Championing Responsible National Security Policy

TSA Trying to Protect Its "Dubious Secrets"

Many 9/11 victim families have set their sights on the Transportation Security Administration's (TSA) dubious Sensitive Security Information (SSI) secrecy marking. One of a number of so-called "sensitive but unclassified" (SBU) information designations, SSI has been abused by TSA to keep information from the public.

These families are supporting the House version of the 2007 Department of Homeland Security Appropriations Act (H.R. 5441), which addresses SSI within TSA, over the Senate's Homeland Security Appropriations bill. They contend that the Senate language was "submitted by TSA as an alternate to the House's language" and "defers overwhelmingly to TSA and ignores the problems recognized since TSA's inception."

Among items marked SSI by the TSA include pre-9/11 Federal Aviation Administration (FAA) aviation warnings, called Information Circulars. (TSA was carved out of FAA in the wake of the 9/11 attacks.) These now-historical documents were dubbed "dubious secrets" by the National Security Archive's Barbara Elias.

In June 2004, Judge Charles R. Breyer of the northern district of California ruled (pdf) that the FBI and TSA improperly made numerous "frivolous claims of exemption" for "innocuous" information, much of which is "common sense and widely known." For example, "[s]ome of the information redacted" by marking it SSI, "merely recites that the Watch Lists include persons who pose a threat to aviation." Well, TSA, isn't that why the Watch Lists were created?

The Congressional Research Service put out a useful report last month (pdf) comparing SSI at TSA with its identically-named counterpart at the Department of Agriculture (USDA) and with classification as authorized by Executive Order 12958 (which is what we usually think when we hear that things are "secret" for national security reasons). As you can see from the chart on page 24, TSA's SSI has fewer controls on its use and less oversight than either classification or USDA's SSI.

The House bill, according to Steven Aftergood, would:

...would mandate automatic disclosure of SSI when it becomes three years old if it is not part of an active security plan and unless a written determination is made by the Secretary that it must be withheld.

It would also require DHS to revise its written policy on SSI to provide common representative examples of what constitutes SSI, and it would make it easier for parties in litigation to gain access to SSI.

Unsurprisingly, this Administration, which is characterized by its excessive secrecy, opposes the House bill (pdf) that simply tries to reign in TSA's SSI overbroad and unaccountable secrecy marking. If TSA, or any other national/homeland security-related government agency for that matter, needs to keep real secrets, then they have that tool--classification, which is still better defined and more accountable than TSA's SSI now.