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Secret Laws and Gilmore v. Gonzales:
Kevin Drum has a post up about last week's Ninth Circuit oral argument in Gilmore v. Gonzales, a case involving ID requirements to board a commercial airline flight. Kevin expresses astonishment over the "secret laws" allegedly at issue in the case:
  Seriously, is this true? I'm just gobsmacked. Congress is passing laws that the American public isn't allowed to know about? Any of us might be prosecuted under one of these laws that we don't know exists? Courts are being asked to interpret laws they've never seen?
  This gives Kafkaesque a very chilling and newly concrete meaning.
  Kevin is a terrific blogger and a heavyweight analyst, so I decided to take a closer look at the Gilmore case. I found the briefs here, and the oral argument here. My research suggests that, fortunately, the reality is considerably less troubling than what Kevin fears it may be. Maybe not entirely untroubling, but a lot less troubling than it first appears.

  First, some background about the case. John Gilmore filed a lawsuit arguing that he has a constitutional right to board a commercial flight without presenting a government-issued photo ID or being subject to additional screening. Gilmore bought a ticket from Oakland to Baltimore-Washington airport, refused to provide his ID, and was not permitted to board. He was then given the option of undergoing a search of his person to be allowed to board the flight without a photo ID, but he refused. Gilmore's primary claim is that the ID requirement (or at least the ID requirement absent consent to a search) violates the constitutional right to travel, the First Amendment, and the Fourth Amendment. He also argues that the government's failure to disclose the legal authority imposing an ID requirement violates due process and the separation of powers.

  It's the latter issue, involving the secrecy of the relevant legal authority, that has Kevin concerned. He quotes a report on the oral argument authored by Declan McCullagh, in which Declan writes the following:
  The Bush administration...claims that the ID requirement is necessary for security but has refused to identify any actual regulation requiring it.
  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?"
  ....The Justice Department has said it could identify the secret law under seal, which would be available to the 9th Circuit but not necessarily Gilmore's lawyers. But any public description would not be permitted, the department said.
    This isn't my area, but some research suggests to me that the picture is somewhat different than what Kevin fears it may be. As I understand it, the answer to all of Kevin's questions is "no": Congress did not pass a secret law, no one can be prosecuted under a secret law, and courts are not being asked to interpret laws they've never seen.

  As best I can tell, the "secret laws" at issue in the Gilmore case are regulations promulgated by the FAA and TSA on who can board an airplane, such as the No-Fly list. Federal law permits the TSA/FAA to prohibit disclosure of information relating to aviation security if it would be detrimental to aviation security, and the TSA/FAA apparently has decided that the text of the legal guidance it uses internally to determine who can fly on an airplane should not circulate outside the government.

  Importantly, this doesn't necessarily mean that the rules themselves are secret. At least in the Gilmore case, the relevant rule is well known: it is widely understood that you need a government-issued photo ID to board an airplane. As the TSA's website explains:
If you have a paper ticket for a domestic flight, passengers age 18 and over must present one form of photo identification issued by a local state or federal government agency (e.g.: passport/drivers license/military ID), or two forms of non-photo identification, one of which must have been issued by a state or federal agency (e.g.: U.S. social security card). For an international flight, you will need to present a valid passport, visa, or any other required documentation. Passengers without proper ID may be denied boarding. For e-tickets, you will need to show your photo identification and e-ticket receipt to receive your boarding pass.
As I understand Gilmore's claim, his view is that this isn't enough. He claims that he has a due process right to be able to see the legal authority that TSA employees were relying on when they blocked him from boarding the flight.

  Now, just to be clear, I have no idea whether the TSA's decision not to publish the text of its regulations is a smart one. I can understand why they don't publish the names on the No-Fly list, but it's not obvious to me why they can't publish the regulation or rule (or the relevant part) requiring an ID. Maybe this is a misguided law, or an appropriate law being implemented in a misguided way. I don't know; as I said, this isn't my area of expertise. Further, I think reasonable people can disagree on whether TSA's practices are a big deal. Some will find them deeply troublesome, and others won't.

  At the same time, I think it's important to recognize that this dispute appears to be significantly narrower than Kevin's post suggests. First, Congress isn't passing any secret laws; the undisclosed authority is a regulation, not a statute, and the TSA's requirement is widely known. Second, no one is being arrested; as I understand it, the issue is only who can be let on an airplane.

  Finally, the court isn't being called on to interpret a law it has never seen. DOJ filed a motion attempting file a version of its brief under seal. According to the government's claim at oral argument, the version of the brief filed under seal would have included the text of any regulations TSA follows. The Ninth Circuit rejected the motion without comment, however, and if one judge's comment at oral argument is any sign, it may be because the actual text of the regulation isn't essential to the case. As best I can tell, then, DOJ hasn't filed the undisclosed regulations with the Court because the Court rejected its motion to do so under seal, and the alternative, filing it in open court, would have defeated the purpose of having the text of the regulations unpublished.

