The TSA-Chaffetz skirmish: The latest round

information to the press.

DHS Deputy Counsel Joseph B. Maher told Chaffetz that “sensitive security information” provided to his subcommittee by TSA was illegally disclosed to the press.

“This document was marked as [Sensitive Security Information],” Maher wrote, “and provided clear notice that unauthorized disclosures of the document violated federal law” (the Washington Post obtained the letter from an administration official).

Maher described the information on past security breaches “a topic of particular interest to our adversaries” and said the law against unauthorized disclosure is designed to protect air travelers.

3. Issa’s response to DHS

On Friday of last week, Representative Darrell Issa (R-California), head of the House Oversight Committee, called Maher’s assertions “meritless” retaliation for the committee’s efforts to address “TSA deficiencies.”

Issa called Maher’s letter a “threat to the entire legislative branch that this administration will seek retribution when non-classified information is shared with the public.”

Issa denied that the data revealed by Chaffetz was classified information. Members of his staff said lawmakers and open-government groups have long debated whether security classifications are often used to hide embarrassing information.

Issa said he was now planning to investigate “how and why” Maher’s letter was sent to Chaffetz and demanded that the lawyer produce all records documenting his decision, his letter said.

“The fact that the information in question was transmitted to the committee via an open e-mail over an open and non-secured network only underscores that this was not national security sensitive information,” Issa wrote.

4. What do we make of this skirmish?

There are three separate, if related, issues here.

A. The treatment of classified information. The United States has three categories of classified information:

• Top secret — the highest level. Information classified as “top secret” would, if disclosed, cause “exceptionally grave damage” to the U.S. national interest.
• Secret — the second highest level of classification. Information classified as “secret” would, if disclosed, cause “serious damage” to U.S. national interest.
• Confidential — this is the lowest classification level. It defines information which, if disclosed, would “damage” U.S. national interest.
• On 9 May 2008 President George W. Bush issued a memorandum creating another classification category — Controlled Unclassified Information (CUI). The CUI categories and subcategories were designed to define unclassified information which requires safeguarding or dissemination controls. CUI was meant to replace such categories as For Official Use Only (FOUO), Sensitive But Unclassified (SBU), and Law