The Justice Department has asked to extend its deadline in responding to John Gilmore’s Supreme Court challenge to the secret law that purports to require ID of airline passengers. Its response is now due on October 11, 2006.
We filed our cert petition with the US Supreme Court today. We’re asking that they invalidate TSA’s secret rules (until or unless TSA publishes them as a regulation). We suggest that:
A. The Government’s Insistence on Deeming the Directive a Secret Notwithstanding That It Acknowledges the Directive’s Existence and Its Contents Violates Due Process
and that
B. Alternatively, This Court Should Reject the Court of Appeals Determination That the Directive Is SSI and Hence Immune from Disclosure.
Title 49, section 114(s) provides:
(s) Nondisclosure of security activities.
(1) In general. Notwithstanding section 552 of title 5, the Under Secretary shall prescribe regulations prohibiting the disclosure of information obtained or developed in carrying out security under authority of the Aviation and Transportation Security Act (Public Law 107-71) or under chapter 449 of this title if the Under Secretary decides that disclosing the information would—
(A) be an unwarranted invasion of personal privacy;
(B) reveal a trade secret or privileged or confidential commercial or financial information; or
(C) be detrimental to the security of transportation.
49 U.S.C. § 114(s).
Section 114(s) was amended to Title 49 of the United States Code in 2002 following legislative approval of House of Representatives Bill No. 5005 (“H.R. 5005”) which enacted the Homeland Security Act of 2002, Public Law 107-296. The bill was enacted in response to 9/11 and brought about a major reorganization of several federal agencies under the Department of Homeland Security. (more…)
The provisions that are 49 U.S.C. Sections 40119(b) and 44902(b) were enacted in 1974 as part of the Air Transportation Security Act of 1974 [1] in response to a string of hijackings in the early 1970s. Public Law 93-366, enacted by Senate Bill No. 39 (“S. 39”), was entitled:
An act to amend the Federal Aviation Act of 1958 to implement the Convention for the Suppression of Unlawful Seizure of Aircraft; to provide a more effective program to prevent aircraft piracy; and other purposes.
The Act is divided into two Titles: Title I, the “Antihijacking Act of 1974,” and Title II, the “Air Transportation Act of 1974.” Our language of interest is part of Title II, which dealt with “prevention, deterrence and punishment for criminal offenses against the air transportation system.” (more…)
Perhaps because the notion of a “secret” or unpublished law or regulation is extremely rare, we did not find any cases applying the void-for-vagueness doctrine to “secret law.” There are a few cases that address the application of the doctrine to “unwritten” regulations and policies, with different results. (more…)
This case raises important questions about whether a government agency can enact what one might term a “secret law”: a binding final order that directly affects the public but that the public nevertheless cannot view. Did Congress actually provide the TSA with authority to completely exempt Security Directives from public view? Is there a due process problem with Congress granting an executive agency the authority to issue binding secret orders that directly affect American travelers? Is there a First Amendment or due process problem with passengers being unable to enforce their rights via litigation because they can’t establish what those rights are? (more…)
The government’s effort to thwart Mr. Gilmore’s attempt to vindicate his rights by declaring the regulation it’s enforcing against him secret is not an isolated occurrence. In litigation currently pending in the U.S. Court of Appeals for the Second Circuit, in which a native U.S. citizen is alleging discrimination based on race by Northwest Airlines, the government has questionably categorized piles of relevant evidence as “sensitive security information” and, therefore, off-limits to the plaintiff’s attorneys. More egregiously, it claimed that the courts cannot review its determination. Links to the Second Circuit briefs appear below. (more…)
We are seeking support for the well-established rule that in the U.S., laws must be published and available to the public, and that secret law undermines fundamental tenets of democracy and self-government. We are particularly interested in information regarding the roots of this rule. Experts and non-experts alike, please share readings, quotes, and wisdom on this topic.
Each of these is a point that I think was wrongly decided. Some are
more important than others, some are more appealable than others,
but this is a “brainstorm” list of various issues. (more…)
This is an initial list of potential questions presented for the petition for a writ of certiorari to the Supreme Court.
Q. Does TSA’s classification of the law requiring identification to fly domestically as a government secret violate the constitution?
Q. Did the appellate court err in holding that the identification requirement to travel by air did not violate the freedom of movement or right to travel?
Q. Did the appellate court err in holding that the identification requirement to travel by air did not violate the Fourth Amendment?
Q. Do the jurisdictional and procedural requirements surrounding a legal challenge to the identification requirement to fly domestically preclude effective judicial review of this administrative action?
What should we add to or take out of this list? How could we phrase the questions better?