ID Rule Exists, But Can't Be Seen

Government lawyers defending the identification requirement at the nation's airports from a lawsuit by privacy activist John Gilmore admitted in a new filing Wednesday that the requirement exists, but argued it cannot be challenged or seen in full because it is a law enforcement technique, not a law.

The lawsuit revolves around whether a rule exists that says passengers must show their ID to airline agents before boarding a plane. Gilmore is also trying to get the government to state exactly what the rule, if it exists, says. The government has refused to confirm that the requirement exists or show the exact wording. Justice Department lawyers offered in an earlier filing to show the rule to an appeals court judge in secret without Gilmore's lawyers present.

The appeals court denied that motion on Sept. 20.

Internet entrepreneur Gilmore first challenged the constitutionality of requiring airlines to ask passengers to show identification in U.S. District Court in San Francisco in July 2002, but the government refused to tell that court whether the rule existed.

Gilmore argued that the rule is vague, since no one knows what kind of identification is adequate and the penalties are unknown. He said he opposes Americans being subjected to a secret law. The rule impinges upon the right to travel and leaves people open to unreasonable searches, he added.

In Wednesday's filing, the government continued to stonewall about the existence of the identification-or-search requirement. The Transportation Security Administration published notice of the identification portion of the requirement in a little-noticed May 2004 Federal Register filing about maritime security. That notice, which expanded the reach of secrecy rules for information classified as "sensitive security information," carved out an exception to secrecy for cases when the government needs to publicize a rule to ensure "compliance."

"For instance, as part of its security rules, TSA requires airlines to ask passengers for identification at check-in," the filing read. "Although this requirement is part of a security procedure that is sensitive security information, TSA has released this information to the public in order to facilitate the secure and efficient processing of passengers when they arrive at an airport."

William Simpich, one of Gilmore's lawyers, questioned the timing and manner of the TSA's filing, calling it embarrassing.

"They are trying to hide what they are doing from the American people," Simpich said.

The government filed the notice just after Gilmore's original case was dismissed, and Simpich claimed the government hid the notice to avoid future legal challenges since such orders generally have to be challenged within 60 days.

Justice Department lawyers also argued that Gilmore cannot challenge the requirement because it is not a law, it is a law enforcement technique.

"The identification-or-search requirement is simply a technique used to detect possible violations of the law, such as the prohibition on carrying a weapon or explosive onto the plane," they wrote. "While passengers have a right to know the law (that they cannot bring weapons on board), they have no due process entitlement to advance notice of how the Government might attempt to discover whether the law is being broken."

Simpich dismissed that argument as absurd doublespeak.

"Drugs are against the law," Simpich said. "So blowing through your house to look for drugs is a law enforcement technique that you can't challenge, either."

Gilmore's lawyers have two weeks to file their reply to the 9th Circuit Court of Appeals in San Francisco, which will then set a hearing date.

Justice Department spokesman Charles Miller declined to comment on the government's brief, calling it "carefully crafted".

< First they saddle you with "ignorance of the law is no excuse". Now you get the full treatment. it's not even Possible for you to know the law but you're still expected to follow it. Can there be any doubt that this country is completely fucked up? >