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Right to Travel Case - for IP?]
From: Dave Farber <dave () farber net>
Date: Mon, 27 Feb 2006 05:59:05 -0500
-------- Original Message -------- Subject: Right to Travel Case - for IP? Date: Sun, 26 Feb 2006 18:38:59 -0800 From: Steven Hertzberg <stevenstevensteven () gmail com> To: dave () farber net Dave, Here's a recent court decision regarding the right of the government to stipulate that citizens must show ID and submit to search prior to boarding a commercial airplane. While there is some very interesting discussion within the decision, of particular interest is the judge's statement that stipulating to the commercial airline boarding process essentially grants the gov't "a license to do what it would otherwise be barred from doing by the Fourth Amendment." I do not understand this decision and hope that some from IP may shed some additional light on the matter. Given that a US citizen's rights are unalienable, how are we, as men, able to waive these god-given rights and grant the gov't the ability to admittedly operate outside the bounds of the Constitution? Case Overview: John Gilmore ("Gilmore") sued Southwest Airlines and the United States Attorney General, Alberto R. Gonzales, among other defendants,1 alleging that the enactment and enforcement of the Government's civilian airline passenger identification policy is unconstitutional. The identification policy requires airline passengers to present identification to airline personnel before boarding or be subjected to a search that is more exacting than the routine search that passengers who present identification encounter. Gilmore alleges that when he refused to present identification or be subjected to a more thorough search, he was not allowed to board his flights to Washington, D.C. Gilmore asserts that because the Government refuses to disclose the content of the identification policy, it is vague and uncertain and therefore violated his right to due process. He also alleges that when he was not allowed to board the airplanes, Defendants violated his right to travel, right to be free from unreasonable searches and seizures, right to freely associate, and right to petition the government for redress of grievances. My favorite statements from the judge are: (1) "We reject Gilmore's right to travel argument because the Constitution does not guarantee the right to travel by any particular form of transportation." (2) "If he [Gilmore] chooses to proceed, that choice, whether viewed as a relinquishment of an option to leave or an election to submit to the search, is essentially a "consent," granting the government a license to do what it would otherwise be barred from doing by the Fourth Amendment." Background excerpt: The [United Airlines] Security Chief [at SFO] told Gilmore that he did not know the law or government regulation that required airlines to enforce the identification policy. Another member of United's security force later told Gilmore that the policy was set out in government Security Directives, which he was not permitted to disclose. He also told Gilmore that the Security Directives were revised frequently, as often as weekly; were transmitted orally; and differed according to airport. The airline security personnel could not, according to the Government, disclose to Gilmore the Security Directive that imposed the identification policy because the Directive was classified as "sensitive security information" ("SSI").3 Gilmore left the airport and has not flown since September 11, 2001 because he is unwilling to show identification or be subjected to the "selectee" screening process. Excerpts from Judge's Decision: Excerpt 1: Gilmore alleges that the identification policy violates his constitutional right to travel because he cannot travel by commercial airlines without presenting identification, which is an impermissible federal condition. We reject Gilmore's right to travel argument because the Constitution does not guarantee the right to travel by any particular form of transportation. Excerpt 2: Gilmore also suggests that the identification policy did not present a meaningful choice, but rather a "Hobson's Choice," in violation of the unconstitutional conditions doctrine. We have held, as a matter of constitutional law, that an airline passenger has a choice regarding searches: [H]e may submit to a search of his person and immediate possessions as a condition to boarding; or he may turn around and leave. If he chooses to proceed, that choice, whether viewed as a relinquishment of an option to leave or an election to submit to the search, is essentially a "consent," granting the government a license to do what it would otherwise be barred from doing by the Fourth Amendment. Davis, 482 F.2d at 913. Gilmore had a meaningful choice. He could have presented identification, submitted to a search, or left the airport. That he chose the latter does not detract from the fact that he could have boarded the airplane had he chosen one of the other two options. Thus, we reject Gilmore's Fourth Amendment arguments. For Reference: Overview of case: http://www.ioerror.us/2006/01/30/you-have-no-right-to-travel/ Decision can be found at: http://caselaw.lp.findlaw.com/data2/circs/9th/0415736p.pdf Gilmore's Website: http://www.papersplease.org/gilmore/index.html ________________________________ Steven Hertzberg http://www.hertzberg.org ------------------------------------- You are subscribed as lists-ip () insecure org To manage your subscription, go to http://v2.listbox.com/member/?listname=ip Archives at: http://www.interesting-people.org/archives/interesting-people/
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- Right to Travel Case - for IP?] Dave Farber (Feb 27)