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Answering the Wrong Question

January 28th, 2006

Last year the UWSL ACS chapter organized a practice oral argument for Gilmore v. Gonzales, a case that, at the time I heard it mooted, was about the publication of a government security order involving airplanes and photo ID. Seems that John Gilmore, early member of Sun Microsystems and co-founder of the Electronic Frontier Foundation, was trying to board an airplane in 2002 when the airline requested to see his photo ID. He refused on the grounds that he should be able to get on the plane without showing any identification, to which the airline responded that it was government policy. When he asked to see the policy the airline said it could not be publicly published… John Gilmore did not get on the plane that day, or any day since.

Instead, he went to federal court. His primary motivation was his belief in a Constitutional right to get on an airplane without having to produce identification… but as made clear during the mock oral arguments and in conversation with the lawyers afterwards, the only true legal hook was requesting the regulation be published. The theory being that citizens cannot engage in open discussion of the laws and policies of their nation if they can’t at least read the policies. When I asked the lawyers “would a win on the publishing and a loss on the larger ID issue be a win overall?” they quickly responded… “not for the client.”

Looks like Mr. Gilmore lost. But that’s not what is upsetting to me. What is upsetting is that neither the referenced article nor anything else I’ve found gets to the question of publication. You know… the one legal issue that they actually had a good case to argue. Nothing. Which concerns me… I don’t personally have an issue with having to produce ID to fly. But it scares the hoo-hah out of me that the government can create and enforce policy against its citizens without any written publication. It’s an outrageous practice that really strikes at the heart of representative democracy. So, I ask, why doesn’t the article address that question?! Do I really have to go track down the opinion to get the full picture? It’s no wonder most American’s distrust the legal system. With incomplete reporting like this I wonder how anyone does.


Found this CNN article about the court ruling that puts a bit more meat on the bone, as it where. The gist, for those to lazy to read, is that in addition to losing the fundamental right to travel argument, Gilmore lost the publication argument too. Here are some choice quotes from the article on the issue.

On judicial review of the government policy.

After reviewing the government’s identification policy in private, a unanimous three-judge panel said the policy was not overly intrusive. The review was done in private for security reasons.

Gilmore’s counsel saying something painfully obvious.

He said government regulations should be disclosed in writing to the public. While millions of passengers willingly show their IDs at airports, Simpich said there is no way to know whether the regulations call for impermissible searches because the government, and the court, won’t make them public.

The Court saying that big signs dictating outcomes can supplant the actual words of the policy.

The court rejected the argument, saying airport signs and airline workers give adequate notice that an ID is required.

And, of course, the obligatory quote from the Government that if everyone would just calm down we’d all be safer.

Justice Department lawyer Joshua Waldman argued that demanding identification “promotes the right to travel by protecting everyone’s safety.”

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