Secret Laws

I had a 'have I gone insane? have we all?' moment when I read (via Kevin Drum) that there are now federal regulations the government considers secret:

The Bush administration...claims that the ID requirement is necessary for security but has refused to identify any actual regulation requiring it.

A three-judge panel of the 9th Circuit Court of Appeals seemed skeptical of the Bush administration's defense of secret laws and regulations but stopped short of suggesting that such a rule would be necessarily unconstitutional.

"How do we know there's an order?" Judge Thomas Nelson asked. "Because you said there was?"

....The Justice Department has said it could identify the secret law under seal, which would be available to the 9th Circuit but not necessarily Gilmore's lawyers. But any public description would not be permitted, the department said.

So far in the blogosphere, 'Kafkaesque' seems to be beating 'Orwellian' by a healthy margin.

Duelling literary metaphors aside, the obvious question was: how is this possible?

As it turns out, this was actually reported on a year or so ago. (The Slate piece from last year went beyond the obvious invocation of Kafka and actually quoted from Kafka's parable, for which I give them points.) Via the Federation of American Scientists, I found a Congressional Research Service report giving a detailed history of the identification requirement and other TSA diktats. The 1974 Air Transportation Safety Act authorized the FAA to prohibit disclosure of sensitive security information, but limited that to information disclosure of which would violate privacy, reveal trade secrets, or endanger the safety of air passengers. It wasn't until the Homeland Security Act, whose definition of 'sensitive security information' the TSA adopted, that this included 'security directives'--defined as "any Security Directive or order...issued by TSA under 49 CFR 1542.303, 1544.305, or other authority..."

The report goes on to discuss actual and potential constitutional challenges to the identification requirement. The most interesting is the Fifth Amendment challenge; on its face, any law promulgated in secret would seem to violate due process. The author concludes that the government can likely overcome that with national security considerations, and by claiming a (bogus) distinction between the law itself and the regulations issued to enforce the law.

I'm not thrilled with trading rights for 'national security' to begin with, but the additional problem is that this discussion occurs in a vacuum; without knowing what the regulations are, we have no way of knowing whether there really is any harm to security in disclosing them. In fact, given this administration's track record, it would be reasonable to assume that the directives aren't really sensitive at all.

In any case, it's one more step toward a dictatorship of the Executive Branch. 9/11 really did change everything.