America now has an Unofficial Secrets Act.

In an unprecedented and unwise expansion of government secrecy, the Department of Homeland Security has begun swearing its employees to silence, criminalizing the disclosure of information to the public — even if it is not classified. Such an expansion harms security, rather than improves it, and strikes at our democracy and constitutional rights.

If employees violate the mundanely titled "nondisclosure agreement," they could lose their jobs and suffer civil or criminal penalties. These gag agreements are one way that excessive government secrecy will be enforced.

What's an example of information that the public can't know? The law.

Last month, while at the Boise, Idaho, airport, former congresswoman Helen Chenoweth-Hage, R-Idaho, was pulled aside for a security pat-down. Hage asked what regulation authorized the screening. Homeland Security personnel refused to tell her.

Local security director Julian Gonzalez said the regulation "is called 'sensitive security information.' She's not allowed to see it, nor is anyone else."

Steven Aftergood, a secrecy expert at the Federation of American Scientists, calls this development "the arrival of secret law."

A recent Congressional Research Service report (these reports are themselves not directly accessible by the public) indicates that shrouding statutes in secrecy may be a violation of the 5th Amendment right to due process. If you do not know what a law is, you cannot reasonably defend yourself in court.

Secrecy is an onion. Besides its chilling effect on civil liberties, it has other layers. Recently it has been argued, most notably by Colin Powell and the 9/11 Commission, that the Cold War culture of government secrecy has crippled the nation's ability to fight terrorism. They argue that a healthy level of openness leads to better protection because vulnerabilities can be identified, then fixed.

Take the secretive "No Fly" list — 100,000 names, and little or no oversight of how the list is compiled and maintained. Sen. Ted Kennedy, D-Mass., is on the list, but as recently as January of this year, Osama bin Laden was not. Thanks to exposure by the press, this omission can be remedied.

A see-no-evil, hear-no-evil approach to security can make the U.S. less safe.

For example, under a scenario we have seen many times before in government, a Homeland Security employee's warnings may fall on deaf ears inside the agency. They may want to reveal the information to Congress or the media, but be held back by fear. Silence is the intention of these secrecy oaths. And it may have dire consequences.

The hubris of excessive secrecy is that the government always knows best. It stems from a distrust of the public and the belief that the public has no right to know what their government is doing. Under a veil of secrecy, government failings not only go unaddressed, they can fester and worsen. As the late Supreme Court Justice Louis Brandeis said, "Sunshine is the best disinfectant."

We could use some.

Nick Schwellenbach is a fellow at the Project on Government Oversight, a Washington, D.C., government-watchdog group. Peter Brand, a Homeland Security investigator with the group, co-wrote this essay.

© 2004 The Springfield News-Leader

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