Even revisions to USA Patriot Act are being deliberated in secret
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Even revisions to USA Patriot Act are being deliberated in secret

Asbury Park Press | July 20 2005

Imagine a country where the making of some laws can be done behind closed doors, where government agents can enforce laws in secret, and where the courts can accept secret evidence and compel silence about the mere existence of cases brought before them.

If you find that hard to imagine in the United States of America, think harder. In a time of terrorism, even core democratic principles can be challenged — or subverted.

Although we can find many examples of U.S. citizens' systematic exclusion from meaningful participation in and oversight of their own governance these days, just one federal law, the USA Patriot Act, exemplifies many of the problems of such secrecy.

As this column was being written, House and Senate leaders were working out their differences, sometimes behind closed doors, on whether to reauthorize the counterterrorism law enacted in a panic after the Sept. 11 attacks of 2001.

The act, for the most part, is a law enforcement wish list and a civil libertarian's nightmare. Even in its haste, Congress imposed a four-year limit on many of the more controversial provisions, which have drawn fire from both ends of the political spectrum. The sunset date on those 16 provisions arrives at the end of this year.

The so-called "library provision" of the act, Section 215 — which allows secret warrants for "books, records, papers, documents and other items" from businesses, hospitals and other organizations — has been particularly controversial. Critics charge that government agents can use this power to paw through the library loans or bookstore purchase records of ordinary Americans.

All of this should be subject to full and fair public debate in the reauthorization process. Instead, some drafting of the revisions has occurred in secret and a good measure of the discussion has occurred behind closed doors, shutting out not only the public and the press but on occasion the members and staffs of the minority party.

(In a rare and commendable gesture to openness, House Intelligence Committee Chairman Peter Hoekstra, R-Mich., allowed an Associated Press reporter to sit in on a meeting July 13.)

The judicial process can be as secretive and as dismissive of oversight as the legislative process. For example, the American Civil Liberties Union filed a lawsuit April 6, 2004, challenging the constitutionality of Section 505 of the Patriot Act, which allows the FBI to issue "national security letters" without seeking a judge's approval. These letters demand sensitive customer records from e-mail or other electronic service providers — and prohibit letter recipients from disclosing the investigation.

The ACLU's lawyers had to file the lawsuit under seal to protect themselves from criminal prosecution for violating the law's gag order. It took a month of legal wrangling before the ACLU could make public that it had even filed the suit.

The Patriot Act is a law drenched in secrecy. Much of the rationale for its existence must be kept from us. It provides for secret searches and secret investigations. The Justice Department vigorously fights any request for information about its enforcement activities under the law. Courts are greatly restricted on what can be made public about Patriot Act cases.

And the Patriot Act is only a fraction of the secrecy problem. Door after door in our open society is closing, generally without notice, let alone protest, as we try to secure our nation from attack.

The latest figures released by the federal Information Security Oversight Office show that government workers are manufacturing secrets at the rate of 125 a minute, or 15.6 million a year. At the same time, they are declassifying fewer secrets, and the president is extending classification authority to more departments and agencies. Layered on top of those secrets are an even greater number of pseudo-secrets labeled "sensitive but unclassified" that, too, are beyond the reach of the public.

Perversely, only a fraction of these secrets has anything to do with security. As The New York Times noted in a recent editorial: "The federal Information Security Oversight Office finds secrecy reaching such ludicrous levels as classifying information already in school textbooks and Supreme Court decisions."

As a threatened society, we have come to put more and more trust in secrecy — even when it has nothing to do with our security. But in an open society, secrets can't save us.

The problem with excessive government secrecy is that it is a refuge for incompetence — or worse. It is a policy reeking of desperation — or worse. It is reflexive rather than deliberate, defeatist rather than courageous. And in the end, it hides not only what our leaders know but, more importantly, what they don't know.

Lawmaking and enforcement in a panic is democracy in disarray. When accompanied by unnecessary secrecy, it can be a democratic disaster.

Just how far down this road must we travel before we realize that neither security nor freedom is our destination?

Paul K. McMasters is First Amendment ombudsman at the First Amendment Center, Arlington, Va.



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911:  The Road to Tyranny