Keeping Secrets
The Bush administration is doing the public's business out of the public eye. Here's how--and why
In this case, which is still pending, the administration is invoking the "state secrets" privilege, in which it asserts that a case can't proceed normally without disclosing information harmful to national security. The Justice Department says it can't provide statistics on how often it invokes the privilege. But Jonathan Turley, a George Washington University law professor active in national security matters, says: "In the past, it was an unusual thing. The Bush administration is faster on the trigger."
Surveillance. At the same time, the government is opening up a related front. Last spring, the TSA effectively shut down the case of Mohammed Ali Ahmed, an Indian Muslim and naturalized citizen. In September 2001, Ahmed and three of his children were removed from an American Airlines flight. Last year, Ahmed filed a civil rights suit against the airline. But TSA head James Loy intervened, saying that giving Ahmed information about his family's removal would compromise airline security. The government, in other words, was asserting a claim to withhold the very information Ahmed needed to pursue his case, says his attorney, Wayne Krause, of the Texas Civil Rights Project. "You're looking at an almost unprecedented vehicle to suppress information that is vital to the public and the people who want to vindicate their rights," Krause says.
Secret evidence of a different kind comes into play through a little-noticed effect of the U.S.A. Patriot Act. A key provision allows information from surveillance approved for intelligence gathering to be used to convict a defendant in criminal court. But the government's application--which states the case for the snooping--isn't available for defendants to see, as in traditional law enforcement surveillance cases. With government agencies now hoarding all manner of secret information, the growing stockpile represents an opportunity for abusive leaks, critics say. The new law takes note of that, by allowing suits against the federal government. But there's an important catch--in order to seek redress, one must forfeit the right to a jury trial. Instead, the action must be held before a judge; judges, typically, are much more conservative in awarding damages than are juries.
Most Americans appreciate the need for increased security. But with conflicts between safety and civil rights increasing, the need for an arbiter is acute--which is perhaps the key reason why the vast new security powers of many executive-branch agencies are so alarming to citizens' groups and others. A diminished role of congressional oversight is just one area of fallout, but there are others. Some examples:
It took the threat of a subpoena from the independent commission investigating the 9/11 attacks to force the White House to turn over intelligence reports. Even at that, family members of victims complain, there were too many restrictions on release of the information. In Congress, the administration has rebuffed members on a range of issues often unrelated to security concerns.
In a huge military spending bill last year, Congress directed President Bush to give it 30 days' notice before initiating certain sensitive defense programs. Bush signed the bill into law but rejected the restraint and said he would ignore the provision if he deemed it necessary.
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