The place where the traditional left and the traditional right meet—as against the radicals currently in power—is civil liberties. So I find my self agreeing with, of all people in the world, a far-right ex-Congressperson who I would have put on my list of “top 5 nuts in office” while she served.
FAS Secrecy News, [IP] 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.
There's something seriously wrong here, if we can't even see the rule (as opposed to the screening criteria which might legitimately be kept from the public) authorizing the search.
Which is why I'm involved in various efforts to make the government cough up the text of the alleged regulation, and justify it.
You can read more about the ugly things that TSA is up to regarding the right to travel at Ed Hasbrouk's blog. Also see Emergent Chaos.
the ugly things that TSA is up to regarding the right to travel
Their theory is that there is no “right to travel”. Really! I guess we are going to be allowed to peaceably assemble, but only if you walk there.
I’m unimpressed with the post on “Emergent Chaos”. The claims there don’t match the text at all. For example:
“In other words, data that the government collects under secret regulations will be used for quality assurance purposes by LexisNexis, as they update their database.”
No, the text said that the data aggregators would be “governed by strict privacy and data security protections”. The second part just means that TSA won’t get data from these commercial firms that isn’t relevant to their purpose. It’s supposed to be a one-way flow of data.
How the agency plans to explain that it can ignore the law and collect data that is not relevant and necessary
The section he cites says exactly the opposite. It claims that only relevant data will be collected, as authorized by the Privacy Act.
This (TSA will not share passenger information with other agencies) blatantly contradicts what they said in the Privacy Act Notice (that TSA will pass on information about those on the Terrorist Screening Database to the FBI)
He didn’t read this in context. They’re talking about the information that they collect on passengers, not what they get from commercial databases, which they intend to destroy “shortly after completion of the passenger’s itinerary”. I do agree that the section in the Privacy Act Notice about info sharing with the FBI is a potential concern, but I don’t think they were lying elsewhere as he implies. His emphasis on the word “may” to imply that they’d use that word as an excuse to pass on information to the FBI about people who weren’t on the Terrorist Screening List is just tinfoil hat stuff.
Yes, the fact that the TSA has shown contempt for the public in the past is a reason to be suspicious, as is the fact that they routinely hide some of their procedures. Yes, the Terrorist Screening Database is poorly managed and pretty frightening from a civil liberties perspective. Yes, use by the government of commercial databases (that don’t follow the same rules that the government would have had to follow) is a major concern. But the parts of this TSA document that Shostack focuses on are really nothing special.
One of the quaint aspects of the Enlightenment (specifically from Ceseare Beccaria, the father of our justice system) was accessibility of laws and regulations to members of the public. The mutual advantage was that the public could educate itself on the consequences of criminal behavior (and so not do it), and in return the state could not make up arbitrary and tyrannical rules. Beccaria and other enlightenment thinkers also opposed:
-Torture
-Secret trials & punishment
-Excessively harsh punishment
It’s really amazing to see the Enlightenment being dismantled piece by piece, being replaced with medievalism. But this is really the only way to do it–before one knows it, it’s too late to protest.
Just to point out that dismantling the Enlightenment isn’t a partisan monopoly:
“False is the idea of utility that sacrifices a thousand real advantages for one imaginary or trifling inconvenience; that would take fire from men because it burns, and water because one may drown in it; that has no remedy for evils except destruction. The laws that forbid the carrying of arms are laws of such a nature … laws not preventive but fearful of crimes.” – Beccaria
Agreed about the TSA: Norm Minetta has been, by far, Bush’s worst appointment.
I’d like to defend Mineta since Michelle Malkin hates him so much, but I just can’t do it.
Brett,
If you follow some of the other blogs, it’s kind of interesting to note that some of the clearly liberal posters are beginning to reconsider their desire to regulate firearm possession–i.e., they think they may need them…
But you’re right that the crumbling of the Enlightenment has been a bipartisan job. Enlightenment thinkers wisely knew that government will always seek to increase its power and privileges, regardless of party. Even so with libertarians! But the Republicans rule the roost now and do not require or even want Democrat help or validation, so no point in bashing the impotent until there’s a possibility they might be of consequence. The neocons are the real threat now.
I agree that Republicans are now the primary threat to liberty at the federal level, though Democrats are still positioned to very successfully obstruct the restoration of those liberties they find objectionable. However, at the state level it’s more of a mixed bag.
Preaching to the choir here, but what gets me is that for those who don’t know what the secret laws are, there’s no difference between a secret law and a fictitious law. What’s the difference between being arrested and tried for violating a secret law and being arrested and tried under a law that doesn’t actually exist? How do you know it’s one and not the other? You’re just supposed to take their word for it?
Similarly, how do I know the folks at the airport trying to pat me down aren’t just making stuff up?
Non-rhetorical question: is there a positive use for a law that the public doesn’t know exists?
The regs may be 49 CFR § 1544.201 or 1540.107. See the CFR site:
http://www.access.gpo.gov/nara/cfr/waisidx_03/49cfrv8_03.html#1500
Big secret, Mr. Gonzales!
No. Those are the regs that purport to allow issuing further secret regulations. What we are talking about here are security directives.
Note especially § 1542.303 Security Directives and Information Circulars, at sub-part (f):