- The Washington Times - Sunday, October 8, 2006

A little-noticed provision of the Homeland Security Appropriations Act signed by the president last week will help move forward a multibillion-dollar September 11 lawsuit against two U.S. airlines 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 (TSA).

The regulations, says the report, should provide for the release of most SSI more than three years old, unless the information 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 regulations should also include 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 watchlists like that any aviation worker with access to the information would require, according to the report. The language still allows officials to block the court’s access to SSI, if they can “demonstrate” that it “presents a risk of harm to the nation.”

The new law instructs Mr. Chertoff to report back to the Appropriations committees within 120 days on his compliance.

The provision was welcomed by relatives of victims of the September 11 attacks. Family members who support the lawsuits have long contended that the TSA is using restrictions on information to hide the culpability of the airlines and the federal authorities.

“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.

Her son was one of the United Airlines Flight 93 passengers who stormed the cockpit, preventing the hijackers from striking their intended target — thought to have been either the White House or the Capitol.

“This is information about a defunct aviation system,” said former Federal Aviation Administration Special Agent Brian Sullivan of the documents that TSA is trying to protect. He accused officials of “protecting the FAA from embarrassment and the airlines from liability.”

About 60 cases in which relatives of the victims of the September 11 attacks are suing United and American Airlines have been consolidated in the U.S. District Court of New York. The plaintiffs say the airlines’ negligence allowed the attackers to board with the short knives and box cutters used in the attacks.

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