Back to the Gilmore decision for a second (mods, where are you?). The 9th Circuit originally heard an appeal based on a lower court decision to dismiss based on the pleadings Gilmore filed -- the ruling was that Gilmore's lawsuit should have been filed directly in the 9th Circuit. According to The Practical Nomad:

The judges' misunderstandings were compounded by their decision to jump from an appeal, motions, and oral argument concerning standing and jurisdiction to a decision on the facts and the merits, without there ever having been any discovery, hearing, cross-examination, or fact-finding proceeding of any sort, either before the District Court or before the Court of Appeals. The only factual evidence considered by the Court of Appeals, so far as I can tell, was evidence about the USA government defendants' (purported) policies, submitted and reviewed by the judges secretly, after the oral argument, and unable to be reviewed, rebutted, or cross-examined by Gilmore or his lawyers.

Hi all,

As some of you know, I've been working on the Gilmore case. We're all pretty disappointed, but the good bit of news that came out of all of this is that in its decision the Court has fleshed-out what the TSA secret law really says. It is now clear that travelers do have an option. One can either a) show ID; or b) request secondary screening. As unfortunate as the decision is, it is important to note that one can still fly anonymously simply by requesting a secondary in lieu of showing ID.

If you are correct, that provides an avenue to bypass the infamous "no-fly" list. For instance, if Senator Kennedy (when he was on the list) has simply appeared at the airport without any ID, he would have been designated a selectee, searched and allowed to fly! But if he had presented ID, he would have been stopped -- and actually was stopped, five times. Interesting.

Bruce

Congratulations. According to the ruling, when Gilmore presented himself to Southwest and United Airlines, he was in each case told he could fly by subjecting himself to a more intensive (secondary) search. He refused. This was, of course, before he filed his suit. So it's hard to see how this ruling fleshed out much of anything. It held that the specifics are, in fact, SSI, and through review, that the procedures he was subjected to did not violate either the scope of the procedures or the law. With the sole exception of having the appeal denied on purely jurisdictional grounds, he lost on every particular. It's somewhat like bragging about getting out of the speeding ticket by proving the radar gun hadn't been calibrated, as you are being led away to jail on 5 charges of drunk driving.

Additionally, aspects of the ruling clearly derail much loved arguments here, including burden on a single mode of travel making such mode into a right (Miller v. Reed). So, in short, the ruling further solidifies the notion that you do not have a right to fly. The court also reaffirmed United States v. Davis, which holds search of posessions to be reasonable as long as one is free to leave rather than submit. This section also clearly addresses the legality of behavioral profiling as a component of such a search.

In short, a slap down on every issue of substance. A waste of whoever's money was spent, though I am happy to contribute my share through my taxes in order to reaffirm the principles involved.

Unless he changed his name on the boarding pass, he would still be subject to the no-fly list. The reservation name would trigger the no-fly issue.

Well, if you plan to fly without ID, make a reservation under any name you choose! And pay cash. Maybe "Abraham Lincoln" would get you on board, but who knows? Surely some terrorist somewhere is using that name by now, right?

Bruce

We tried that in Pearl Harbor!

The "anything for security" crowd was so terrified of terrorism that they decided to park all of the military airplanes wing-to-wing with the gas tanks empty. They were terrified that the "Japs" were going to steal an airplane. Well, nobody stole any airplanes, so that worked, except when the Japanese came to attack Pearl Harbor (1) we couldn't get the planes in the air to defend ourselves and (2) we had set up easy targets for the Japanese to destroy.

Lesson: "Anything for security" paranoia doesn't work.

Couldn't you have found a relevant example from the crusades too? It's as though any two events in history are ever directly comparable... they aren't.

Curious how this relates to Gilmore, though? Are you putting yourself and your intellect above that of the 9th?

I'd like to hear from somebody who refused ID and was allowed to fly after being SSSSed (obviously nobody here would do that, you wouldn't get your miles!) I wonder whether the rule is really that you have to show ID or not fly, and the 9th Circuit (intentionally or unintentionally) misapprehended the issue. Otherwise what's the point of having domestic no-fly lists.

There are many examples of exactly this when people have lost their ID, such as leaving it at home or having it stolen. You can find examples in a search of this board.

If you see a distinction between this and refusing to produce ID, you're welcome to wait for a response on that point.

The government rules that require that airlines ask their customers to produce photo ID does not require that the airlines refuse transportation to those lacking such ID; failure to possess or produce ID simply results in the full SSSS treatment.

More accurately, I think one can still try to fly anonymously. I'm quite sure the thousands of check-in agents, BP/ID checkers etc. have not all been apprised of this decision. It will probably be necessary to file another lawsuit after being denied the option of flying with a full secondary in lieu of ID. By which time the government will no doubt have plugged that loophole.

Well, lesee here. In the case filed by a guy with an obvious axe to grind, he was offered the option to fly after enhanced screening two out of two times.

Your post sounds more like a fervent hope than a reality.

I don't know. Pearl Harbor, on the other hand, is a pretty recent example of terrorism paranoia going wrong.

It's as though some people want to ignore history entirely, dooming us to repeat the same mistakes over and over again.

Forgive me if I don't blindly prostrate myself at the foot of any "authority."

Courts get it wrong sometimes, too.

Quite often, actually. Perhaps Michael Chertoff (the real one!), having been a Federal Circuit Court of Appeals judge, has some familiarity with appeals! If the lower courts were always right, you wouldn't need appeals courts! Of course, this Gilmore decision was made by an appeals court, but the same principle applies: the Supreme Court reviews Appeals Court decisions and does overturn them quite often (necessarily so when two circuit courts disagree!).

Bruce