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List of resources related to the policies and use of the Transportation Security Administration’s dubious Sensitive Security Information secrecy category

September 11, 2006 

 

CRS Reports for Congress

CRS Report for Congress, Harold C. Relyea, Specialist in American National Government
Government and Finance Division, "Security Classified and Controlled Information: History, Status, and Emerging Management Issues," June 26, 2006 (Order Code RL33494). Follow this link: http://www.fas.org/sgp/crs/secrecy/RL33494.pdf

Compares SSI at TSA with its identically-named counterpart at the Department of Agriculture (USDA) and with classification as authorized by Executive Order 12958.

CRS Report for Congress, “Sensitive Security Information and Transportation Security: Issues and Congressional Options,” June 9, 2004 (Order Code RL32425). Follow this link: http://www.fas.org/sgp/crs/RL32425.pdf

CRS Report for Congress, Mitchel A. Sollenberger, Analyst in American National Government Government and Finance Division, “Sensitive Security Information (SSI) and Transportation Security: Background and Controversies", February 15, 2004 (Order Code RS21727). Follow this link: http://www.fas.org/sgp/crs/secrecy/RL33303.pdf

Obey - Sabo Letter

Letter from Representatives David Obey and Martin Olav Sabo to Comptroller General, Government Accountability Office, dated September 14, 2004 . Follow this link http://www.fas.org/sgp/news/2004/09/ssi091404.pdf

In mid-September 2004, Representatives David Obey (D-WI) and Martin Olav Sabo (D-MN), ranking members of the House Appropriations Committee and the Homeland Security Subcommittee, respectively, wrote a joint letter to David Walker, the Comptroller General of the Government Accountability Office (GAO). GAO is the non-partisan, investigative arm of Congress charged with the auditing and evaluation of government programs and activities. In their letter, the Representatives recognized the need for some non-disclosure of limited information for the express purpose of protecting the nation’s transportation system, but highlighted that the purpose was a limited one and must be mindful of the public’s legitimate interest in, and right to know, information related to threats to the transportation system. The letter describe two instances known to the Representatives where SSI designations were inconsistent. As an example of an unreasonable designation – regarding the SSI designation of a DHS telephone directory the representatives had received – the representatives expressed dismay at how a list of government telephone numbers could be determined to be sensitive security information.

The representatives then asked the GAO to investigate DHS’s and TSA’s processes and procedures for designating information SSI, taking into account the need to balance the need to protect SSI with the public’s right to know the information that affects their safety and security. Specifically, they asked GAO to evaluate three points:

(1) DHS and TSA procedures for determining whether information should be designated SSI, and their procedures for determining if and when such designations should be removed;

(2) Internal controls in place to ensure compliance with laws and regulations governing the designation of SSI and removal of such designation, and ensuring oversight and consistency in application, and

(3) DHS and TSA internal operating structure for invoking or revoking SSI designations.

The GAO Report

United States Government Accountability Office, Report to Congressional Requesters, June 2005, Transportation Security Administration, Clear Policies and Oversight Needed for Designation of Sensitive Security Information, (GAO-05-677). Follow this link http://www.gao.gov/new.items/d05677.pdf

In response to Representative Olav Sabo’s request, the Government Accountability Office (GAO) completed a review of the TSA’s SSI designation process. Following its investigation, GAO issued a report that concluded that TSA had no clear SSI designation policies and procedures, that TSA has no monitoring controls on SSI designations, and that TSA has insufficient training for employees on SSI designation. The GAO also added that TSA had not officially limited the number of TSA staff who could designate SSI documents; accordingly all TSA employees could designate a document as SSI.

