bowdenj

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/

Doppy

Komrade, a word of caution from The Party. Please refrain from posting such subversive information. We have your best interests at heart and your blind faith is all we demand. Otherwise, we may have to disappear you. Thank you.

NihonNick

I just can't decide if these secret laws sounds more like Nazi Germany before WWII or communist East Germany after WWII...

The recent election proved that it isn't really up to the rest of the world to decide how the US should run their country (after all most of the democracies on the planet would have preferred Kerry).

I would love to know how many of the people complaining are complaining to their Congressman, Senator, President...

"Land of the free and home of the brave" huh?

Doppy

It's not up to them to vote in the election, but they can certainly vote with their money and cripple the US financially. Kind of like what happened to the USSR.

If people don't like being treated like unwanted criminals at our borders, they can stop coming. Heck, even a lot of Americans want to vote with their dollars against this regime.

Far too few, I'm sure. Most people here seem to think that whatever the fatherland security department says goes. Half seem to think that giving up our freedom is the way to protect it, or don't care about freedom at all, so long as they can feel safe, and the other half wants to be "patriotic" by not dissenting. A lot of time and effort has been put into convincing people that dissent is unpatriotic. And it's worked. We've gone from questioning government as good civics to being a bad citizen.

NihonNick

Unfortunately the difficulty is that there aren't many people outside the US who realise how restrictive many of the policies are.

Furthermore, the US is not beholden to tourism like some countries are. The greater difficulty is that there are very few businesses that will refuse to deal in the US, just because some of their employees do not like some aspects of the travel. Hell, my company travel policy is Y until you get to Uber-gruppen-fuhrer level and I still travel mainly long-haul for them. You could say that I am too much of a sheep, but they treat me well in other ways to make up for the occasional bout of discomfort - how many people make elite status on their own money for instance.

Finally, and this is the biggie, it isn't our country and we do not have the right to vote or be heard - that is the privilege (and the responsibility) of the US citizen.

PTravel

Does it matter? Just wait . . . the star chamber isn't far behind. Oh, wait a minute -- that's right, we've already go it for detainees.

eyecue

Looks like the manager was wrong. He took the hardline stance when all he had to do was whip out title 49 and show her where it says that passengers that dont submit to screening are not allowed to board the aircraft.

sbrower

The answer isn't found in the "requirement to submit to search." I believe that whoever posted that needs to give some further thought to the issue.

For example, what if the person is advised that they must submit to a no clothing search, by a member of the opposite sex, in the non-private area. They question that information. Is it sufficient to "whip out" Title 49?

TSAMGR

Yes, but you won't find that in 49 CFR.

Doppy

You'd be surprised. Our trade gap this year is about $600 billion.

Yes, but you always have the right to not economically support regimes you disagree with. That's part of living in a free market.

wck4

Slate.com has interesting article on "secret law" and airport security today, it's an interesting read although a lot of the incidents refered to in it have already been discussed here.

ND Sol

Perhaps this explains some of the inconsistencies and that they are intentional. But why and why orally? From the Slate.com article:

"The directives, he [Gilmore] learned, 'are revised as often as weekly, and are transmitted orally rather than in writing. To make things even more confusing, these orally transmitted secret rules change depending on the airport.'"

HeHateY

Couldn't have happened to a better person. Tee hee!

(Wonders how long this bible-thumper/neo-con junta is really gonna last)

TSAMGR

http://www.flyertalk.com/forum/showthread.php?t=372881