The Transportation Security Administration (TSA) wants a federal air marshal's employment case to be kept under a veil of secrecy. In an October 13 court filing, the TSA claims that fired federal air marshal Manuel V. Alcaraz’s case involves Sensitive Security Information (SSI) and thus the whole case should be sealed because the court filings refer to the names of federal air marshal managers who ordered his removal. The TSA filing with the Merit Systems Protection Board (MSPB)—a government panel that reviews employment disputes, including whistleblower retaliation claims—states “the record is replete with SSI” and “the identity of the Federal Air Marshals (FAMs) who acted with respect to Appellant's conduct and progressive discipline are considered SSI.”

Alcaraz’s attorney in opposition to TSA’s motion, vigorously rebutted the TSA argument in a court filing. In addition, “there are less intrusive ways to restrict any potential disclosure of the information by utilizing the employee’s initials or some other unique identifier,” wrote Alcaraz’s attorney Michael Baranic, “rather than closing the hearing in its entirety and sealing the record in this matter, particularly when there is no information at issue that could compromise aviation security.”

This isn’t the first attempt by TSA to seal an air marshal's case by citing SSI. In a New York air marshal’s case in December 2008, TSA was successful in sealing the proceedings before the MSPB, according to a fax from a TSA attorney obtained by POGO.

Over in the U.S. District Court for the Eastern District of Kentucky, “federal prosecutors have been largely successful in arguing national security in sealing – and closing the courtroom for hearings and trials – in a half-dozen civil rights lawsuits filed by Erlanger-based air marshals,” according to a Kentucky Enquirer article dated December 13, 2009. Steven Aftergood, who runs Secrecy News for the Federation of American Scientists, told the Enquirer, “sealing the records places the air marshals at a disadvantage by removing one of the few tools available to them – the power of publicity.”

Questions have long swirled around federal government use, and some say abuse, of so-called Controlled Unclassified Information, of which SSI is one type. “The SSI classification should only be used to protect our homeland,” said Sen. Jay Rockefeller (D-WV) in a statement last year. “It should never be used to hide wrongdoing, avoid public embarrassment, or delay the release of information to communities that need it most.”

The TSA’s reasoning in the Alcaraz case is dubious because only his management officials are identified in the case, not flying air marshals whose identities should be kept under wraps as much as possible. In other air marshal cases before the MSPB, names of flying air marshals and even some operational details have made it into the court record without the record getting sealed. For example, in the recently decided Joshua Good case before the MSPB, the unsealed decision gives FAMs' name and flight patterns between London, New York, and Boston.

The TSA’s argument is also hypocritical: the TSA and the Federal Air Marshal Service (FAMS) have themselves advertised names and pictures of their individual managers and flying air marshals on television and on the Internet on numerous occasions.