The Right to Flight

As we’ve covered extensively in the past few weeks, the U.S. government is preparing to make the restricted airspace around Washington, D.C., a permanent fixture, with permanent rules aimed at safeguarding the Capitol regardless of the threat level from terrorism, war or domestic unrest. The area covered by the zone is more than 2,000 square miles, more territory than many pilots cover on a flight. But in addition to being a grossly exaggerated expression of baseless insecurity, it’s also an attack on the fundamental right of Americans to fly.Yes, unless you had an unusually thorough CFI or ground-school instructor, you probably don’t know that, by law, American citizens have the right to use the air. Check out Sec. 40103 of Title 49 in the U.S. Code. Section 2 reads: “A citizen of the United States has a public right of transit through the navigable airspace.” Of course, it also says the FAA has the right to restrict the use of airspace for security reasons but with the goal “to establish security provisions that will encourage and allow maximum use of the navigable airspace by civil aircraft consistent with national security.”Unfortunately, it isn’t the FAA that is running this show. The Department of Homeland Security, through the Transportation Security Administration, is behind the rule and the FAA is merely shuffling the paper. And the result has been the unilateral imposition of nonsensical inconvenience, economic hardship and civil penalties on people exercising a right that is really no longer available to those in the Washington area. Some have come close to dying in the process, but thankfully it hasn’t come to that.Of course, those who are crafting the latest rule are undoubtedly well aware of the law and the new zone will neatly accommodate it. But it’s something for all American aviators (and maybe even those who don’t fly) to think about that when it comes to the will of a bureaucracy born of fear and an Administration seemingly bent on perpetuating that fear (for possibly questionable motives), the fundamental rule of law is something to be tossed around as a matter of convenience.It’s not that pilots don’t understand the need for security. There are few, we’d wager, who aren’t more vigilant, more observant and more canny since the horrors of 9/11. But since they lack the prodigious power of a bureaucracy with its nose bloodied, they do what they can in practical and sensible ways. There are also few who don’t recognize the need for practical and sensible ways to protect the seat of government. If the experience of the past few years is any gauge, the permanent zone will achieve neither. Time and again it’s shown itself to be an unreliable, sometimes dangerous morass of miscommunication, technical faults and human error. Imposing this kind of ineffective and poorly conceived policy simply shatters the credibility of the whole security apparatus and makes pilots, the majority of whom would embrace a more rational approach to the issues, just want throw up their hands in despair. That it will trample a legislated right is just a painful twist of the knife.It’s unrealistic to think that this process can be stopped at this point but aviators have the chance, maybe even the responsibility, to do what they can to ensure that those making up the rules stop and think about their impact, rather than just forge ahead under what has become a distorted view of security. Anyone can comment on the proposed rule (docket ID 17005) and it doesn’t have to be Pulitzer quality. So far only 187 people have taken the time and that’s not enough. What this government needs is some straight talk from the people it serves — in numbers it cannot ignore.