more on THE ARRIVAL OF SECRET LAW FAS Secrecy News -- 11/14/04

[David Farber <dave () farber net>]

Begin forwarded message:

From: Scott Mace <scottmace () wiredmuse com>
Date: November 15, 2004 7:03:58 PM EST
To: dave () farber net
Subject: Re: [IP] THE ARRIVAL OF SECRET LAW FAS Secrecy News -- 11/14/04

 Dave--

 Another secret TSA directive which Amtrak implemented on November 1, 
2004, requires Amtrak passengers to produce I.D. during random I.D. 
checks on board the train. I called TSA on Friday and was informed that 
the directive was secret. I asked for further elaboration on why TSA 
took this step, and a TSA press official said she would check and call 
me back.

 To the best of my knowledge, and having consulted with some rail 
transportation buffs, such on-board I.D. checks don't exist anywhere 
else in the non-Communist world.

 Scott Mace

 At 04:14 PM 11/14/2004 -0500, you wrote:



Begin forwarded message:

 From: "Aftergood, Steven" <saftergood () fas org>
 Date: November 14, 2004 2:46:53 PM EST
 To: secrecy_news () lists fas org
 Subject: Secrecy News -- 11/14/04

 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/


 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

 Secrecy News has a big hole in its budget for the coming year.  Can
 you help?

 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.

 To SUBSCRIBE to Secrecy News, send email to
      secrecy_news-request () lists fas org
 with "subscribe" in the body of the message.

 To UNSUBSCRIBE, send a blank email message to
      secrecy_news-remove () lists fas org

 OR email your request to saftergood () fas org

 Secrecy News is archived at:
      http://www.fas.org/sgp/news/secrecy/index.html

 Secrecy News has an RSS feed at:
      http://www.fas.org/sgp/news/secrecy/index.rss

 _______________________
 Steven Aftergood
 Project on Government Secrecy
 Federation of American Scientists
 web:    www.fas.org/sgp/index.html
 email:  saftergood () fas org
 voice:  (202) 454-4691

 -------------------------------------
 You are subscribed as scottmace () wiredmuse com
 To manage your subscription, go to
  http://v2.listbox.com/member/?listname=ip

 Archives at: 
http://www.interesting-people.org/archives/interesting-people/


 Scott Mace
 Writing · Editing · Analysis
http://www.wiredmuse.com/scottmace/
 Email: scottmace () wiredmuse com
 (510) 258-2238
 Service Provider Journal: 
http://scottmace.typepad.com/service_provider_blog/
 Information Manager Journal: http://scottmace.typepad.com/imanager/

-------------------------------------
You are subscribed as interesting-people () lists elistx com
To manage your subscription, go to
 http://v2.listbox.com/member/?listname=ip

Archives at: http://www.interesting-people.org/archives/interesting-people/