In defense of the closed session

In defense of the closed session

This column originally appeared in the Williston Observer on June 16, 2011.

Recent reporting in the Observer brought to light the policy of our Development Review Board to go into closed session when deliberating about its decisions.

The policy, done in accordance with Vermont open government laws, pre-dates all current DRB members. Quoting our reporting, the closed sessions were "justified by [board] members as necessary to an effective discussion and decision-making process."

Government, in the final analysis, is us. We, the people, select our representatives to various governmental bodies, either directly or indirectly. The members are responsible for the public trust and responsible to the public at large. In a perfect world, all hearings, deliberations, and votes would be public.

Because our institutions are human ones, they are subject to the ill effects of bias, prejudice, and favoritism. The more open government is, the lower effect these human frailties will have on the decisions come to by the bodies. If a board member is actively prejudiced against an applicant, a pattern will emerge that any one can see, because any one can watch. Mitigating the effects of such human failings is one of the best aspects of open government.

However, openness can also affect frankness. As Burlington DRB Chair Austin Hart was quoted in our article, "It's a lot harder to say 'no' when they are sitting right in front of you."

And there's the rub. If the DRB should say no to a project or request, but board members just cannot quite summon the courage to do what they think is right ... well, that is where the benefit of the closed session comes in. The members of the DRB have to make judgement calls based on the evidence and testimony given to them. The members must then talk amongst themselves to decide if the project before them meets the town's plan.

When I think of how this process works, I think immediately of a judge or jury in court. It would be unthinkable for a new deliberation process to emerge, where the judge goes to chambers to make a decision and each step of the way, the lawyers, defendant, plaintiff, and even the public could weigh in.

Similarly, if a jury room was populated not only by the members of the jury, but also the parties in the case, the public, the media - no one would think that this was a good idea. The things a jury hashes out in its deliberations, the statements made by jurors, the arguments... these are not for public consumption.

I'm a big advocate of open government. I want to be able to access journals and minutes of deliberations quickly, easily, and freely. I want to be able to watch congressional hearings live on television or on the Internet. I want to be able to sit in the back of the room during a school board meeting. I want to see the testimony before the DRB live or on public access cable.

But I don't think that every single step in the process has to be open to the public as it happens. There is a practicality to a closed meeting that just makes sense to me.

That having been said, I think that closed meetings should have inviolable rules - and I should note that some of these rules are currently in effect, according to town bylaws. Minutes should be taken - not a word-for-word journal, but minutes that can be referred to by the board and the public in the future. Decisions of the board should be explained in writing - in the bylaws, this is referred to as a "record of decision that conveys the DRB's findings of fact and conclusions of law." Members of the board should be required to back up their closed-session vote in public, just as a jury may be polled following the announcement of its verdict in a case.

Open government is a crucial and important part of our democracy. However, government must, at the same time, be effective. If to be effective it must be closed for certain steps in the process, so be it.

Time to Reevaluate the Patriot Act?

Time to Reevaluate the Patriot Act?

This column originally appeared in the Williston Observer on June 2, 2011.

In 2001, in the wake of the September 11 terrorist attacks on U.S. soil, the Congress worked to put new provisions into place in U.S. law, designed to combat terrorism. The result, the USA PATRIOT Act of 2001 (or just "Patriot Act"), was passed in the House with a wide majority and by an overwhelming 98-1 vote in the Senate. President George Bush signed the bill into law on October 26, 2001.

The Act was seen as necessary by many, but was condemned by others for overstepping constitutional bounds. Constitutionality, however, is often in the eye of the beholder.

The Act has ten titles, changing U.S. law in several different areas: domestic security, surveillance, money laundering, border security, terrorism, and intelligence gathering. There was also a title providing relief to victims of terrorism and their families, and a final title for miscellaneous provisions.

Some of the provisions make basic common sense. For example, the Act required various government bureaus and agencies to share information about immigrants and foreign visitors; it required the government to invest in technologies to improve background checks on incoming visitors; and an increase in the number of border patrol agents.

Some provisions, however, were not so widely supported.

"They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety." This quote, often attributed to Benjamin Franklin (but with an uncertain provenance), was reproduced often as the Patriot Act was being voted on, and again as its provisions have been renewed.

Title II of the Act, in particular, ruffled the feathers of many civil libertarians. This title involved enhanced surveillance, authorizing and even requiring many new surveillance techniques, such as the loosening of requirements for wiretaps and broad requirements for Internet service providers to supply identifying data and logs to law enforcement officials. One provision, allowing a so-called "sneak and peek wiretap," was struck down as unconstitutional in 2007.

This topic is of interest now because last week, the Congress renewed, and President Barack Obama signed into law, some provisions of the Patriot Act that were scheduled to sunset. The three provisions of the Act were originally set to expire in 2010, but were temporarily renewed in February 2010.

The three provisions allowed: a roving wiretap that covered several phones with one warrant; seizure of records and property for terrorism-related cases; and surveillance provisions for "lone wolf" persons, non-U.S. citizens who might be involved in terrorism.

Without the renewal, the provisions would have expired, but most of Congress and the President agreed that that renewal should happen. The renewal, however, was not a rubber-stamp. One Senator, in particular, was not so keen on the renewal, and it is here that this Senator and I may have our only points of agreement.

Rand Paul, Republican Senator from Kentucky, used procedural tactics to force a delay in the Senate's vote on the renewal, a tactic I generally disagree with, but which in this case, forced the Senate to take a needed step back to think if these provisions were really necessary.

In a deal reached with Senate leaders, Paul did allow the vote to move forward. The deal wrote in some 2nd Amendment protections, and the three provisions listed above were renewed until 2015.

Now that we are nearly ten years out from the attacks, though, I think it is time that we take a close look at all of the provisions of the Patriot Act. The protection of 2nd Amendment rights is important, but more important to me are the protection of 1st and 4th Amendment rights.

Several provisions of the original Patriot Act have been struck down as being in violation of 4th Amendment rights. A full review of the Act should be undertaken, provisions that make sense should be renewed, and any that are on shaky constitutional grounds should be either modified or scrapped completely. It seems like a tall order, given the other priorities the Congress has, but the protection of civil liberties is, or should be, paramount.