Secret Laws and Gilmore v. Gonzales: Kevin Drum has a post up about last week's Ninth Circuit oral argument in Gilmore v. Gonzales, a case involving ID requirements to board a commercial airline flight. Kevin expresses astonishment over the "secret laws" allegedly at issue in the case:

  Seriously, is this true? I'm just gobsmacked. Congress is passing laws that the American public isn't allowed to know about? Any of us might be prosecuted under one of these laws that we don't know exists? Courts are being asked to interpret laws they've never seen?
  This gives Kafkaesque a very chilling and newly concrete meaning.

  Kevin is a terrific blogger and a heavyweight analyst, so I decided to take a closer look at the Gilmore case. I found the briefs here, and the oral argument here. My research suggests that, fortunately, the reality is considerably less troubling than what Kevin fears it may be. Maybe not entirely untroubling, but a lot less troubling than it first appears.

  First, some background about the case. John Gilmore filed a lawsuit arguing that he has a constitutional right to board a commercial flight without presenting a government-issued photo ID or being subject to additional screening. Gilmore bought a ticket from Oakland to Baltimore-Washington airport, refused to provide his ID, and was not permitted to board. He was then given the option of undergoing a search of his person to be allowed to board the flight without a photo ID, but he refused. Gilmore's primary claim is that the ID requirement (or at least the ID requirement absent consent to a search) violates the constitutional right to travel, the First Amendment, and the Fourth Amendment. He also argues that the government's failure to disclose the legal authority imposing an ID requirement violates due process and the separation of powers.

  It's the latter issue, involving the secrecy of the relevant legal authority, that has Kevin concerned. He quotes a report on the oral argument authored by Declan McCullagh, in which Declan writes the following:

  The Bush administration...claims that the ID requirement is necessary for security but has refused to identify any actual regulation requiring it.
  A three-judge panel of the 9th Circuit Court of Appeals seemed skeptical of the Bush administration's defense of secret laws and regulations but stopped short of suggesting that such a rule would be necessarily unconstitutional.
  "How do we know there's an order?" Judge Thomas Nelson asked. "Because you said there was?"
  ....The Justice Department has said it could identify the secret law under seal, which would be available to the 9th Circuit but not necessarily Gilmore's lawyers. But any public description would not be permitted, the department said.

    This isn't my area, but some research suggests to me that the picture is somewhat different than what Kevin fears it may be. As I understand it, the answer to all of Kevin's questions is "no": Congress did not pass a secret law, no one can be prosecuted under a secret law, and courts are not being asked to interpret laws they've never seen.

  As best I can tell, the "secret laws" at issue in the Gilmore case are regulations promulgated by the FAA and TSA on who can board an airplane, such as the No-Fly list. Federal law permits the TSA/FAA to prohibit disclosure of information relating to aviation security if it would be detrimental to aviation security, and the TSA/FAA apparently has decided that the text of the legal guidance it uses internally to determine who can fly on an airplane should not circulate outside the government.

  Importantly, this doesn't necessarily mean that the rules themselves are secret. At least in the Gilmore case, the relevant rule is well known: it is widely understood that you need a government-issued photo ID to board an airplane. As the TSA's website explains:

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.

As I understand Gilmore's claim, his view is that this isn't enough. He claims that he has a due process right to be able to see the legal authority that TSA employees were relying on when they blocked him from boarding the flight.

  Now, just to be clear, I have no idea whether the TSA's decision not to publish the text of its regulations is a smart one. I can understand why they don't publish the names on the No-Fly list, but it's not obvious to me why they can't publish the regulation or rule (or the relevant part) requiring an ID. Maybe this is a misguided law, or an appropriate law being implemented in a misguided way. I don't know; as I said, this isn't my area of expertise. Further, I think reasonable people can disagree on whether TSA's practices are a big deal. Some will find them deeply troublesome, and others won't.

  At the same time, I think it's important to recognize that this dispute appears to be significantly narrower than Kevin's post suggests. First, Congress isn't passing any secret laws; the undisclosed authority is a regulation, not a statute, and the TSA's requirement is widely known. Second, no one is being arrested; as I understand it, the issue is only who can be let on an airplane.

  Finally, the court isn't being called on to interpret a law it has never seen. DOJ filed a motion attempting file a version of its brief under seal. According to the government's claim at oral argument, the version of the brief filed under seal would have included the text of any regulations TSA follows. The Ninth Circuit rejected the motion without comment, however, and if one judge's comment at oral argument is any sign, it may be because the actual text of the regulation isn't essential to the case. As best I can tell, then, DOJ hasn't filed the undisclosed regulations with the Court because the Court rejected its motion to do so under seal, and the alternative, filing it in open court, would have defeated the purpose of having the text of the regulations unpublished.

  Anyway, that's my sense of things. If I'm missing something, which is quite possible, I hope readers will leave comments setting things straight.

Is There A Secret Law In the GIlmore Case?: 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.

More on Secret Laws: Over at Stop the Bleating, Matt Rustler takes a look at the statutes and regulations likely at issue in the Gilmore case.