  Anyway, that's my sense of things. If I'm missing something, which is quite possible, I hope readers will leave comments setting things straight.

Related Posts (on one page):

  1. More on Secret Laws:
  2. Is There A Secret Law In the GIlmore Case?:
  3. Secret Laws and Gilmore v. Gonzales:
Cornellian (mail):
The purported 1st/4th Amendment right to get on a plane without showing photo ID and without being searched seems like a laughable argument to me. Where's the state action, for starters?

I can also see why they don't publish the names on the No Fly list but why refuse to publish the regulation? That does seem odd.
12.12.2005 1:40am
Pooh (www):
First of all, holy tin-foil hattery at Drum's. And I say that as a moderate lefty myself...As to why not publish the regs, you don't publish the schematics to a bank vault do you? (Not sure how apt the analogy, but that is almost certainly the rationale). Additionally, its conceivable that they have 'APB' type information on specific intelligence, and it might not be the best idea to publicize such things/
12.12.2005 2:09am
Robert Schwartz (mail):
Doesn't the APA require publication of regulations?
12.12.2005 2:22am
Cornellian (mail):
Doesn't the APA require publication of regulations?

I believe that it does, but I had assumed this fell within one of the exceptions.
12.12.2005 2:29am
MikeC&F (mail):
Uh, is it really fair to characterize TSAs regulations as merely regulations? Non-legal readers might not realize that regulations enacted by TSA are the "law," just the same as if Congress directly enacted them. A person can go to jail for violating a regulation, or be required to pay a civil penalty, so I don't think putting secret laws in square quotes is appropriate. It is appropriate, I think, to refer to the regulations as secret laws since regulations are laws, at least as most people reading this blog understand laws.

In any event, though most lawyers recognize the difference between regulations and laws, in practice, there isn't much difference, especially if there's some blanked provision in the United States Code criminalizing the violation of "any regulation" covering x-conduct. Thus, the regulations, having the force of law and walking and quacking like a "law" is indeed a secret law.

Also, it's worth noting that how far we've come from Blackstone's ideal. Blackstone, we all remeber, wrote this of the good of having public laws: "Yet, whatever way is made ufe of, it is incumbent on the promulgators to do it in the moft public and perfpicuous manner; not like Caligula, who (according to Dio Caffius) wrote his laws in a very fmall character, and hung them up upon high pillars, the more effectually to enfnare the people."

It's kinda funny that today's self-styled orginalists and supporters of secret laws can perhaps be said to share more in common with Caligula than Blackstone.
12.12.2005 3:52am
Brian G (mail) (www):
This is the 9th Circuit we're talking about. They'd find state action if I violated the ACLU's free speech rights by not listening to them.

This lawsuit is a joke. What's the big deal about showing ID? It takes 2 seconds. I won't bother reading the briefs, but I am sure they contain something about how it especially affects minorities because they are too poor and too (some nice word liberals use to avoid saying they are too stupid) to have ID.

I'm sure I'll get the Ben Franklin liberty-for-security nonsense response.
12.12.2005 3:53am
Crimson (mail):
Since I always fly with an electronic ticket I guess I can leave my wallet at home. Any chance that there is no FAA or TSA regulation that states 'one must present valid government issued ID before boarding a plane?' Pre 9/11 I always assumed it was the airlines who required ID so they could prevent you from flying on someone else's ticket/miles.
12.12.2005 3:56am
Defending the Indefensible:
Is travel a right or a privilege? If the alternative to flying is driving, and driving requires a license, then how can one move about the country without government permission? On foot? I suppose busses aren't requiring ID yet, but that's probably just a matter of time.

Note that I'm not suggesting that people who use cars non-commercially ought not to be qualified to do so, but there's no particular reason that insurers could not require a certification of competency. Anyhow, this obviously branches into a much larger topic, starting with the question of whether cars are inherently dangerous instrumentalities (as opposed to horses, which were never licensed for travel when they were the common and ordinary means of transportation).
12.12.2005 6:00am
moonfall:
This case is, more broadly, about the right of freedom of travel (and cleverly, the right to petition government). The plantiff was chosen very carefully.

a) He was flying to Washington to meet and petition his congressman. In this limited scenario (at least), travel can be construed as a right.
b) The plantiff is medically unable to drive (and had his license revoked).
c) Up in the Northeast, at least, trains and the bus both theoretically require ID, though they don't usually ask.

Anyway, it's a bit of a problem for my parents, who have neither a passport or a driver's license. They also don't fly, though.
12.12.2005 6:59am
Jeroen Wenting (mail):
Travel is a right, the government may not restrict it exceot in times of national emergency etc. etc.
The MEANS of travel is a privilege, this person could have taken a train or a bike, or used a horse drawn cart as an alternative.
He could have walked if he had some time to kill.

