   I have also been a law clerk to 4 Connecticut judges, including Judge William Sullivan, who was later named Chief Justice of the Connecticut Supreme Court by Governor John Rowland. While the majority of my courtroom experience has involved child custody cases and other forms of family law, some of it has also involved criminal law   --  including court oversight of both paroled drug offenders and incarcerated inmates in Connecticut , as well domestic violence trials in both Connecticut and Virginia .  In my criminal law work, I was almost always either representing the court, or working with prosecutors on behalf of a victim of child abuse, spouse abuse and/or other form of domestic violence.    I was not a criminal defense lawyer and I certainly have no intention of becoming one.

What I am is an engaged citizen    --   who is experienced and accomplished in working with, and for, all 3 branches of American government:   legislative, regulatory and judicial.      I am not a conservative, but neither am I a radical. 

I am not even a liberal.  I am a patriot    --    and I consider myself a knowledgeable member of the American mainstream.  

Overview Of The Legal Issues  

            I write these words for TSA, but I also write them for the possible members of a future reviewing court.      I say this because the current rules, if “kept on the books” in their current form, will almost certainly attract a court challenge   --   which will almost certainly succeed, at least in part.  

            The current rules simply stretch the United States Constitution too far to be upheld in full by most courts.  

             To reach this conclusion, there are really only 3 “bottom line” questions:

1.          Would the current rules, in their current form, be Constitutionally permissible under normal, “Business As Usual” circumstances?  

2.          If not, is the United States currently facing a “clear and present danger”   --   to the kind of democratic Republic it has adopted as its form of government, or even to its survival as a nation   --    of sufficient gravity to justify some limited and temporary abridgements of usually guaranteed Constitutional rights and procedures?  

3.          If so, are the specific “abridgements of usually guaranteed Constitutional rights and procedures”, as set forth in the specific rules initiated by TSA, abridgements of a nature which are Constitutionally permissible during an emergency period of “clear and present danger”?              

Are The Current Rules Constitutional

Under Normal , “Business As Usual” Circumstances?

  NO.  

             You don’t have to go to law school to know this.    All you have to do is watch Law and Order on TV.  

              Just imagine the following scene on Law and Order:  Prosecutor Jack McCoy stands before a judge and says, “Your Honor, we want you to throw this man in jail.    We can’t, or at least won’t, call up any witnesses to testify against him.     In fact, we can’t, or at least won’t, produce any kind of evidence against him.    But you can take our word for it, Judge:   This guy is a suspicious character, and he’s up to no good.    Again, I can’t tell you exactly how we know that   --   but I’m from the government and you can trust me.”  

             Needless to say, the average American sixth grader could tell you There Is Something Wrong With This Picture.  

             Actually, even this imaginary scene, incredible as it would sound to most everyday Americans, is not fully analogous to the authority claimed by TSA in the current version of its current pilot licensing rules.  

             A truly accurate metaphor for TSA’s claims would be a scene like this:     A lawyer stands before a judge and says, “Your Honor, Jack McCoy and his prosecutors just threw my client in jail without a trial   …  without presenting any evidence against him   …   and without even telling him what the charges against him are.” Then Jack McCoy rises, folds his arms together, and with a smug expression declares:  “You don’t like it, Your Honor?  Tough.”  

              (1)    Civil Law versus Criminal Law.    Of course, I can already hear some TSA lawyers exclaiming: “Objection, Your Honor!  Denial of a pilot’s license is a  civil matter, not a criminal matter.    We’re not talking about throwing anyone in jail without evidence or accountability.    We’re just talking about denying a pilot’s license. 
   Mr. Schellhardt is comparing apples to oranges.”  

             A more suitable metaphor, however, would be that Mr. Schellhardt is comparing MacIntosh apples to Delicious apples.   Both are apples, just as both civil matters and criminal matters are subject to the “due process” requirements of the United States Constitution.  

              In the present proceedings, it is true, we are not discussing TSA’s authority to take away someone’s liberty or life   --   but we are discussing TSA’s authority to take away someone’s livelihood.     This is, in essence, a property right, subject to the Constitution’s mandate that neither life nor liberty nor property may be taken by the government without “due process of law”.

