Homeland Security Watch

News and analysis of critical issues in homeland security

December 17, 2009

Five questions for DHS about the TSA Operations Manual Release

Filed under: Aviation Security — by Christopher Bellavita on December 17, 2009

Deirdre Walker — who has posted before (here and here), is today’s guest author:

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I recently offered a pair of blog articles that documented my travels through TSA security checkpoints.   In those articles, I attempted to first provide a reasonably accurate recitation of events.  I then outlined the concerns I have as a result of those events, and provided some historical, professional and social context for those concerns.  I have been amazed at the quality, thoughtfulness and substance of many of the replies that have been posted in response.

Unfortunately, all of this pales when compared to the recent posting on the Internet of the TSA Operations Manual.

Today, I googled the term ‘TSA Operations Manual’ and got  74,900 hits in .11 seconds.   The secret SOP genie is finally out of the bottle and is merrily flying around the Internet while curious folks like me are pointing, waving and effectively taking pictures.  I completed a cursory review of the manual in an attempt to ascertain whether answers to questions asked by me and by other travelers were accurate.  I have come, begrudgingly,  to the short-term conclusion that many TSA screeners are prolific prevaricators or, more likely, have a highly compromised command of TSA Operations Policy.   This leads me to overlapping areas of even greater concern: accountability and opportunity.

In my first post on Homeland Security Watch, I suggested that we, the traveling public, are responsible for the screening processes that we subject ourselves to whenever we choose to fly.  These processes, I argued, unfold in both an inconsistent and haphazard manner, as opposed to an “unpredictable in order to be hard to defeat” manner.  I wrote that by sleep walking through security check points with blind trust in the TSA’s ability to keep us safe, we have reaped what we have sown with our passivity.  I indicated that I intend to challenge TSA when opportunity presents, which in my experience has been most frequently represented by my tendency to get selected for “random” (which it is not) secondary screening (which is flawed and inconsistent).

Now, I find myself having to roust myself from the temporary comfort of knowing that “someone,” (or five someones, in this case) is being held accountable for the failed redaction and ultimate Internet release of the TSA Ops Manual.  In my past experience as a police officer, I have both observed and been accused of engaging in an organizational response that is presented as accountability, but is more readily refered to as ‘scapegoating’.

Since we now know that five employees of TSA have been placed on administrative leave pending an investigation into the release of this supposed “secret” document, perhaps the time is right to challenge ourselves, TSA officials and those with oversight responsibility to be wary of the difference between accountability and scapegoating.  I offer a five point sketch of those differences, especially as they regard leadership, consistency, fairness, clarity and justice.

1-  Is agency leadership being held to the same degree of accountability as the individuals who are currently on leave, pending investigation? Currently, there is no way to know the answer to that question due to necessary protections being provided to the affected personnel.  While it is easy to succumb to the appeal of the voices singing for heads on platters, it is important to keep in mind that the affected employees may be innocent of any transgression (indeed, maybe not) and their privacy must be protected in order that a fair determination can be made.   Eventually, we will need to know the outcome and consequences of this review to first, rest assured that manure can and will roll up the chain of command as effectively as it rolls down.   Second, we need to be certain that when it comes to the potential dismissal of employees, other, less altruistic agendas are not at work.

2-Are the affected employees being treated in a manner that is consistent with similar past transgressions and that considers their overall work record? Some will argue that heads must roll, and quickly,  for this screw-up.  Ordinarily, I might agree.  But there are two problem with this swift response mode.  First, I have observed that pressure to demonstrate to the public that swift action is being taken frequently leads to flawed decisions.  There is often an incongruent relationship between swift and accurate.  Second, consider that TSA is an agency that has been oozing hubris for a number of years now.  I believe that sufficient evidence is available to indicate that the operations manual release is symptomatic of a far larger problem, or series of problems, which have been continuing fodder for many a critical blog entry and media article.

3- Are the affected employees enjoying the protections that can and must be offered to federal employees subject to administrative investigations? Keep in mind that there has been no mention of a criminal investigation into this matter.  This is an administrative matter, but the potential consequences to the affected employees are significant.  Tossing a few GS -14 or 15 heads to Congress may satiate the dogs and render them sluggish.  We need to be keenly aware of the potential exercise of diversionary discipline and stay hungry for information and evidence of commitment to organizational improvement.

