[govinfo] sign-on opportunity re DHS & SSI
- From: "Patrice McDermott" <pmcdermott@xxxxxxxxxxxxxxxxxxxxx>
- To: "govinfo@xxxxxxxxxxxxx" <govinfo@xxxxxxxxxxxxx>, "FOI-L@xxxxxxxxxxxxxxxx" <FOI-L@xxxxxxxxxxxxxxxx>, <fen@xxxxxxxxxxxxxxxxxxxxxxxx>
- Date: Wed, 13 Sep 2006 11:33:27 -0400
Attached and below you will find a letter that will be sent to the Senate and
House conferees on the DHS 2007 Approps bill (HR 5441). We are asking conferees
to adopt the House version because it imposes more meaningful restrictions on
DHS's (and especially TSA's) use of the SSI marking and provides for release on
a timely basis.
We are inviting organizational signatories. Please provide the name of the
individual responsible for this signature and the name of your organization.
We are accepting sign-ons until 5pm (EDT) on Thursday, 14 September. I
apologize for the relatively short turn-around.
Sign-ons should be sent to Emily Feldman efeldman@xxxxxxxxxxxxxxxxxxxxx .
Please excuse any duplicates you receive, and please circulate widely.
Thanks.
Patrice McDermott, Director
OpenTheGovernment.org
202-332-OPEN (6736)
www.openthegovernment.org
*****************
Dear Conferees:
The undersigned organizations, including partners in OpenTheGovernment.org*,
are writing to urge you to help correct the misuse of the Sensitive Security
Information (SSI) control marking by adopting Section 525 of the House version
of the Department of Homeland Security Appropriations Act (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 northern district of California to have made numerous "frivolous claims of
exemption" for "innocuous" information, much of which is "common sense and
widely known."
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,
*OpenTheGovernment.org is a coalition of consumer and good government groups,
environmentalists, journalists, library groups, labor and others united to make
the federal government more open in order to ensure our safety and security,
strengthen public trust in government, and support our democratic principles.
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