Security Check   

The long list of what you won’t learn from the Transportation Security Administration

The 9/11 Commission reports issued this summer offer the public a tantalizing glimpse into the complicated and often secretive world of airline security. They reveal sobering details about communication and other systemic failures that contributed to the hijackers' success. They provide the best possible argument for greater public scrutiny and oversight of the operations of the Transportation Security Administration. That's the agency created in November 2001 to oversee civil aviation security, which was formerly the responsibility of the Federal Aviation Administration.

But if federal regulators and some members of Congress have their way, the public will be entitled to less information, not more, about security programs and equipment, personnel training and vulnerability assessments. The TSA issued an interim rule in May that permits it to withhold any "sensitive security information" (SSI) if disclosure would "be detrimental to the security of transportation." (The deadline for public comments was July 19, and a final rule will be issued at an unspecified future date.) The secretary of transportation has similar authority to withhold information about security activities if disclosure would be "detrimental to transportation safety."

If that language sounds broad to you, that's because it is. Although the concept of SSI dates back to the airplane hijackings of the 1970s, at that time, under the aegis of the FAA, restrictions on disclosure were limited to information that might harm "the safety of passengers in air transportation." The entities covered by the restrictions were those directly related to aviation, such as airport operators and airlines.

But since 9/11, the universe of records that can be classified as SSI has expanded to encompass just about anything, from details about how the U.S. mail is transported to assessments of how susceptible an airport might be to a terrorist attack. SSI is secret from the moment it is gathered or developed by the TSA, or simply if the transportation secretary declares it so. It isn't subject to the federal Freedom of Information Act, and a proposal in the Senate would exempt it from state open records laws as well. There is no formal classification procedure to determine whether the records really deserve to be kept secret, as would be the case with national security information. And there is no mechanism to declassify SSI. It stays secret forever, or the information can be destroyed, in most cases, once it is no longer necessary.

Access to SSI is limited to those with "a need to know," but that's a phrase that even the government concedes is both vague and extremely broad, including contractors or trainees involved in aviation security, as well as some state and federal government and airline employees – but not, of course, the general public. Because civil penalties can be imposed for unauthorized disclosure, the rule has the potential to gag whistleblowers who might reveal weaknesses in the system.

This means it is going to be difficult to find out what is going on with transportation security. The TSA certainly isn't going to tell. It cited SSI as the justification for refusing to release any details about an incident in January 2003, when the Dallas/Fort Worth Airport was closed for more than an hour after a screener allowed a person whose luggage tested positive for an explosive to pass through security.

And even when the TSA releases a little bit of SSI so that the public can comply with security requirements, it is often less than forthcoming. Minneapolis' Star Tribune reported in March that a variety of items, including hand lotion, golf shoes and stacks of books, can trigger false alarms when luggage is screened. But as a TSA spokeswoman told reporter Bob von Sternberg, the agency won't provide a comprehensive list of these items, nor reveal how often such mistakes are made, out of fear that doing so "would give a road map to the bad guys."

The government is so determined to "protect" SSI that it chose, in November 2003, to drop a criminal case against a former baggage screener charged with stealing from a passenger's luggage. In a move reminiscent of "graymail" in espionage cases, the federal prosecutor withdrew the charges to avoid revealing details about security and training procedures to the public.

No one denies that some SSI could be utilized by terrorists. But the overbroad language in the interim rule means that the public will be unable to evaluate airline security, to assess risks and to debate policies. That's as dangerous to democracy as any terrorist attack could be. The TSA should remember that if there's anyone who "needs to know," it's the traveling public.

Clarification: In my June/July column, I summarized an incident reported in the Los Angeles Times in 1997. Security guards attempted to confiscate an unidentified reporter's tape recording of a speech by U.S. Supreme Court Justice Antonin Scalia. The reporter was Henry Weinstein, the newspaper's legal affairs writer, who wrote the original story.