Secret Laws and YOU: Flight ID Rules Fuel Fresh Furor
Flight ID Rules Fuel Fresh Furor
By Ryan Singel zzz|
02:00 AM Sep. 08, 2004 PT
Lawyers for privacy advocate John Gilmore, who is pursuing a lawsuit challenging the government's alleged requirement that airlines ask passengers for identification, are filing a motion late Tuesday seeking to keep the case open to public scrutiny.
The motion opposes the federal government's request to present its rebuttal of Gilmore's case to the court alone and in secret. Justice Department lawyers made the request (.pdf) to the 9th Circuit Court of Appeals in San Francisco on Friday, saying that if the requirement to demand ID exists, it would be in a security directive that is classified as "sensitive security information" that it could not
reveal in open court. The government did say, however, it would also file a redacted version of its arguments publicly.
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.
However, the government acknowledged that if the requirement did exist, it would be in a secret security directive that would have to be challenged in an appeals court.
U.S. District Judge Susan Illston heeded that argument when she finally dismissed the original lawsuit on jurisdictional grounds in March, 14 months after hearing arguments in the case. Illston ruled that "federal law vests exclusive jurisdiction in the Court of Appeals over an order issued by the TSA (Transportation Security Administration) or FAA (Federal Aviation Administration)."
Gilmore appealed the dismissal in mid-August.
Jim Harrison, one of Gilmore's attorneys, lambasted the government's latest request and called it "radical" in Tuesday's filing.
"Secret court proceedings about secret laws make for a dangerous environment," Harrison said in a phone interview. "Just take a look at history."
Lucy Dalgish, executive director of The Reporters Committee for Freedom of the Press, described the government's request for a secret hearing, in which Gilmore's attorneys would not be present, as "absolutely ridiculous."
But she said she was not surprised, given the growing number of secret hearings post-9/11.
"This is a government and administration that places an incredibly high value on secrecy," Dalgish said. "All brilliant legal arguments aside, what do they think they are doing? This has gotten to the point of being nutty."
A Justice Department representative did not return a call for comment.
A spokeswoman for the Transportation Security Administration -- which is responsible for classifying security directives related to transportation -- was unable to provide comment by press time.
Harrison also argues in his filing that the government should not be allowed to introduce new evidence in the appeals court, which traditionally reviews the merits of a lower court's decision without allowing new evidence.
Government lawyers asked the appeals court to rule on its motion for the secret hearing by Sept. 15, which is the deadline for the government's response to Gilmore's appeal.
The case is known as Gilmore v. Ashcroft.
"FREEDOM THROUGH COMPLIANCE"
-US Department of Homeland Security
Informant: Jeff Greenspan