Maybe I Should Rejoin The ACLU

Back when George H.W. Bush was the President he made a snide comment about "card carrying members of the ACLU." It pissed me off, so I joined and became a card carrying member.

I let my membership lapse somewhere in the '90's because I thought the organization was too strident. Maybe some stridency is needed in this century.

Back in 2002 a guy named John Gilmore went to the Oakland, California airport and then to the San Francisco airport with the intent to get on planes to Washington, D.C. As we all are, he was asked for identification. He refused. No boarding. He was told that he could board without showing ID if he submitted to a search which was more intrusive than normal. He again refused.

He investigated and found out that the TSA issues directives about what ID and searches are required of passengers at different airports. These directives varied by airport and were changed, sometimes weekly. He was told they were given orally, not in writing. Thus, he could not see them.

He filed suit. He lost in the U.S. District Court. He appealed to the Ninth Circuit Court which issued a twenty-five page opinion which dismissed his claims. As it always is with law, the Court looked at a bunch of different legal issues. One of the issues raised was that his constitutional right to due process had been violated because he was penalized for failing to comply with a law that he had never seen.

I don't have any problem with a legal requirement to show identification or submit to a search prior to boarding an airplane. On the whole, I think Gilmore, who was trying to get rid of airport security, was, to put it mildly, misguided. But, here's what bugs me. Recall that Gilmore tried to fly in 2002. He filed suit in 2004. Not until 2005, and then on appeal, did It turn out that there was indeed a written directive. Until the appeal to the Ninth Circuit, the government wouldn't even admit that it had a policy. The District Court had decided the case based on the "assumed truth of the content of the identification policy" as alleged by Gilmore. How could such a policy get so far without the public knowing what it was? Congress exempted the TSA from providing notice and the opportunity for public comment because the policy related to security. Given that exemption, no one outside of government knew that the policy was being formulated or what what it was.

Even in the Ninth Circuit, Gilmore wasn't allowed to look at it because the TSA had classified it as "sensitive security information." The Ninth Circuit looked at the Directive in camera and ex parte. That means it was turned over to the Court by the government, only when ordered to by the Court, which read it in private and without the parties' input. Gilmore couldn't look at it and neither could his lawyer. The Court decided that the Directive did not violate due process protections because whatever was in it that Gilmore, you and I can't see "articulates clear standards. It notifies airline security personnel of the identification requirement and gives them detailed instructions on how to implement the policy." The Court reasoned that the signs at the airport that said he must show ID notified him of the policy and that that was enough. Since the TSA and the implementing airline employees know what they are supposed to do, whether or not they do it, and whether or not they do it correctly, no one can challenge them.

It is sometimes said that bad facts make bad law. Gilmore's case may be an example of that bromide. Gilmore tried to fly to set out a test case to argue that the government cannot impose restrictions on airplane travel, specifically requiring ID and searches, without violating a host of constitutional provisions. On the merits, the government probably had the better case. But,the way it went about establishing its policy in secret, defending its position by refusing to even acknowledge that it had a policy and the fawning deference the courts gave to its obscuring tactics are much more important in the long run than the obvious point that reasonable levels of security don't violate the Constitution.

On Monday the U.S. Supreme Court issued an Order denying certiori. Thus, the Ninth Circuit's opinion, for most purposes, is the law of the land. The government is now free to classify pretty much any law, regulation, rule or policy (and do it behind closed doors without the knowledge of or participation by citizens), and put up signs or take out an ad in a newspaper on on TV saying what it is you must do or not do. Four or five years down the road a court may review the piece of paper, again behind closed doors, and vote yea or nay. That's "process;" but, I'm not sure it is that which is "due."