WASHINGTON, Oct. 9 (UPI) -- A little-noticed provision of the Homeland Security Appropriations Act signed by the president last week will help a multibillion-dollar Sept. 11 lawsuit against two U.S. airlines move forward by making it easier for plaintiffs to get restricted information about the nation's pre-attack aviation security system.
Section 525 of the conference report that is part of the law, instructs Homeland Security Secretary Michael Chertoff to draft within 30 days new regulations for the system of "Sensitive Security Information," or SSI, administered by the Transportation Security Administration.
SSI information is not classified, but departmental regulations define it as "information that would be detrimental to transportation security if publicly disclosed." Critics say that definition is too nebulous, and charge it is abused to satisfy a reflexive urge for secrecy on the part of officials.
The new regulations, says the conference report, should provide for the release of most SSI more than three years old, unless it contains information that is still current or the secretary makes a written determination that it must stay protected. To do so, he must provide "a rational reason" which will "identify and describe the specific risk to the national transportation system."
The new law also includes a mechanism for SSI to be made available in civil court cases if the judge determines it is needed, and if the party needing it cannot get it elsewhere without "undue hardship." The lawmakers say they "expect that a party will be able to demonstrate undue hardship to the judge if equivalent information is not available in one month's time."
To get access to the information, plaintiff's lawyers will have to pass a background check of criminal and terrorism-suspect watch-lists like those undergone by aviation workers with access to SSI. The law still allows officials to block the court's access to the information, if they can "demonstrate" that it "presents a risk of harm to the nation."
It instructs Chertoff to report back to the Appropriations Committees within 120 days on his compliance. The Government Accountability Office is instructed to assess the department's progress in implementing the new law after one year.
The language was inserted into the bill, congressional staffers say, because appropriators were frustrated that their efforts to get officials to deal with the proliferation of protected or restricted categories of information had largely failed.
A series of recent government audits and other reports have documented the deleterious effect of dozens of overlapping, contradictory and too-vaguely defined categories of SSI-type restrictions throughout government.
The appropriators were "angry at the failure (of DHS) to clear away this underbrush" of restrictions, said one senior House staffer. "So they set a clock ticking on this stuff: (After three years), it's out unless you can justify it."
But the provision that specifically addresses the use of SSI in civil court proceedings was also the result of lobbying by Sept. 11 families and their lawyers and supporters.
The relatives, many represented by the high-profile trial lawyers firm Motley Rice are seeking billions in damages, claiming United and American Airlines' negligence allowed the attackers to board with the short knives and boxcutters they needed to complete their deadly mission.
About 30 families' cases have been settled, the remaining 60 or so are now consolidated before a federal judge in the U.S. District Court of New York.
The plaintiffs in that court also include insurance companies and others with interests in the properties and lives that were lost, but the 90-or-so individual families who chose to sue had to forswear the multi-million dollar payouts being issued by the special federal compensation scheme.
The new SSI provision was welcomed by supporters of the lawsuits, who have long contended that the Transportation Security Administration, or TSA, is using restrictions on information to hide the culpability of the airlines and the federal authorities.
"This is information about a defunct aviation system," said former Federal Aviation Administration Special Agent Brian Sullivan of the documents TSA is trying to protect.
Disputes over access to SSI documents and information from officials have held up the cases.
A statement from one families group said plaintiffs and their lawyers had been denied "access to materials about security procedures and vulnerabilities on and before Sept. 11 even though none include information about current policies and practices, many were once in the public domain, and some were even provided to convicted terrorist Zacharias Moussaoui (as part of the discovery at his trial)."
Sullivan, who has campaigned for more accountability for the Federal Aviation Administration, which was responsible for aviation security prior to Sept. 11, said officials were using the SSI designation as a shield to "protect the FAA from embarrassment and the airlines from their legal liability."
He said the new law was "a step in the right direction," but echoed concern from some relatives that a provision "that was so hard fought for by so many people" could still be foiled by bureaucratic slow-walking and lawyerly manipulation.
The law says that any court rulings for disclosure of SSI under the new regulations will be subject to immediate appeal.
"We call on TSA to comply fully with both the letter and the spirit of this new law," said Alice Hoagland, mother of Mark Bingham, one of the United Flight 93 passengers who stormed the cockpit, preventing it from crashing into a Washington target widely believed to have been the U.S. Capitol.
"TSA's mission of protecting our transportation system from terrorist attacks is too important and urgent to allow it to waste precious time and resources trying to flout the will of Congress or seeking endless court delays," she added.
