THE ARRIVAL OF SECRET LAW FAS Secrecy News -- 11/14/04
--- begin forwarded text To: "The Eristocracy" <[EMAIL PROTECTED]> From: Jon Callas <[EMAIL PROTECTED]> Subject: THE ARRIVAL OF SECRET LAW FAS Secrecy News -- 11/14/04 Date: Sun, 14 Nov 2004 13:44:16 -0800 Sender: <[EMAIL PROTECTED]> List-Subscribe: <mailto:[EMAIL PROTECTED]> From: "Aftergood, Steven" <[EMAIL PROTECTED]> Date: November 14, 2004 2:46:53 PM EST To: [EMAIL PROTECTED] Subject: Secrecy News -- 11/14/04 SECRECY NEWS from the FAS Project on Government Secrecy Volume 2004, Issue No. 100 November 14, 2004 ** THE ARRIVAL OF SECRET LAW ** TSA THREATENS TO ARREST LEAKERS ** SUPPORT SECRECY NEWS 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
Secrecy news.
Intelligence and Security Committee's 2002-2003 Annual Report (PDF) Select committee report on the state of the UK's 'national intelligence machinery' and its performance over the past year ( UK Parliament via Cabinet Office ) » See also this Telegraph coverage, and this Guardian coverage SECRECY NEWS from the FAS Project on Government Secrecy Volume 2003, Issue No. 49 June 12, 2003 ** INTELLIGENCE BUDGETS DISCLOSED -- ABROAD ** INTELLIGENCE OVERSIGHT TESTED BY IRAQI WMD DEBATE ** ENHANCED WHISTLEBLOWER PROTECTION SOUGHT ** PURSUING THE WEN HO LEE REPORT ** AGROTERRORISM AND SECRECY ** ABUSE OF FOIA "OPERATIONAL FILES" EXEMPTION INTELLIGENCE BUDGETS DISCLOSED -- ABROAD Intelligence services in other Western democracies are doing what the U.S. intelligence community says cannot and should not be done: They are routinely disclosing intelligence budget information to their citizens. Last week the Canadian Security Intelligence Service published its 2002 annual report. Following a review of the global threat environment and the CSIS response, the report presents a bar chart that displays the agency's budget totals over the past decade, and projects spending five years into the future. The totals are further broken down into operating costs, salaries and construction costs. See: http://www.csis-scrs.gc.ca/eng/publicrp/pub2002_e.html This week the United Kingdom's Intelligence and Security Committee presented its 2002-2003 parliamentary report on the UK's intelligence services. The report included publication of the "single intelligence account" which is the aggregate of expenditures for the GCHQ, the Security Service (MI5) and the Secret Intelligence Service (MI6) for 2001-2006. See the new report (flagged by cryptome.org) reposted here: http://www.fas.org/irp/world/uk/isc0203.pdf In contrast, Director of Central Intelligence George J. Tenet recently declared under penalty of perjury that not even a single two year old aggregate figure for U.S. intelligence spending could be declassified. Disclosure of this number, he said, would result in damage to U.S. national security and the compromise of intelligence sources and methods. See: http://www.fas.org/sgp/foia/2002/tenet.html INTELLIGENCE OVERSIGHT TESTED BY IRAQI WMD DEBATE The mounting controversy over the accuracy and integrity of U.S. intelligence leading up to the war in Iraq has fractured the congressional intelligence committees along partisan lines. The Republican leadership is refusing to undertake anything resembling an investigation. The very word "investigation" is "pejorative," said Senate Intelligence Committee Chairman Senator Pat Roberts at a press briefing on June 11, and implies "that there's something dreadfully wrong." Instead, the Committee will review the matter "as part of [its] ongoing oversight responsibility." See: http://intelligence.senate.gov/030611.htm "But closed hearings and review of documents presented by the administration are not sufficient," replied Committee Vice Chairman Senator John D. Rockefeller IV. "A full fact-finding investigation is the usual mechanism for congressional oversight committees like the Senate Intelligence Committee in a circumstance like this one." See: http://rockefeller.senate.gov/2003/pr061103.html But the issue has already spilled over well beyond the control of the intelligence committees. "Bush Administration Deceptions About Iraq Threaten Constitutional Democracy" warned Rep. John Conyers, ranking member of the House Judiciary Committee, in a June 11 floor statement that probably represents the kind of thing Senator Roberts hoped to forestall. See: http://www.fas.org/irp/congress/2003_cr/h061103.html In a series of letters, Rep. Henry Waxman of the House Government Reform Committee has pressed the Administration to account for the false information on Iraqi acquisition of uranium that President Bush presented in the State of the Union address. See: http://www.house.gov/reform/min/inves_admin/admin_nuclear_evidence.htm Meanwhile, new information is entering the public domain not through the oversight process but through media accounts, such as "CIA Did Not Share Doubt on Iraq on Iraq Data" by Walter Pincus, Washington Post, June 12: http://www.washingtonpost.com/wp-dyn/articles/A46957-2003Jun11.html ENHANCED WHISTLEBLOWER PROTECTION SOUGHT New legislation to protect whistleblowers -- individuals who "blow the whistle" and expose fraudulent or wasteful activity -- was introduced this week by Senators Akaka, Leahy, Levin, Durbin and Dayton. "Whistleblowers have proven to be important catalysts for much needed government change over the years," said Senator Patrick Leahy (D-VT). "From corporate fraud to governmental misconduct to media integri
Who's who in the secrecy news.