You need a license to be at the wheel of a car, but that's a license showing you have proficiency to control a motor vehicle safely and in accordance with traffic laws, not a license to travel.
Same with air travel, you need a photo ID in order to assure that you're the person to whom the ticket was issued and you're not barred from using that aircraft for security reasons, it's not a license to travel.

If there were a license to travel, you'd find police checkpoints on the roads exiting every city and town where you'd have to show your visa to exit that city or town (and again on entering).
This is pretty much what used to exist in the USSR (though there the subjects were largely cowed into just going to the police station to apply and report themselves), where permission was required to visit other cities.
12.12.2005 7:17am
Buck Turgidson (mail):
First of all, holy tin-foil hattery at Drum's. And I say that as a moderate lefty myself...As to why not publish the regs, you don't publish the schematics to a bank vault do you? (Not sure how apt the analogy, but that is almost certainly the rationale).

The tin-foil hattery is not Drums--he picked it up directly from CNET.com. They tend to be a lot more reliable and not politically motivated. Drum just reports the news and asks a valid question. And the analogy fails on a number of grounds, not the least of which is that schematics to a vault are not a government document (or a government regulation). We now have secret laws, secret regulations, secret black lists, secret detentions in secret prisons. How long will it be before we get secret death squads? (Please don't asnwer a rhetorical question.) This is not even a slippery slope--it's rather blatant. WHen the government starts behaving like a petulant (proverbial) phone company, we all have reason to worry.

And please don't blame it on the 9th Circuit--they have not rendered an opinion yet.
12.12.2005 7:18am
Daniel Chapman (mail):
When has the right to travel has ever included the right to transportation? No one is preventing him from going to DC, but he can't demand the right to get on a plane any more than he can commandeer my car or force me to drive him there.

Now I'm waiting for someone in Alaska to allege a constitutional right to the "Bridge to Nowhere."
12.12.2005 7:20am
Buck Turgidson (mail):
Jeroen, you are making no sense. Driver's license is a license to operate, not to be a passenger. The regulation that matches the purchaser of the ticket to the traveler is not a security regulation--it was initiated by airlines as a means to restrict of controlling the flow of tickets (and maximizing profit). If it was codified, we should be able to see the regulations (but not the rationale for the regulations, necessarily).

The problem is that some industry rules have been codified, some simply adopted as policy without codification, some invented anew and some ignored completely. The "requirement" to screen the shoes, for example, that allegedly has been "modified" recently was never either a requirement or policy. It was always listed as a "suggestion" to travelers, although most behaved like sheep. You will not find any code, secret or open, that lists shoe inspection as a required element of a check-point screening. I am not so sure about IDs.

Furthermore, there was no such requirement before 9/11--you could fly by simply giving your name, without anyone ever asking for an ID. And the name requirement was the one I mentioned earlier as industry generated.

If the regulation is that widespread, it makes absolutely no sense for the document making mandatory to be secret. Any claim that knowledge of such regulation would aid terrorists is prima facie idiotic--this is not a procedural issue, just a question of having and showing an ID. My guess is that there is no formal regulation that was ever adopted, so the government lawyers are simply making it up as they go along.

There is another reason why the analogy with the driver's license does not work. Few people realize that physical possession either of the registration or the license is not required in most, if not all, states. Legal possession--i.e., actual existence--is required, but it does not mean that you have to carry the documents on you at all times. A cop might give you a hard time if you tell him that you don't have your registration and might even issue a warning, but he has no legal capacity to issue you a valid citation if your documents are on file with the state. The demand to carry is a convenience for law enforcement issue, not a legal requirement. If there is a regulation that you must have a specific set of IDs to fly, it should not be difficult to find them.

Also note that there is a difference between believing that there should be no secret laws and believing that the ID requirement is bad pilicy. From a security perspective, it seems to be a good policy--provided that the policy actually exists. And that seems to be the catch.
12.12.2005 7:35am
Davod (mail):
Defending the indefensible:

I am sure if you checked your vehicle insurance policy you will find a clause regarding being licensed to operate your vehicle.
12.12.2005 8:00am
CharleyCarp (mail):
The guy wasn't going to fly the plane. No one needs either a drvers license or government-ssued ID to be a passenger in a car.

Put me down with the folks who bet that there's no regulation that unambiguously requires, as a matter of law, that one present government-issued ID to board a plane. My guess is that the government is hiding its cards because it has a weak hand.
12.12.2005 9:01am
George Gregg (mail):
I suppose that, in itself, is what ought to give us some significant concern in this case: that we don't actually know what the law (or regulation) unambiguously requires.
12.12.2005 9:26am
mike_c (www):
Buck,

I know for a fact that pre-9/11, at least some airlines required the presentation of photo ID. I had to have my roommate bring mine to me at the airport one year, because I left it behind. Continental rebooked me onto a later flight, because I did not have my ID. Furthermore, at least in Maryland, the requirement to have your registration on you or in your vehicle does exist. You can be ticketed for failing to be able to present it, regardless of whether the vehicle is registered. (Title 13, Sec. 409 MD State Code) So, this is true in at least some states.