House Appropriations Committee Report – for 2006 Appropriations

House Report 109-079, Committee on Appropriations Report to Accompany H.R. 2360, Department Of Homeland Security Appropriations Bill, 2006, May 13, 2005. Follow this link: http://www.govtrack.us/congress/bill.xpd?bill=h109-2360 

On receipt of the GAO Report, the House Appropriations Committee found the situation at TSA regarding SSI designation to be totally unacceptable, and indicated that the Committee anticipated that TSA would release as much information as possible, rather than over-designating and releasing as little as possible. The Committee stated that it expected DHS to develop DHS-wide SSI policies and procedures and proposed withholding $10 million in appropriations until DHS provided a report that outlined the SSI policies and procedures.

Appropriations Conference Report – for 2006 Appropriations

H.R. Report 109-241, Conference Report To Accompany H.R. 2360, Making Appropriations For The Department Of Homeland Security For The Fiscal Year Ending September 30, 2006 , And For Other Purposes, September 2005. Follow the link: http://www.gpoaccess.gov/confrpts/109.html

In a Conference Report, reconciling differing version of appropriations bills pending in the House and Senate Appropriations Committees, the conferees included a general provision (section 537) concerning SSI as proposed by the House Appropriations Committee. The conferees echoed the House committee’s concern that because of insufficient management controls, information that should be in the public domain is being unnecessarily withheld from public scrutiny. The conferees required the DHS to ensure that each appropriate office has an official with the clear authority to designate documents as SSI and to provide clear guidance as to what is SSI material and what is not. The conferees required that, for each TSA found to contain SSI, the TSA clearly identify, paragraph by-paragraph, what paragraph contained SSI. The conferees further directed DHS to report to the Appropriations Committees not later than January 3, 2006 , the titles of all documents that DHS has designated SSI between October 1, 2005 and December 31, 2005 , and a full year report each year thereafter. In addition, the conferees required DHS to report back to the Appropriation Committees by December 31, 2005 on the following four points: (1) DHS policies for designating, coordinating and marking documents as SSI; (2) DHS auditing and accountability procedures for documents designated and marked as SSI; (3) the total number of SSI Coordinators within DHS; and (4) the total number of DHS staff authorized to designate SSI documents.

DHS Appropriations Act – for 2006 Appropriations

Public Law 109–90, Department Of Homeland Security Appropriations Act, 2006, October 18, 2005 . Follow the link: http://www.access.gpo.gov/congress/legislation/06appro.html 

The final bill that Congress passed in October 2005, included section 537, in the form suggested by the Conference Report:

SEC. 537. Using funds made available in this Act, the Secretary of Homeland Security shall provide that each office within the Department that handles documents marked as Sensitive Security Information (SSI) shall have at least one employee in that office with authority to coordinate and make determinations on behalf of the agency that such documents meet the criteria for marking as SSI: Provided, That not later than December 31, 2005, the Secretary shall submit to the Committees on Appropriations of the Senate and the House of Representatives: (1) Department-wide policies for designating, coordinating and marking documents as SSI; (2) Department-wide auditing and accountability procedures for documents designated and marked as SSI; (3) the total number of SSI Coordinators within the Department; and (4) the total number of staff authorized to designate SSI documents within the Department: Provided further, That not later than January 31, 2006, the Secretary shall provide to the Committees on Appropriations of the Senate and the House of Representatives the title of all DHS documents that are designated as SSI in their entirety during the period October 1, 2005, through December 31, 2005: Provided further, That not later than January 31 of each succeeding year, starting on January 31, 2007, the Secretary shall provide annually a similar report to the Committees on Appropriations of the Senate and the House of Representatives on the titles of all DHS documents that are designated as SSI in their entirety during the period of January 1 through December 31 for the preceding year: Provided further, That the Secretary shall promulgate guidance that includes common but extensive examples of SSI that further define the individual categories of information cited under 49 CFR 1520(b)(1) through (16) and eliminates judgment by covered persons in the application of the SSI marking: Provided further, That such guidance shall serve as the primary basis and authority for the marking of DHS information as SSI by covered persons.

