A lot of Americans didn't take Gilmore v. Ashcroft seriously. Maybe now they will. A front-page article in today's New York Times shows the problem with secret regulations that restrict travel and the shadowy government bureaucrats that enforce them. The article headline says it all: "A Music Scholar Is Barred From the United States, But No One Will Say Why."
Back in 2003, John Gilmore anticipated this very problem, and tried to forestall it by walking onto a plane with a boarding pass and no government-issued ID. His goal was to clarify the ID requirements that airlines were imposing, in the face of what seemed to him to be the U.S. Constitution's clear intent that Americans have a right to travel without such restrictions.
Gilmore was to fly from Oakland, Calif., where he lives, to Washington, D.C., where he was to speak at a government hearing. Gilmore doesn't drive, so has no driver's license, and was traveling domestically, for which Americans have never needed a passport. He was not allowed to board. He went to nearby San Francisco Airport, and was told he could fly without ID if he submitted to an "intrusive search." He refused and hasn't flown since.
Gilmore's position, as expressed in an FAQ about the case, is that "people in the US have a right to travel and associate without being monitored or stopped by their government, unless they are actually suspected or convicted of a crime, and unless that suspicion is reasonable."
By the time the case reached the federal courts, Gilmore had a second complaint. No one, either in the government or the airline would produce the wording of the law or regulation that supported the ID requirement. So Gilmore v. Ashcroft became a case about secret laws.
In January 2007, the U.S. Supreme Court upheld a lower court's rulings that the ID requirement was constitutional and it could be secret.
The New York Times article details the harrowing case of
Nalini Ghuman, an up-and-coming musicologist and expert on the British composer Edward Elgar, [who] was stopped at the San Francisco airport in August last year and, without explanation, told that she was no longer allowed to enter the United States.
The United States is supposed to not have secret laws, and Ghuman's case makes clear why.
The mystery of her case shows how difficult, if not impossible, it is to defend against such a decision once the secretive government process has been set in motion.
After a year of letters and inquiries, Ms. Ghuman and her Mills College lawyer have been unable to find out why her residency visa was suddenly revoked, or whether she was on some security watch list. Nor does she know whether her application for a new visa, pending since last October, is being stymied by the shadow of the same unspecified problem or mistake.
In a tearful telephone interview from her parentsâ'' home in western Wales, Ms. Ghuman, 34, an Oxford graduate who earned her Ph.D. from the University of California, Berkeley, said she felt like a character in Kafka.
â''I donâ''t know why itâ''s happened, what Iâ''m accused of,â'' she said. â''Thereâ''s no opportunity to defend myself. One is just completely powerless.â''
Kelly Klundt, a spokeswoman for Customs and Border Protection in the Department of Homeland Security, said officers at San Francisco International Airport had no choice but to bar Ms. Ghuman because the State Department, at its discretion, had revoked her visa. The State Department would not discuss the case, citing the confidentiality of individual visa records.
As it turns out, the Department of Homeland Security is getting ready to change all this. On the plus side, ID regulations will become public and explicit. On the minus side, from a civil liberties point of view at least, the requirement will become much more onerous.
According to a posting at The Identity Project, DHS has proposed new regulations that would require
1. All would-be international travellers to or from the USA (even US citizens crossing the U.S.-Canada border on foot) would have to have government-issued ID credentials
2. All would-be passengers on international or domestic flights to, from, over, via, or within the U.S. would have to have both government-issued ID credentials and explicit case-by-case prior permission from the DHS to the airline to allow each passenger to board a plane.
Enforcement of the regulations will still have some uncertainties, according to the Identity Project posting.
Among other problems, this amounts to a general order subjecting travelers to private searches, and allowing the private searchers to use any information obtained from those searches for their own commercial or other purposes. Since it is impossible to tell who is, and who is not, actually authorized to act on behalf of the government or to whom an airline has delegated its work, the proposed rules would effectively subject travelers to compulsory search by anyone in any airport claiming (unverifiably) to be an agent of an airline.
And it should go without saying that if the government can impose such a regime on air travel, it can do so for other modes as well. Nominally, at least, Amtrak has the same ID requirements as air travel, and there's little reason why highway, subway, and bus travel wouldn't be excluded, in the long run. The New York City police have asserted a right to randomly search bags on the subways, while it would slow the system greatly to ID everyone, random inspection is now possible as well.
DHS is holding a required public hearing on the proposed regulations on Thursday, in Washington D.C.
From the Federal Register notice:
DEPARTMENT OF HOMELAND
Transportation Security Administration
49 CFR Parts 1540, 1544, and 1560
[Docket No. TSAâ''2007â''28572]
Public Meeting: Secure Flight Program
AGENCY: Transportation Security
ACTION: Notice of public meeting and
request for comments.
SUMMARY: This notice provides the time
and location of the public meeting
which will be held by the
Transportation Security Administration oh
(TSA) regarding the Notice of Proposed
Rulemaking (NPRM) entitled â''â''Secure
Flight Program,â''â'' which was published
in the Federal Register on August 23,
2007 (72 FR 48356).
DATES: The public meeting will be on
September 20, 2007, in Washington, DC.
The meeting will begin at 9 am. Persons
not able to attend the meeting are
invited to provide written comments,
which must be received by October 22,
ADDRESSES: The public meeting will be
held at the Grand Hyatt Washington,
1000 H Street, NW., Washington, DC
20001. Participants should check in
with Secure Flight staff.