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Is There A Secret Law In the GIlmore Case?:
I've been mulling over the Gilmore case some more, and it occcurs to me that the notion that there is a "secret law" in that case may be a fiction, the invention of a civil complaint that was accepted as true for the purposes of a 12(b)(6) motion to dismiss.

  Here's my thinking. John Gilmore claimed in his complaint that the TSA was relying on a "secret law," apparently based on statements made to him at the Oakland airport by airline employees. The district court accepted this claim as true for the purpose of the motion to dismiss. Now, on appeal, DOJ is in the rather odd situation of having to accept for procedural purposes that such a secret law exists, even though it may not. Its argument is that, assuming such a law exists, Gilmore has no case.

  How likely is it that there is a secret law at issue in this case? I'm not sure, but the more I look at it, the less likely it seems. If you listen to the oral argument around the 27 minute mark, the DOJ attorney is saying that they're not disclosing whether the TSA's actions are based on a policy, informal guidance, a regulation, or whatnot only because there is a regulation blocking the disclosure of TSA's practices (presumably promulgated under a statute like 49 U.S.C. 114(s)). An airline employee did tell Gilmore that while he wasn't sure where the rules came from, it was possible there was an "FAA regulation" on this. However, such a tentative statement from an unnamed airline employee to a contrarian passenger isn't a very reliable source of evidence.

  So in the end, it may be that this litigation looks troublesome because DOJ is in a weird situation: the secrecy regulations may be blocking them from disclosing that there is no secret law at all. I can't be sure, of course, but I think it's a significant possibility.

  UPDATE: To clarify a bit, I hope readers will note the difference between a "secrecy law" (a law concerning secrecy) and a "secret law" (a law that is itself secret). The U.S. Code contains a number of provisions that permit the TSA to keep information secret; this Slate article is a good summary. Such provisions are secrecy laws; the laws are public, but permit nondisclosure rules. I am assuing that "secret laws" are different; they are laws that themselves are secret. Thus, the possibility explored in this post is that the secrecy laws in the U.S. Code may be blocking disclosure of the fact that there is no secret law, contrary to Gilmore's claim in his complaint. Does this seem rather odd? Yup, it sure does to me. But I'm just trying to figure out what is happening, not to defend the TSA.

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:
Bread and Circuses (www):
Re: the last paragraph, the phrase that comes to mind is "hoist with its own petard."
12.12.2005 1:24pm
Mr. X (www):
If there is a regulation or law requiring someone to show ID before boarding a flight, why don't they just say so. The fact that your previous post could only reference some statement from the TSA website in support of the requirement leads to the presumption that either (a) there is no legal requirement beyond TSA saying you have to do it or (b) that the requirement is being kept secret in the name of security.

What you're proposing is that there is no law at all, but the DOJ is procedurally estopped from saying so? That's an exceedingly unpersuasive argument.

Please Professor Kerr, stop grasping at straws on this one and admit that the whole thing is an Orwellian mess.

Yours truly,
Mr. X

...gobsmacked...
12.12.2005 1:28pm
Greedy Clerk (mail):
So in the end, it may be that this litigation looks troublesome because DOJ is in a weird situation: the secrecy regulations may be blocking them from disclosing that there is no secret law at all. I can't be sure, of course, but I think it's a significant possibility.

Orin, get out of lawyer mode for a second. Why the hell is DOJ not just saying that there is a reg or whatever providing that people have to show ID's? Seems like an entirely reasonable regulation, and it would only bother the craziest of crazy civil libertarians that the government requires ID before you go on an airplane. This Bush Administration DOJ is so f*cking obsessed with secrecy and their "right" to not justify anything in court that they refuse to disclose their authority for somehting as mundane as this. This is crazy. And if you think any other administration would act this way, you are kidding yourself. This is extremely troubling that our government thinks it has a right not to tell its citizens why it is doing something. Orin, keep making excuses for it all you want, but you are going to have to come to grips with it sooner or later: these people running our country are out of control.

12.12.2005 1:34pm
OrinKerr:
Mr X,

Why do you think the government's argument is unpersuasive? (I realize that you need to read the briefs and listen to the oral argument first to answer this, but I think this is worthwhile if you haven't done so already.)