SECRECY NEWS from the FAS Project on Government Secrecy Volume 2003, Issue No. 8 January 21, 2003 ** GOV'T REBUFFED ON FOIA FEE CLAIMS ** IN CONGRESS ** IN THE NEWS ** CLASSIFIED KGB HISTORY ONLINE ** TIME OUT GOV'T REBUFFED ON FOIA FEE CLAIMS In a victory for the embattled Freedom of Information Act (FOIA), a federal court last week blocked a Bush Administration attempt to narrow the class of FOIA requesters who are eligible to have the costs of processing their requests waived. Last year, the Pentagon denied a request for FOIA fee waiver from the Electronic Privacy Information Center (EPIC) with a rather contrived argument that EPIC did not meet the necessary criteria. While acknowledging that EPIC "is an educational organization that disseminates information," the Defense Department said EPIC was not entitled to a fee waiver because it had not shown that it was "both organized and operated to disseminate information." That is not a valid distinction, Judge John D. Bates found. He ruled that by virtue of its information dissemination activities, EPIC is entitled to be considered a "representative of the news media" for purposes of fee waiver. He directed the Defense Department to "expeditiously" comply with EPIC's request. See his January 16 Memorandum Opinion here: http://www.epic.org/open_gov/foia/fees/EPICvDOD_decision.pdf The Bush Administration's FOIA policy to date has been marked by at least two discernable trends: (1) a willingness to defend agency denials that stake out extreme positions or that are obviously false -- such as the CIA's claim that declassification of the 1947 intelligence budget total could damage national security today; and (2) an attempt to raise the threshold for granting fee waivers by routinely challenging the requester's capacity or intent to utilize the requested information for purposes of informing the general public. The standards for granting a fee waiver have long been established in case law, however, and with the latest decision in the EPIC case, the Administration's audacious efforts to change them seem to have been stymied. IN CONGRESS The crescendo of opposition to the Total Information Awareness data mining research initiative continued to build last week with the introduction of two amendments to curtail the program by Senator Charles Grassley and Senator Ron Wyden, et al. See: http://www.fas.org/irp/congress/2003_cr/s011703.html See also the "Data Mining Moratorium Act" introduced by Sen. Russ Feingold: http://www.fas.org/irp/congress/2003_cr/s188.html Senator Dianne Feinstein introduced a bill to establish the position of Director of National Intelligence as head of the U.S. intelligence bureaucracy. See: http://www.fas.org/irp/congress/2003_cr/s190.html IN THE NEWS As described in Secrecy News last week, "Defense Secretary Donald Rumsfeld, noting the likelihood that terrorists regularly check Pentagon Web sites, has told officials to cut down on posting sensitive unclassified material." See "Rumsfeld wants sensitive info off Defense Web sites" by George Edmonson in the Atlanta Journal-Constitution, January 18: http://www.accessatlanta.com/ajc/news/0103/18secret.html Mounting pressures to impose national security controls on certain aspects of traditionally open scientific research are surveyed in "Recipes for Bioterror: Censoring Science" by Philip Cohen, New Scientist, January 18: http://www.newscientist.com/news/news.jsp?id=ns3266