4-Were the processes governing the handling of the TSA Operations manual clear and consistent? Section I.4.B of the manual indicates that the released document is identified SSI, or sensitive security information, in accordance with 49 CFR 1520.  This section of the law indicates that SSI regulations only apply to “covered persons,” to wit:

Covered person means any organization, entity, individual, or other person described in §1520.7. In the case of an individual, covered person includes any individual applying for employment in a position that would be a covered person, or in training for such a position, regardless of whether that individual is receiving a wage, salary, or other form of payment. Covered person includes a person applying for certification or other form of approval that, if granted, would make the person a covered person described in §1520.7.

In short, if you are neither cleared or employed by the government, you are exempt from this regulation and cannot be held accountable for the release of SSI that comes to your attention.  Additionally, Section 1.4.D offers a list of “covered” persons authorized to possess the document.  The list is lengthy.  Section 1.4.E provides the process to report lost or stolen copies.  Since people’s jobs are on the line for this release, I believe it is fair to ask how many times the document has been previously reported lost or stolen, and what, if anything, the outcome of the investigations into these reports revealed.   Those answers are critical to defining the true damage that this release has caused.  Until that definition is clarified, it will be impossible to determine an appropriate “punishment” for this transgression.

5- What is the point? Collectively, we seem to have quickly concluded that the release of this SOP has provided potential terrorists with a readily available “how-to-defeat TSA guide”.  Maybe so.  What this release really caused is a further erosion of public trust in and support for a deeply troubled agency.  Perhaps, that is not at all a bad thing.

The attacks of September 11, 2001 demonstrated to all of us that terrorists do not need a SOP to be successful. Terrorists will almost always make their plans based upon what we do, not on what our SOPs say we do.

We know from the release of this document that what TSA has been doing and what its SOP says it was supposed to be doing are not always the same thing (I was particularly drawn to procedures regarding opposite sex searches and selections for secondary screening).  If we now fully sucumb to our lingering fear of openly questioning these policies and those that are developed to replace them, then we have missed a very important point regarding the nature of democracy.  More disturbing, we are effectively doing more damage to that entity than the terrorists could ever hope to inflict.

We know that the SOP genie ain’t going back in that bottle.  Accordingly, we need to demand that the TSA seize this event as an opportunity to engage us, the American Traveling Public, in a meaningful effort to revamp the nonsensical processes and inconsistent procedures that have stoked a growing conflagaration of public anger for years.

If we, as the consumers of these publcily funded and vital safety services, take the easy and inviting path by merely waiting for the GS heads to be placed on spikes in front of the palace, then shame on us all.   We will have missed our chance at meaningful reform and possibly, truly enhanced safety.  Then, the fault lies at our own feet, every time we take off our shoes at a checkpoint.   That would be true justice.

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6 Comments »

Comment by Nick Catrantzos

December 17, 2009 @ 1:28 am

Thank you, Dee, for an informative and thought-provoking treatment of this subject. I found this observation of yours particularly heartening:

Terrorists will almost always make their plans based upon what we do, not on what our SOPs say we do.

There are indeed times when our society leans on the twin crutches of detection technologies and Procrustean protocols at the expense of individual initiative and common sense. Your critical analysis of this situation should be transforming a fiasco into an opportunity for needed reform.

Comment by Philip J. Palin

December 17, 2009 @ 5:45 am

Further to your fifth question: What I have read in your past posts and here again, is encouragement to behave as citizens, not as cattle to be herded nor as consumers to be satisfied.

As Justice Jackson wrote, “It is not the function of our Government to keep the citizen from falling into error; it is the function of the citizen to keep the Government from falling into error.” (American Communications Association v. Douds)

You call for TSA to engage us. This is most likely to happen if we — not just as travelers, but primarily as citizens — engage TSA to be clear regarding how their principles and purposes are consistent with both the constitution and the context. If those answers are satisfactory, we must require that they explain how these principles and purposes are reflected in their procedures.

The TSA has claimed extraordinary power to invade constitutional rights of privacy and commerce. Free citizens ought not — if we are to remain free, cannot — concur with continued exercise of this power unless TSA can demonstrate that constitutional and operational principles are consistently understood and coherently advanced across their system.

Comment by William R. Cumming

December 17, 2009 @ 7:00 am

WOW! Another great post for Ms. Walker. Hey few lawyers could have done as well in the analysis she provides. Also thanks to Phil for reminding all that Justice Jackson was a gem and one can only be happy that he sat on SCOTUS.

