September 30, 2004 | Gilmore v. Ashcroft Update:

Justice Department lawyers filed their reponse to John Gilmore's lawsuit against the secret requirement that airline passengers must show identification or face extra screening before boarding a plane.

It's an odd case for a lot of reasons -- not least of which is that the government's lawyers keep insisting that they will neither confirm nor deny the existence of the rule -- even as Wednesday's filing admitted that the government had published the existence of the rule elsewhere.

There's more here in my story today:

Internet entrepreneur Gilmore first challenged the constitutionality of requiring airlines to ask passengers to show identification in U.S. District Court in San Francisco in July 2002, but the government refused to tell that court whether the rule existed.

Gilmore argued that the rule is vague, since no one knows what kind of identification is adequate and the penalties are unknown. He said he opposes Americans being subjected to a secret law. The rule impinges upon the right to travel and leaves people open to unreasonable searches, he added.

In Wednesday's filing, the government continued to stonewall about the existence of the identification-or-search requirement.

But they did acknowledge that

The Transportation Security Administration published notice of the identification portion of the requirement in a little-noticed May 2004 Federal Register filing about maritime security. That notice, which expanded the reach of secrecy rules for information classified as "sensitive security information," carved out an exception to secrecy for cases when the government needs to publicize a rule to ensure "compliance."

"For instance, as part of its security rules, TSA requires airlines to ask passengers for identification at check-in," the filing read. "Although this requirement is part of a security procedure that is sensitive security information, TSA has released this information to the public in order to facilitate the secure and efficient processing of passengers when they arrive at an airport."

Now, the question is did the TSA intentionally include the identification requirement as the example. Or did they do this inadvertantly, and the DoJ lawyers simply noticed it when they were researching their brief?

At least one of Gilmore's lawyers thinks its the former and that the TSA included the info to aviod further legal challenges.

William Simpich, one of Gilmore's lawyers, questioned the timing and manner of the TSA's filing, calling it embarrassing.

"They are trying to hide what they are doing from the American people," Simpich said.

The government filed the notice just after Gilmore's original case was dismissed, and Simpich claimed the government hid the notice to avoid future legal challenges since such orders generally have to be challenged within 60 days.

But perhaps even more interesting is the government's argument that the identification requirement isn't a law, it's simply a way to detect those who break the law:

Justice Department lawyers also argued that Gilmore cannot challenge the requirement because it is not a law, it is a law enforcement technique.

"The identification-or-search requirement is simply a technique used to detect possible violations of the law, such as the prohibition on carrying a weapon or explosive onto the plane," they wrote. "While passengers have a right to know the law (that they cannot bring weapons on board), they have no due process entitlement to advance notice of how the Government might attempt to discover whether the law is being broken."

Simpich dismissed that argument as absurd doublespeak.

"Drugs are against the law," Simpich said. "So blowing through your house to look for drugs is a law enforcement technique that you can't challenge, either."

This case gets more and more interesting every time Gilmore or the government files papers...

As good old Mr. Drudge says, developing...

Posted by Ryan Singel at September 30, 2004 03:07 PM