John Gilmore is suing the government because he doesn't think he should
be required to show ID before boarding a commercial flight. But he claims that the government says the ID requirement is necessary for security but has refused to identify any actual regulation requiring it. What's this with SECRET LAWS?
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.
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.
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.
WTF? Call me naive, but I've never heard of a secret law. I've heard
of secret courts and secret evidence — which are bad enough already —
but not secret laws. When did this happen?
And another thing. How could it possibly harm national security to
identify the text of the law that requires passengers to show ID before
boarding a plane? Maybe someone with a more vivid imagination than me
can come up with something, but I can't.
What is this? Congress
is passing laws that the American public isn't allowed to know about?
Any of us might be prosecuted under one of these laws that we don't
know exists? Courts are being asked to interpret laws they've never
seen? This gives Kafakesque a very chilling and newly concrete meaning.
