Affidavit of Thomas Rancich
UNITED STATES DISTRICT COURT
Civil No. 1:04-CV-258
AFFIDAVIT OF THOMAS RANCICH
1. I am forty-two years old and a resident of West Tisbury, Massachusetts. I have worked in the field of combating terrorism for most of my twenty year Naval career. I am a qualified Explosive Ordnance Disposal Technician and have worked extensively in the field of Improvised Explosive Devices. I am a qualified Naval Special Warfare Officer (Navy SEAL) and have led combat troops in the Global War on Terror (GWOT). I have been responsible for and have succeeded in developing policy and plans with regard to terrorism at both the Fleet and Naval level.
2. I am the sole proprietor of Off-Shore Consulting, a one man consulting firm that primarily consults on leadership and strategy development but has done work in the ferry industry directly related to terrorism and maritime regulations. Specifically, I conducted an assessment of the Woods Hole, Martha's Vineyard and Nantucket Steam Ship Authority (SSA) for the stated purpose of assisting the SSA in determining their responsibilities under the new maritime regulations, vulnerabilities, current organizational strengths and to make recommendations as activities that would and would not be useful in actually reducing risk to their organizations and customers.
3. I am very knowledgeable on terrorist motivation, tactics, operations and strategy.
4. I am very knowledgeable in security regulations and methods.
5. In preparing this affidavit I have considered the facts set forth in the Plaintiff's complaint, his Motion for a Preliminary Injunction, and supporting affidavits, and the factual claims and arguments set forth in the Federal Defendants' Motion to Dismiss.
TERRORIST GOALS AND METHODS
6. Since 9/11 there has been an increased demand for "security measures" to protect against terrorist attack. A rush to feel better has resulted in spending of billions of dollars nationwide without an adequate understanding of the complexity of the terrorist problem, including the motivation, mode of operation and concerns of the terrorist. Vulnerabilities and risk mitigation activity must be looked at from the aspect of the terrorist to properly identify probable attacks and subsequently discern the affects of security efforts on those probable attacks. The following background section is provided to set a baseline for the topic.
7. Anti-American terrorism generally seeks to coerce our government by attacking industrial nodes, critical infrastructure and/or foreign located "American" institutions (government, military, industrial) as a means of destabilizing our resolve or economic well being. The motivation is more than a simple blood lust or desire to kill; it is to achieve a greater effect. The target of suicide bombers is not the individuals killed but the safety and security of the population in general so as to inflict a deleterious effect on the economy and quality of life. For these reason terrorists seek targets that (1) are critical nodes or (2) have a propensity to cascade through a significant economic sector or a critical node. For example, a suicide bomb campaign against a large economic sector like shopping malls would have a higher yield for the terrorist than attacking a small economic sector such as interstate buses—the terrorist would be more motivated to attack the higher yielding target.
8. The terrorist has several concerns throughout the planning and execution of operations. The terrorist is most at risk during the preparation for the attack. This includes planning, reconnaissance, logistics, and movement to target. The terrorists' chances for some success increase the closer he gets to the target. As a result of these two facts, the terrorist will seek to minimize his risk during the planning and movement to target by trying to appear to be a law abiding citizen throughout all of his activities. If the terrorist can avoid illegal activities entirely and still accomplish his mission that is his most likely and most dangerous course of action. The terrorist will seek the path of least resistance/risk. Once in proximity of the target, the terrorist will be prepared to execute his mission. In Special Forces there is a term "compromise authority," meaning the authority to execute the mission without specified permission if the assault force is compromised. The terrorist plans for a similar possibility. Once at his "jumping off point", the terrorist will execute the mission regardless of deterrents. Put another way, if he has gone to the trouble and expense of building a bomb, he will ensure that it is detonated. Unless a specific person is the intended target, who the victims are is moot; that there are victims is germane. The crash of United Flight 93 was still a terrorist success.
9. Another concern of the terrorist is the forensic capabilities of U.S. law enforcement. The terrorist knows that upon conducting an attack he is going to "burn" a great deal of assets that will never be able to be used again. This includes not only the people involved, but also supply lines, entry points, supporters and state backing. Simply put: a major concern for the terrorist is the cost benefit of the attack.
10. Terrorists generally seek to exploit unique vulnerabilities, unintended consequences and high victim density. A unique vulnerability is a vulnerability that is unique to a particular entity or industry and which makes it a more attractive target or increases the probability of achieving the strategic goals of the terrorist. An unintended consequence is a consequence that favors the goals of the terrorist that are brought about by actions taken to protect an asset/population from terrorist actions. For example, increased security at airports increases the concentration of people waiting in line to be screened thus increasing potential for a high casualty ratio for a suicide bombing attack occurring in the screening queue resulting in higher risk to the traveler. Victim density is the number of potential victims present in the area of an attack/possible attack.
11. Unique vulnerabilities are critical discriminating factors in planning to combat terrorism. This is the tool through which risk can be accepted rather than ignored. A vulnerability is not unique if a like act (explosion) could occur at another unprotected site with similar casualties and effect.