Well here goes. First, TSA is arguably not a law enforcement agency or an anti-terrorism or counter-terrorism agency and should be returned to the Department of Transportation as soon as possible. Its massive numbers give DHS a cloak of clout as a massive bureacracy that prevents it from becoming a learning organization and thinking one. IN reality it was really former Senator Daschle’s wife and other airline lobbyists that just wanted to make sure that any cloaking of the airline travel public in some security cover was paid for by Uncle Sugar. In reality the airlines had fought virtually every security enhancement since the days of the hijackings in the 70s. Well they should have reaped what they had sown. Even I recently returned from active duty and with weapons qual on my record was once asked if I wanted to leave my lowly boring post of tax counsel at IRS and become an Air Marshall shortly after returning from active duty in 1970. Instead later drafted again for the highly exciting exercise in public policy known as the NIXON WAGE-PRICE-RENT Freeze and the STABILIZATION PROGRAM! Hey did have some fun and saw up close and personal those two young turks Don Rumsfeld and Dick Cheney. But enough reminisces.
Let’s talk air transport security. In fact airports are all privately held, have no direct security regulation and are IMO a clear and present danger to all those traveling. Looking at retrospect at MUMBAI attacks a little over a year ago, small numbers of well armed terrorists with automatic weapons could destroy massive amounts of humanity in a short time at various major airports in particular at this season. Predicates for this sort of attack are many, including RED BRIGADE at ROME AIRPORT long ago. But clearly the subsidy of the airline industry which apparently despite this is almost a total failure in its current business plan except for such subsidies and tax writeoffs does not result in a balanced tranportation security regime.
And clearly the identification of “Sensitive” positions and the use of that term in the designation of “National Security” postions under 5 CFR is constantly confused by agencies with basic suitability of federal employees. And not that many of the rights of federal employees were denied TSA employees at the go in. So where does that leave us.
Let’s find out how TSA employees were trained on this manual, how was it prepared, how was it screened for classification or sensitivity or even whether many in TSA knew of its existence. If my understanding is correct, the Whistleblower Protection Act and regulation of the Office of the Special Counsel created under President Carter’s “Reform” of the old Civil Service Commission in Reorganization Plan No. 1 or 2 of 1978 (FEMA’s creation was #3 of that year) has any jurisdiction and whether the retaliation for the release was a “Prohibited Personnel Practice” or violation of some other standard. In other words let’s have a full investigation not just of the release but how, where, when, where TSA management guidance is developed, adopted, and issued and trained on and not just accidental release. If this was a contractor produced document, which I am sure it was, who signed off for its adoption and implementation and restrictive dessimination. And based on previous posts by Ms. Walker how about a comprehensive survey of its availabilty and usage in TSA and whether the guidance made any sense.
My basic concern is that our (US) democracy (actually a republic) has now seen the last few President’s despite the lack of an existential threat to our survival not only fail to take on the National Security State, but to allow it to thrive and infiltrate daily life even more than during the cold war. This is becoming a huge issue of exactly who is benefiting from this vast expenditure of treasure and is the US able to properly conduct its politics and economy other than as a SPARTA. This issue of course is what may ultimately cause other states to fail and perhaps resulted in the failure of the Soviet Union, not the fact that the US was victorius. Operating a command economy that can only conduct warfare is not a great choice for the oldest and richest democracy. Here’s is to Ms. Walker being made a member of SCOTUS since there is no requirement to be a lawyer to be on that forum.

Comment by Bret Branon

December 17, 2009 @ 11:55 am

Good writing.
Keep it up!
b.

Comment by Katie K.

December 17, 2009 @ 9:17 pm

Ms. Walker,

I appreciate your insights, but one thing that bears mentioning is that the document you’re talking about isn’t the TSA Operations Manual. There is no such thing. It’s one standard operating procedure document out of many TSA has, and if I’ve read their statement right, it’s the one for managers, not officers. In the hearing yesterday, TSA Director Rossides said it’s one of 13 standard operating procedures. That might be why you think officers are not following the rules?

I’ve read the document that was posted on the web, and I don’t see it as being that helpful to terrorists. I’m sure that the TSA has thought about what to do if lots of people with CIA badges start showing up at checkpoints.

Again, after reading the document, which had lots of definitions and checklists in it, I started to think they actually do some stuff that makes sense.

Comment by Jim Olson

December 18, 2009 @ 5:34 pm

My hat is off to a superior mind with a true appreciation of the architecture of rational thought in the English language. A pleasure to read such thoroughly thought out, yet concise and dense prose.

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