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.
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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.
Initial contracts to rebuild Iraq,
worth billions of dollars, were awarded in secret.
Bids were limited to companies invited to
participate, and many had close ties to the White
House. Members of Congress later pressed for an open
bidding process.
Many public interest groups
report that government agencies are more readily
denying Freedom of Information Act requests--while
also increasing fees, something small-budget groups
say they can ill afford. The Sierra Club, for
example, has been thwarted in getting information on
problems at huge "factory farms" that
pollute rivers and groundwater. Says David
Bookbinder, senior attorney for the group:
"What's different about this
administration is their willingness to say,
`We're going to keep everything secret until
we're forced to disclose it--no matter what it
is.' "
The administration is undeterred
by such complaints. "I think what you've
seen is a White House that has valued
openness," says Daniel Bryant, assistant
attorney general for legal policy, and "that
knows that openness with the public facilitates
confidence in government."
That's not
the way Jim Kerrigan sees it. He operates a small
market-research firm in Sterling, Va., outside
Washington. For more than a decade, he has forecast
federal spending on information technology. Three
months after Bush took office, the Office of
Management and Budget issued a memo telling
government officials to no longer make available
such information so as to "preserve the
confidentiality of the deliberations that led to the
president's budget decisions."
"Veil of Secrecy," a 
