'Secret Laws' reason for withheld authorization on pat-down searches?

TRACKSIDE © by John D’Aloia Jr.

February 22, 2005

A Mark Twain observation about one’s life, liberty and property not being safe when the legislature is in session lead off a previous TRACKSIDE with a discussion of how members of Congress separate you from your money so they can bring home the bacon. This week a few words about the applicability of Twain’s observation to your liberty.

Have you heard the term "Secret Laws?" Former Congresswoman Chenoweth-Hage was recently introduced to the term by airport security personnel. She had been selected during airline pre-boarding for the honor of a pat-down search. She asked to see the regulation that authorized pat-down searches. The local Transportation Security Director, Julian Gonzales, refused to show Chenoweth-Hage the regulation - she refused the search without knowing what authorized it and she was prevented from taking the flight. Chenoweth-Hage was not asking to see the criteria for determining which passengers are screened, only for the legal authorization for passenger pat downs. Why was she not allowed to see it? Gonzales response? To the effect - "We do not have to show it to her. It is called ‘sensitive security information’. No one is permitted to see it."

Secret law. No one can see it, only those who say it exists and enforce it. This is scary. It strikes at the heart of our legal system, a system based on laws which are enacted in public and made known to all citizens. Shades of the Star Chambers of Merry Old England. It is my experience that even when laws are open and available to all citizens, officious, power-hungry Clerks attempt to impose what they think the law should be, and often get away with it if not challenged to provide a copy of the law they say they are enforcing. If it can be done with open laws, contemplate what happens if laws are kept secret.

What is the Star Chamber? The Court of the Star Chamber was a type of appeals court in Great Britain, with its roots in the 15th C. According to a British web site, by the time of the reign of Charles I (1625-1649), the term Star Chamber had become a byword for misuse and abuse of power by the king and his circle. James I and his son Charles used the court to examine cases of sedition which meant that the court could be used to suppress opposition to royal policies. Court sessions were held in secret, with no right of appeal, and punishment was swift and severe to any enemy of the crown. Finally, in 1641 the Long Parliament abolished the Star Chamber, though its name survives still to designate arbitrary, secretive proceedings in opposition to personal rights and liberty.

A Congressional Research Service Report for Congress dated November 4, 2004, written by Todd Tatelman with the long title "Interstate Travel: Constitutional Challenges to the Identification Requirement and Other Transportation Security Regulations" discussed the history and implications of "sensitive security information." Apparently the first authority to put the SSI label on security matters was given to the Department of Transportation in 1974. In 1997, DOT issued regulations that classified any rule dealing with aircraft safety as SSI, but only as it applied to airport operators, air carriers, and other air transportation entities and personnel. After 9-11, Congress expanded the authority to cover all transportation methods and gave SSI authority to the Transportation Security Agency within the Department of Homeland Security.

Tatelman’s report notes that court cases have been filed challenging the legality of secret SSI laws based on several rationales, including the Fifth Amendment right of due process. He states that "the Supreme Court has held that inherent with the notion of due process are certain requirements regarding the notice and publication of the law." Tatelman goes on to state that "The effective litigation of constitutional rights often relies on access to information and other evidence used by the government. By withholding publication, the government is arguably keeping critical evidence private; and thus, is thwarting attempts to effectively challenge not only the basis for the regulations, but also the procedures being used to implement them." The report does give arguments that could be used to uphold SSI laws. Tatelman concludes that the Fifth Amendment arguments have a chance of success, but even so, the court could decide that the laws themselves are acceptable - all that is required is minimal publication of that absolutely necessary to satisfy the courts’ due process dictates.

See you Trackside.



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