THE LAKE CHAMPLAIN FERRIES AND LCT'S SEARCH PROTOCOL
12. A ferry's unique vulnerabilities are: it can be sunk, it can be burned while at sea (no outside fire response available), and, it is isolated from rapid response when underway (away from dock).
13. To exploit the ferry's vulnerability to sinking with an explosive attack, the explosion would have to occur at or below the waterline and be of such force or form to puncture the hull with unrecoverable damage. The demonstrated means of conducting this attack are a small explosive laden boat or a swimmer emplaced contact charge. Random searches of passengers, vehicles, or bags do not detect, deter, disrupt or respond to those methods of attack. An effective (and non-invasive) security measure to reliably keep terrorists from reaching the waterline or below would be more useful.
14. An explosion on the freight deck would not tend to cause the vessel to sink. Explosive force tends to the path of least resistance and would largely be deflected up and out by the decking, resulting in minimal penetration of the vessel. As the freight deck is above the waterline this means that there would be no flooding.
15. There are three notable exceptions. If the explosive was a large shaped charge, if the explosive weight of the charge was very large or if the explosive was a small shaped charge placed in an interior space below the waterline. Casual searches would not find or identify shaped charges. A charge with enough explosive weight to sink the ferry would no longer be exploiting a unique vulnerability; all passengers and crew would be within the lethal blast over-pressure radius and subject to death from that cause, not drowning following the sinking. A device of this size could be expected to achieve similar casualties regardless of whether detonated on a ferry or in the ferry parking to prevent inspection (Further, greater casualties and socioeconomic damage could be expected at other target areas which were easier to access; basically any crowded street.) As random searches do not impact the terrorist goals with regard to these three exceptions, they cannot be seen to deter, disrupt or respond to those methods of attack.
16. Exploiting the unique vulnerability of a ferry that it can be burned while at sea would require the introduction of no illegal substances and such an act would not be uncovered any search, regardless of how intrusive. Contrary to the Federal Defendants assertion that they are implementing these security measures to screen for "dangerous substances", LCT freely allows the introduction of gasoline and other accelerants on board. Gasoline has been determined to be so dangerous that it is not freely allowed on United States Naval vessels and any introduction must be noted and comply with specific regulations, to include the ability to rapidly jettison. Puncturing an external gasoline tank and igniting the fuel would exploit a unique vulnerability and likely lead to significant loss of life, while never exposing the terrorist to risk prior to his attack or "actions at the objective area". Searches can not be seen to deter, disrupt or respond to those methods of attack.
17. Exploiting the unique vulnerability of a ferry, that it is isolated from response would require the introduction of no illegal substances or weapons and such an act would not be uncovered any search, regardless of how intrusive. Contrary to the defendants assertion that they are implementing these security measures to screen for "dangerous substances", the defendant freely allows the introduction of guns, bows, axes, chain saws, knives and other dangerous tools on board ferries, not to mention dangerous implements already on board. A combat trained group of six to ten people could easily seize control of a vessel with firearms or other weapons to scuttle her, hold hostages or otherwise inflict terror on the victims. Searches can not be seen to deter, disrupt or respond to those methods of attack.
18. It is unreasonable and dangerous to assume that an international terrorist with the skill, organization and training to enter the United States and conduct illegal activities without being detected by the myriad of law enforcement and intelligence agencies arrayed against him/her (NSA, CIA, FBI, State Police, Local Police, etc,) will somehow be threatened by or capitulate to or be deterred by an able bodied seaman or other ferry employee.
19. That random screening does not close the unique vulnerabilities of a ferry means that it is purely symbolic. This would be true even if the screening were thorough and complete, as it is at airports. However, the LCT screening is not thorough. A terrorist, who has evaded intelligence and law enforcement as stated above, is going to be smart enough to hide contraband or not use contraband. For instance, a good means to safely and effectively use the aforementioned shaped charge would be to build it into the vehicle, with optimal standoff being set by the design, so that it could be detonated to create a through hull puncture with no on-target set up required. A simple visual screening or even an amateur search of such a vehicle would not locate anything amiss. A screening conducted by a minimally trained LCT employee who is neither trained nor allowed to search all of the voids and areas which may be used to conceal explosives or other weapons in a vehicle is useless. This uselessness is further exacerbated by the randomness of the searches, which tilt the odds heavily to not being screened at all.
20. Further, these screenings create risk to the untrained LCT personnel forced to conduct them. If the random screener inadvertently finds illegal contraband or unknowingly targets a person involved in non-terrorist felony activity, the resulting violent action of a person who thinks he has been caught could be both deadly and unnecessary.
21. As aforementioned, the terrorist will seek targets and activities that will achieve his desired effects with the greatest efficiency. He will seek critical nodes whose destruction will have a direct effect on the population or targets that will have a cascading effect throughout the population. The LCT, a small local/regional ferry company is a poor target for terrorists. These are very rural routes, and the number of people using these ferries is small. The Federal Defendants, citing the LCT website, put the number of passengers at 1,000,000 a year. This comes to 2,740 for an average day. Since many are commuters, riding in both directions, the number of individual passengers on average day will be somewhat over half that number, in the neighborhood of 1,500. Nothing in the area actually relies on the LCT ferries to survive. Two bridges, Rouses Point and Crown Point, service the same concerns and are not similarly "protected", and there destruction would have a much greater cumulative effect ( most people in the United States use bridges). And of course a terrorist in transit from Vermont to New York could avoid the ferry completely and take one of the bridges.
