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/