              Even in a civil proceeding as routine as a “slip and fall” lawsuit, no judge can grant any Plaintiff an award of damages without evidence that removal of the ice was in fact the Defendant’s legal responsibility   …  and that the Defendant had a reasonable opportunity to meet his, her or its legal responsibility before the Plaintiff arrived on the scene   …   and that the Plaintiff did, in fact, slip on the ice, as opposed to   --    for example   --   slipping in the shower at home   …   and that the Plaintiff is not guilty of overriding contributory negligence, such as having had a few too many drinks on the way to the Defendant’s ice   …   and that the Plaintiff’s slip on the ice in fact produced verifiable injuries   …   and that these injuries were of a nature which permits the Plaintiff’s recovery of appropriate damages for medical expenses and other directly related expenses, and perhaps also for asserted “pain and suffering” and/or other less tangible injuries.  

            In short, even proving a Defendant’s liability for a “slip and fall” case   --the Trial Court 101 variety of civil law   --    can be a tall order, once “due process” requirements are brought into play.  

            Further, even a “slip and fall” verdict, whether reached by a judge or a jury, is potentially appealable, with respect to both the underlying liability and the damages assessed.    

            How, then, can it be seriously argued that potentially removing a person’s livelihood, and perhaps seriously damaging his or her reputation in the process, can be done without evidence, opportunity for cross-examination or post-decision accountability?   

              In America , neither a judge nor a jury can award Grandma $5,000.00 for a broken hip, suffered when she allegedly slipped on the ice in front of a Stop-and-Shop, without evidence, the opportunity for cross-examination and the possibility of being reviewed and reversed by an appellate court.    

               TSA’s authority to deny or revoke pilot’s licenses should be similarly restricted   --    at least under normal, “Business As Usual” circumstances.  

               (2)     Rights versus Privileges.     It could be argued that a pilot’s license is a privilege, not a right, since there is no recognized Constitutional right to fly a plane (although there is a Constitutional right to “freedom of mobility”), and the government has for decades been authorized to pick and choose between applicants for pilot’s licenses.     It could be claimed that Jack McCoy’s legal authority to throw someone in jail, or a judge’s legal authority to take $5,000.00 from Stop-and-Shop in order to give it to a grandmother with a broken hip, is action that is not normally within the government’s discretion.     Because parties are normally entitled to be free of imprisonment, and/or to keep their own money, it could be asserted that these things cannot be seized by government without evidence, the opportunity for cross-examination and post-decision accountability.     By contrast, it could be argued, these Constitutional restrictions on government action are not mandatory in the case of pilot’s license, since no one is really entitled to acquire such a privilege.  

                Court decisions have, in fact, affirmed that licenses of various kinds   --even driver’s licenses   --    are indeed privileges, rather than rights, and can therefore be denied or revoked by a government agency.

                When applied to the present proceedings, however, this is a distinction without a difference.     While applicants for a pilot’s license are not entitled, as a matter of right, to the license itself, they are entitled, as a matter of right, to apply for that license under procedures which are uniform, reasonable and predictable.  

Their applications can be denied by a government agency, but they must be denied under rules which are applied, uniformly and predictably, to all of the applicants.

The decision to deny a pilot’s license cannot be discriminatory, unrelated to the actual requirements for flying a plane and/or otherwise “arbitrary and capricious”.

                Thus, for example, a driver’s license can be revoked or denied if the license holder or applicant has been convicted of drunken driving.    There is, in short, no absolute right to obtain, or retain, a driver’s license.  

                There is, however, an absolute right to apply for such a license, and/or to keep it for the specified period once it has been obtained, under uniform, reasonable and predictable procedures.     Thus, for example, a court would be very unlikely to uphold a government agency that denied driver’s licenses to everyone with an Hispanic surname, or to everyone with blue eyes, or to “suspicious” individuals picked from the pool for license denials on the basis of reasons that are neither disclosed nor subject to review by an impartial authority.

                For all of the reasons I have stated, the current version of the current rules would not withstand Constitutional authority under normal, “Business As Usual” circumstances.

Is The American Republic Now Facing
“A Clear And Present Danger”
Of Sufficient Gravity To Justify 
Some Abridgements Of Constitutional Rights And Procedures?  

               MAYBE, BUT PROBABLY NOT.

                The evidence is conflicting.  

