The Justice Department has asked to extend its deadline in responding to John Gilmore’s Supreme Court challenge to the secret law that purports to require ID of airline passengers. Its response is now due on October 11, 2006.
Currently, airlines do this job. But a New York Times story says that
Details of the plan to replace the contractors were still being worked out. But Chertoff said the agency’s screeners would be trained in psychological profiling under the plan, which he intended to announce in the coming weeks or months.
“Psychological profiling” means demanding that passengers answer questions about who they are, what they’re doing, where they’re going, etc. Passengers who categorically refuse to answer these questions, as the Fourth and Fifth Amendments permit them to, may well be “profiled” out of being able to travel.
We filed our cert petition with the US Supreme Court today. We’re asking that they invalidate TSA’s secret rules (until or unless TSA publishes them as a regulation). We suggest that:
A. The Government’s Insistence on Deeming the Directive a Secret Notwithstanding That It Acknowledges the Directive’s Existence and Its Contents Violates Due Process
and that
B. Alternatively, This Court Should Reject the Court of Appeals Determination That the Directive Is SSI and Hence Immune from Disclosure.
The provisions that are 49 U.S.C. Sections 40119(b) and 44902(b) were enacted in 1974 as part of the Air Transportation Security Act of 1974 [1] in response to a string of hijackings in the early 1970s. Public Law 93-366, enacted by Senate Bill No. 39 (“S. 39”), was entitled:
An act to amend the Federal Aviation Act of 1958 to implement the Convention for the Suppression of Unlawful Seizure of Aircraft; to provide a more effective program to prevent aircraft piracy; and other purposes.
The Act is divided into two Titles: Title I, the “Antihijacking Act of 1974,” and Title II, the “Air Transportation Act of 1974.” Our language of interest is part of Title II, which dealt with “prevention, deterrence and punishment for criminal offenses against the air transportation system.” (more…)
The government’s effort to thwart Mr. Gilmore’s attempt to vindicate his rights by declaring the regulation it’s enforcing against him secret is not an isolated occurrence. In litigation currently pending in the U.S. Court of Appeals for the Second Circuit, in which a native U.S. citizen is alleging discrimination based on race by Northwest Airlines, the government has questionably categorized piles of relevant evidence as “sensitive security information” and, therefore, off-limits to the plaintiff’s attorneys. More egregiously, it claimed that the courts cannot review its determination. Links to the Second Circuit briefs appear below. (more…)
Does the “right to travel,” as recognized by the Supreme Court, include the right to travel without showing identification, and is it bolstered by a traveler’s rights to associate, assemble, and petition the government under the First Amendment or the right to exercise one’s First Amendment rights anonymously? (more…)
Does the 4th Amendment prohibit the Government from demanding ID in exchange for the right to fly? The court decided that Gilmore was “free to leave”, therefore was not seized. But Gilmore was not “free to leave” in any direction, as he would be in declining a voluntary encounter with a police officer who requests an ID. He was barred from leaving on his desired flight because he declined. (more…)
Each of these is a point that I think was wrongly decided. Some are
more important than others, some are more appealable than others,
but this is a “brainstorm” list of various issues. (more…)
This is an initial list of potential questions presented for the petition for a writ of certiorari to the Supreme Court.
Q. Does TSA’s classification of the law requiring identification to fly domestically as a government secret violate the constitution?
Q. Did the appellate court err in holding that the identification requirement to travel by air did not violate the freedom of movement or right to travel?
Q. Did the appellate court err in holding that the identification requirement to travel by air did not violate the Fourth Amendment?
Q. Do the jurisdictional and procedural requirements surrounding a legal challenge to the identification requirement to fly domestically preclude effective judicial review of this administrative action?
What should we add to or take out of this list? How could we phrase the questions better?
In the United States today, interstate travel is essentially impossible without showing identification or being prepared to do so. A driver’s license is required to drive. Most common carriers — air, train, and ship — prohibit travel to those who refuse to show identification. Perhaps minor government-imposed restrictions on any one form of travel may not infringe a citizen’s right to travel. Cumulatively, however, a citizen who refuses or is unable to present identification is effectively unable to freely travel from one part of this country to another.
Without even a nod from Congress, the Executive Branch has imposed these ID requirements on the public, using secret regulations. So far the Judiciary has acquiesced wholeheartedly. If the US has become a society in which people “without papers” are unpersons, who have no fundamental civil rights, there should be more debate than this. I (John Gilmore) have been living without ID for several years, to learn by personal experience what rights are gone and what rights remain. I brought this case to bring the judiciary into the debate.