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:
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:
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: