ICOG Urges Congress to Reconsider Security Provision

ICOG was one of 28 groups to sign onto a letter,  sent to Congress this month,  asking to correct abuses of the Sensitive Security Information (SSI) in HR 5441. The bill’s Section 525 would limit overuse of SSI designations while allowing sensitive information to be kept out of the hands of terrorists. A U.S. District Court judge found in 2004 that the Transportation Security Administration and the FBI made numerous “frivolous claims of exemption” for “innocuous” information.

 

September 14, 2006
Department of Homeland Security Appropriations Conferees
Subcommittee on Homeland Security
Committee on Appropriations
United States Senate
Washington, D.C. 20510
Dear Conferees:
The undersigned organizations, including partners in OpenTheGovernment.org*, are writing to
urge you, as members of the conference committee on the Department of Homeland Security
Appropriations Act (H.R. 5441), to help correct the misuse of the Sensitive Security Information
(SSI) control marking by adopting Section 525 of the House version of H.R. 5441. House
Section 525 would limit the overuse of the SSI designation, particularly by the Transportation
Security Administration, while preserving authority to properly designate real sensitive
information and keep it out of the hands of terrorists. We do not believe that the Senate’s
language would achieve the desired goal of reforming the use of the Sensitive Security
Information marking by TSA.
The SSI control marking has been abused to cover up both embarrassing information about
government activity–particularly at the Transportation Security Administration (TSA)–and
innocuous information which is widely known. Indeed, in 2004, the TSA and the FBI were found
by Judge Charles R. Breyer of the United States District Court for the Northern District of
California to have made numerous “frivolous claims of exemption” for “innocuous” information,
much of which is “common sense and widely known.” (Gordon v. Federal Bureau of
Investigation, No. C 03-01779 CRB (N.D. Cal.,June 15, 2004)
An example of widely-known information to which TSA has applied SSI, apparently in an effort
to block public access, includes “the texts or even the titles of five aviation warnings given to
airlines just before the 9/11 terrorist attacks, even though the titles and substance of the warnings
have been published in the best-selling 9/11 Commission report,” as reported by the National
Security Archive in 2004. The warnings, distributed to each of the airlines before 9/11 and
publicly available both on the internet and in the FAA reading library before 9/11, described the
threats to civil aviation presented by Islamist extremists and specifically named Usama bin
Laden and his al-Qaeda network. Now, more than five years later after those same terrorists
attacked on 9/11, the release of those warnings given to the aviation industry before 9/11 cannot
possibly present a risk to the nation’s transportation system. Yet they remain designated SSI by
the TSA, thwarting efforts at accountability related to 9-11 and to ensure improved security.

The House version of the bill offers proper guidance regarding this kind of information by
deeming such outdated information presumptively not SSI. The House bill would automatically
make information marked SSI presumptively releasable after three years, unless it is part of a
“current, active transportation security directive or security plan” or the DHS Secretary “makes a
written determination that identifies a compelling reason why the information must remain SSI.”
Under the Senate version (Section 524(a)(2)(B)), even outdated and no longer sensitive
information would remain marked and controlled as SSI if it is presently so designated. We read
the Senate version to say that, as long as outdated and no-longer-sensitive information is
“covered by a current sensitive security information application guide” it will not become
releasable and will continue to be designated SSI, resulting in no change and defeating the
purpose of the provision.
Other significant differences exist between the versions. In terms of standards for maintaining
the secretive SSI control marking, the Senate version creates a very low “rational basis” standard
in place of the House’s higher requirement of a “compelling reason.” We believe the higher
standard is essential given the deference generally afforded agencies under a “rational basis”
review and TSA’s history of abuse of the designation. The Senate version also contains no
judicial authority to allow presumed access to SSI by parties in judicial proceedings as DHS
Covered Persons; the House version offers a balanced approach by allowing for controlled
access to the information, while preserving TSA’s authority to keep the information secret if
necessary.
Rather than strengthening the protection of our national transportation system, the manner in
which TSA presently exercises its SSI authority – which one Congressman has characterized as
“willy nilly” – actually poses a risk to that system. Information that no longer needs protection,
or that never needed protection in the first place, is being unjustifiably kept from the public.
TSA’s unbridled use of its authority and the resulting unchecked secrecy damage the public trust
so essential for a properly functioning democratic, open society. Such secrecy impedes
government’s ability to inform the public about potential dangers in their communities. We are
not made more secure by being kept in the dark; risks and vulnerabilities do not go away simply
because they are hidden. Indeed, when they are completely concealed, we cannot know whether
they are being addressed and whether our safety is, in fact, being protected. Moreover, public
oversight and government accountability are constrained when authorities who do have access to
such information are unable to share it as needed, or even to ask or respond to questions in public
hearings.
Congress has an opportunity to make the Executive Branch more accountable–without risking
real safety or exposing information that needs to be kept secure for an appropriate amount of
time. We believe that the House version will do more to ensure both safety and accountability
than would the Senate’s.
We urge you to support section 525 of the House version of the 2007 Department of Homeland
Security Appropriations Act (H.R. 5441). Please contact Patrice McDermott, Director of
OpenTheGovernment.org, at (202) 332-6736 if you have any questions or wish to discuss this
matter.

Thank you.
Sincerely,
Mary Alice Baish
American Association of Law Libraries
Lynne Bradley
American Library Association
Kevin M. Goldberg
American Society of Newspaper Editors
Prue Adler
Association of Research Libraries
Chellie Pingree
Common Cause
David Sobel
Electronic Frontier Foundation
Gregory Hile
EnviroJustice
Thom Stanley
Excentric Ink, Inc
Tom Devine
Government Accountability Project
Keith Robinson
Indiana Coalition for Open Government
Bruce Craig
National Coalition for History
Charles N. Davis
National Freedom of Information Coalition
Sean Moulton
OMB Watch
Jan Chapman
Positive Financial Advisors, Inc.
Jeff Ruch
Public Employees for Environmental
Responsibility (PEER)
Lucy Dalglish
Reporters Committee for Freedom of the Press
Christine Tatum
Society of Professional Journalists
Doug Newcomb
Special Libraries Association
Richard A. Oppel, Editor
Austin American-Statesman
Pete Weitzel
Coalition of Journalists for Open Government
Michael D. Ostrolenk
Liberty Coalition
Edward Hammond
The Sunshine Project
Ricci Joy Levy
The Woodhull Freedom Federation
Greg Nojeim
American Civil Liberties Union
Danielle Brian
Project on Government Oversight
Christian Trejbal
National Conference of Editorial Writers
Linda Ackerman
PrivacyActivism
Perry Beeman
Society of Environmental Journalistse