Secret Law

« Le scandale du monde est ce qui fait l’offense. Et ce n’est pas pécher que pécher en silenceMolière, Tartuffe.»

In a post September 11 environment, one value that appears to have compromised (if not sacrificed) is transparency in the availability of legal norms. This should be an issue for all Slaw readers, not just those whose work touches on criminal law or constitutional rights.

A few examples.

We now know about the secret court, the Foreign Intelligence Surveillance Court, whose minimal process was too much for the DoJ.

But now it seems that we have secret substantive law, and secret judicial decisions:

One former congresswoman (an ultra-Conservative) asked to see a copy of the Regulation that authorized additional security pat-downs.

Last month, Helen Chenoweth-Hage attempted to board a United Airlines flight from Boise to Reno when she was pulled aside by airline personnel for additional screening, including a pat-down search for weapons or unauthorized materials.

Chenoweth-Hage, an ultra-conservative former Congresswoman (R-ID), requested a copy of the regulation that authorizes such pat-downs.

“She said she wanted to see the regulation that required the additional procedure for secondary screening and she was told that she couldn’t see it,” local TSA security director Julian Gonzales told the Idaho Statesman

The Congressional Research Service of the Library of Congress has analyzed the phenomenon of secret laws and the possibility of a challenge. It seems that a case was mounted, but dismissed on technical grounds.

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?”

Replied Joshua Waldman, a staff attorney for the Department of Justice: “We couldn’t confirm or deny the existence of an order.” Even though government regulations required his silence, Waldman said, the situation did seem a “bit peculiar.”

Then the New York Times, for March 10, 2006 contained another worrying holding.

A federal judge issued a highly unusual classified ruling yesterday, denying a motion for dismissal of a case against two leaders of an Albany mosque who are accused of laundering money in a federal terrorism sting operation.

Because the ruling was classified, the defense lawyers were barred from reading why the judge decided that way.

The classified order by Judge Thomas J. McAvoy of United States District Court for the Northern District of New York came only a few hours after the government filed its own classified documents to the judge. Prosecutors were responding to a motion filed on Jan. 20 by Mr. Aref’s lawyer, Terence L. Kindlon.

The prosecutors asked the judge to review their papers in his chambers without making them public or showing them to the defense. At midafternoon the judge issued a document announcing that he had entered the classified order denying Mr. Kindlon’s request.

It is common in federal court for judges to place documents and legal discussions under seal, meaning that the judge and the lawyers can be informed of the proceedings, but the public cannot. In this case, Judge McAvoy’s order is classified, a higher degree of secrecy. As of late yesterday, Mr. Kindlon, even though he has a federal security clearance to represent Mr. Aref in the trial, had not been able to see the substance of the ruling.

“Frankly, I’m taken aback,” Mr. Kindlon said. The ruling “holds out no promise of anything” for him to see the decision, he said.

Canada is different of course from Mr. Cheney’s America but there are some worryingly broad provisions in our own post-September 11 amendments to the Canada Evidence ActThe best sources for historic research start with the Library of Parliament., which were criticized strongly at the time but which we’ve no way of knowing how they’ve been applied.