Here is what we still don't know, over seven years after the 9/11 attacks, about airline and airport security on that day:
1. We don't know if all of the metal screening machines at the airports involved had been tested and were actually working as designed;
2. We don't know if the security personnel working on those machines and screen passengers were qualified and properly trained to find barred and dangerous items; and
3. We don't know how the terrorists made it through the checkpoints with their deadly box-cutters, knives and mace.
All that, and more, was unilaterally designated by the aviation industry defendants as confidential, wrongfully exploiting a protective order issued by a federal judge in 2004, designed only to protect trade secret and competitive information. The order was entered in lawsuits filed by families of 9/11 victims against certain airlines, security companies and others responsible for airline and airport security (the “aviation defendants”) on that fateful day. The remaining three families, out of 96 who filed lawsuits, have challenged the defendants' “confidential trade secrets” designations, claiming that one of their major motivations for filing lawsuits and not going into the no-fault Victims Compensation Fund created by Congress was to ask questions, demand accountability and shed light on the checkpoint failures that allowed 19-for-19 hijackers to board aircrafts with prohibited weapons and hazardous materials. While the families have access to this information within the confines of the litigation, the public does not.
Today, the attorneys for the victims' families, joined by news organizations, will stand before a federal judge and argue for their latest motion to release a huge stash of documents (a million pages or more) which could finally reveal the truth about the status of airline and airport security leading up to and on that horrible day.
The idea that the airline and airport security regime in existence over eight years ago is a “trade secret” is preposterous. Yet, in producing aviation industry documents and witness testimony to these families, the aviation defendants designated over 99% of the evidence (documents and transcripts) to be trade secrets. None of the machines in operation on 9/11 at any airport in the U.S. are in use today – all have been upgraded by orders of magnitude. All of the personnel now working them on that day were released and/or retrained with much tougher federal standards.
Yes, I represent the attorneys of the 9/11 victims before Congress and the Executive Branch and have assisted them in ensuring the release of government documents pertinent to the issue. But that doesn't change the point: there is no logical reason to permanently seal industry documents on old, outdated, and replaced airline and airport security procedures or the sworn testimony of nearly 200 witnesses who have testified in these cases.
The procedural rules which govern the confidentiality of “trade secrets” don't exist to protect businesses from public embarrassment and possible civil liability. Ironically, trade secrets and competitive information are usually intended to be kept secret from other industry members, in this case, the secrets are shared among all of the aviation defendants, but kept secret from everyone else. Civil litigation in the United States is meant to conducted in full view.
UPDATE, March 26: The federal judge told the victims' attorneys that he favors not publicly disclosing the evidence until a trial occurs. A trial date has not been set.