Furthermore, I do not find the requirement to present ID before boarding an aircraft to be unconstitutional or even an unfair burden. It seems quite logical that individuals be required to demonstrate that they are who they say they are before boarding. Otherwise, how can a no-fly list or any other security measure based on known terrorists be beneficial? The right to fly does not seem to be constitutionally protected. If the gentleman wanted to see his Congressman, he could have taken Greyhound, Amtrak, a taxi, or had a friend drive him.

As for whether the regulation is secret, I don't know that that is an accurate description. The actual regulation may not be published, but it's hard to say something that's effect is widely known and publicized is truly secret.
12.12.2005 9:28am
Robert Cote (mail) (www):
The situation is worse than the claimed Congress passing secret laws. This is a case of Congress granting the TSA the right to pass secret laws.

And when the says the regulations may be available to the court but not the defendants lawyers? Huh? Since when are the defense not officers of the court. Forget "Animal Farm", welcome "Animal Judical Process" where some sides are more equal than others.
12.12.2005 9:34am
Bruce Hayden (mail) (www):
Well, let's see. On 9/11/2001, a bunch of Islamofascist suicide murderers seized four large planes and managed to crash three of them into prominent structures in this country, destroying two of them, and with some non-consequential loss of life. And, so, now we are at war.

And not even the notoriously ill-mannered 9th Circuit is going to give this guy a win. He should just be glad that he isn't of Japanese ancestry living on the West Coast during WWII.
12.12.2005 9:49am
billb:
Bruce, you know that all of the 9/11 hijackers had valid, government-issued IDs, right? Who's to say if they'd have been on the no-fly list or not? Any such statment would be pure speculation.
12.12.2005 9:52am
llamasex (mail) (www):
If people want to do research on their one, search for SSI "sensitive security information"

Slate offers a good intro to the mess here
12.12.2005 10:17am
alkali (mail) (www):
I don't know why the government lawyers weren't required to turn over copies of the regulation at issue under Federal Rule of Appellate Procedure 51.

(Don't bother looking -- it won't be in your copy of the Federal Rules.)
12.12.2005 10:34am
llamasex (mail) (www):
My last post one=own
thisIf you want more information on this case, I suggest reading

and this

The latter is more about the court case the first one is background. This isn't new, I read all this back in 2004
12.12.2005 10:37am
Andy Freeman (mail):
> I am sure if you checked your vehicle insurance policy you will find a clause regarding being licensed to operate your vehicle.

I have checked - it says nothing about the owner being licensed. It would be surprising if it did, as a large fraction of cars are owned by entities that can't be licensed to operate. It does say things about operators being licensed.
12.12.2005 10:40am
Ken Arromdee (mail):
The MEANS of travel is a privilege, this person could have taken a train or a bike, or used a horse drawn cart as an alternative.
He could have walked if he had some time to kill.


This is addressed in the case.
12.12.2005 10:53am
ruidh (www):
Because the regulation is a secret one, it can't be challenged in any court. It is arguably true that the requirment to show ID increases no one's security. The No-Fly List is a similar secret regulation. No one can legally challenge their placement on such a list. No one who has been put on the list has any due process whatsoever.

This should be anathema to all people concerned with liberty.
12.12.2005 11:06am
Erik Voeten (mail):
I don't think that Kevin Drum was particularly concerned with the merits of this individual case but rather with the general notion that there can be something like a "secret law" or "secret regulation" that carries some obligation on individuals. My non-lawyer instinct is that this should not be so, yet Kevin's discussion suggests that it is in fact so. Does anyone have any examples to add to his anecdotes (like the citizenship anecdotes) or is this all based on misinterpretation?
12.12.2005 11:16am
y (mail):
All right, everyone who thinks the government is just fine here, imagine that you can never fly again. Every time you go to the airport, you're turned away. Why? Nobody will tell you. That information is restricted. What regulation is involved here? That information is also restricted. Do you still think you live in a free country?

Think it won't happen to you? That's what a lot of people thought.

Try heading over to Bruce Schneier's blog. He's a security expert, he served on a TSA advisory panel, and he says quite clearly that they don't have a clue, and that much of the secrecy serves primarily to cover their incompetence.
12.12.2005 11:20am
Cornellian (mail):
Put me down with the folks who bet that there's no regulation that unambiguously requires, as a matter of law, that one present government-issued ID to board a plane. My guess is that the government is hiding its cards because it has a weak hand.

