[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.


Patrice McDermott, Director
202-332-OPEN (6736)

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 

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.


*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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