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PLANETNEWS broadcast...
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
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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/
TSA THREATENS TO ARREST LEAKERS
Efforts by the Transportation Security
Administration to investigate air marshals for talking
to the press or the public "were appropriate under the
circumstances," the Department of Homeland Security
Inspector General said last week, and did not
constitute a "witch hunt."
However, "air marshals from two locations said
that they were threatened with arrest and prosecution
if they were found to have released sensitive security
information (SSI), even though release of SSI is not a
prosecutable offense," the Inspector General said.
In a related overstatement, Federal Air Marshal
Service policy says that "employees who release
classified information or records in any form without
authority from the Classified Documents Custodian are
in violation of United States Code and are subject to
arrest and prosecution," the DHS Inspector General
(IG) noted.
But "We question the legal accuracy of this policy
statement, which seems to criminalize all releases of
classified information," the IG wrote.
The unauthorized disclosure of classified
information is a criminal offense only in certain
narrowly defined circumstances.
See "Review of Alleged Actions by TSA to
Discipline Federal Air Marshals for Talking to the
Press, Congress, or the Public," DHS Inspector General
Audit Report, November 2004:
http://www.fas.org/sgp/othergov/dhs-ig-ssi.pdf
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