Suppose there is no such legal regulation and that private airlines are requiring photo ID to board because the government just asked them nicely and the airlines (lost most big corporations) don't want to annoy the federal government without some significant incentive for doing so (which doesn't exist here). What's the plaintiff's claim here? I still don't see the constitutional right to commandeer the services of a private airline to fly you to DC.
12.12.2005 11:31am
Bob Bobstein (mail):
Cornellian: in the post, Orin surmises: "at issue in the Gilmore case are regulations promulgated by the FAA and TSA on who can board an airplane, such as the No-Fly list." Plaintiffs are challenging the gov't action, not the private airline's decision. Does my reading sound right to you?

y wrote "much of the secrecy serves primarily to cover their incompetence."

That sounds pretty convincing. No one objects to the TSA's ability to have a list; but it is far from clear why there should be secret laws authorizing this list, and zero due process for those who find themselves on it. They might have gotten sloppy, and are now trying to paper it over.
12.12.2005 11:42am
Steve:
I think anyone who argues that this is a "secret regulation," not a "secret law," needs to take a step back from the technicalities of the law for a moment.

Regulations are only enacted due to delegations of Congressional authority. Nowhere in the Constitution will you find any authorization of the power to make administrative regulations. That's why there are judicially-imposed limits on Congress' ability to delegate its authority.

If Congress were to make "secret laws," and the people were unhappy with that, they could vote in a new Congress. But when Congress delegates its power to make "secret laws" to unelected bureaucrats, there's no real means of accountability, as a practical matter.

Under any analysis, allowing Congress to make "secret laws" is not nearly as bad as a scenario where they delegate that power to a bunch of unelected and unaccountable bureaucrats. While Prof. Kerr is technically right that there are no "secret laws" at issue here, he seems to note the inaccuracy in a way that serves to pooh-pooh the concern, rather than to indicate that the situation is actually more serious because we're dealing with a regulatory scheme.
12.12.2005 11:44am
byomtov (mail):
I still don't see the constitutional right to commandeer the services of a private airline to fly you to DC.

I don't see how buying a ticket for a scheduled flight on a commercial airline can be considered "commandeering" the services of the airline.

In any case, as Erik Voeten points out, Drum is more concerned with the existence of secret laws in general than with this specific matter. Indeed, it is hard to understand why, if there is a law requiring passengers to show ID, why exactly should it be secret?
12.12.2005 11:51am
Anderson (mail) (www):
Prof. Kerr's explanation makes no sense to me.

As I understand it, the contention is that there's a requirement that EVERYONE show his/her ID.

How could national security be jeopardized by the relevant portion of said regulation's being promulgated?

If the regulation actually says that only SOME people should be asked for ID, and what's secret are the guidelines, well that's a more interesting case. One suspect that racial profiling might be at issue, and the feds want to hide it. Or they just want to conceal their "likely suspect checklist" so that al-Qaeda can't evade it.

OTOH, what if they're checking the ID's of registered Democrats? (This is the TSA where someone thought it was funny to put Ted Kennedy's name in their no-fly list.) (Okay, that was indeed funny, but an abuse of power nonetheless.)

So I guess I need the explanation explained.
12.12.2005 12:09pm
billb:
Bob Bobstein: You're quite wrong that there are no people who object to TSA having a no-fly list. I am one of those people. Bruce Schneier is one of those people (as best as I can tell). I'd bet that John Gilmore is one of those people.

As I said in my earlier post, all the 9/11 hijackers had valid, government-issued IDs, and anyone who suggests that some or all of them would have been on the 2001 no-fly list are simply engaging in wild-ass speculation.

Finally, it's clear that if a terrorist organization wants to organize a group of people to hijack airplanes, they can bypass the no-fly list by sending people on non-hijacking test runs to test for their presence on the list! The no-fly list accomplishes exactly nothing.
12.12.2005 12:12pm
cmp:
As a definitional matter, is there really a distinction between "law" and "regulation," even technically? Doesn't "law" encompass both "statutes" and "regulations"? For example, doesn't the Supremacy Clause's provision that the "Laws of the United States" are the "supreme Law of the Land" include federal regulations? In other words, aren't regulations not just "sort of like" a law, but actually one?
12.12.2005 12:24pm
Seamus (mail):
"Travel is a right, the government may not restrict it exceot in times of national emergency etc. etc.
"The MEANS of travel is a privilege, this person could have taken a train or a bike, or used a horse drawn cart as an alternative."

Really? You mean that when private businessmen (the airlines) offer you a service, it is a *privilege* when the government lets you make us of it? That's pretty frightening.

This privilege v. right distinction, by the way, would evaporate pretty quickly if the government asserted such a power with respect to driver's licenses. ("I'm sorry, Mustafa. You're on a secret no-drive list. No driver's license for you. Next!")
12.12.2005 12:31pm
Greedy Clerk (mail):
I won't bother reading the briefs, but I am sure they contain something about how it especially affects minorities because they are too poor and too (some nice word liberals use to avoid saying they are too stupid) to have ID.

