Airport ID Checks Constitutional

chill wrote to mention the decision handed down from the 9th Circuit U.S. Court of appeals in the case of Gilmore vs. Gonzales. The court found in the government's favour, saying "We hold that neither the identification policy nor its application to Gilmore violated Gilmore's constitutional rights, and therefore we deny the petition ... The Constitution does not guarantee the right to travel by any particular form of transportation."

Stupid

[LocalH (28506)]

The Constitution does not guarantee the right to travel by any particular form of transportation.

So, I guess Judge Paez lives in that fantasy world where the rights of the people must be explicitly given within the Constitution, or they don't have them.

Re:Stupid

[globalar (669767)]

Sorry, you're argument does not apply here.

Paez is an appeals court judge. He doesn't make the law and he doesn't decide what the Constitution means. He is only interested in upholding existing law and existing Constitutional interpretation (such as it is). If a case does not seem to fall within these limits (i.e. the issue is not "Constitutional"), he is obliged to only consider whether the trial was properly conducted. These are the checks an appeal court handles in the system.

The Constitution is not meant to include *all* our rights. That was by design. Just because a right is not in the Constitution does not mean it doesn't exist or can't exist. It's sloppy interpretation to say any given right that we "should" have is somewhere in the Constitution if only we can extrapolate it. Not all the rights we want/need/deserve are there.

The fact that the Federal system may not be working right, that Congress may have no interest in individual rights, etc. does not change the job of an appeals court.
 

Re:Stupid

[Moofie (22272)]

This argument is precisely why some of the Framers opposed the Bill of Rights.

The Constitution does not say "these are the things people get to do." It says "These are the things that the Government is not allowed to do."

two problems

[belmolis (702863)]

I have two problems with this decision. First, while I won't argue that there is an absolute right to anonymity, I have yet to hear an argument for the proposition that checking ID makes flying safer. The 9/11 terrorists had valid ID. If the government is using ID as a substitute for searches or X-ray or whatever is actually needed, they're kidding themselves.

The larger problem with this decision is the court's acceptance of the claim that there can be secret laws and regulations and specifically that this regulation is legitimately secret. The very idea of secret laws and regulations is inconsistent with open, democratic government. Moreover, not a shred of justification has been offered for the secrecy of this particular regulation. (The only situation I can imagine in which a secret regulation might be legitimate is when it has to mention something whose existence is a legitimate secret, but even then it would seem that the regulation could be revealed to those that it affects (since they would know about the secret anyhow) and that it should be possible to publish the regulation in a more abstract form (e.g. classifying some class of weapons).) What conceivable basis could there be for classifying a regulation requiring passengers to produce ID?

Man o man...

[Eric Damron (553630)]

From the article:

"He asked to see the law demanding he show his 'papers' and was told after a time that the law was secret and no, he wouldn't be allowed to read it."

The constitution may no guarantee that a person be allowed to travel in any particular manner but I'm pretty sure "secret laws" are not constitutional and that is the real issue here.

US Gestapo: "Sir you are under arrest."
Victim: "What for?"
US Gestapo: "You broke the law Sir"
Victim: "What law?"
US Gestapo: "The secret law that we won't tell you about."
Victim: "I didn't know we even had secret laws!"
US Gestapo: "Ignorance of the law is no excuse Sir. Come with us."
Victim: "I want my lawyer!"
US Gestapo: "We aren't charging you Sir and you don't get to talk to your lawyer. Come with us."

Remember,

[mobby_6kl (668092)]

it's not fascism if we do it.

Missing the Point

[Aidtopia (667351)]

The article and the summary are missing the point. This was Gilmore v. Gonzales, not Gilmore v. the airlines. The argument, as I understand it, is that there is no published law or rule that says passengers have to show identification. The TIA says there is such a rule, but that it's a secret for security purposes. Gilmore argues secret laws are unconstitutional. I tend to agree with Gilmore.

