Orwell’s Got Nothing on the TSA

Suspected TerroristJohn 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.

Nicholas Sarwark

Mr. Sarwark lives in Colorado and keeps poor people out of cages for a living. His views are his own, not his employer's, his wife's, or his dog's. They are also awesome and always right.

  1. mmmm secret laws, secret prisons, secret secrets. i feel safer just thinking about it. if anyone needs me, i’ll be over here just being vigilant and never forgetting.

  2. The current administration’s apparent penchant for state secrets is quite disconcerting. Not only are our civil liberties at risk of suspension (or even outright dissolution), but federal employees are also being targeted.

    Even TSA screeners — now called “Transportation Security Officers” — suffer on a regular basis under abusive management, with no legal recourse. In fact, screeners can literally be fired for *anything*, even for reporting security violations they witness. The TSA even withheld the results of its own 2004 work survey from the very employees who responded to the survey!

    Thank goodness there are still people like Gilmore who have the foresight to see the potential downfalls of current policies and are willing to stand up for our rights.

  3. Challenging the TSA ID requirement might be tailor-made for jury nullification in other cases, if jurors knew about their right to judge the law also and did so (“What? You mean even we, the jurors, can’t see the exact text of the law or regulation the defendant is charged with violating? Not Guilty!”).

    ID should not be required on federal property except to enter secured areas, and the bus route through the Federal Center in Lakewood, CO appears to be a continuation of public streets with public access (are security gates operational?). If pressed, RTD should bypass it.

    The battle over magnetometer searches to fly was fought about 1/3 century ago. If a passenger isn’t carrying a gun, large knife, explosives, or similar dangerous items, why should it matter who they are, especially with the ability to forge identification and the preponderance of errors in the no-fly list? The only people denied boarding are the honest innocent ones and the extremely stupid criminals.

  4. I was recently added to the watch list because I have a “common name”. If it’s true that 19 Arabs with box cutters hijacked 4 planes (yeah right!)hence the need for this ridiclous war on terror, why wasn’t my common name added to the list sooner? After all my name, totaling 6 letters first and last combined comes real close to an Arab Muslim male name. My first name is Amy.

    This is the same government that has us believe Christopher Columbus dicovered America, “The Lone Gunman” theory, and the Gulf War Syndrome is just in our heads. Yes, I am a vet of the Gulf War and 9/11.

    The US Patriot Act has made criminals of all of us and it will only get worse if people don’t turn off their TV’s and pay attention.

  5. I`m a Norwegian who follows the development in the US closely. What is going on in your country is very dangerous.
    And I mean for the whole world. As with so many things the US does first, the rest of the west does after. My country Norway has always adopted Americas culture bit by bit.
    We to are getting new laws and regulations. Just the other day our government lanched the idea of having the whole population in a national DNA file. I`s for fighting terrorism and other types of crime.
    A register with DNA of murderers already exist, but they want to expand it those getting speeding tickets in the near future. GREAT!
    In my mind the third world war has begun, but few has noticed.
    I pray for us alive and all new world citizens that
    will be here the next 20 years.
    Please fight and defeat the neocons and maby, just maby things won`t go as I fear. The world needs a FREE US that we can copy!

  6. Viul,

    I couldn’t agree more with most of what you said. And I’ll keep up the fight.

    The neat thing about the blogosphere is that people in other counties can now more easily join in.