Glad to see that conservatives' true racist colors are coming out. . . . By the way, to answer someone else's question, interstate travel is a right protected by the 14th Amendment. Clarence Thomas so held -- see Saenz v. Roe.

12.12.2005 12:38pm
Sigivald (mail):
Just a reminder, everyone: the "no-fly list" is not, as its poorly-chosen name implies, a list of people who are not allowed to fly, but rather a list of people who get extra scrutiny should they attempt to do so.

News reports generally suggest this (by referring to delays rather than straight denial of access), but I'm not sure I've ever seen one make it explicit, and thus the mistaken belief that the list prevents people from flying persists.
12.12.2005 12:54pm
tefta (mail):
Defending: I read some buses are requiring a photo ID after some incident, but I can't remember the details.

Secret laws? It sounds more like rules and regs the authorities don't want made public. It's not like they're taking people out of their beds never to be seen again. People like Gilmore who object to a common sense request should just go away leave the rest to get on with our lives as best we can.
12.12.2005 1:25pm
Anomolous:
Tefta, maybe you are thinking of this?
12.12.2005 1:33pm
Noel Magee:
All this hubbub about restrictions/regulations re. airline passengers. Is it clear to no one besides myself that we're very effectively fighting the last war? In fact, we're permitting our own government to operate in secret based on our own fear of an event that will never happen again. Will any terrorist group ever again be able to restrain a flight full of passengers with box cutters? Phooey. I commented to my wife on Sept 11th that this would never again be possible simply because the days of passengers not taking action against highjackers were over.
12.12.2005 1:52pm
tefta (mail):
Anomolous, Thanks for the link. That wasn't the incident I remembered reading about, but it was interesting. In another time, I would have agreed with her and may have refused to offer up my ID as well, but it's no longer those halcyion days before 9/11 when nicities like these could be observed. What I remembered reading about was an incidence of an altercation between passengers or a bogus bomb threat

I decry that our sacred right to be left to our own devices is seriously challenged because of the tenor of the times. I regret this very much, but I will temper my desire to keep the authorities out of my business with my desire to see my grandchildren grow up in a world as safe as humanly possible with the least impositions on our freedoms.

It's a delicate line we walk and I, for one, walk it gladly if but one life is saved.
12.12.2005 1:53pm
billb:
tefta: ??!?! Are you serious? There would be lots of things that would be out-right banned if we were to follow a "if but one life be saved" philosophy (cars, meat, etc.).
12.12.2005 2:31pm
Buck Turgidson (mail):
the mistaken belief that the list prevents people from flying persists.

Yes and no. The list as it is commonly referred to is as you describe--extra security. But I also know someone who was specifically told by security that he would NOT be able to fly. There are two lists, only one of which really is a no-fly list. Ted Kennedy is on the other one (because Edward Kennedy is the name of several well-known--allegedly--IRA terrorists; yes, this is how idiotic the no-fly list is).

Mike_c:
Yes, some states do require the documentation to be present on you. This is not the case in most states. In states with no specific requirement, you can still be issued a ticket on the assumption that most people are sheep and will pay it, even though there is no legitimate justification for the citation. In other words, if you showed up in court with the document provind that either you or your car are licensed or registered (whichever applies), the case would be dismissed. The same applies to a number of other citations, e.g., some speed limit signs are advisory, not mandatory--most people don't know the difference and pay the fine without thinking.

As for the airline requirements, it may well have been specific airline at a specific airport. I've flown quite extensively pre-9.11 and have not been subjected to an ID check even once, except on international flights. This was also promoted as a rule change after 9.11, so it was clearly not a federal rule of any kind prior to that date.

And I agree that the ID requirement should not be an objectionable one, as long as the concern is about security and not airline's ability to stick you with a ticket you can't use. But there should be a posted and printed regulation that requires it. The federal government tends to look for loopholes to avoid complying with its own laws. For example, the militaries immunity from civil litigation that was meant to protect it from being sued by the enlisted is now being used to prevent military bases from being sued over toxic waste and other environmental concerns. The issue avoidance has taken on new heights under the current administration as it has become the favorite path to covering up for incompetence. We should not stand for this.
12.12.2005 3:57pm
tefta (mail):
billb. I'm referring back to the subject at hand, the line between our personal freedom and our being required to show an ID to get on a plane.

I don't mean to extrapolate to everything you mention. I would opt for a lot less, not a lot more infringements and requirements. When this crisis is over, we can revert to guarding our privacy.
12.12.2005 4:53pm
TL:
Central issue is this. Ignore all the secret/non-secret babble above. Clearly the US gov't/TSA/any agency you like does not have to publish their search criteria, suspicious persons list, i.e., the memo where they say all afghani looking men must be searched. The question is: do they have to make public the REGULATION saying in the following instances, a secondary search is necessary (I.e., meets suspicion criteria, is random based on ticket-lottery, or passenger does not have picture ID.)

