Potential “Secret Law” Issues

July 5th, 2006 by Tom Goldstein

This case raises important questions about whether a government agency can enact what one might term a “secret law”: a binding final order that directly affects the public but that the public nevertheless cannot view. Did Congress actually provide the TSA with authority to completely exempt Security Directives from public view? Is there a due process problem with Congress granting an executive agency the authority to issue binding secret orders that directly affect American travelers? Is there a First Amendment or due process problem with passengers being unable to enforce their rights via litigation because they can’t establish what those rights are? Read more…

TSA secrecy impedes Chowdhury’s travel discrimination case

June 29th, 2006 by Rochelle

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. Read more…

“Right to Travel” analysis

June 27th, 2006 by Jen

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? Read more…

4th Amendment, ID, and the right to fly

June 19th, 2006 by Rochelle

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. Read more…

Searching for Support that Secret Laws are Unconstitutional

June 12th, 2006 by Rochelle

We are seeking support for the well-established rule that in the U.S., laws must be published and available to the public, and that secret law undermines fundamental tenets of democracy and self-government. We are particularly interested in information regarding the roots of this rule. Experts and non-experts alike, please share readings, quotes, and wisdom on this topic.

Some things wrong with the Gilmore decision

June 9th, 2006 by gnu

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. Read more…

Potential Questions Presented

June 8th, 2006 by Jim Harrison

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?

Central issue of Gilmore v. Gonzales

June 3rd, 2006 by gnu

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.

Supreme Court cert petition in Gilmore v. Gonzales

June 2nd, 2006 by gnu

I’ve decided to appeal the 9th Circuit ruling to the Supreme Court.

(We tried asking for reconsideration and got zero votes from the judges. It seems they’ve pigeonholed me into the “nuisance suit” category; they went through the motions, but didn’t take the case seriously. My opinion of the judicial branch is at an all-time low. I’ve seen the justice system turn out actual justice many times, but these judges chose not to do that. In this case as in so many others, judges are letting the Executive Branch destroy the fundamental underpinnings of free societies, while finding any lame excuse to discard the few legal challenges.)

I’m looking for help from the legal blog community. I can find so many things “wrong with” the 9th Circuit’s ruling that it’s hard to choose the best grounds for appeal. The problems range from ignoring inconvenient facts in the record that blow their reasoning (Southwest flatly refused me passage without offering me the option of a physical search; yet the physical search was all that saved the constitutionality of the ID demand). And bald unsupported conclusions of law, like deciding that the constitutional right to travel is never infringed “given that other forms of travel remain possible”. Is freedom of movement a right that can only be enforced after it’s extinguished? (I haven’t mentioned the major procedural problems.)

I’m asking you to read the case documents, particularly the Ninth Circuit Opinion (435 F.3d 1125) and the subsequent Petition For Rehearing. What did this ruling do to the right to travel? To the right to be free of vague and secret laws? To the public’s ability to decline government “requests” or demands for ID?

And then what among those issues is ripe for revision by the Supreme Court? Which issues are there circuit splits about? Or obvious implications elsewhere?

We’ll be posting our own lists shortly, as well as posting outlines of our arguments, and eventual drafts of our Supreme Court petition for cert. Come help!

New blog about identification and civil rights

June 1st, 2006 by gnu

Identitycrisis.name is a new blog where John Gilmore and others are discussing identification, Real ID, National ID, ID to travel, ID to fly, ID to enter federal buildings, ID to show cops, whether these are good ideas in free societies, whether ID checks serve any useful purpose, and related issues.