I've been mulling over the Gilmore case some more, and it occcurs to me that the notion that there is a "secret law" in that case may be a fiction, the invention of a civil complaint that was accepted as true for the purposes of a 12(b)(6) motion to dismiss.

  Here's my thinking. John Gilmore claimed in his complaint that the TSA was relying on a "secret law," apparently based on statements made to him at the Oakland airport by airline employees. The district court accepted this claim as true for the purpose of the motion to dismiss. Now, on appeal, DOJ is in the rather odd situation of having to accept for procedural purposes that such a secret law exists, even though it may not. Its argument is that, assuming such a law exists, Gilmore has no case.

  How likely is it that there is a secret law at issue in this case? I'm not sure, but the more I look at it, the less likely it seems. If you listen to the oral argument around the 27 minute mark, the DOJ attorney is saying that they're not disclosing whether the TSA's actions are based on a policy, informal guidance, a regulation, or whatnot only because there is a regulation blocking the disclosure of TSA's practices (presumably promulgated under a statute like 49 U.S.C. 114(s)). An airline employee did tell Gilmore that while he wasn't sure where the rules came from, it was possible there was an "FAA regulation" on this. However, such a tentative statement from an unnamed airline employee to a contrarian passenger isn't a very reliable source of evidence.

  So in the end, it may be that this litigation looks troublesome because DOJ is in a weird situation: the secrecy regulations may be blocking them from disclosing that there is no secret law at all. I can't be sure, of course, but I think it's a significant possibility.

  UPDATE: To clarify a bit, I hope readers will note the difference between a "secrecy law" (a law concerning secrecy) and a "secret law" (a law that is itself secret). The U.S. Code contains a number of provisions that permit the TSA to keep information secret; this Slate article is a good summary. Such provisions are secrecy laws; the laws are public, but permit nondisclosure rules. I am assuing that "secret laws" are different; they are laws that themselves are secret. Thus, the possibility explored in this post is that the secrecy laws in the U.S. Code may be blocking disclosure of the fact that there is no secret law, contrary to Gilmore's claim in his complaint. Does this seem rather odd? Yup, it sure does to me. But I'm just trying to figure out what is happening, not to defend the TSA.