A new bill introduced last week by Senator Jay Rockefeller (D-WV) seeks to limit the ability of the government and private organizations to use the Sensitive Security Information (SSI) marking to avoid revealing embarrassing or damaging information. The SSI label is intended to allow the Transportation Security Administration (TSA) and the Coast Guard to protect information that could be useful to terrorists and consequently compromise transportation security. However, SSI is not technically "classified." Information that can be categorized as SSI includes, for example, airport and port security plans
The new bill is a response to Bayer CropScience's attempts to use SSI regulations to withhold information from investigators and the public on an explosion that killed two employees at its Institute, WV plant in 2008. Due to its location adjacent to a river, part of the facility is governed by security regulations administered by the Coast Guard under the Maritime Transportation Security Act. The local community was particularly concerned about the accident because the explosion occurred near a large tank containing MIC, the same chemical that killed thousands of people following an explosion at the Union Carbide plant in Bhopal, India in 1984.
In the end, CropScience did not withhold information from the federal Chemical Safety Board, which was responsible for investigating the incident. However, the company's President admitted at a Congressional hearing in April that CropScience considered withholding information not only because of "legitimate security concerns" but also because of "the desire to avoid making the controversial chemical MIC part of the public debate regarding the incident."
POGO supports the legislation's goal of ensuring that the SSI label cannot simply be invoked to prevent the release of embarrassing information. However, we're concerned that the bill continues to refer to SSI as a "classification," when it is really nothing more than an unclassified label. In addition, it remains to be seen if the legislation will be enough to prevent retroactive labeling of information as SSI to punish whistleblowers, such as former Federal Air Marshal Robert MacLean.
In 2003, MacLean attempted to disclose information to the Department of Homeland Security's Inspector General on an operational plan by TSA to cut costs by reducing air marshal protection on nonstop, long distance flights for two months. After being rebuffed by the IG, he contacted the press. Thanks to outrage from Senators Hillary Clinton (D-NY), Barbara Boxer (D-CA), and Charles Schumer (D-NY), TSA's plan was never implemented, but TSA fired MacLean in April 2006 for a single charge of "Unauthorized Release of SSI." Four months later, in August 2006, the agency retroactively categorized his July 2003 disclosure as SSI. POGO has since been following his ongoing struggle to have his federal law enforcement career resurrected.
Mr. MacLean recently wrote to POGO, "I hope that Sen. Rockefeller's legislation will prevent an executive agency from labeling a whistleblower disclosure with this unclassified information marking--Sensitive Security Information (SSI)--like the Transportation Security Administration (TSA) did to me in order 'to hide wrongdoing, [and] avoid public embarrassment,' as stated in the Senator's press release.” Only time will tell if this new legislation will set the record straight on SSI and ensure that potential whistleblowers will not be deterred by fear of retroactive SSI labeling.
-- John Cappel