DHS Response to Appropriations Act and DHS’s MD-11056

January 3, 2006 Letter from DHS Under Secretary Janet Hale to Representative Martin Olav Sabo, Subcommittee on Homeland Security, Committee on Appropriations.

In a letter to Rep. Martin Olav Sabo (D-MN), dated January 3, 2006 , Janet Hale, Under Secretary for Management for the Department of Homeland Security, reported to Congressman Sabo in response to requirements set forth in a recent Department of Homeland Security Appropriations Act (P.L. 109-90) (“Appropriations Act”). In the Appropriations Act, Congress required the Department of Homeland Security (“DHS”) to submit a written report to the House and Senate Appropriations Committees responding to the following four specific areas of inquiry: (1) DHS policies for designating, coordinating and marking documents as SSI; (2) DHS auditing and  accountability procedures for documents designated and marked as SSI; (3) the total number of SSI Coordinators within DHS; and (4) the total number of DHS staff authorized to designate SSI documents.

Undersecretary Hale’s letter very specifically responded to item numbers 3 and 4, responding that the DHS has 225 SSI Coordinators, but anticipated that number to increase once they began to formalize their SSI program; and DHS has three persons with authority to designate SSI documents (the Secretary of DHS, the Administrator of TSA, and the Director of the TSA SSI Program Office).

In her effort to respond to item numbers 1 and 2, Undersecretary Hale attached to the letter and made reference to DHS Management Directive 11056 (“MD-11056”), dated December 16, 2005 . The stated purpose of MD-11056 is to establish DHS’s “policy regarding the recognition, identification, and safeguarding of Sensitive Security Information.” Federal regulations define Sensitive Security Information, or SSI, as “information that would be detrimental to transportation security if publicly disclosed.” 49 C.F.R. sec. 1520.5.

Historically, before 9/11, the authority to protect certain sensitive but unclassified information regarding transportation security had been delegated to the FAA under the Department of Transportation. After 9/11, as part of Congress passing the Aviation and Transportation Security Act (ATSA), which created the TSA, on February 22, 2002 , among the authorities that passed from the FAA to TSA was the authority to regulate Sensitive Security Information. Then in November 2002, as part of Congress passing the Homeland Security Act of 2002, TSA was transferred to and became a part of the newly created Department of Homeland Security.

Pursuant to TSA’s MD-11056, “SSI shall only be used per the intent of Congress to protectinformation that would be detrimental to transportation security if publicly disclosed. It is not intended to be used to conceal Government mismanagement or other circumstances embarrassing to a Government agency.”

Though the management directive purports to establish a structure of individuals within the TSA to administer TSA’s SSI designation authority, the directive does not address the Congress’s concerns regarding TSA’s inability to make consistent determinations concerning SSI designation because TSA lacks the appropriate policies, procedures, and controls.

9/11 Aviation Cases in NY

A. Judge Hellerstein’s Comments at Hearing

Transcript of November 18, 2005 Hearing before the Hon. Alvin K. Hellerstein, USDJ, in In Re: September 11 Litigation, 21 MC 97, U.S. District Court, Southern District of New York., at p. 33. Follow the link: http://www.sept11tortlitigation.com/txt/nov18_2005_transcript.txt

During a hearing in the 9/11 aviation security cases pending before him in New York , Judge Hellerstein expressed dissatisfaction concerning the TSA’s efforts to vet the documents being produced by the aviation defendants. While questioning the TSA’s lawyer about the intolerable delays that TSA was causing, Judge Hellerstein referred to the conduct as “lawyers’ and judge’s games” and said it was “cruel and inhuman to the people involved.”

