Monday, August 26, 2013

CFATS PSP and Suspected Terrorists

I’m hearing rumors that DHS is getting close to the point where they will be issuing their 30-day notice for the information collection request supporting the CFATS personnel surety program. I did a series of blogs (listed below) on the comments that were received when DHS published the 60-day notice, now it is time to take a closer look at some of the issues that ISCD will have to address when they publish the 30-day notice.

Without a doubt the most controversial portion of earlier notice is the continued presence of a statement that DHS will not necessarily tell facilities if there is a positive match with the Terrorist Screening Database (TSDB). The notice states:

“Regardless of the [data submission] option, in the event that there is a potential match, the Department has procedures in place that it will follow to resolve the match and coordinate with appropriate law enforcement entities as necessary. High-risk chemical facilities may be contacted as part of law enforcement investigation activity, depending on the nature of the investigation.”

Needless to say facility owners and security managers are upset as hell that the folks at ISCD might allow a suspected terrorist to continue to continue to work at a high-risk chemical facility while some criminal investigation is underway. Almost as one industry commenters made clear that they would rather get a suspected terrorist out of their facility and risk not being able to take criminal action against them than allow them to stay and perhaps execute an actual attack while under investigation.

I am sure that David Wulf, Director of the Infrastructure Security Compliance Division, and his team of Chemical Security Inspectors (CSI, PLEASE someone change that title so we can get a different acronym) have the same concerns. I know that they realize that if a chemical facility attack happens under those circumstances that they will not be able to withstand the accusations of incompetence and malfeasance that will be leveled against them in Congress and the court of public opinion.

And those charges will be completely unjustified since it won’t be David’s call as to when facilities will be told that they have a suspected terrorist in their midst. That decision will almost certainly be made high within the ranks at the FBI or perhaps even in the office of the Attorney General. It is likely that David won’t even be told until such time as the law enforcement people have cleared the information for release.

The inevitable question that will be asked is why is it different for the TWIC? There the individual is notified if there is a positive match and there is an adjudication process in place for handling appeals. But TSA has never mentioned that they won’t tell an individual that his TWIC processing was rejected if there is a criminal investigation being conducted as a result of a TWIC submission. There will be an unexplained delay in the processing until the investigation is resolved. Then the individual will be notified of the reason, probably by an FBI SWAT Team.

It is a shame, in retrospect, that the folks at ISCD hadn’t just stood mute on the subject of criminal investigations of potential terrorist ties. If they had just said that the facility would be notified of any positive matches against the TSDB (which will eventually be the truth) things would have been fine. But no, someone decided to tell the whole story (or at least more of the whole story than had previously been done) and DHS is stuck with it.

Because, no matter how much industry legitimately complains about the risk to their facilities, the criminal justice system will not allow information about ongoing criminal investigations to be shared outside of the law enforcement community. Period, end of story.

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