Greedy Clerk,

I'm just trying to figure out what is happening. To quote my initial post: "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."
12.12.2005 1:41pm
llamasex (mail) (www):
Since no one seemed to read when I posted the last link here is the article in full from slate
The Secrets of Flight
Why Transportation Security Administration guards don't have to tell you what they won't tell you.
By Steven Aftergood
Updated Thursday, Nov. 18, 2004, at 1:26 PM ET


"Before the Law stands a doorkeeper" begins Franz Kafka's famous parable, which tells of a man who seeks "admittance to the Law" but who is denied access by the doorkeeper—something he did not expect.

The Law, he thinks, "should surely be accessible at all times and to everyone."

Former Rep. Helen Chenoweth-Hage, R-Idaho, experienced the existential horror of being governed by secret laws last month while attempting to board a United Airlines flight from Boise to Reno. When pulled aside by security guards from the Transportation Security Administration for additional screening, including a physical pat-down, Chenoweth-Hage requested a copy of the federal regulation authorizing such searches. Her request was denied.

"She said she wanted to see the regulation that required the additional procedure for secondary screening and she was told she couldn't see it," local TSA Security Director Julian Gonzales told the Idaho Statesman.

Chenoweth-Hage said that if she couldn't see the regulation, she wouldn't submit to the pat-down. If you don't allow us to search you, you can't fly, they responded. And so she didn't, getting into her car and driving to Reno instead.

A case can be made that airline security would suffer if the criteria used for screening passengers were to be revealed. Such a disclosure would make it easier to circumvent passenger screenings. But Chenoweth-Hage wasn't asking for such details, only for the legal authorization for pat-downs. Why couldn't they at least let her see that? asked Statesman correspondent Dan Popkey.

"Because we don't have to," replied TSA doorkeeper Gonzales.

"That is called 'sensitive security information.' She's not allowed to see it, nor is anyone else," he said.

How did we come to such a pass?

Unlike most forms of classified national security information, which are based in executive order, the concept of "sensitive security information" originated in a 1974 statute, the Air Transportation Safety Act. The intent of SSI was to prohibit disclosure of several categories of information, including information "detrimental to the safety of persons traveling in air transportation." As initially implemented, SSI was applied rather narrowly to the nuts and bolts of airport and airline security programs. Theoretically, an unlimited number of SSIs can be promulgated—as long as they fit the broad definition set down by law. As official secrets go, SSIs are fairly tame. Several government employees have been fired or forced to resign for making unauthorized disclosures of SSIs, but it's not a crime.

But a little-noticed passage in the Homeland Security Act of 2002 expanded the scope of SSIs to prohibit disclosure of information that "would be detrimental to the security of transportation." This change in wording ushered in an expansive new interpretation of SSI. A May 2004 Federal Register notice spelled out 16 categories of information that may now be designated as SSI. These include not only airport security plans (as before) and threat assessments, but also records of security inspections and investigations, names of security personnel, and training materials. More problematically, "security directives" such as the one that Chenoweth-Hage requested are exempt. And for good measure, the 16th category is a catch-all exemption for "other information" that TSA may at its discretion determine should be withheld.

"By removing any reference to persons or passengers, Congress has significantly broadened the scope of the SSI authority," wrote Congressional Research Service analyst Todd B. Tatelman in a new report. "As a result, it appears that the authority to classify information as SSI now encompasses all transportation-related activities including air and maritime cargo, trucking and freight transport, and pipelines." This latent authority could be used to expand the current secrecy regime into other areas of transportation and national infrastructure. Already, "the number and scope of [security directives]" designated as SSI "has markedly increased" since Sept. 11, 2001, as noted by an internal TSA memo.

The TSA, which is now part of the Department of Homeland Security, has deployed its new secrecy authority with gusto. The TSA signed a security agreement with the Des Moines, Iowa, police department last year as a condition for the city receiving federal financial assistance for airport security.

"If I hadn't seen this contract I wouldn't have believed it could happen in America," Police Chief William McCarthy told the Des Moines Register. Its non-disclosure requirements were so stringent that it might have prevented officers from "reporting the arrest of a drunk at the airport" without first consulting TSA, he said. Similar agreements have been signed with police departments in other cities around the country.

Following the intervention of Sen. Chuck Grassley, R-Iowa, and Tom Harkin, D-Iowa, TSA Administrator James Loy reportedly "clarified" that the agreement was merely intended to ensure that the federal government was directly notified of security incidents at airports "rather than learning of events through the press." Although police initially believed that the agreement itself was secret, TSA eventually advised that only an appendix on airport security needed to be withheld.