               As TSA is doubtless aware, the U.S. Supreme Court has sometimes formally upheld, and/or implicitly allowed through inaction, certain governmental departures from Constitutional rights and procedures   --  during emergency periods when a “clear and present danger” was deemed to be threatening the American Republic.  

               (1)    “Clear and Present Dangers” of the Past.    Most of these departures from the Constitution, although not all, were explicitly and/or implicitly permitted during one of two periods in American history:  the American Civil War, aka the War Between the States (as I learned while living in Virginia ), and World War II.  

               During the former crisis, President Abraham Lincoln took certain targeted actions that might be politely termed “extra-Constitutional”.    These included imprisoning the Mayor of Baltimore and shutting down pro-Confederate newspapers in Maryland .  

              When challenged on these matters by a reporter, President Lincoln replied:    “Am I to save the Constitution, and lose the country?”

               During World War II, President Franklin Delano Roosevelt, concerned by the risk of weakening “home front” confidence and morale if the public learned of Nazi saboteurs who had landed by submarine on Long Island, arranged for the secret execution of the captured saboteurs.     Civilian courts kept the secret and let the President do it.  

              Further, in a much more visible and sweeping action, this time directed against American citizens, President Roosevelt presided over the indiscriminate internment of virtually all Japanese-Americans in “concentration camps”   --   on the grounds that all Americans of Japanese descent were automatically “suspect” in their loyalties.    At the same time, German-Americans, including the father and paternal grandparents of the undersigned, were left alone   --   perhaps because it was not politically or logistically feasible to throw almost 1 out of every 5 Americans into a detention center.      Leroy F. Schellhardt, the German-American father of the undersigned, went on to serve with distinction in the wartime Marine Corps.  

                 In the case of Korematsu v. United States, a lawsuit against the detention centers by a Japanese-American citizen, the United States Supreme Court ruled that the indiscriminate internment of essentially all Japanese-Americans, which triggered such related deprivations as lost income and otherwise avoidable foreclosures, was a justifiable government response to “a clear and present danger”to the American Republic .

                 Two points about the Korematsu case should be stressed: 

A.     Most American lawyers and judges of 2003 look back on the Korematsu decision with embarrassment, if not outright shame.    It is almost universally recognized, within today’s American legal community, that the “blank check” given to the government, by the Korematsu decision, was far too large.     It is also recognized, with the benefit of hindsight, that the “blank check” was in practice abused by other American citizens to permit the widespread theft of property from Japanese-Americans, one way or another, while they were far from home.  

                In short:   It is very unlikely that the same decision would be made by  today’s United States Supreme Court.     For example, today the indiscriminate internment of all Arab-Americans would almost surely be overturned in court, as an over-reaching response, even if “clear and present danger” were deemed to exist.  

   B.    The Korematsu decision proved to be the high water mark point in judicial indulgence of the “clear and present danger” rationale for approving or overlooking extra-Constitutional actions by government.  

               Less than a decade after the Korematsu decision, the United States Supreme Court refused to view the Korean War as sufficient justification for the seizure of certain American steel mills.    President Harry Truman, citing the need to maintain steel production during a time of war, had reacted to a steel strike by sending in troops to keep the mills running.     The United States Supreme Court responded, in effect, that the “clear and present danger” posed by North Korea ’s invasion of South Korea was not “clear and present” enough.

                It is clear, then, that all dangers to the American Republic are not equal in the eyes of the reviewing courts.     Some dangers have been deemed to justify more “extra-Constitutionality” than others.  

                (2)     Applying the Precedents.     If the American Civil War and World War II were deemed by the courts to be “clear and present dangers”, while the Korean War was not, in which category do the events of September 11 and the war in Iraq belong?

                As was stated earlier, the evidence is conflicting.
                Certainly, the relative power of the United States , when compared to the relative power of Al Qaeda and Iraq , is far greater than the relative power of the United States when compared to the power of the Nazis and the Japanese during World War II.     In fact, the military balance actually favored the Nazis and the Japanese at the start of that war (although this changed within a few years).  

               Similarly, while it is more difficult to decide whether the relative power of the Union exceeded the power of the seceding Confederacy at the onset of hostilities, certainly the two collective combatants were closer to military parity, as war began, than the modern United States and Al  Qaeda, or the modern United States and Iraq .