Yep... From the ruling

[by Anonymous Coward]

The ruling [uscourts.gov] states (bold is mine):

The Government contends that the district court
lacked subject matter jurisdiction to entertain this action
because, under 49 U.S.C. 46110(a), Gilmore's claims can
only be raised by a petition for review in the courts of appeal.
Defendants also contend that Gilmore lacks standing to chal-
lenge anything other than the identification policy, such as
the Consumer Assisted Passenger Prescreening System
("CAPPS") and so-called No-Fly and Selectee lists.

And, worse (bold is again mine):

After reviewing the
sensitive security information materials that the Government
filed with this court ex parte and in camera, we agree with the
Government that the district court lacked jurisdiction and that
Gilmore had standing to challenge only the identification pol-
icy.

Let's quickly recap what this all means in handy bullet-point format:

• A U.S. citizen has been denied standing to challenge government policies affecting him
• The court system apparently doesn't have an issue with ex parte proceedings, wherein only the court and one party are involved. If you can't see why this is bad...
• No citizen, including the plaintiff in this case, can be informed as to what the in camera/ex parte material (the secret laws) say.

This court case tells us there are secret laws on the books, and we as citizens covered under them are not privy to them. This is bad, bad news.

wtf

[hunterx11 (778171)]

I can't honestly say that I'm terribly disturbed that people are scrutinized more if they don't have ID when flying on a plane.

But having secret laws is totally, categorically unacceptable. There should be a Constitutional amendment against these sort of regulations. This isn't similar to a police state tactic, it is a police state tactic. There is no slippery slope; there is a motherfucking cliff that is being jumped off blindly in the hopes that there will be water instead of rocks at the bottom so we might only injure ourselves instead of dying.

ID checks vs. detectors vs. strip-searches...

[TheRealStyro (233246)]

I'll have to say that this lawsuit was made in poor judgment. The government & business has every right to expect you to produce identification before boarding an airliner. This ID check is not unreasonable nor troublesome to any passenger. Getting stopped/delayed from boarding because a single-dimensional ID check matched on a suspect ID is just stupidity on the part of the TSA.

Being subject to having carry-on baggage searched and walking through a metal detector also is not particularly unreasonable. Neither, IMHO, would be being scanned with a hand detector and/or 'sniffer' device (to detect drugs/explosives handling). It would be normal security for what amounts to being transported in a flying bomb with no/limited in-flight security.

A strip-/cavity-search would be where I would draw the line. Unless you provide me with very detailed information about your suspicions about what I am supposedly hiding on/in my body, I am not going to cooperate in any way whatsoever. If I passed a metal detector test, a hand scanner test and a 'sniffer' test, then you will not be able to provide me with any reasonable explanation for needing a strip-search (get a warrant for a cavity-search). Barring any reasonable explanation, it is a fourth amendment buster and I will not submit to it. I will leave and expect a full refund from the airline and/or TSA (or search authority) and that they should expect a lawsuit.

For the record, I am an independent with liberal leanings. I defend my civil, political and human rights when I believe they are being threatened.

Re:ID checks vs. detectors vs. strip-searches...

[Jherek Carnelian (831679)]

This ID check is not unreasonable nor troublesome to any passenger.

So they check your ID and what good does it do?
Are they checking to make sure your ID isn't stamped "terrorist" or "manic-depressive?"

Just because some action is not particularly troublesome for most people does not make it at all reasonable.

A strip-/cavity-search would be where I would draw the line.

Funny that -- at least such a search will guarantee that you are not carrying anything dangerous to your fellow passengers, unlike an ID check.

Your reasoning is just rationalization for behaving like a lemming instead of thinking about actual security.

Your papers are not in order!

[Eric Smith (4379)]

It's a sad day for personal liberty here in the USA.

The court apparently ruled that the ID requirement is not unconstitutional because the Constitution does not guarantee the right to travel by any particular form of tranportation. This is entirely irrelevant. The Constitution is a limit on the powers of government, not a grant of rights to the people. None of the powers of government enumerated in the Constitution or Amendments give the government the power to restrict US citizens from traveling within the United States by any means they desire. In particular, the government cannot require a passport for domestic travel, yet that is what this requirement does.

