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John Gilmore, an early employee of Sun Microsystems and co-founder of the Electronic Frontier Foundation, says the answer should be "no." The libertarian millionaire sued the Bush administration, which claims that the ID requirement is necessary for security but has refused to identify any actual regulation requiring it.
John Gilmore
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."
"This is America," said James Harrison, a lawyer representing Gilmore. "We do not have secret laws. Period." Harrison stressed that Gilmore was happy to go through a metal detector.
Gilmore sued the federal government after being told he could not fly without ID from Oakland, Calif., to Washington, D.C., which he said he was doing to exercise his First Amendment right to petition the government for a redress of grievances. U.S. District Judge Susan Illston dismissed (PDF) his case in March 2004, ruling that Gilmore had "numerous other methods of reaching Washington."
Oral arguments on Thursday, which lasted about 40 minutes, returned repeatedly to that point. Judge Richard Paez suggested that when your ID is requested at an airport, "You can always leave."
Waldman, the Justice Department attorney, said that as long as no commercial airline flight is required, Americans "can assemble wherever they want. They can petition wherever they want." He added, "I'm not aware of any right to travel anonymously."
Two cases that were mentioned on Thursday could provide a glimpse into how the appeals court will rule. In one, decided in 2004, the U.S. Supreme Court ruled 5-4 that police could arrest anyone they stopped who refused to show ID. In the other, U.S. v. Davis, the 9th Circuit said in 1973 that airport searches were permissible as a form of administrative screening.
It's unclear what will happen next. Because of a procedural twist involving lawsuits against federal agencies, the district court concluded that only an appeals court enjoys authority to resolve some aspects of the dispute. But the 9th Circuit judges also could, if they side with Gilmore, send the case back to the lower court for a full trial.
On the courthouse steps after the arguments, Gilmore said he felt confident about the case and welcomed a verbal concession from the Justice Department. "I was glad the government admitted it was 'peculiar' and Orwellian to make secret laws," Gilmore said.
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.
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Now there are secret laws? How do I avoid violating laws that I can't find out about? And how do I go about defending myself if I am accused?
Not even the defense counsel can find details about the law. How do we even know if we have violated a secret law--because some government official told me? Hey, they make mistakes all the time. That's why we have courts, isn't it? But how can the court rule on a law they can't research?
What country is this? What century? What freedom?
Seriously though, it's not like as if this would be hidden from everyone. Instead it's something that allegedly would be used to inform the airlines that they *must* have a compliant policy for screening.
IOW, if you were the CEO of United, you would know about this order.
More realistically, it seems like this was a *recommendation* and the airlines are so incredibly retarded as to not follow it.
One plane goes down as a result of not ID screening and you're the only airlines that doesn't check IDs...what would think would happen next?
As opposed to being just like all the other airlines that checks IDs, instills an improved sense of security, and doesn't bother or inconvenience the overwhelming vast majority of customers.
When did it become constitutional for Bush to come up with his own "secret" laws? I thought that congress was the branch that writes laws, and the laws they write or abolish are debated in public.
Am I reading this correctly Cnet?
It seems some people have taken liberties here.
Only Congress can make laws.
What happens is that congress gives a Federal Entity, such as the
INS or IRS, powers to >implement< laws that Congress has
passed. The Agency then issues rules that have the same effect
as laws, but they are not really laws. To fight them, you have to
work inside the Agency or get a court to rule that the Agency
has exceeded the authority given to it by Congress.
An example from recent history was the national 55 mph speed
limit. Neither Executive nor Legislative branches has the
Constitutional authority to declare a national speed limit. But
the legislature wanted to create one. So they changed the Rules
and Regulations of the Highway Act so that states could not get
Federal Highway Dollars unless they lowered the speed limit to
55. I believe that only one state did not lower its speed limit.
All the rest did, so they wouldn't loose the highway money.
It is through Agency Rules and Regulations that our lives are
mostly affected. Anyone ever hear of the IRS ;-)
Lets think about this...
First, what exactly is an "executive order" or mandate? Is it a law? Or are there laws that require one to follow a legal executive mandate?
I mean suppose that a President (prior to Bush) mandates that all passengers submit to an ID check prior to boarding or gaining access to an aircraft?
If the mandate doesn't violate the constitution, it should be legal, right?
C'mon. Lets get real. Theres always more than one way to skin a cat. There is more to this issue than what's in the court case.
For a much better understanding of the ID issue go to http://papersplease.org/gilmore/index.html
The ID issue came about under Clinton. Another lover of things secret. Just who was on that Health care committee anyway?