Meanwhile, say some internal critics, SSI authority has already been used as a cudgel to impose security discipline and rein in dissent.

After MSNBC reported last year the TSA's decision to remove federal air marshals from certain long-distance flights to economize, TSA launched a probe to identify who had revealed such sensitive security information to the media. A new Department of Homeland Security inspector general report noted that "air marshals from two locations said that they were threatened with arrest and prosecution if they were found to have released sensitive security information (SSI), even though release of SSI is not a prosecutable offense."

Software designer John Gilmore ran afoul of another SSI directive in 2002 after refusing to present a photo identification before boarding a flight. Gilmore has challenged the constitutionality of this practice with a lawsuit. Citing security concerns, the government says the case cannot be argued in open court. In his suit, he claims he was told that there were "security directives that mandated the showing of ID, but that he couldn't see them." The directives, he learned, "are revised as often as weekly, and are transmitted orally rather than in writing. To make things even more confusing, these orally transmitted secret rules change depending on the airport."

Responding to a different lawsuit brought by the ACLU of Northern California contesting the administration of the so-called "no fly" list, U.S. District Judge Charles R. Breyer agreed that some SSIs go too far.

"The Court's preliminary review of the voluminous material demonstrates that in many instances the government has not come close to meeting its burden [to justify withholding], and, in some instances, has made frivolous claims of exemption," Breyer wrote in a June 2004 opinion. "General statements that, for example, the information is sensitive security information, are inadequate to satisfy the government's burden."

Although some of the contested material in that proceeding has now been disclosed, the government seeks dismissal of the larger case.

Despite some hopeful signs of resistance from feisty individuals and the occasional judge, the challenges posed by SSI are likely to continue and to grow. The root of the problem lies in the very definition of the term. Instead of articulating reviewable criteria for designating information as "sensitive," Congress said in effect that SSI is whatever the TSA says it is. This momentous transfer of authority to the executive branch won't be remedied until Congress recovers its appetite for oversight and accountability.



12.12.2005 1:54pm
MikeC&F (mail):
Orin, I'm not being snarky here, but this post reads like a Zen riddle. The law is not secret because the law itself is not necessarily kept secret (though no one will say where the law is located); it's just that another law requires the existence of such laws to be kept secret. Can you hear the sound of one hand clapping?

Now, it could be that DOJ is using this as a test case. That is, instead of saying there isn't a secret law and thus ensuring the case's dismissal, they're saying: "Let's give it a roll. Maybe we *can* have secret laws." But that would require them to misrepresent their position to the court. They would have to tell the Ninth Circuit panel: "The law is secret, and therefore we can't show it to you." Of course, if no such law exists, then that litigation strategy would be unethical. So there has to be some secret law, or else DOJ lawyers would not have been able to ethically litigate this case.
12.12.2005 1:58pm
Steve:
Prof. Kerr, your original take on this was that the substance of the "law" itself was not secret (you need to show ID), but that the factual basis for the law was being kept secret. Now that it appears the very fact of whether a law or regulation exists is secret, it seems to me your original thesis has dissipated.

Perhaps there is a national security-related basis for not making public the reasons behind a law or regulation, but surely we are all entitled to know the substance of what our government prohibits.
12.12.2005 2:05pm
Anderson (mail) (www):
I don't quite follow this post. Anderson sues the feds for having a law against his naming his child "Fluffy." The feds seek to have the suit dismissed on 12(b)(6). Even on the "assume facts are true" rule, I don't see how that applies to whether or not there's such a law in the 1st place. Otherwise, my suit would likely survive the motion to dismiss.

When a dismissal is granted "as a matter of law," the court is allowed to determine what the law actually is, not what the plaintiff says it is. (Thank god.)

So I don't see how the gov't could be forced to concede there's a secret law if there's not one.

(OTOH, I'm happy to see Prof. Kerr making attempts to find something reasonable here, as opposed to those who think that any such attempt makes him a tool of the Bush administration.)
12.12.2005 2:37pm
Buck Turgidson (mail):

Citing security concerns, the government says the case cannot be argued in open court. In his suit, he claims he was told that there were "security directives that mandated the showing of ID, but that he couldn't see them." The directives, he learned, "are revised as often as weekly, and are transmitted orally rather than in writing. To make things even more confusing, these orally transmitted secret rules change depending on the airport."


