The secrets of flight.

The law, lawyers, and the court.
Nov. 18 2004 4:26 PM

The Secrets of Flight

Why Transportation Security Administration guards don't have to tell you what they won't tell you.

"Before the Law stands a doorkeeper" begins Franz Kafka's famous parable, which tells of a man who seeks "admittance to the Law" but who is denied access by the doorkeeper—something he did not expect.

The Law, he thinks, "should surely be accessible at all times and to everyone."

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Former Rep. Helen Chenoweth-Hage, R-Idaho, experienced the existential horror of being governed by secret laws last month while attempting to board a United Airlines flight from Boise to Reno. When pulled aside by security guards from the Transportation Security Administration for additional screening, including a physical pat-down, Chenoweth-Hage requested a copy of the federal regulation authorizing such searches. Her request was denied.

"She said she wanted to see the regulation that required the additional procedure for secondary screening and she was told she couldn't see it," local TSA Security Director Julian Gonzales told the Idaho Statesman.

Chenoweth-Hage said that if she couldn't see the regulation, she wouldn't submit to the pat-down. If you don't allow us to search you, you can't fly, they responded. And so she didn't, getting into her car and driving to Reno instead.

A case can be made that airline security would suffer if the criteria used for screening passengers were to be revealed. Such a disclosure would make it easier to circumvent passenger screenings. But Chenoweth-Hage wasn't asking for such details, only for the legal authorization for pat-downs. Why couldn't they at least let her see that? asked Statesman correspondent Dan Popkey.

"Because we don't have to," replied TSA doorkeeper Gonzales.

"That is called 'sensitive security information.' She's not allowed to see it, nor is anyone else," he said.

How did we come to such a pass?

Unlike most forms of classified national security information, which are based in executive order, the concept of "sensitive security information" originated in a 1974 statute, the Air Transportation Safety Act. The intent of SSI was to prohibit disclosure of several categories of information, including information "detrimental to the safety of persons traveling in air transportation." As initially implemented, SSI was applied rather narrowly to the nuts and bolts of airport and airline security programs. Theoretically, an unlimited number of SSIs can be promulgated—as long as they fit the broad definition set down by law. As official secrets go, SSIs are fairly tame. Several government employees have been fired or forced to resign for making unauthorized disclosures of SSIs, but it's not a crime.

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