Furthermore, the Constitution does not give the government the power to enact and enforce secret laws or regulations. The very concept is anathema to the Rule of Law. If the government did any legitimate power to compel domestic travellers to present identification, it could only exercise that power by publishing laws or regulations that are subject to public scrutiny and judicial oversight.

I very much hope that Mr. Gilmore will appeal this ruling.

let's simplify

[misanthrope101 (253915)]

No matter what the government does, a large swath of the population, not to mention the powers-that-be themselves, will always consider it legal and appropriate. The President could outright suspend habeus corpus, conduct summary executions, and carpet-bomb cities, and he would still have the utmost certitude that what he was doing is right, and millions of Americans would agree wholeheartedly. Probably half, perhaps more, of Americans don't really care about freedom in any substantive way, and to them civil rights are "liberal" issues only ACLU-types would favor over the security and safety of even one (American) life. And they all know that the ACLU is a bunch of wacko far-leftists hellbent on undermining all that is good about the United States.

So let's stop pretending that if only Americans knew exactly what the government was doing that they would demand change, much less accountability. The Right has won by demonizing anyone who is skeptical of government power as anti-American, liberal, terrorist-sympathizing, and so on. By the time that whitebread, middle-class Americans are pissed off by the "show me your papers or go to jail for an indefinite length of time, and no we don't have to charge you with anything" state that America is moving towards, that apparatus will be too entrenched by precedent and public apathy and it will be too late to undo it completely. There may be a symbolic backlash a few years from now, but the recovery of civil rights will be less than the loss, and the progression will be ever downward.

Freedom requires a skepticism of government power. Every law, every prerogative of the police, every restriction, has to be greeted with a raised eyebrow and "why do you need that power?" for freedom to survive in society. That spirit is hard to find in Americans, and you can't kindle it in someone who doesn't have it.

One of my first jobs was with an electronics company that made circuit boards for cameras that went in police cars. If the flashing lights were on, then the camera was on. My second week on the job I remember the boss saying that the police departments had requested a modification--they wanted a way to turn off the camera while the flashing lights were still on. The first thing that popped into my mind was "why would they want to turn off the camera?" My entire political philosophy is built up from that question, but if your instincts are more trusting and credulous when it comes to government, then the question would never occur to you. Freedom requires skepticism of government motives. People have to understand and believe that, like Lord Acton said, power does corrupt. Not might or could, but does.

Re:Well, maybe so...

[Russ Nelson (33911)]

Why would you be any safer if everyone around you had an ID card? What are you going to do, hold it up in front of you as a shield against harm? Why are you safer if you know who you are travelling with?
-russ

Re:Well, maybe so...

[jcr (53032)]

Mohammed Atta had a passport and credit cards, and there's no indication that he was reluctant to show them as he got on a plane at Logan airport on 9/11. Same with the shoe bomber.

Maybe checking ID doesn't really help.

-jcr

Re:Well, maybe so...

[SnapShot (171582)]

Unfortunately, it just goes on and on...

If there is "even a small chance" you are talking to a terrorist then we should all have our phone calls monitored.

If there is "even a small chance" of terrorism then we should all be forced to carry identification papers.

If there is "even a small chance" you may have searched for porn then we all should have our Google searches stored and analyzed.

You may want to ignore the minor issues, but eventually they will become major issues and then it will be too late.

My thought: we should start working on an Amendment to Constitution that makes a "Right to Privacy" explicit instead of depending on the judicial branch's interpretation of the 4th Amendment. At least it would be a worthwile campaign unlike the never ending battle to create an amendment to ban flag burning at gay marriage ceremonies. This is not my idea, by the way, this was proposed by Dan Savage in a NYT editorial last year (I think).

Re:Makes Total Sense

[Russ Nelson (33911)]

The trouble is that the private corporations are claiming that they would be willing to let him fly without picture ID, but the government is preventing them from doing so with a secret law.

If your only mode of travel is to walk from California to the District of Columbia in order to petition your government, then you are *effectively* denied your right to petition. If you have to persuade or pay someone to drive you, you don't have a right to travel to petition the government; you are relying on someone else's right to travel. If I only have a right because someone else has a right, then I don't have that right.
-russ

Re:Makes Total Sense

[jcr (53032)]

Actually, the biggest issue in the case seems to have been ignored, which is that a law may not be a secret. Gilmore demanded to see the law or regulation which required him to show ID, and the government refused to show it to him.

