Wednesday, 9 August 2006

USA Supreme Court asked to rule on secrecy of law restricting freedom of travel

A petition for certiorari was filed with the U.S. Supreme Court last Friday in the case of Gilmore v. Gonzales , asking the court to rule on whether “the government keep secret a directive that is generally applicable to millions of passengers every day”, requiring them to present documentary evidence of their identity (or maybe to submit to a more intrusive search) in order to travel by airline common carrier within the USA.

The Supreme Court doesn’t have to hear this (or almost any other) case, and could let stand the abominable reasoning and outcome of the decision by the 9th Circuit Court of Appeals. But I’m cautiously optimistic that the Supreme Court may take up the question of the Constitutionality of secret law. If the Supreme Court rules in favor of John Gilmore (and everyone who believes in justice) on that question, we may finally get a chance on remand to address the issues of freedom of travel:

John Gilmore’s case before the Supreme Court is about one thing: Secret Law.

In many ways, this is unfortunate. The core issue of the right of every American to travel freely in their own country has been obscured by the secret law issue. TSA lawyers claim in court that people CAN travel without an ID, by being searched more intensely. But when people actually try to do that, TSA employees in airports refuse. There’s no published law to point them at, no way to say, “THIS is the real rule, not that sign you printed up and posted. Let me travel, you lawless thugs!”.

Without the ability to see and understand the law, people in the real world can’t enforce the rights that the law gives them. And it becomes much harder to challenge the details of that law in court, for example to see whether it’s constitutional to make ID-less travelers undergo an extensive, warrantless, suspicionless search.

We think the secrecy of this law violates “Due Process of Law”. Without our 5th Amendment right to Due Process, the rest of our Constitutional rights become unenforceable. It is vital that the Supreme Court set the law to rights and allow citizens to see the laws being applied to them.

Once we can read the now-secret law governing showing ID at airports, it then becomes possible to challenge that law. What Gilmore and others really want to know is: Do citizens currently need to show ID in order to travel in their own country? If the answer is ‘yes’, is this constitutional?

We know that nowadays, travelers are constantly being required to show their ID. John Gilmore wasn’t able to fly on Independence Day 2002 because he would not produce identification. ID is now required to board planes, trains, buses, and even cruise ships. These ID demands prevent travel by Americans who will not show their “papers”. Is such a requirement constitutional?

Many Americans incorrectly assume that our right to travel anonymously has been legally suspended by the USA Patriot Act. This is not true: the USA Patriot Act contains no such provision.

The Right to Travel involves a number of constitutional issues:

Read more from John Gilmore’s Web site.

(Note: I mentioned in an earlier article , months before I was retained as a consultant to The Identity Project , that I hoped the then newly-formed IDP would take up the issues in John Gilmore’s case. As sponsor of the IDP as a nonprofit organization, John is forbidden from having the IDP work on his own legal case. The issues being addressed by John and the IDP are similar, but the work on John’s case is separate from that of the IDP.)

Link | Posted by Edward on Wednesday, 9 August 2006, 18:48 ( 6:48 PM)
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