by Lance Gay
Scripps Howard News Service
December 10, 2004
You can't. It's a secret rule.
Would you like to read the government regulation that says all passengers must present identification before being allowed on aircraft, or what sort of identification meets the government requirement? Sorry, you're out of luck. That's a secret law, too.
They're just two of several secret regulations issued after the Sept. 11, 2001, terrorist attacks. The intelligence bill that Congress sent to President Bush this week establishes a new "privacy council" that's responsible for reviewing government activities and ensuring that privacy rights of Americans are protected.
The secret laws are impacting ordinary Americans, from no-fly lists to requirements imposed since 9/11 that Americans declare their identities before they fly.
Helen Chenoweth-Hage, a former Republican congresswoman from Idaho, was stopped from flying from Boise to Reno, Nev., last month because she asked to read the regulation authorizing Transportation Security Administration employees to pat her down at the airport gate.
Chenoweth-Hage was told she couldn't see the directive because the TSA said it was sensitive security information and so could not be publicly released.
"A secret law? I didn't think that happened to Americans," she said. Chenoweth-Hage was given the choice of submitting to the pat-down or not flying. "I was resolved to see the regulation," she said, explaining that she drove to Reno. She has not flown since.
She stressed she's not opposed to airport security and wants to see the government scrutinize passengers for likely terrorists. "But this is such a departure from what our founders set up. They wanted to make sure we didn't have a secret government," she said.
The secret rules are an outgrowth of a 1974 law that allowed the Federal Aviation Administration to withhold from public disclosure any information "detrimental to the safety of persons traveling in air transportation."
After 9/11, Congress transferred airport security to the newly created TSA in the Department of Homeland Security and broadened the FAA rule to cover anything that might be "detrimental to the security of transportation."
The government is now declaring all forms of interstate transportation - including airplanes, buses, trains and boats - covered by the cloak of "sensitive security information" and moving to keep information from public scrutiny, said Todd Tatelman, an attorney with the Congressional Research Service.
Even the wording of regulations authorizing government employees to carry out the procedures is kept secret.
TSA spokesman Darrin Kayser said the regulations aren't available for public reading because that might provide terrorists with information on airport operations.
"We don't want terrorists to know our standard operating procedures," Kayser said. "It's not like a specific regulation - it's part of an overall operating procedure that our employees are trained on."
He said the pat-down procedure was publicly announced and well-publicized before it was put in place in time for Thanksgiving travel. He said the agency is averaging 10 to12 complaints from the 1.2 million travelers using the airports each week.
"It is addressing a specific threat, and that threat has not been done away with," Kayser said. He said new technologies using machines that sniff people electronically for the presence of explosive materials could eventually replace the intrusive procedures, but those machines are currently only experimental.
Privacy advocate Steven Aftergood of the Federation of American Scientists warns that the secret rules show Congress has given the executive branch too much power without sufficient checks.
The Society of Environmental Journalists fears that the procedure will be used to withhold Freedom of Information Act information on roads used by trucks carrying nuclear wastes, for example.
The TSA is even imposing its law on other government agencies. In May, the U.S. Coast Guard declared emergency plans by shipping companies and terminal operators should be "sensitive security information" because the government has determined they "must be protected from improper disclosure in order to ensure transportation security."
The Department of Homeland Security has also taken steps to ensure that government employees don't spill the beans on what's in the documents. Two unions representing federal employees say nondisclosure documents require department employees and contractors to sign pledges to keep the sensitive information secret. The agency threatens civil penalties against anyone who discloses such information.
The TSA has conducted nine investigations of air marshals for allegedly talking to the media about their operations. Two marshals were threatened with arrest and prosecution. But Clark Ervin, Homeland Security's inspector general, noted that unlike the release of government secrets, the release of sensitive security information isn't currently a prosecutable offense.
In a letter to outgoing Homeland Security Secretary Tom Ridge last month, the two unions - the National Treasury Employees Union and the American Federation of Government Employees AFL-CIO - complained that the restrictions on releasing sensitive security information are "unprecedented restrictions and conditions on the free speech rights" and are so broadly drafted they might even permit searches of the homes of government employees without warrants.
Contact Lance Gay at GayL(at)SHNS.com.