B. TSA Equates 9/11 Plaintiffs to Terrorist Supporters

TSA, “Final Order on Requests for Conditional Disclosure of SSI,” February 7, 2006 . Follow this link: http://www.sept11tortlitigation.com/transportation_security_administration_Final_Orders.htm

Responding to the plaintiffs’ requests for information, TSA has steadfastly refused to permit even protected access to SSI and has equated the plaintiffs – victims of the 9/11 terrorists – with those who would assist al Qaeda in further attacks. In its “Final Order on Requests for Conditional Disclosure of SSI” issued by the TSA on February 7, 2006 , the TSA reasoned that the plaintiffs in the 9/11 cases, like all other persons in any civil litigation, presented the risk that they might disclose SSI to terrorists:

Importantly, TSA also cannot rule out the possibility that terrorists might seek access to SSI by filing frivolous lawsuits and pursuing discovery, or that civil litigants might disclose SSI to terrorists.

C. Orders Regarding Deposition Procedures

In re September 11 Litigation, 2006 WL 846346 (S.D.N.Y. Mar. 31, 2006 ). Follow this link: http://www.nysd.uscourts.gov/rulings/21mc97_101_SSI_order_033106.pdf

In re September 11 Litigation, Nos. 21 MC 97, 21 MC 101 (S.D.N.Y. May 2, 2006 (Order Denying Motion for Reconsideration). Follow this link: http://www.nysd.uscourts.gov/rulings/21mc97_101_order_050206.pdf

In re September 11 Litigation, Nos. 21 MC 97, 21 MC 101 (S.D.N.Y. May 5, 2006 ) (Amended Order Denying Motion for Reconsideration). Follow this link: http://www.nysd.uscourts.gov/rulings/21MC97_101_order_050506.pdf

In re September 11 Litigation, Nos. 21 MC 97, 21 MC 101 (S.D.N.Y. May 16, 2006 ) (Supplementing Orders of March 31 and May 5, 2006 ). Follow this link: http://www.nysd.uscourts.gov/rulings/21mc97_101_order_051606.pdf

As a result of TSA’s conduct in that litigation, Judge Hellerstein has had to address the “strange and significant phenomenon” caused by the TSA’s refusal to attend depositions of persons that they claim would reveal SSI if deposed, while simultaneously asserting that the witnesses would be obligated not to reveal anything TSA might consider SSI.

Responding to TSA’s efforts to stonewall the depositions of witnesses anticipated to have access to SSI by refusing to attend the deposition, Judge Hellerstein recognized TSA’s exclusive authority to designate SSI, but asserted the district court’s authority to regulate the cases pending before the court: “[C]reation of the TSA did not divest the District Courts of their inherent authority to regulate pre-trial and trial procedures in the cases over which they preside.” “TSA cannot extend its jurisdiction to intrude on the jurisdiction of this court, and the Constitutional rights of litigants to due process with regard to their advancing their claims against airlines, the airports, and the aircraft security companies through lawsuits in this court specifically authorized by the ATSSSA.” In re September 11 Litigation, Nos. 21 MC 97, 21 MC 101 (S.D.N.Y. May 2, 2006 ) (Order Denying Motion for Reconsideration). In an order setting forth procedures to be used for depositions of witnesses that may be called upon to respond to questions with SSI, Judge Hellerstein stated, “in keeping with my obligation to advance these important interests [of the plaintiffs’ attempts to avail themselves of the remedy provided to them by the ATSSSA] that I have endeavored to regulate the instant proceedings in such a way as to not render the right of litigation acknowledged by Act of Congress a legal fiction.” In re September 11 Litigation, 2006 WL 846346, at 8 (S.D.N.Y. Mar. 31, 2006 ).

On May 16, 2006 , the court issued a supplemental order to respond to issues raised by the parties and TSA. In that order the court further clarified the procedures to be employed in proceeding with the upcoming depositions so as to avoid disclosure of SSI. The judge limited the scope of questioning to narrow areas identified in the deposition notices, with one exception. Recognizing the TSA’s representations that aviation security procedures have undergone substantial transformations in the five years since the terrorists’ attacks and that the pre-9/11 procedures have been the subject of previous public disclosure (citing the detailed attention given to the procedures in the 9/11 Commission Report), the court permitted inquiry into procedures employ on and before 9/11 procedures, but denied inquiry concerning any changes to procedures since 9/11. The court specifically expressed that its supplemental ruling was necessary because TSA’s recommended approach concerning the upcoming depositions “threaten[ed] to emasculate the depositions and interfere with the due process rights of the litigants….” Judge Hellerstein recognized, “[i]t is my obligation to protect against such unwarranted interference with the litigation process and to ensure that depositions proceed in an efficient and worthwhile manner. In the interest of protecting both the rights of the litigants to a fair and prompt determination of their legal claims and the right of TSA to make final determinations as to SSI … I direct that depositions proceed in the manner outlined [in this order].”