22. The biggest population centers are Plattsburgh, N.Y., and Burlington, Vt., with nothing else of any size or importance nearby: no military installations of any importance, and no industrial complexes of any national significance.
23. Though tragic, the sinking of a ferry, even a larger ferry (>2000) would not cause any significant hardship for the United States. Certainly there would be almost no impact if the target was a small rural ferry. Conversely, conducting attacks on more prevalent transportation modes would have a higher impact nationally due the number of potential victims and the removal of their faith in their security. The D.C. sniper(s) is the case study.
24. The Coast Guard's determination that "vessels greater than 100 gross register tons or certificated to carry more than 150 passengers qualify as vessels at high risk of being involved in a transportation security incident" is baseless. Some such vessels may possibly be at risk, though the government has never substantially proved that to be true, but nothing in the public record suggests all >100 ton vessels are at risk, or that there's something about the LCT ferries which makes them attractive targets. There is no doubt that the "risk based decision making process" was a complex assessment. However, complexity does not equate to accuracy. Nor does complexity necessarily imply completeness. The threat to LCT ferries was not specifically addressed making any assessment of risk moot.
25. The focus of the MTSA was supposed to be preventing and deterring a transportation security incident which is defined as a "security incident resulting in a significant loss of life, environmental damage, transportation system disruption, or economic disruption in a particular area." However, the government never accurately and specifically defines "a significant loss of life, environmental damage, transportation system disruption, or economic disruption." Without that foundation, the government can not assign relative risk. However, even imagining a 100% successful attack against the LCT, defined as a 100% casualty rate amongst all potential victims, the number could not be considered significant in any real terms.
26. Hypothetically, the government has specifically defined "critical infrastructure" which it is their goal to protect. Assuming that this was done, there is no way that the LCT is a critical piece of the transportation infrastructure.
27. The central concern in combating terrorism must be the continuing viability of the Constitution. This requires careful consideration of unintended consequences of our actions and the enemy's most dangerous courses of action. By numbing ourselves to symbolic violations of our Constitutional rights, we are opening the way for more invasive and deleterious government action. To allow this for ineffective "security" measures gives the enemy the tools he needs to succeed with his most dangerous course of action. For example, the screenings ordered by the MTSA and conducted by LCT are ineffectual at deterring or preventing a terrorist act, as demonstrated above. But because the ineffectual screenings must take place, the terrorist can now conduct an attack that both inflicts casualties and defeats our nominal "security" process. We have broadened his yield. Since we have blindly upheld previous incursions into our rights and since we have not demanded meaningful strategic planning, there is no recourse but to place more restrictive legislation and enforcement in place. Each time this happens, the economic system becomes less and less efficient and the judiciary loses ability to clearly interpret the law with regard to the Constitution; though defense of the Constitution should be the first consideration of the Executive and Legislature also. This is an unsustainable vicious cycle.
28. The Federal Defendants incorrectly state that the screenings "are no more intrusive than necessary to achieve the compelling governmental interests of deterring terrorist attacks upon the Nation's maritime transportation system". The defendants are incorrect as the screenings do not deter terrorist attacks nor the likelihood of a terrorist success. They are symbolic.
29. The Defendants state that "Security measures commensurate with the threatening world in which we live have become more commonplace". The security measures at issue in this case are not designed to meet any plausible threat. They are commensurate with the nation's growing fear and cowardice and the governments misplaced desire to exploit them.
30. The Defendants incorrectly state, "The nature and immediacy of the government's concerns at issue here are compelling, and the chosen means for meeting those concerns are both effective and reasonable." The government has never shown any immediacy or evidence of imminent threat which is compelling. In the Plaintiff's words, the government is at best "vague and unspecific" about both enemy threats and U.S. goals. Further, the LCT screenings and to a greater degree the majority of the MTSA is not effective against terrorists.
31. The Defendants incorrectly state that "There can be little doubt that the 'special need' at issue here is of the highest magnitude---preventing a recurrence, on whatever scale and by whatever means, of the events of September 11." Constitutionally, the Executive is required to make the following oath "I do solemnly swear (or affirm) that I will faithfully execute the Office of the President of the United States and will to the best of my ability, preserve, protect and defend the Constitution of the United States." My oath as a military officer is similar. The highest "magnitude need" is the defense of the Constitution. Fear or cowardice is not a reason to give up the defense of the Constitution. The defendant's words, "by whatever means" are not only incorrect but are despicable. The means must be Constitutional, above all other considerations. The Constitution guarantees civil liberties; nowhere in the Constitution is safety or life guaranteed. I believe that was by intentional design of the founders.
32. The Defendants incorrectly state, "that the terrorist threat continues, particularly with respect to systems of mass transit such as ferries". This is a baseless statement. It is true that we perceive a threat, which is a different matter. The defendant has shown no credible evidence of a threat, continuing or not.
Subscribed and sworn to before me
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