This is a very fancy way of saying, "We make it up as we go along." In other words, it does not exist.
12.12.2005 3:28pm
Bill Harshaw (mail) (www):
Goodness knows I'm no expert on the APA, but I would have thought that, even though some legislation or Executive Order might require TSA to keep a regulation secret, the APA requirement that an agency publish an index of regulations and decisions would still apply. Also, TSA would be required to cover it in their report to Congress, required by the law.
12.12.2005 4:18pm
Wintermute (www):
Reason's Hit &Run blog covered this. A dotcom millionaire challenged having to produce a picture ID before boarding a flight. Surely the gov can post a few of these regs without compromising their entire profiling procedures. Might be nice to have a modest civil penalty for faulty profiling like for getting bumped from a flight.
12.12.2005 4:41pm
Pooh (www):
Hrm. While I think that the underlying suit is kinda silly (claiming that you don't know you need photo ID to get on a plane is just being obtuse), I see the slope, and it is slippery. It's looking more like another case when this administration claims 'National Security' and the response to 'why do you say that?' is 'we can't tell you. National Security you see.' Color me increasingly skeptical.
12.12.2005 6:56pm
Mr. X (www):
Professor Kerr,
I listened to the oral argument and looked at Gilmore's briefs (can't find the gov'ts briefs). First, Gilmore's attorney sounded really bad at oral argument.

Second, the government attorney's long discussion about how there was an order, but there doesn't have to be a record of the order, but the existence of the order (of which there is no record) is enough to get the case removed. I also found the attempt to make it an as-applied challenge rather than a facial one similarly Kafkaesque.

In any event, something is seriously wrong when the TSA can safely post a notice in big letters that says everyone has to show ID, but can't post the appropriate section of the U.S. Code that authorizes that sign for fear of compromising airline security.

Even better is that fact that because this information is not classified, but SSI, there's no administrative procedure to challenge it.

The assertion by the government that they can add something to the standard in Davis without needing a court to examine the addition is nothing more than a statement. Also, claiming that this is not a restriction on the right to travel, but makes that right better because it makes us safer (something that there is no judicial notice of) is another example of the arrogant posture of the government here.

The question of whether the burden is reasonable or unreasonable cannot be effectively litigated without knowing what the burden actually is. That can't be known without seeing the law, regulation, order, or whatever the hell the TSA issues. The government's offer to show this to a court under seal only arises after suit is brought, but without knowing what one is challenging, it's hard to even get to that point.

Still, I don't find the government's argument persuasive, but I'd be interested to see their written brief.

Yours truly,
Mr. X

...peeved...
12.12.2005 9:45pm
Tom Tildrum:
Orin, Rule 12(b)(6) requires a court to assume that allegations of fact are true for purposes of the motion, but the existence of the regulation or directive at issue is a question of law. When the district court inartfully stated that it was assuming the existence of such a policy, what it was really saying was that it did not need to reach the issue of the existence of such a policy (because it concluded for other reasons that it lacked jurisdiction).
12.12.2005 10:12pm
Duncan Frissell (mail):
Note: "A dotcom millionaire"

John was a millionaire well before the dot-com boom.

Orin - we know that a reg existed -- FAA Security Directive 96-05 and we know that other newer regulations exist about things like no-fly lists and the unfortunate practice of using Soundex indexing to match fliers names with no-fly names which causes excess false positives.

Even supporters of the system should advocate publication of the regs so we can know exactly what forms of ID must be presented and how we can appeal boarding denials. [I had a clerk turn down a one-year expired passport even though such are acceptable for employment verification nd they have not lost any of their value as ID documents.]
12.13.2005 10:58am
Jam (mail):
I fail to see the difference between a "secret law" and a law that falls within the scope of another law that makes the dissemination of a law illegal. (Wew, am I glad I am not a lawyer!)

If government says that "there is a law" then it is incumbent on the government to show that law.

A government to say that "you must" because it is the law, when there is fact no law, is dishonest and tyrannycal. A government may not do anything that it is not explicitly empowered to do.

And to be told to do something because it is the law when there is no law is entrapment - a means to enduce a knowledgable person to resist, and in doing so, breaking some other law. Here resistance to an unlawfull order and a lie.

How come lying to a government official is a crime but there is no law against a government official lying?
12.13.2005 4:44pm
Sammy Finkelman (mail):
What's secret are the exceptions to the rule. Not everyione actually has to have ID to get on a plane. If they say they forgot - and maybe also are vouched for - they can be searched. If they say they don't have an ID then it is no go. those detaiols are the secret,
12.15.2005 4:02pm