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Michael
Moderator
Joined: Mar 22, 2002
Posts: 5292
Status: Offline
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 Posted:
Nov 19, 2004 - 05:13 PM |
 
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| Post subject: Secret Laws... |
xThe Arrival Of Secret
Law In America
TSA Threatens To Arrest Leakers
Secrecy News
Federation Of American Scientists
11-17-4
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
SUPPORT SECRECY NEWS
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If you have learned something useful, valuable or interesting from Secrecy News over the past year, then please consider supporting this publication and the work of the FAS Project on Government Secrecy.
Donations may be made online here (click "donate now" and make sure to designate your contribution for "Secrecy News"):
http://www.guidestar.org/helping/donate.adp?ein=23-7185827
Or mail a check payable to the Federation of American Scientists to:
Secrecy News
Federation of American Scientists
1717 K Street NW, Suite 209
Washington, DC 20036
Secrecy News is written by Steven Aftergood and published by the Federation of American Scientists. |
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Benoist_Shanghai
Low Seater
Joined: May 18, 2003
Posts: 3057
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| Posted:
Nov 19, 2004 - 05:43 PM |
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| Post subject: Re: Secret Laws... |
| Michael wrote: |
| 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. |
Nothing new. Ask Stalin or a few other ones who implemented such practices well before.
Great USA huh.... sick.
b. |
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lawdude
Moderator
Joined: Sep 20, 2002
Posts: 687
Location: No longer in Shanghai, PRC
Status: Offline
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Nov 21, 2004 - 12:42 PM |
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Americans, if not everyone who looks to the U.S. as an example of democracy and freedom, should be very concerned and even afraid the direction the current administration has allowed lawmaking and enforcement to take in the wake of 9-11.
The right to know who accuses you and under what law had been a cornerstone of U.S. individual rights. No more. Laws passed from the "Patriot Act" on down in the name of national security have eroded much of what most Americans assumed were inalienable rights to nothing more than a guideline to be used only when convenient.
Unfortunately, as the election this month shows, Americans are largely willing to march blindly into their own bondage. I'm going to get crap for this, but I see many parallels between the Bush administration and that of Russia's Vladimir Putin. Sure, Putin is being more blatant about it and is further down the road, but both administrations have a decidedly fascist bent to them. I fear that only when it's too late will Americans realize the terrible bargain they've made by allowing Bush and Co. to take the U.S. so much closer to being a police state. |
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Edgewood
FooSlinger
Joined: Jan 28, 2004
Posts: 3906
Location: Colonial Shanghai
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Nov 21, 2004 - 01:29 PM |
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You won't catch any flak from me, lawdude. The main difference between Bush and Putin, is that Putin is a very smart guy, whereas Bush is thick as two short planks, but has smart people telling him what to do...
Smart isn't always the same as good. |
_________________
Conlige suspectos semper habitos |
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BaDaXianRen
Low Seater
Joined: July 11, 2004
Posts: 3298
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Nov 21, 2004 - 01:31 PM |
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Im no expert, but it seems like these type of laws wont stand up if they were ever brought to trial. Judges tend to not enforce laws that they arent allowed to see or look at. Seems like there would be quite a few constitutional issues here as well.
It is an alarming trend. |
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lawdude
Moderator
Joined: Sep 20, 2002
Posts: 687
Location: No longer in Shanghai, PRC
Status: Offline
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Nov 23, 2004 - 02:10 PM |
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Edgewood, I agree. Putin knows his stuff in this territory and Bush is lucky to have a bunch of Cold-War paranoid holdovers to counsel him.
BDXR: It should work that the judiciary upholds the Constitution and the legal traditions we've come to expect will protect citizens, but the current administration and the laws that it has passed have created, to paraphrase Bush, a "with us or against us" atmosphere about "fighting terrorism." Unfortunately, U.S. law does permit Executive Orders and certain "emergency" powers that can and do to a large extent circumvent the typical checks and balances on power. Courts will undoubtably strike some things down, but will probably want to avoid controversy (and the possibility of allowing a terrorist act by hindering all these new efforts to find them) by waiting for Congress to act. Unfortunately, a Republican Congress that is just as eager to avoid the appearance of being soft on domestic security is very likely to let these laws trample alot of individual freedoms for the foreseeable future. |
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