                 Thus, if the ratio of military forces is the standard, it is very difficult to view either Al Qaeda or Iraq , or even the two combined, as a “clear and present danger” to the United States .

                  On The Other Hand, the existence of Weapons of Mass Destruction (WMDs) permits even relatively under-armed nations and/or groups to inflict great damage upon  the United States .     If the ability of hostile parties to inflict great damage upon the United States is the standard,  then the apparent access of Iraq to WMDs, and the possible access of Al Qaeda to WMDs, would appear to constitute a “clear and present danger”.    

                   The problem with this approach, however, is that hostile parties have had the ability to inflict great damage upon the United States since the Soviet Union tested its first atomic bomb in 1949.     In addition, if we lookforward instead of backward, it seems highly probable that hostile parties will continue to have the ability to inflict great damage upon the United States into the indefinite future.      If the Soviet Union has dissolved, the Communist government of China has not    --    and if Iraq is on the verge of being disarmed, nuclear weapons remain in the hands of North Korea and are being actively pursued by Iran .

                    In short:    If American vulnerability to great damage, at the hands of one or more hostile parties, is deemed to constitute a “clear and present danger”, sufficient for justifying “extra-Constitutional” actions, then America may never befree of such danger   --   and therefore the exercise of extra-Constitutional power could be rationalized as a permanent feature of American life.

                   In that case, the American government itself could become over time a greater threat to the American Republic than any of America ’s enemies abroad. 

                     Surely none of us wish to see such a result.                   

                    Of course, the power of America ’s enemies   --   whether viewed in relative terms, in a ratio with America ’s power, or in absolute terms, as the ability to inflict great damage   --   is not the only standard for measuring whether or not a mortal danger to the American Republic is “clear and present”.   

                    An alternative standard for measurement is the degree to which the American people themselves are being asked by their government, or required by their government, to mobilize and sacrifice.

                     A government which truly faces a mortal danger will draw upon the resources of the people for help.      It will not allow “Business As Usual” to go on, more or less undisturbed, while the government fights alone for the country’s liberties    --    or even its survival.  

                    In this respect, the current situation still resembles the Korean War--    which was not deemed “a clear and present danger”   --   much more than it resembles the American Civil War or World War II.  

                    During the American Civil War, and even more so during World WarII, taxes rose and a draft was instituted.     During World War II, mandatory rationing of civilian resources   --   notably, gasoline, rubber and food  --  was instituted as well.     In addition, recycling of scrap metal and other commodities was initiated on a major scale.

The Korean War, by contrast, did not involve tax increases, rationing, recycling or any other systematic sacrifices on “the home front”.  

             The Korean War did involve a draft, however, which had been continued from the days of World War II.      The current situation does not involve even that.  Nor does the current situation involve any kind of rationing   …  any efforts by government to increase recycling   …   or any other visible government efforts, of any kind, to conserve and/or divert civilian resources.    The absence of such efforts is particularly surprising in light of the fact that the two most frequently cited  enemies, Al Qaeda and Iraq , are financed and empowered by dollars spent on oil.  

Oil is a predominantly imported substance which could be reduced or replaced on a huge scale, over time, by government mandates for more natural gas and electricity in vehicles   --   and for greater use of solar energy, fuel cells and gasified “clean coal” in powerplants and factories.  

                  Finally, far from asking for tax increases, to pay for military ventures and homeland security, President George W. Bush is continuing to ask for additional tax cuts.  

                   It may be that America ’s liberties, and even its survival, are in peril--  but the Federal Government, under its current leadership, is not acting as if it believes they truly are.

                 A call for Americans to meet “a clear and present danger” by sacrificing some of their Constitutional rights and procedures, and literally nothing else, does not sound like a government’s true response to a true emergency.  

                It sounds like a cover story to mask a grab for power.

Are The Specific Rules Under Discussion Constitutionally Acceptable Under A “Clear And Present Danger” Standard?

                 N O.  

                 Even if a court were to find that “a clear and present danger” to the Republic exists at the present time, any abridgements of Constitutional rights and procedures must be reasonably related to effective action against the danger.

