Sunday, December 11, 2005

Secret Law in ? US-iztan

From Mark In Mexico:

Sunday, December 11, 2005
Secret Laws?
I have to agree with Kevin Drum on this one.
That is, if it's not against the law.
See also:Echidne of the SnakesPolitical GamesWampumunfutz

Original Original

WTF? Call me naive, but I've never heard of a secret law. I've heard of secret courts and secret evidence — which are bad enough already — but not secret laws. When did this happen?
End quote

Anne says:

Lets wait Þ

1 comment:

Anonymous said...

co-wrote an op-ed addressing this about a year ago.

Dangerous government secrecy oaths

By Nick Schwellenbach and Peter Brand
San Diego Union-Tribune
December 2, 2004

America now has an Unofficial Secrets Act.

In an unprecedented and unwise expansion of government secrecy, the Department of Homeland Security has begun swearing its employees to silence, criminalizing the disclosure of information to the public – even if it is not classified. Such an expansion harms security, rather than improves it, and – this is nothing to sneeze at – strikes at our democracy and constitutional rights.

By forcing employees to sign mundanely titled "non-disclosure agreements," the department makes this message clear: "Shut up or you'll suffer."

If employees violate the agreement, they could lose their jobs and suffer civil or criminal penalties. These gag agreements are one way that excessive government secrecy will be enforced.

What's an example of information that the public can't know? The law.

Last month, while at the Boise, Idaho, airport, former Congresswoman Helen Chenoweth-Hage, R-Idaho, was pulled aside for a security pat-down. Hage asked what regulation authorized the screening. Homeland Security personnel refused to tell her.

Local security director Julian Gonzalez said the regulation "is called 'sensitive security information.' She's not allowed to see it, nor is anyone else."

Steven Aftergood, a secrecy expert at the Federation of American Scientists, calls this development "the arrival of secret law."

A recent Congressional Research Service report (these reports are themselves not directly accessible by the public) indicates that shrouding statutes in secrecy may be a violation of the Fifth Amendment right to due process. If you do not know what a law is, you cannot reasonably defend yourself in court.

Secrecy is an onion. Besides its chilling effect on civil liberties, it has other layers as well. Recently it has been argued, most notably by Secretary of State Colin Powell and the 9/11 commission, that the Cold War culture of government secrecy has crippled the nation's ability to fight terrorism. They argue that a healthy level of openness actually leads to better protection because vulnerabilities can be identified, and then fixed.

Take the secretive "No Fly" list – 100,000 names, and little or no oversight of how the list is compiled and maintained, and another case of "Sensitive Security Information" that is kept under wraps. Sen. Ted Kennedy, D-Mass., is on the list, but as recently as of January this year, Osama bin Laden was not. Thanks to exposure by the press, this omission can be remedied.

In sum, a see-no-evil, hear-no-evil approach to security can make the United States less safe.

For example, under a scenario we have seen many times before in government, a Homeland Security employee's warnings may fall on deaf ears inside their agency. They may want to reveal the information to Congress or the media, but be held back by fear of punishment. Silence is the intention of these secrecy oaths. And this silence may have dire consequences.

Case in point: Bogdan Dzakovic. He was a special agent on the Federal Aviation Administration's Red Team, which checked airport security through covert tests (now Homeland Security is responsible for airport security). For years, the Red Team had been breaching airport security with alarming ease, at over a 90 percent rate. Dzakovic and others repeatedly warned that a disastrous hijacking was inevitable without a systemic overhaul. Then Sept. 11, 2001, happened.

Now the Department of Homeland Security's new secrecy oath makes it virtually impossible for whistleblowers like Dzakovic to alert the public. Without public discourse, government agencies move slowly, if at all, to address shortcomings. In 2003, Dzakovic made this point when he testified before the 9/11 commission, noting that abuses of secrecy pose a clear and present danger to homeland security.

The hubris of excessive secrecy is that the government always knows best. It stems from a distrust of the public and the belief that the public has no right to know what their government is doing. Under a veil of secrecy, government failings not only go unaddressed, they can fester and worsen. As the late Supreme Court Justice Louis Brandeis said, "Sunshine is the best disinfectant."

We could use some.

By muting government employees through secrecy oaths, the government is pulling an end run on public knowledge. If it succeeds, increasingly we will have, as James Madison said, "A popular government without popular information, or the means of acquiring it ... a prologue to a farce or tragedy, or, perhaps both."

Schwellenbach is a fellow and Brand is a Homeland Security investigator at the Project on Government Oversight (, a government-watchdog group that promotes open and accountable government.

Posted by: Nick Schwellenbach on December 11, 2005 at 10:05 AM | PERMALINK