From "The Federation Of American Scientists":

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SECRECY NEWS

from the FAS Project on Government Secrecy

Volume 2004, Issue No. 100

November 14, 2004
 

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