                 During the American Civil War, for example, President Lincoln’s abridgements of “due process” and “free speech” were largely limited to Maryland in particular and Border States in general.     Border States were “swing States”, hanging within the Union by the barest threads of public opinion.     Minor shifts of sentiment within these few States   --   Missouri , Kentucky , Maryland   --   could have amplified the strength of the Confederacy overnight.    Maryland , where most of President Lincoln’s “abridgements” occurred, could have won the war for the Confederacy almost instantly   --   by joining Virginia in the Confederacy and completely surrounding Washington , D.C.

                   In short:    President Lincoln’s actions were arguably limited to the lowest level of extra-Constitutionality needed to win the war.

                  Conversely, while President Truman was ordered to undo his seizure of the steel mills due to the absence of a sufficiently “clear and present danger”to the American Republic , it was also noted by the United States Supreme Court that economic regulation of the steel industry was only loosely related to the war effort in Asia .     President Truman over-reached when he called the Korean War a national emergency, but he also over-reached in using national security to justify at least a temporary form of nationalization.

                    By the same token, the current version of TSA’s current rules over-reach by claiming total freedom from accountability for an indefinite   --   potentially permanent   --  length of time.     No evidence On The Record indicates any effort by TSA to “tailor” its asserted authority to the minimum scale and scope needed to  accomplish its stated objective of protecting the public from terrorism.  

Recommendations & Conclusions

                    Looking at the totality of the facts at hand, and the Constitutional issues involved, the current version of TSA’s current rules cannot be justified, with or without application of a “clear and present danger” standard.   However, a case can be made that limited and temporary license denials, on the basis of “suspicion”, are reasonable under certain reviewable circumstances.  

                   Given the potential killing power of an aircraft today, particularly if it is coupled with a Weapon of Mass Destruction, it is reasonable to “err on the side of caution” when a “suspicious” individual applies for a pilot’s license or something “suspicious” is learned about the holder of an existing pilot’s license.   It is also reasonable to protect informants and/or other “sensitive” information sources, through a policy of non-disclosure, when and if information from these sources is  only used to justify a temporary denial or revocation, pending the possible development of disclosable evidence that is open to review by a court and/or to cross-examination by an adversely affected party.  

               Specifically:  

               The current version of the current rules should be revoked and replaced by new rules.    These new rules should authorize denial or suspension of a pilot’s license, on the basis of “suspicion”,  for a maximum period of sixty (60) days.     After 60 days, the new rules should require TSA to choose between two options:   (a)  restoring the denied or suspended pilot’s license; or  (b) providing the evidence for a continued denial or suspension, subject to review in a Hearing, and/or by a court, with opportunities for cross-examination by the adversely affected party.  

               The “war on terrorism” has not uncovered any new realities in its frequent reliance on informants, “guilt by association” and other indicators of “suspicion” that are not admissible in court and/or cannot be disclosed without endangering information sources.    Law enforcement agencies routinely rely on informants, “guilt by association” and similar indicators of “suspicion”  --   but they do not rely upon them in court.    Rather, they use them to select targets for investigation, and/or methods of investigation, in the often justified hope of developing evidence that can be used in court   --   without compromising information sources or violating the Constitution.

                The new rules proposed herein would give TSA a 60-day “grace period” to do the same thing, during which a “suspect” would not be licensed to fly.   At the end of this “grace period”, however, TSA would have to show its hand or fold it.  These abridgements of “due process” would be temporary and limited   --and reasonable under the circumstances. 

If the undersigned may offer a guiding maxim:  

                When in doubt about a current or potential pilot,

                Err on the side of caution.

                But don’t remain in doubt for more than 60 days.  

               For the reasons set forth herein, the undersigned urges TSA to:   (a) revoke the current version of its current rules regarding “threat assessments” of current and potential licensed pilots; and  (b) replace the current rules with new rules which permit a license denial or suspension, on the basis of “suspicion”,  for a maximum period of 60 days, after which the pilot’s license must be restored or the evidence for continued denial or suspension provided, subject to review in a Hearing, and if necessary by a court, with opportunities for cross-examination by the adversely affected party.

Respectfully submitted,  

Don Schellhardt, Esquire  

pioneerpath@hotmail.com

(203) 757-1790

45 Bracewood Road

Waterbury , Connecticut 06706                                               Dated:   _______________

                                                                                                                      March 25, 2003