Background checks may help 9/11 families with lawsuits

The Transportation Security Administration announced Wednesday that it intends to do background checks on plaintiffs who have filed suit in federal court to determine if they can have access to restricted aviation information.

The move is expected to help family members of victims of the Sept. 11, 2001, terrorist attacks and their lawyers move forward in litigation against U.S. airlines, airports and security contractors.

In a Federal Register notice, TSA said it intends to do criminal background checks and security-threat assessments on plaintiffs or their lawyers to determine if they can have access to sensitive security information, which is a designation the agency uses to prevent the release of information that could pose a threat to transportation security.

Under a recently enacted spending bill, Congress required the Homeland Security Department to make such information available to plaintiffs in federal civil proceedings, as long as doing so does not compromise security.

Dozens of family members of 9/11 victims and their lawyers have been fighting for years to get access to information on the 2001 attacks. They are suing the airlines that carried victims of the attacks, the airports where the attacks originated, air carriers responsible for security at airport gates, security contractors that performed security screening, and Boeing, which made the planes that were attacked.

The family members charge that TSA has been abusing its authority by keeping secret a host of materials that clearly pose no threat, including many documents once openly available.

"I think if TSA moves forward in good faith to try and grant access in those instances where it will not present harm to the national transportation security system, then it ought to help," said Robert Haefele, an attorney with the law firm of Motley Rice, which represents 9/11 families.

Haefele said access to restricted information could help advance another lawsuit targeting those who financed the 9/11 plot. "This unlocks some more doors, hopefully, that will unleash more information that will allow [people] to know why their family members died on 9/11," he added.

Haefele questioned, however, whether TSA is creating a loophole that will allow it to continue to withhold information. According to the appropriations law, individuals seeking access to sensitive security information must demonstrate a "substantial need" for the information and show that it cannot be obtained by other means.

Haefele argued that a federal judge, not TSA, should make that determination. But in the Federal Register notice, TSA said individuals will have to submit explanations supporting their need for the information.

The appropriations law also requires Homeland Security to make sensitive security information that is three years old or older publicly available as long as doing so does not compromise security. The deadline for the department to meet that requirement is Nov. 4. But the department has yet to announce its plan for compliance.

"We haven't stated publicly yet how that process is going to work," a TSA spokesman said.