Now that the TSA has released their final rule for the Secure Flight program, which would extend DHS control and surveillance of airline passengers to domestic flights, what happens next (after the final rule is published in the Federal Register, which normally happens within a week or so)?

Under the laws appropriating the funds for TSA and DHS operations, the next step should be review by the Government Accountability Office (GAO).  Section 522 of the Homeland Security Appropriations Act 2005 provides:

None of the funds provided by this or previous appropriations Acts may be obligated for deployment or implementation, on other than a test basis, of the Computer Assisted Passenger Prescreening System (CAPPS II) or Secure Flight or other follow on/successor programs, that the Transportation Security Administration (TSA), or any other Department of Homeland Security component, plans to utilize to screen aviation passengers, until the Government Accountability Office has reported to the Committees on Appropriations of the Senate and the House of Representatives that: [10 specified criteria have been met].

The 2006, 2007, and 2008 appropriations acts for the DHS all contained exactly the same conditions.

When he signed this and each of the succeeding appropriations act into law, however, President Bush said that he considered the requirement for GAO approval “advisory”:

To the extent that section 522 of the Act purports to allow an agent of the legislative branch to prevent implementation of the law unless the legislative agent reports to the Congress that the executive branch has met certain conditions, the executive branch shall construe such section as advisory, in accordance with the constitutional principles enumerated in the Chadha decision.

Despite these Presidential signing statements, Wired.com reports that, “DHS said Wednesday it will wait until the GAO signs off on Secure Flight before testing it.” (See also the follow-up article quoting the Identity Project.) It’s unclear what the DHS spokesperson’s statement might mean.  Under the terms of the law, the GAO would not be able to “sign off on” Secure Flight until after TSA could show that it has successfully completed certain tests.

There’s been no public notice of the GAO having made the required certification.  But in practice, the TSA doesn’t appear to be waiting for GAO approval:

On September 3, 2008, the TSA awarded the first $11 million increment of a contract with Accenture, with options for up to $55 million, for “Implementation and Business Operations support in establishing connectivity and operations with Domestic (as well as International, General Aviation and others in the future) airlines for the Secure Flight Program,” in other words, for building the IT systems to plug the TSA into airlines’ reservation systems.  The prime Secure Flight contract award to Accenture came after a former Accenture executive was placed in charge of Secure Flight in late 2007.

On September 30, 2008, the TSA awarded another $1.8 million contract to Professional Solutions, with options for up to $20 million, to build and operate Secure Flight call centers in Colorado Springs, CO, and Annapolis Junction, MD, where contract staff will serve as intermediaries (and shields against transparency or accountability) between airlines, the TSA, the Terrorist Screening Center, and other agencies involved in Secure Flight decision-making.

Neither of the solicitations for these contracts contain any apparent limitation to “testing”. Both are explicitly related to “deployment or implementation”.  By awarding these two contracts, the TSA appears to have “obligated” funds, without waiting for GAO certification, in violation of Section 522 of the Homeland Security Appropriations Act 2005 (and of the identical provisions of the 2006, 2007, and 2007 appropriations acts).

So the next step for Secure Flight should be House and Senate oversight hearings on why the TSA has defied Congressional orders, and committed funds to deployment and implementation of Secure flight before they can establish, to the satisfaction of Congressional auditors from the GAO, that it will actually work and won’t cause worse problems.

And if the TSA sticks to the line in the President’s signing statements that such Congressional condiitons are merely “advisory”, those hearings should be followed by Congressional enactment of an unconditional ban on expenditures for Secure Flight deployment or implementation — promptly, before the “final rule” takes effect or Secure Flight is a fait accompli.