November 19, 2004 | Secret Law News

Stephen Aftergood, the seemingly indefatigable researcher behind the Secrecy Project at the Federation of American Scientists, has a fantastic piece in Slate today about secret laws and the Transportation Security Administration.

I've written about the abuse of the "Sensitive Security Information" designation here on this blog and for Wired News, mainly in regards to John Gilmore's legal challenge to the airline identification requirement. (Exhibit A, B, C.

Aftergood lays out how this abuse got started with a "little-noticed passage in the Homeland Security Act of 2002 expanded the scope of SSIs to prohibit disclosure of information that 'would be detrimental to the security of transportation.' This change in wording ushered in an expansive new interpretation of SSI. A May 2004 Federal Register notice spelled out 16 categories of information that may now be designated as SSI. These include not only airport security plans (as before) and threat assessments, but also records of security inspections and investigations, names of security personnel, and training materials. More problematically, "security directives" such as the one that Chenoweth-Hage requested are exempt. And for good measure, the 16th category is a catch-all exemption for "other information" that TSA may at its discretion determine should be withheld."

The government continues to contend that they do not have to reveal the rule requiring airlines to ask for identification, since that would reveal a law enforcement technique designed to stop hijackings.

That's akin to not telling visitors to the United States that they need a visa and a passport, because those are law enforcement techniques designed to stop illegal immigration.

Difference there is that this is your government refusing to admit what you already know. If you want to fly, you better bring identification or be prepared to spend a couple of hours being searched and trying to talk your way on to a plane/

Additionally, the government argues that citizens have to lodge challenges to any security directives in the appeals court, not the district court. What that means, is that there can be no finding of fact. You challenge the rule, the government maybe shows the rule to the judge (but not you), and then the judge rules. You can't bring in evidence or engage in discovery. That's a sham.

Not only that it is flatly absurd, unbecoming of a democracy and an abuse of the SSI designation. Folks in the government know that as well, but they won't say it publicly.

They should start speaking out.

Secret law is dangerous, regardless of what you think of the validity or usefulness of the hidden law.

Posted by Ryan Singel at November 19, 2004 11:52 AM

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Stephen Aftergood, the seemingly indefatigable researcher behind the Secrecy Project at the Federation of American Scientists, has a fantastic piece in Slate today about secret laws and the Transportation Security Administration. [Read More]

Tracked on November 27, 2004 05:02 PM