Even revisions to USA Patriot Act are being deliberated in secret

[David Farber <dave () farber net>]

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From: EEkid () aol com
Date: July 22, 2005 6:49:43 PM EDT
To: dave () farber net
Subject: Even revisions to USA Patriot Act are being deliberated in  
secret



Even revisions to USA Patriot Act are being deliberated in secret
Published in the Asbury Park Press 07/20/05
BY PAUL K. MCMASTERS

Imagine a country where the making of some laws can be done behind  
closed doors, where government agents can enforce laws in secret, and  
where the courts can accept secret evidence and compel silence about  
the mere existence of cases brought before them.

If you find that hard to imagine in the United States of America,  
think harder. In a time of terrorism, even core democratic principles  
can be challenged — or subverted.

Although we can find many examples of U.S. citizens' systematic  
exclusion from meaningful participation in and oversight of their own  
governance these days, just one federal law, the USA Patriot Act,  
exemplifies many of the problems of such secrecy.

As this column was being written, House and Senate leaders were  
working out their differences, sometimes behind closed doors, on  
whether to reauthorize the counterterrorism law enacted in a panic  
after the Sept. 11 attacks of 2001.

The act, for the most part, is a law enforcement wish list and a  
civil libertarian's nightmare. Even in its haste, Congress imposed a  
four-year limit on many of the more controversial provisions, which  
have drawn fire from both ends of the political spectrum. The sunset  
date on those 16 provisions arrives at the end of this year.

The so-called "library provision" of the act, Section 215 — which  
allows secret warrants for "books, records, papers, documents and  
other items" from businesses, hospitals and other organizations — has  
been particularly controversial. Critics charge that government  
agents can use this power to paw through the library loans or  
bookstore purchase records of ordinary Americans.

All of this should be subject to full and fair public debate in the  
reauthorization process. Instead, some drafting of the revisions has  
occurred in secret and a good measure of the discussion has occurred  
behind closed doors, shutting out not only the public and the press  
but on occasion the members and staffs of the minority party.

(In a rare and commendable gesture to openness, House Intelligence  
Committee Chairman Peter Hoekstra, R-Mich., allowed an Associated  
Press reporter to sit in on a meeting July 13.)

The judicial process can be as secretive and as dismissive of  
oversight as the legislative process. For example, the American Civil  
Liberties Union filed a lawsuit April 6, 2004, challenging the  
constitutionality of Section 505 of the Patriot Act, which allows the  
FBI to issue "national security letters" without seeking a judge's  
approval. These letters demand sensitive customer records from e-mail  
or other electronic service providers — and prohibit letter  
recipients from disclosing the investigation.

The ACLU's lawyers had to file the lawsuit under seal to protect  
themselves from criminal prosecution for violating the law's gag  
order. It took a month of legal wrangling before the ACLU could make  
public that it had even filed the suit.

The Patriot Act is a law drenched in secrecy. Much of the rationale  
for its existence must be kept from us. It provides for secret  
searches and secret investigations. The Justice Department vigorously  
fights any request for information about its enforcement activities  
under the law. Courts are greatly restricted on what can be made  
public about Patriot Act cases.

And the Patriot Act is only a fraction of the secrecy problem. Door  
after door in our open society is closing, generally without notice,  
let alone protest, as we try to secure our nation from attack.

The latest figures released by the federal Information Security  
Oversight Office show that government workers are manufacturing  
secrets at the rate of 125 a minute, or 15.6 million a year. At the  
same time, they are declassifying fewer secrets, and the president is  
extending classification authority to more departments and agencies.  
Layered on top of those secrets are an even greater number of pseudo- 
secrets labeled "sensitive but unclassified" that, too, are beyond  
the reach of the public.

Perversely, only a fraction of these secrets has anything to do with  
security. As The New York Times noted in a recent editorial: "The  
federal Information Security Oversight Office finds secrecy reaching  
such ludicrous levels as classifying information already in school  
textbooks and Supreme Court decisions."

As a threatened society, we have come to put more and more trust in  
secrecy — even when it has nothing to do with our security. But in an  
open society, secrets can't save us.

The problem with excessive government secrecy is that it is a refuge  
for incompetence — or worse. It is a policy reeking of desperation —  
or worse. It is reflexive rather than deliberate, defeatist rather  
than courageous. And in the end, it hides not only what our leaders  
know but, more importantly, what they don't know.

Lawmaking and enforcement in a panic is democracy in disarray. When  
accompanied by unnecessary secrecy, it can be a democratic disaster.

Just how far down this road must we travel before we realize that  
neither security nor freedom is our destination?

http://www.app.com/apps/pbcs.dll/article?AID=/20050720/OPINION/ 
507200378/1030/POLITICS

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