Frivolous Claims of Exemption
Order by Judge Charles R. Breyer in Gordon et al v. FBI, TSA in United States District Court, Northern District of New York. Follow this link: http://www.fas.org/sgp/jud/gordon.pdf

In June 2004, Judge Charles R. Breyer of the northern district of California ruled 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."

DHS Secretary Chertoff Testimony to Congress

Transcript of February 15, 2006 Testimony of DHS Secretary Michael Chertoff before the House Appropriations Committee, Subcommittee on Homeland Security, Regarding Fiscal Year 2007 Appropriations For The Department Of Homeland Security.

In mid-February 2006, DHS Secretary Michael Chertoff testified before the House Appropriations Committee, Sub-committee on Homeland Security. In questioning Secretary Chertoff regarding the TSA’s SSI program, Representative Sabo cited multiple examples to show that DHS “is acting willy nilly about providing information to the public.” Representative Sabo acknowledged that good reasons certainly exist for keeping some information out of the public purview, “but that ought to be the exception, not the rule.” When asked why it seemed the rule for DHS, instead of addressing the cited examples, Secretary Chertoff waived them off as likely being outdated and responded merely that he agreed with Representative Sabo’s characterization of the requirements and, if errors were being made, they would need to be corrected.

Moussaoui Trial Access

Representatives of Admitted Terrorist Moussaoui Permitted to have Access to SSI Protective Order For Sensitive Aviation Security Information In United States V. Moussaoui
, (E.D.Va., Dkt. No. CRIM 01-455-A, June 11, 2002 ). Follow this link: http://notablecases.vaed.uscourts.gov/1:01-cr-00455/docs/65835/0.pdf

Although TSA has objected to counsel representing the families and other victims of the terrorist attacks from having any access to documents TSA has designated as SSI, the lawyers representing admitted hijacker, Zacarias Moussaoui, were permitted access to all of the government’s SSI documents to help the alleged hijacker in his criminal litigation. The result is that the Americans injured and the American families of those killed by Mr. Moussaui’s co-conspirators are prevented from the benefit of any information included in the documents, while Mr. Moussaoui’s aids were able to use any of the information to assist the non-American and alleged criminal conspirator, Mr. Moussaoui.

Intervenors Granted Right to Access to Non-Classified, Non-SSI Documents; Judge Comments on TSA Over-Classification Transcript of Hearing in U.S. Moussaoui, Criminal No. 1:01cr455 (E.D.Va.) before Hon. Leonie M. Brinkema, U.S.D.J., April 7, 2006 (Hearing on motion to intervene by plaintiffs in 21 MC 97, 21 MC 101, and 03 CV 9849, and to obtain access to discovery).

On April 7, 2006, Judge Brinkema, overseeing the death penalty phase of admitted terrorist, Moussaoui, addressed a motion to intervene filed on behalf of the victims of the 9/11 terrorists. The victims sought access to the documents the court had disclosed to the terrorists representatives. After hearing the arguments, the judge agreed to release all nonclassified, non-SSI documents to the families; but expressed that the government’s designations prevented her from providing access to the classified and SSI materials.