It is like the IRS. They have regulations explaining the tax code. They wouldn't and don't have to make public their memos where they determine which tax villains they think they'll go after and why. They do need to make publicly available guidance for when they CAN legally pursue said tax offender.
12.12.2005 6:46pm
John Gilmore (mail) (www):
Refer to http://papersplease.org/gilmore/ for the most definitive information on the case. District Court papers are at http://freetotravel.org. This margin is too small, and readers' attention span too limited, to rebut all the faulty information in comments here.

Let's focus on the secret law. FAA ordered airlines in 1996 after TWA 800 to "request" that passengers produce IDs. The text of this order has never been published. Richard Clarke's book describes its genesis. My FOIA request for it produced a response from Cathal Flynn that said the order is "SSI", (a new form of "classified" without any of the safeguards), and mentioned that airlines are required to ask, but citizens are not required to answer. I flew that way many times, showing the clerks the letter from FAA if they gave me a hassle. That was before 9/11.

After 9/11 they stopped allowing citizens to decline ID checks. Amtrak as well as airlines immediately required ID and would not let people travel. Greyhound started demanding ID. Idiots at commercial building entrances demanded ID, as if that would stop planes from hitting them. I resolved to publicly fight the policy of demanding ID for all travel.

I tried to fly in July 2002 and failed. At Southwest I went through the checkpoint, was wanded, and passed; but they bounced me at the gate because, they said, "I said I have ID but declined to show it to them". At United they eventually offered me a choice of showing an ID, consenting to an unspecified but intensive search, or not being able to buy a ticket. My lawyer always told me to never consent to a search -- if they have the right to search you, then they don't need your consent. Neither SW or United could identify the regulation or law that purports to require ID (and I escalated to the head of ground security for SFO). I sued.

In the District Court, the government refused to admit or deny the existence of a government regulation requiring ID. Judge Illston asked at oral argument (pg 31-32 of transcript at www.freetotravel.org):

"you were saying the rule is not void for vagueness and we can move on. i just want to know what the rule is that isn't void."

mr. lobue responded: "if you're asking me to disclose what's in the security directives, i can't do it."

the court: i want to know what we're talking about in this case. this man was told, "give me your id?"

mr. lobue: according to the complaint the government mandated airplanes to request identification from each and every passenger, that's what happened.

the court: i need to know what cite i'm talking about when i try to make a decision whether this complaint states a claim. so can i focus on that, that the government required the airline to --

mr. lobue: i think you have to assume that the allegations in the complaint are, in fact, true for purposes of our motion, yes.

Judge Illston's dismissal opinion 18 months later punted the secret law question to the Court of Appeals, ruling that she didn't have jurisdiction to review it. The Court was taken in by the government's effort to pigeonhole our broad challenge to all ID-to-travel requirements (including Amtrak and buses) into an "administrative" appeal of a single airline-specific TSA order which just happens to be secret.
(They have also gerrymandered the courts' jurisdiction to make it hard to mount a challenge to these secret orders.) The Court of Appeals wondered at oral argument how she could decide she had no jurisdiction over an order she couldn't see. By then the government had offered them that single order, under seal.

The Deborah Davis bus-ID case (papersplease.org/davis) is another situation where there is no law requiring the showing of ID, but an ID demand is enforced anyway. In fact the law (regulation) in her citation, 41 CFR 102-74.375 (Admission to Property), states "Federal agencies must ... close property to the public during working hours ONLY when situations require this action to ensure the orderly conduct of Government business." (emphasis added). It would be hard to claim that four uninterrupted peaceful years at the Denver Federal Center continue to require the closing of the property to the public. And what's the legal fiction if the property IS closed? That every single person with an ID is an "authorized person" and everyone without an ID is not. Here we have an ID demand enforced via a law that says the opposite in print.

In a third situation, I had to try more than a dozen hotels in the Los Angeles area last month before I found a flophouse in which I could stay without ID. One hotel went so far as to have a sign identifying a local law (Culver City ordinance 11.02.005) as the reason for the demand. In fact, Culver City law only requires that you state your name, and 11.002.020 *requires* hotelkeepers to rent a room for the stated price if they actually have a room available. They hung up on attorney Jim Tyre when he explained this to them.

The Denver bus ID and Culver City hotel examples show why we actually need to be able to READ the REAL law -- not just what the self-serving sign posted by management says. As it is, TSA can claim the law on travel ID is anything, change it at whim, and nobody can say different. In four years no court has yet denied them this, following the sheep-like acquiesence of the general public. The rule of law is being widely mocked at the highest levels, as well as at the most pedestrian. As thoughtful lawyers, I hope you readers will see the danger and begin to work on putting it right.
12.12.2005 8:46pm
John Gilmore (mail) (www):
Addendum. There is a law (5 usc 552(a)(1), part of FOIA) that requires that no regulation can be enforced against the public unless it is first published.

