Personally, I would fault this part of the decision as one of the weakest parts of the Court's written opinion. The Court didn't really discuss the arguments and counter-arguments here; it just stated a position, without really laying out the reasoning. (For instance, what is the legal standard when restrictions on travel do become too cumbersome? If all buses and trains start imposing the same policy as airplanes, does that go over the line? What if it is also imposed on all automated forms of transportation, so that the only remaining unencumbered form of transportation left is to walk? Would that be legal?)

I thought the text of the decision was generally pretty decent (in the sense that it was written in a way to lay out the arguments in a way intended to help even skeptics -- even those who don't agree with the Court's decision -- to understand the Court's reasoning), but this was one of the weak points of the decision. Disappointingly, I thought it was also one of the more interesting and non-obvious legal parts of the case. I was very curious about how the court would approach the question of when restraint on transportation goes so far that it becomes impermissible, so I was disappointed that that the decision didn't address these issues.
I was in complete agreement, until you got to the last sentence. What the court ruled is that the policy does not violate the Constitution. The court didn't make any claims about whether there is a loss of freedom here. There are plenty of ways we can lose freedom without any violation of the Constitution ever occurring. The two are not the same.



The rule requiring ID has never been made public -- not even in a redacted form. Now just why is it that the FAA can't show us the part of the directive that (we're told) requires the airlines to ask for photo ID? I can't see any good reason to hide that.

(I once managed to get my hands on an accompanying guidance document that the FAA sent to airlines, providing guidance on how they should implement the requirements. I've read the entire thing, and there is no reason the FAA couldn't have released that guidance document, too. So why haven't they? The only explanation I can hypothesize is that they are opposed to transparency, and make up some kind of bogus "security" excuse to let them do what they want to do without the nuisance of public oversight.)

I don't have a problem if experts decide that some of the TSA's internal processes and procedures genuinely need to be kept secret. But when the FAA issues regulation, with the force of law, that imposes requirements on passengers -- requirements that arguably, potentially might affect the civil liberties of passengers -- why the heck can't they make this public, at the very least in redacted format? Secret law is counter to democratic principles.

By the way, I believe the problem agency here is the FAA, not the TSA, though I'm not 100% certain about that.

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Could this thread be renamed? I keep thinging it's going to be about Gary Gilmore's decision.

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In this case, the reason is different: there is a specific exemption in the FOIA rules that allows the FAA to refuse to disclose their regulations; all they have to do is to assert that it it relates to aviation security. The problem is not that we asked for them in the wrong way; the problem is that no matter how you ask, they are exempt from FOIA disclosure.

I will also point out that the secret regulations I'm talking about are unclassified. No one is claiming that the photo ID regulations are classified. The FAA shares them with airlines and their airlines; the FAA just won't share them with the passengers who are affected by the regulation.

(Given your work in the military, you probably know the criteria for classifying something SECRET: "information which, if disclosed without authorization, could reasonably be expected to cause serious damage to the national security." Well, I don't think that the regulation requiring us to show ID falls into that category.)

That may be accurate in general, but that's not the rule at the FAA.

By the way, you may be aware that the guidance today appears to be a little different from what it was when you worked in this area. There is now a certain attitude of denying everything and forcing the requestor to sue in court to get what they are entitled to. But that's a bit of a tangent -- several organizations issued FOIA requests for the FAA photo ID regulations long ago, in the previous administration, and were rebuffed.


That isn't the problem here. I know some of the people who submitted the FOIA requests asking for the photo ID regulations, and they are full-time lawyers who are experts in FOIA. Are you familiar with EPIC (www.epic.org)? They are a civil liberties organization, and one of their major activities is to submit FOIA requests. They got nowhere with the FAA.

For instance, here is a denial document from the FAA that dates back to 1996:
http://www.epic.org/privacy/faa/letter.html
Note the statement at the end about how the FAA Administrator has broad discretion to prohibit disclosure of information (this includes denying FOIA requests).

In fact, there's some history here that you might not be aware of. John Gilmore et al started with FOIA requests 10 years ago, and the FAA refused to give them anything. It is only after 10 years of trying other routes that Gilmore filed this lawsuit.

I don't know of any legal cause for action. The law is clear: the FAA is not required to release this information. I happen to think the law is an ... in this case, but the courts are not the answer to all injustices. This is a bad policy decision that can only be cured by Congress, or by the FAA. I wouldn't expect to see it in the courts, because everybody agrees that the law allows the FAA to withhold disclosure of these regulations. It's bad policy, but no court is going to overturn a law merely on the basis that it's a bad idea. That's why, realistically, the only way to fight the secret law issue is probably to fight it in Congress, or in the court of public opinion.

And that effort will never succeed because both the general public and the Congress truly believe that demanding IDs enhances (or even guarantees!) "security." How many times have you heard responsible people say, "We want to know who is flying on our planes." Nobody thinks for a moment that we don't really know who is flying. We only know that somebody showed an ID, which is about as easy to get as a ham sandwich. Moreover, unless the passenger had a recognizable name (like Osama bin Laden) or one that the government already has on a watch list, then he or she would be allowed to board with no problems at all. And this policy has to be kept secret?

It's all so silly. :rolleyes:

Bruce

While Americans flying within America are asked to show ID for domestic travel, the two countries* where 76% of all of the world's wounding and fatal terrorist attacks happened in the latest year for which I had full data (i.e., the full calendar year 2004) do not require ID for domestic flights. Given that neither of those two countries had an incident of a domestic flight being hijacked or bombed by an individual on board the plane during that time, the absence of ID checks for domestic commercial pax flights didn't seem to create more terrorists nor did the absence of required ID checks for domestic commercial pax flights induce terrorists to board a plane and hijack or bomb it.

In any event, I don't see how demands for ID in the current environment provide any security from terrorist attacks. ID is NOT security, but it sure does provide many with a false sense of security; and thus Congress and the Executive will continue down the wuss path.


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* In 2004, 44% of the world's wounding and fatal terrorist attacks -- measured by the number of incidents -- happened in India AND 32% of the world's wounding and fatal terrorist attacks happened in Iraq. (This is a measure of the number of incidents and not a measure of the number of individual persons wounded or killed.)

This testimony provides a decent breakdown of the costs for airlines to provide security.
http://www.house.gov/transportation/...-02/carty.html

i found the quote that the airlines has to provide $400M in screening catering and supplies to the TSA to be interesting. What is in this -coffee and donuts?

Ah, yes. The chasm separating intelligence and intellect continues to grow...

You have got to be kidding me!! :mad: :mad: Why would the airlines provide anything to the screeners?? Let them buy their own damn coffee and donuts! That is ridiculous! God, crap like this gets my blood boiling.

I read the statement in the article and would like to get this clarified. I would go ballistic if this actually meant the government was forcing airlines to feed TSA staff. I hope he meant something completely different by that statement.

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Keep in mind that testimony is from 2002. Many things have changed since then, generally for the better.

Bruce

Privacy Act and FOIA aside, it's nice to know the TSA complies with government ethics rules -- at least at the worker bee level. Sounds like you guys have your ethics act together.

I didn't think it was possible to see those two words together. ;) :)

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