Orwell’s Got Nothing on the TSA

John Gilmore’s quixotic crusade against government ID checks being required for domestic air travel has inched forward a bit. (Gilmore’s also been providing the support for Deborah Davis’ case in Colorado) The 9th Circuit Court of Appeals heard oral arguments in the case last Thursday.

A federal appeals court wrestled Thursday with what seems to be a straightforward question: Can Americans be required to show ID on a commercial airline flight?

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.

To bring everybody up to speed, Gilmore tried to board a flight to DC to meet with his Congresswoman and refused to show ID or consent to a search of his person. As one would expect, he was denied the right to board the flight. As it says on the TSA website:

If you have a paper ticket for a domestic flight, passengers age 18 and over must present one form of photo identification issued by a local state or federal government agency (e.g.: passport/drivers license/military ID), or two forms of non-photo identification, one of which must have been issued by a state or federal agency (e.g.: U.S. social security card). For an international flight, you will need to present a valid passport, visa, or any other required documentation. Passengers without proper ID may be denied boarding. For e-tickets, you will need to show your photo identification and e-ticket receipt to receive your boarding pass.

Challenging such a public requirement seems like all sorts of nutty moonbattery, no? It would, except for the fact that nobody would show him the law or regulation requiring passengers to show ID. I know, still sounds like tax-protester stuff, except in this case, the Department of Justice says that there is a law, but they can’t reveal it because it would threaten aviation security. As noted in the Contra Costa Times story:

A lower court judge had earlier rejected Gilmore’s case, and U.S. government lawyers have refused to confirm or deny a federal law or regulation requiring IDs at airports even exists. Government attorneys say they are barred from disclosing the existence of security-related regulations.

Not that they can’t reveal the people on the No-Fly List, they can’t/won’t reveal the actual TSA regulation that mandates ID checks in the first place. Hello Kafka! To their (small) credit, they did offer to file the regulation under seal with the court, but claimed that it couldn’t be shown to the defense lawyers. Even Kevin Drum, who thinks Gilmore’s nutty, is freaked out by the Orwellian nature of the law.

Look, the world’s a dangerous place and if checking ID of airplane passengers will make it safer (doubtful, but possible), let’s do it. However, there should be an actual debate and the laws should be passed in public, not made up in secret as it appears the TSA is doing now. Thanks to John Gilmore, longtime Libertarian activist and freedom fighter, we may get to have that debate.

UPDATE: I’ve listened to the oral arguments and while I still think the government position is wrong, I’d agree with Tim Cavanaugh’s take, Gilmore’s attorney (James Harrison) sounded completely flummoxed.

Also, Orin Kerr at The Volokh Conspiracy tries to figure out just what the hell is going on here, here, and here.