-jcr

Re:No particular, but any?

[ReverendLoki (663861)]

There is NOTHING in the constitution that guarantess you can "travel anonymously". It isn't even implied. Your statement has not basis in fact or reality.

There also is nothing in the Constitution about the right to use the bathroom without the supervision of a Government agent. You don't value that, now do you? Would you be upset if that ability were taken away?

How about the ability to travel more than 15 miles away from your home with applying for special permission in front of a Federal Review Board?

The Constitution isn't just remarkable for the rights it guarantees for citizens, but also that it (supposedly) restricts the rights of the government to what is specifically stated in the Constitution. Ideally, if the Constitution does not say that the government can regulate something, then they cannot regulate that thing.

In other words, your argument "has not basis in fact or reality"

Re:No particular, but any?

[Baricom (763970)]

That's okay. I don't pay attention to analogies anyway unless the analogist shows me a government-issued photo ID with signature to prove he or she is not a terrorist.

Re:No particular, but any?

[Chagrin (128939)]

Saenz v. Roe, there are three components to the right to travel:

        (1) "the right of a citizen of one state to enter and leave another state";
        (2) "the right to be treated as a welcome visitor rather than an unfriendly alien when temporarily present in the second state"; and
        (3) "for those travelers who elect to become permanent residents, the right to be treated like other citizens of that state."

Re:No particular, but any?

[AKAImBatman (238306)]

Privacy is not the same thing as anonymity. At the very least the other party of the transaction (the airline) has a right to know who you are. Privacy dictates that they be careful who they share it with. However, since most airlines are subject to government regulation, they are considered a public form of travel. If you want privacy, charter a plane who will keep your trip confidential. (At least until they're supeonaed.)

Re:Huh?

[arbitraryaardvark (845916)]

1) Explain how my inability to travel anonymously prevents my petitioning the goverment for the redressing of grievances
2) Point to where in the constitution they said you were guaranteed anonymity

1)'s a little tricky. It's not so much "prevents" as chills and infringes on.
The right to travel to the seat of government to petition for redress is one of the privileges and immunities protected by the 14th amendment p&i clause.
2) We have the first amendment because Peter Zenger was busted for running a printing press to print anonymous criticism of the king's goons.
Talley v California, 1960, explains that the right to free speech includes anonymity and privacy. Thomas, concurring in McIntyre v Ohio Elections Commission, explains the history in more detail.
The other two cases that discuss the constitutional right to anonymity are American Constitutional Law Foundation and Watchtower v Stratton. You can read those cases at majors.blogspot.com [blogspot.com] or findlaw.com.

Re:No particular, but any?

[ChildeRoland (949144)]

Also, as of Dec. 30th, there was a bill on Gov. Bill Taft's desk, called the Ohio Patriot Act which would require citizens to show ID upon request or face being arrested.

"The lengthy piece of legislation would let police arrest people in public places who will not give their names, address and birth dates, even if they are not doing anything wrong.

WEWS reported it would also pave the way for everyone entering critical transportation sites such as, train stations, airports and bus stations to show ID."

http://nievedenoche.gnn.tv/headlines/6851/Show_ID_ Or_Go_To_Jail [nievedenoche.gnn.tv]

Most cops in any state now will arrest you for not providing name and birthdate, regardless of if there is a law requiring it.

Re:Just one little comment

[Locke2005 (849178)]

You're missing Gilmore's point, which was not that the government had no right to ask for ID, but rather that a free people should not be subject to secret laws. He asked to see the statute that allowed them to check for IDs, and they refused to show it to him. If they can do this, than they can claim ANYTHING they want is authorized by the secret law. For instance, airport security could claim that attractive women are required to give screeners oral sex to prove they are not terrorists, or else they will not be allowed to board the plane. This is very different from a traffic citation, wherein the officer will state the specific statute violated on the ticket, which can then be looked up in any library.