The TSA-Chaffetz skirmish: The latest round

Enforcement Sensitive (LES).

Members of Congress may disagree with the classification of this piece of information or that, but they cannot, on their own, treat the information as not classified. Their conduct is governed by a security oath which, beginning with the 104th Congress, all members of Congress with access to classified information must take.

The House adopted a secrecy oath for all Members, officers, and employees of the chamber. Before any such person may have access to classified information, he or she must:

solemnly swear (or affirm) that I will not disclose any classified information received in the course of my service with the House of Representatives, except as authorized by the House of Representatives or in accordance with its Rules.

Now, the question of whether or not Chaffetz broke the law, and violated his secrecy oath as a member of Congress, is simple to answer: if the information given to the committee was designated as classified information by TSA — whether or not such classification was justified in Chaffetz’s eyes — then disclosing it is a violation of both federal law and strict House rules.

If, in Chaffetz’s view, the information was unjustifiably classified, then there is a procedure available to him (and to any American citizen) to request that the information be declassified.

What we do not know, though, is what classification TSA gave the information. “Sensitive security information” is not an official designation. In its letter to Chaffetz, DHS says that the documents “provided clear notice that unauthorized disclosures of the document violated federal law” — but it is not clear whether, in the absence of a clear designation at the top of the document, this type of admonition means that Chaffetz was legally prohibited from disclosing the contents of the documents.

B. Did the information merit security classification? In our humble opinion, there was nothing in the aggregate information which, if disclosed, would harm the national interest or aviation security. It is difficult to see how aggregate numbers on security breaches dating back to 2001 would threaten aviation security because of one main reason: we should hope that these breaches have been fixed by now, so they are not likely to reoccur.

Chaffetz and Issa were quick to charge that the reason for TSA classifying the information was political, and because the agency wanted to avoid being embarrassed. Maybe. It would probably be more accurate to say that TSA has behaved as all other agencies of the U.S. government do — they over-classify information. It may be that this tendency is in the bureaucratic DNA, but we should not confuse routine over-classifying tendencies with the desire to avoid embarrassment.

C. Chaffetz and Issa. Chaffetz and Issa may have a point in their current skirmish with TSA or they may not. The trouble is that the two do not have very high credibility when it comes to criticizing the agency. It is the case of crying “Wolf” too many times.

If you have a reputation — and a track record — of being a constant, unrelenting critic of a particular agency, then, after a while, people apply a discounting factor to what you say about that agency.

Chaffetz, especially, has been on a war path with TSA for more than two years now. In the summer of 2009 he was the prime mover behind a bill which would forbid TSA from using full-body scanning as the primary scanning method at airports. The bill, which passed Congress, allowed full-body scanning only as a secondary scanning method for individuals who aroused suspicion or about whom there was damning intelligence.

Six months after the bill was passed, in December 2009, the would-be Christmas underwear bomber changed all that, and full-body scanning is now the norm at airports.

Chaffetz, a strong family-values conservative, opposed full-body scanning for privacy reasons (he is now behind legislation which would limit the ability of TSA officers to pat down children without their parents’ consent). His failure on the full-body scanning has driven him to seek other areas where he could criticize TSA and its performance.

Does all this make the criticism of TSA by Issa and Chaffetz less relevant or justified? Of course not. A criticism is valid or not valid based on the facts of the matter, not the motives of the critic.

Still, we should note this: if TSA is accused of playing politics with the classification system, and if Maher’s letter is described as politically motivated, then we should not be surprised that those who support TSA and its performance respond in kind by raising the possibility that critics of the agency are motivated, at least in part, by their own political agenda.

Ben Frankel is editor of the Homeland Security NewsWire