Most Dangerous Theory

As details emerge in the case of Andrew Speaker, the 31-year-old runaway groom with a drug-resistant strain of tuberculosis, more questions arise about whether the nation’s defenses against biological agents, as well as terrorists, are in proper working order, and whether health and homeland-security officials have truly adapted to the unpredictable nature of such threats.

At first glance, it seemed that the breakdown that allowed Speaker to re-enter the United States last month — after having left for his wedding in Greece knowing that he was infected with TB — could be laid at the feet of one recalcitrant border guard.

On May 24, Speaker, driving a rented car with his bride, approached the busy U.S.-Canadian border checkpoint in Champlain, N.Y. Speaker presented his passport to a Customs and Border Protection officer, who electronically scanned it and got back a “lookout” notice that Customs officials had dispatched two days earlier.

The notice — which is not a “no-fly” order or a warning triggered by a terrorist watch list — instructed that Speaker should be taken to secondary screening, then isolated, placed in a ventilated area, and required to wear a protective mask. It also said that Speaker had an extensively drug-resistant form of TB, and that the border station should contact a specific medical officer at the Centers for Disease Control and Prevention in Atlanta.

The border guard didn’t question Speaker about his illness, officials have testified. Nor, apparently, did he pay the alert much mind. Rather, he decided that Speaker “did not appear sick” so he let him go through, officials said. The border guard is awaiting disciplinary action.

Before congressional hearings on Speaker’s case last week, officials were on their way to chalking up the incident to human error. Customs’ nationwide lookout for Speaker had been transmitted flawlessly. The border guard had all the information he needed to detain Speaker, but simply chose otherwise — a momentary lapse in judgment that foiled the entire defense apparatus, but an isolated lapse, nonetheless.

Or was it? True, the lookout system — called the Treasury Enforcement Communications System — functioned as designed, and officials testified that Customs and CDC employees in Atlanta, where Speaker’s original plane reservations were supposed to return him on June 5, cooperated to get his name in the system once health officials determined that he had the resistant, and potentially fatal, form of TB.

But it’s what officials didn’t do in the two days between the time they learned about Speaker’s specific illness and the moment he slipped back into the United States that troubles lawmakers. Although disease experts stress that Speaker was never contagious, the case has exposed weaknesses that plague the nation’s multilayered defenses against biological and terrorist threats. These systems have improved markedly since the 9/11 attacks, but they are still vulnerable to human error. And the Homeland Security Department’s tendency to treat such threats as routine, when in fact they might be anything but, is unsettling.

Key facts are still unknown about the sequence of events in Speaker’s case. But according to congressional testimony last week, Homeland Security officials didn’t at first place Speaker on a no-fly list — which in theory would have kept him off any commercial airliners bound for the United States — because they didn’t believe he would abscond. Indeed, they presumed that Speaker would fly home as planned to Atlanta on a June 5 Air France flight. Even though officials knew that Speaker had a rare form of TB and that Speaker knew they knew, officials thought that he would behave rationally and predictably.

Of course, that’s not what happened. Speaker, at significant expense and risk, fled from his hotel in Rome, then made his way to Prague and boarded a Czech Air flight to Montreal. From there, he rented the car and drove across the border. He apparently believed — incorrectly, as it turned out — that U.S. officials had placed his name on a no-fly list, which is why he chose to fly through Canada. (In fact, the Canadian no-fly list is identical to the U.S. list, so if Speaker had been listed at that point, it’s plausible that he would have been denied permission to fly into Canada.)

Speaker is no terrorist. But he sure acted like one, in several key respects. He deliberately attempted to cover his tracks. He looked for alternative ways to penetrate the U.S. security system. And he disregarded the safety of those around him. Although Speaker emphasizes, and health officials concur, that he was never contagious, they also know that he could have become contagious during his journey. CDC officials told him to stay off commercial flights, and turn himself in to Italian medical authorities. CDC Director Julie Gerberding said, “We make decisions based on the theory that the patient will cooperate.” But Speaker didn’t.

Experts like to say that terrorists don’t follow the “rational actor” model, but that model informed many of the assumptions that the United States followed during its Cold War against the Soviet Union, and the mentality has been hard to shake. The model holds that national decision makers — and therefore governments, and sometimes individuals — operate in a manner that maximizes their benefits at the least cost. Terrorists, however, behave irrationally. They engage in all kinds of behaviors that put them at risk for detection and death — which, of course, doesn’t deter them. The “irrational actor” doesn’t care how many people he kills or injures, and that mind-set makes his actions harder to anticipate.

So it was, in a sense, with Speaker. But rather than presume that he might act irrationally, or at least less than rationally, Homeland Security officials presumed that Speaker would follow his predetermined course. Jayson Ahern, assistant commissioner for field operations at Customs, told the House Homeland Security Committee that beginning on May 22, the day that Customs officials learned about Speaker’s case from the CDC and put his name in the lookout system, the bureau began scanning Speaker’s Air France reservation twice daily, to see if he made any modifications.

But, Ahern said, the system isn’t designed to detect new reservations — only changes to existing ones — so no one noticed when Speaker booked a ticket to Canada on Czech Air. The best way, it seems, to ensure that Speaker stayed off a plane would have been to put him on the no-fly list.

Speaker appears to have behaved somewhat rationally on his return trans-Atlantic journey. According to Homeland Security officials, including the department’s chief medical officer, Dr. Jeffrey Runge, Speaker wore a mask on the Czech Air flight. But then, in Canada, he again took evasive action. At the border crossing, officials said, he informed the guard that he and his wife were in Canada on a “mini-vacation.” He lied, perhaps to divert attention away from his international travel.

Homeland Security officials didn’t put Speaker on the no-fly list until after they learned he had already returned to the United States, and then only after the CDC made a direct request. According to a timeline compiled by the House Homeland Security Committee, government officials engaged in considerable legal wrangling over whether Speaker could be added to the list, because he wasn’t a terrorist.

Runge testified that the Transportation Security Administration could not recall an instance where the agency had put an individual on the no-fly list for health reasons. Ultimately, the TSA’s general counsel had to convince the administrator, Kip Hawley, that he had the authority under transportation laws to take the action, and Speaker’s name was finally added to the list.

“We have no history in this regard,” Runge said. “This was, in fact, a novel case.”

But lawmakers seemed skeptical of that excuse and of officials’ assertions that the entire Speaker manhunt was undone by one human being’s mistake.

“DHS states in their testimony today that there was a single point of failure in this case,” Homeland Security Committee Chairman Bennie Thompson, D-Miss., said. “But I’ve done my own timeline of the actions and inactions of DHS and CDC, and it suggests that we should have connected more dots. Shrugging off a deeper analysis of this incident will only cause DHS to repeat its previous failures.”

Among the key questions that Thompson wants answered, but that may remain unresolved for some time, are why Homeland Security officials didn’t move faster to put Speaker on the no-fly list, and “why did CDC think that Speaker would turn himself in to Italian medical authorities?”

Thompson praised many of the government’s actions and said that it would be “unfair … to characterize this as a total system failure.” But the best decisions, he said, were made “ad hoc,” which suggested that “we still do not have adequate operational control over our components.”

The bigger question may be why officials didn’t exercise those controls sooner. In response to the border guard’s error, officers no longer will have the authority to overrule a lookout notice without a supervisor’s approval. And Runge indicated that, in any future such incident, top DHS officials would convene much sooner, hopefully before a seemingly rational patient becomes an irrational absconder, and a national security risk. If that means that DHS will lower its threshold for action, it could lead to more international manhunts like the one for Speaker, but it also might help the department train itself to adapt to unpredictable threats.

Published in National Journal