Are we even pretending anymore? Four years after Congress passed cargo security legislation that had more to do with political than cargo security, the Transportation Security Administration is still engaged in a game of intellectual Twister, bending every which way to meet an impossible mandate that it enforce the screening of 100 percent of all cargo. All cargo. This includes nearly three billion pounds of product being shipped from nearly 100 countries around the world. And despite the arrogance of the U.S. Congress in thinking it can dictate policy to foreign nations, there really isn’t a whole hell of a lot the TSA can do to enforce this law outside the U.S. border.

Don’t blame TSA for this mess. From Day One, the Department of Homeland Security – with TSA and Customs and Border Protection handling air and maritime cargo respectively – emphasized that relying on the concept of 100 percent screening — of anything, really — was bad security. Few people actually believed that Congress would, with one vote, undermine years of work building an intelligence-driven, risk-based supply chain security infrastructure, including extensive partnerships with foreign governments. Indeed, former Acting CBP Commissioner Jay Ahern seemed at times to think Congress was joking. Then Congress actually followed through with the 9/11 Act, and now the poor folks in DHS have to pretend that this was actually a good idea all along.

TSA has been heroic in its effort to comply with insanity. It met the deadline for enforcing the screening mandate domestically by implementing the Certified Cargo Screening Program (CCSP). Not exactly what Congress intended – much to the dismay of Congressman Ed Markey, the architect of the mandate and not a guy who has much use for the private sector. Still, it was close enough for government work, as they (unfortunately) say, and it salvaged supply chain efficiency from the grasp of governmental overreach.

Not even TSA, however, tried to pretend that it could enforce this law overseas. The response before congressional committees tended to be: “We’re still working on it.” Then came the Yemen incident. And a lot more political pressure. And soon enough a reversal: “Sure we can do it – and we can do it by the end of the year!”

So how is TSA going to go about forcing foreign governments to change their security models to comply with Congressman Markey’s? They’re not – while saying they are. Not exactly a new strategy in Washington, but one that was well-played by the TSA. Listen to TSA Assistant Administrator John Sammon testifying before Congress last week:

First he laid the groundwork with some hopeful thinking and vague math: “Many air carriers, including a high number of wide-body operators, are already at or close to 100 percent screening of air cargo inbound to the United States,” he observes … while adding a lot of needed cover with the following open-ended qualification: “However, we recognize that closing the final gap poses some operational challenges for airlines.”

Operational challenges indeed. And not just for the airlines, sir.

Then we get the set-up. Think of the skilled volleyball player lobbing the spike to the net: “More importantly, TSA does not have the same inspection and compliance authorities overseas that it has in the United States. While TSA can inspect and aggressively pursue enforcement action in the U.S. under the Interim Final Rule, any inspection of air cargo screening overseas requires the full voluntary cooperation of our foreign partners.”

The added emphasis is mine. I’m sure it would be the TSA’s too, if not for fear of offending Congress.

Having established that there’s little TSA can do to enforce a law demanding that other governments do as the United States tells them to do, Sammon then offers that the TSA could skip screening 100 percent cargo but say that they’re doing it anyway. Everybody walks away happy except Markey.

“To address these challenges,” he told the committee, “TSA will continue to review other countries’ National Country Security Programs (NCSP) to determine whether their programs provide a level of security commensurate with the level of security provided by existing U.S. air cargo security programs. Since we cannot establish a CCSP program overseas, the NCSP approach is a key element in helping industry to accomplish the 100 percent screening goal while also enabling TSA to ensure that inspections and compliance actions are well established by the host government programs and commensurate with U.S. security standards.”

Translation: We’re going to take a look at what foreign governments are doing with regard to cargo security and then pretend that they’re screening 100 percent of their cargo even though we know they’re not. Then we can say we’re meeting the mandate to screen 100 percent of all cargo.

I, for one, am glad for the hocus pocus, and I salute the TSA for once again coming up with creative ways to satisfy an unreasonable Congress. It’s a win-win-win: Foreign governments don’t tell us to get lost, Congress gets to save face, and shippers get to keep shipping. Huzzah!

Moreover, the TSA has, in some ways, brilliantly managed to bring cargo security closer to its original manifestation of working hand-in-hand with our top trading partners to ensure greater consistency of security procedures across the global supply chain. If they are able to do this – while at the same time assuring Congress that, wink wink, its mandate is still being met – then we should all salute the TSA. They are working towards the twin goals originally established — and sometimes forgotten — during the creation of DHS: Increasing security while also ensuring the free flow of commerce.

Chris Battle founded Security Debrief as a forum for the homeland security community to discuss pressing issues and current debates in national security, counter-terrorism and law enforcement. After a long fight against kidney cancer, Chris passed in August 2013. Read More