"Airport security tricky in court"

Sunday, May 23, 2004

Airport security tricky in court 
Miami charge dropped to guard secrecy
By REBECCA CARR
The Atlanta (GA) Journal-Constitution


WASHINGTON - Last fall, Miami prosecutors thought they had a solid case
against a federal baggage screener who was caught on videotape stealing
CDs from passengers' luggage.

Just one small problem: The defense would be allowed to question a key
prosecution witness from the Transportation Security Administration
about Miami International Airport's security and training of baggage
screeners.
 
Fearing the testimony could put what the government calls Sensitive
Security Information in the hands of terrorists, prosecutors dropped the
charges.

U.S. District Court Judge Adalberto Jordan set the defendant free. He is
now in Miami studying radiology.

The case reveals a growing tension between the public's right to know
about a crime at one of the nation's busiest airports and the federal
government's desire to protect sensitive security information from
disclosure.

The federal government argues that even seemingly innocuous information
about the nation's transportation systems could aid terrorists and other
criminals in their plots. Critics disagree, saying that to cloak such
information in secrecy undermines the public's ability to protect
itself.

The Miami case is "a rather shocking story," said Steven Aftergood,
director of the Federation of American Scientists' Project on Government
Secrecy.

"It sounds like TSA has confused ends and means. They are compromising
security for the sake of secrecy," Aftergood said.

The critics have it all wrong, said Lauren Stover, the eastern field
director for TSA public affairs based in Miami.

"Our agency does not like to hide under the SSI umbrella," Stover said.

The Miami case and other examples of the TSA refusing to release
sensitive security information have raised concerns among open
government advocates who say there is no oversight on what TSA can stamp
"SSI."

"It is an invitation to unlimited secrecy," Aftergood said. "These
decisions need to be reviewed by some sort of oversight mechanism."

Open government advocates say there are understandable reasons to keep
certain sensitive documents and pieces of information from the public.
But the public should at least know how much information has been
removed from the public domain under the SSI label.

Jane Kirtley, director of the Silha Center for media ethics and law at
the University of Minnesota, said the whole notion of removing reams of
information from the public for an unlimited time frame is "very
troubling."

"The idea that we can basically close off this amorphous category of
information without any checks and balances is very troubling," Kirtley
said.

Lawmakers complain

Some Democratic lawmakers on Capitol Hill are concerned about the lack
of oversight to ensure that TSA is not abusing its authority.

"While it is important that truly sensitive security information not be
disclosed to the public, the Bush administration all too often
inappropriately uses secrecy as a weapon to prevent the American public
from learning of its activities," said Rep. Edward Markey (D-Mass.), a
member of the House Select Committee on Homeland Security, which
oversees the policies of TSA.

The agency wanted to prosecute the Miami baggage screener to the highest
degree possible, Stover said.

"We are a transparent agency operating that way every day under the
belief that the public has a right to know," Stover said. "We have to
learn to balance that against information that might be used against
us."

The agency was concerned that an open court proceeding would reveal
critical information because of videotape footage showing the defendant
stealing and expert TSA testimony about screening procedures. Terrorists
could watch the videotape and hear from TSA officials how they screen
bags. The agency does not want to do "the homework" for the terrorists,
she said.

"Our mission is to safeguard the security of our nation and traveling
public, and we could not jeopardize innocent lives for the actions of a
few individuals," Stover said.

Amy Von Walter, a spokeswoman for the TSA based in Washington, estimated
that about a quarter of the agency's actions are marked "SSI," but she
could not quantify that figure because the agency deals with "billions
of documents."

Von Walter said the agency does not hesitate to take appropriate action
when baggage screeners violate the law. For example, four baggage
screeners in Detroit were indicted last month on theft charges.

The TSA was given the power to keep secret sensitive information about
the nation's transportation networks soon after Congress created the
agency on Nov. 16, 2001.

But the concept of keeping secret sensitive security information has
been around since 1974. That's when Congress passed legislation giving
the Federal Aviation Administration permission to protect a narrow band
of information about its research and development from public
disclosure.

Expanded security

Under TSA's management, the definition of SSI has greatly expanded to
include nearly a dozen different regulations, including information
about security programs, vulnerability assessments and technical
specifications of certain screening equipment, according to a recent
report by the Congressional Research Service, the research arm of
Congress.

Basically, anything that poses a "detrimental " threat to air travel
qualifies as sensitive security information, according to the
regulations defining SSI.

Unlike national security documents that are reviewed before receiving
classification status of "top secret," information placed in the
category of SSI is "born" secret, meaning there is no criterion to meet
or review to ensure that it should be removed from the public's view.

The federal government created the Information Security Oversight Office
to monitor the number of classified documents it creates each year. No
such monitoring agency exists for SSI materials. The materials are
simply removed from the public domain without any type of oversight as
there is with the classification system.

Another important distinction is there is a time limit given to
classified materials. While some of these time limits are extended for
decades, there is no time limit with SSI materials.

On Tuesday, the TSA expanded the authority to the U.S. Coast Guard. The
Coast Guard will be allowed to use the SSI label to keep secret port and
facility security assessment plans required by legislation passed by
Congress last year.

On the Net:

The CRS report can be found on the Federation of American Scientists
Project On Government Secrecy site.
 http://www.fas.org/


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