Unfortunately, TSA is exempt from that law. Check the government's motion to dismiss for the weasel words "notwithstanding section 552 of title 5" that they slipped into 49 USC 40119(b)(l). They discuss this on page 16 of their motion.
See the District Court case legal page to see the government motion to dismiss.

This is why we must rely on "void for vagueness" and due process claims to combat the secret regulations at issue. The government has already exempted itself from its statutory duty to publish the regulations that affect everyone in the country.
12.13.2005 3:35am
Duncan Frissell (mail):
John didn't mention the original reg's name: FAA Security Directive 96-05 in case anyone wants to google it.

It does exist and is secret so it does constitute secret law.
12.13.2005 10:21am
Bruce W. Marcus (mail) (www):
It seems to me that what's at the heart of security regulation is seen in a description by the Canadian humorist, Stephen Leacock, who said, "He burst throught the door, jumped on his horse, and rode madly off in all directions at once." We seem to be seeking reason in ank irrational security program.
12.13.2005 10:36am
Fred (mail):
I for one would like to thank John Gilmore for his willingness to fight this battle. It might seem like tilting at windmills to some and like a minor inconvience that's not worth the time to fight but each incremental step leads us further into becoming subjects not citizens. I am happy to hear of ongoing resistance to the pressures to give in to get along. Civil rights not exercised soon stop being rights.
12.14.2005 10:04pm
sammy_finkelman (mail):
<< it is widely understood that you need a government-issued photo ID to board an airplane >>

<< If I'm missing something, which is quite possible, I hope readers will leave comments setting things straight. >>

I think the rule has secret exceptions. It may be something like this: If someone says they FORGOT their ID and someone else with ID vouches for them, they are searched but can board if it is OK with the airline. But maybe if they say they don't have ID or won't produce it, is no go.

All those details are secret, and unlike IRS tax enforcement rules, it is not the government that is doing this but airlines following a regulation so they are in the text of the regulation.

Making the regulation public would enable people to plan around it. Not just to gte on a plane, but also perhaps, to get prevented from boarding. If this or another regulationn says anyone denied boarding for security reasons is entitled to a ticket refund, people could use this to get back money for nonrefundable tickets, so there is another motive for keeping the rules secret.

That is probably the explanatyion and if they told you, they would give 90% of the game away.
12.16.2005 2:48pm
Anton Sherwood (www):
Brian G: What's the big deal about showing ID? It takes 2 seconds. Well, whenever I have an errand at a Federal office building, it takes a lot longer than two seconds to wait in line for the Marshals to check that everyone is carrying their sheep-tag -- and they do nothing with the information. They don't record my name, or check it against a list, so what's the procedure for? The only use I can see is to inure the cattle to the incremental loss of privacy. Meanwhile it keeps the Marshals uselessly busy while they could be doing something that does have a theoretical chance of keeping Ahmed from hijacking the building and crashing it into an airplane.

Furthermore it requires me to have paid for a document which is of use to me only when I run into this voodoo "security" rigmarole. Consider also the perennial proposals to deny DLs to fathers who get behind in child support (speaking of abuses of due process!) or teens who don't do some quota of mandatory "volunteer" work.

Jeroen Wenting: ...Same with air travel, you need a photo ID in order to assure that you're the person to whom the ticket was issued... The purchaser has a legitimate interest in ensuring that the ticket is not used by a thief, but if I choose to risk having my ticket stolen (by leaving the name blank), that's my problem, not the airline's. The airline has a legitimate interest in ensuring that discounts available to one group of passengers are not abused by others, but that's no excuse for carding all passengers.

Daniel Chapman: When has the right to travel has ever included the right to transportation? No one is preventing him from going to DC, but he can't demand the right to get on a plane any more than he can commandeer my car or force me to drive him there. I believe airlines have some legal privileges as common carriers, in exchange for which they have no right to refuse a passenger who offers payment and complies with reasonable safety regs. (And blanket carding has no reasonable relation to safety.)

mike_c: If the gentleman wanted to see his Congressman, he could have taken Greyhound, Amtrak, a taxi, or had a friend drive him. Greyhound screens passengers as they board. Amtrak threatened to throw my acquaintance Keith Lynch off the train if they caught him without his sheep-tag. Hiring a chauffeur works, as does riding a horse I guess, but makes such travel a privilege of wealth.

tefta: When this crisis is over, we can revert to guarding our privacy. And when true Communism is achieved the state will wither away. This crisis will never be over; the "war on terrorism" is permanent.

The Bill of Rights was not written for the happy times when there's no crime in the land nor rumors of wars; it was written with scary times in mind, in an attempt to remove the temptation to strip our liberties away in a "crisis" (and then to stir up crises whenever the control-junkies want a pretext).
12.17.2005 6:29am