Throughout the hearing, however, Judge Brinkema repeatedly expressed frustration concerning the TSA’s overzealous use of SSI. Some of her comments include:

Well, it's quite extraordinary that TSA has a tougher policy on disclosure than the CIA or the FBI or the NSA …. What puts the TSA in a higher category of being able to own information [than] those agencies. … I've always been troubled by the degree to which our government keeps things secret from the American people. I understand, certainly understand there are some things that simply cannot be publicly available. That's obvious.

I don't mind saying that during the course of the case I'm currently trying, I've often been surprised by the amount of things that have had to be kept secret, and it has been frustrating beyond belief as a judge. In particular, my own orders occasionally have been classified.

… I think we have to be very careful as a nation not to become so overwhelmed with the need for secrecy that we lose some of what are very much core values, among other things, values that are even in our Constitution about open trials and public access.

This situation is unique not just because there's a general victims statute but because Congress did pass a specific statute for the victims of September 11. That puts this in a somewhat unique posture, and I'm not so sure that the government actually acting in the full spirit of what Congress intended there.

I recognize there are obviously going to be some legitimate subjects that the TSA and other government agencies have to keep from public discussion, but I think you can overuse that.

Transcript at 22-23.

When TSA emphasized to the judge that it was keeping the information secret “to protect the security of transportation,” Judge Brinkema responded, “I'm not insensitive to that.However, it is also amazing what some agencies think is secret or sensitive.” Then she cautioned: “[A]s a culture, we need to be careful not to become so in love with secrecy that we wind up losing what are core values of the way we run things in this government.” [Transcript 34-35.] When TSA later reminded the judge that SSI material is not, in fact, considered “classified information” but is merely a privilege afforded the TSA, Judge Brinkema cautioned that TSA had better beware not to abuse the privilege:

THE COURT: All right. Well, then as a privilege, it needs not to be abused or it can be lost, and I think that's something that agency ought to think about. [Tr. at 33.]

Notwithstanding Judge Brinkema’s order granting access to only non-classified, non-SSI materials, coupled with her admonitions against overzealous abuse of secrecy, the TSA has sought reconsideration of the judge’s ruling.

Baggage Handler Thief Set Free

CRS Report for Congress, Mitchel A. Sollenberger, Analyst in American National Government Government and Finance Division, “Sensitive Security Information (SSI) and Transportation Security: Background and Controversies," February 5, 2004 (Order Code RS21727) (referenced supra)

According to a report published in the Atlanta Journal Constitution on May 23, 2004 , a baggage handler who was caught in videotape stealing CD’s from a passenger’s luggage at a Miami airport was eventually set free when defense lawyers sought to question a TSA witness regarding baggage screening procedures. When TSA asserted that the questions would reveal SSI, the prosecutor dropped the charges and the thief was set free.

Official Tells Congress Less Data Should Be Classified

Statement of Ambassador Thomas E. McNamara, Program Manager for the Information Sharing Environment, before the Subcommittee on Intelligence, Information Sharing, and Terrorism Assessment, House Committee on Homeland Security, May 10, 2006, 2 P.M. Follow this link: http://www.fas.org/irp/congress/2006_hr/051006mcnamara.pdf

As recently as May 10, 2006, in testimony before the House Homeland Security Intelligence Subcommittee, Thomas McNamara, the top official in charge of establishing informationsharing policies for the government told lawmakers that there could be a drastic reduction in the number of categories used to restrict information from the public, but Congress might have to pass legislation to get it done. McNamara, said federal agencies do not have any legal justification for most information they withhold from the public. "There is, quite frankly, much that has no legal basis and doesn't deserve a legal basis. We should be getting that stuff out," he told the Subcommittee. McNamara said the government has at least 65 "sensitive but unclassified" categories to restrict information and possibly 70. He said one of his missions is to develop "a rational, limited set of categories" under which information is withheld. 


Founded in 1981, the Project On Government Oversight (POGO) is a nonpartisan independent watchdog that champions good government reforms. POGO's investigations into corruption, misconduct, and conflicts of interest achieve a more effective, accountable, open, and ethical federal government.

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