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Patriot Act is Exhibit A on the risks of secrecy
Inside the First Amendment

By Paul K. McMasters
First Amendment Center ombudsman
07.17.05

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 9/11 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.

Certainly, 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 AP reporter to sit in on a meeting on 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 on 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 the conduct of investigations in secret. 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, currently making 15.6 million classification decisions 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 important, 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?


Related

House votes to rein in Patriot Act

Despite White House veto threat, lawmakers vote to limit investigators' access to library, bookstore records. 06.16.05

House, Senate panel heads disagree on renewing Patriot Act

Judiciary committee chairmen back different measures for addressing law's expiring provisions, but both plan to call for modifications to 'library provision.' 07.12.05

House committees debate Patriot Act renewal

Intelligence panel OKs renewal bill, but rejects attempt to limit investigators' access to library records; judiciary panel, meanwhile, votes to extend library provision's expiration date by 10 years. 07.15.05

House approves Patriot Act renewal
Bill would extend most of law indefinitely, but would limit library, roving-wiretaps provisions to 10 years; meanwhile, Senate panel OKs its version of measure. 07.22.05

ACLU sues to block FBI access to library records
Government-censored version of lawsuit reveals group is challenging national security letter issued by FBI to organization that possesses info about library patrons. 08.26.05

Report: Government secrecy grows, costs more
Coalition finds big jump in secrets from 2003-04, but archives oversight director says numbers don't solely reflect overclassification, as some agencies now work 24/7. 09.06.05

Federal judge lifts gag order in Patriot Act case
Court rules against order shielding identity of librarians who received FBI demand for patron records, but stays ruling until Sept. 20 to give government time to appeal. 09.12.05

ACLU files emergency appeal in Patriot Act case
Group asks Supreme Court to lift gag order preventing its anonymous client, presumably librarians in Connecticut, from speaking about FBI demands for patron records. 10.04.05

Dissenting Senate GOP, White House reach Patriot Act deal
Under agreement on changes, Republicans say, chances that libraries would have to turn over info would be remote. 02.10.06

Debating the Patriot Act: Is the sun setting on Section 215?
By Charles C. Haynes Prospect of getting checked out by the FBI for checking out the wrong book just plain scares people. 06.26.05

Patriot Act

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