- 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
- "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
- 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:
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