The Arrival Of Secret Law

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Thu, 18 Nov 2004 20:34:26 -0800 (PST)

Subject:Fwd: THE ARRIVAL OF SECRET LAW

 

 

http://www.fas.org/sgp/news/secrecy/2004/11/111404.html

 

 

 

SECRECY NEWS

from the FAS Project on Government Secrecy

Volume 2004, Issue No. 100

November 14, 2004

 

* THE ARRIVAL OF SECRET LAW

* TSA THREATENS TO ARREST LEAKERS

* SUPPORT SECRECY NEWS

 

THE ARRIVAL OF SECRET LAW

 

Last month, Helen Chenoweth-Hage attempted to board a United Airlines

flight from Boise to Reno when she was pulled aside by airline

personnel for additional screening, including a pat-down search for

weapons or unauthorized materials.

 

Chenoweth-Hage, an ultra-conservative former Congresswoman (R-ID),

requested a copy of the regulation that authorizes such pat-downs.

 

" She said she wanted to see the regulation that required the

additional procedure for secondary screening and she was told that she

couldn't see it, " local TSA security director Julian Gonzales told the

Idaho Statesman (10/10/04).

 

" She refused to go through additional screening [without seeing the

regulation], and she was not allowed to fly, " he said. " It's pretty

simple. "

 

Chenoweth-Hage wasn't seeking disclosure of the internal criteria used

for screening passengers, only the legal authorization for passenger

pat-downs. Why couldn't they at least let her see that? asked

Statesman commentator Dan Popkey.

 

" Because we don't have to, " Mr. Gonzales replied crisply.

 

" That is called 'sensitive security information.' She's not allowed to

see it, nor is anyone else, " he said.

 

Thus, in a qualitatively new development in U.S. governance, Americans

can now be obligated to comply with legally-binding regulations that

are unknown to them, and that indeed they are forbidden to know.

 

This is not some dismal Eastern European allegory. It is part of a

continuing transformation of American government that is leaving it

less open, less accountable and less susceptible to rational

deliberation as a vehicle for change.

 

Harold C. Relyea once wrote an article entitled " The Coming of Secret

Law " (Government Information Quarterly, vol. 5, no. 2, 1988) that

electrified readers (or at least one reader) with its warning about

increased executive branch reliance on secret presidential directives

and related instruments.

 

Back in the 1980s when that article was written, secret law was still

on the way. Now it is here.

 

A new report from the Congressional Research Service describes with

welcome clarity how, by altering a few words in the Homeland Security

Act, Congress " significantly broadened " the government's authority to

generate " sensitive security information, " including an entire system

of " security directives " that are beyond public scrutiny, like the one

former Rep. Chenoweth-Hage sought to examine.

 

The CRS report provides one analyst's perspective on how the secret

regulations comport or fail to comport with constitutional rights,

such as the right to travel and the right to due process. CRS does not

make its reports directly available to the public, but a copy was

obtained by Secrecy News.

 

See " Interstate Travel: Constitutional Challenges to the

Identification Requirement and Other Transportation Security

Regulations, " Congressional Research Service, November 4, 2004:

 

http://www.fas.org/sgp/crs/RL32664.pdf

 

Much of the CRS discussion revolves around the case of software

designer and philanthropist John Gilmore, who was prevented from

boarding an airline flight when he refused to present a photo ID. (A

related case involving no-fly lists has been brought by the ACLU.)

 

" I will not show government-issued identity papers to travel in my own

country, " Mr. Gilmore said.

 

Mr. Gilmore's insistence on his right to preserve anonymity while

traveling on commercial aircraft is naturally debatable -- but the

government will not debate it. Instead, citing the statute on

" sensitive security information, " the Bush Administration says the

case cannot be argued in open court.

 

Further information on Gilmore v. Ashcroft, which is pending on

appeal, may be found here:

 

http://papersplease.org/gilmore/