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PLANETNEWS broadcast...


    from the FAS Project on Government Secrecy

    Volume 2004, Issue No. 100

    November 14, 2004





    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


    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:


    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:


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