Secret law case sent to Supreme Court

One of the most fundamental, and sometimes annoying, principles of American law is described by the old adage, “Ignorance of the law is no excuse.’ But the courts have held that in order for this to apply, and you to be responsible for a law, the government must provide “notice,’ for instance, publishing the law in the Federal Register.

So it is that John Gilmore is challenging apparently secret Transportation Security Agency regulations which he was told he could not see after being denied boarding two aircraft at two different California airports. Gilmore is taking his case all the way to the U.S. Supreme Court after losing on appeal in the Ninth Circuit.

The government has said that the public can’t know what the regulations are because they constitute Sensitive Security Information, or SSI, which is overly broad and covers almost anything the TSA does — even many of the things you can stand there and obviously watch them doing.

“The TSA is allowed to withhold some information from the public, but only in cases where transportation security is at risk,’ said EFF Staff Attorney Marcia Hofmann. “Simply showing Americans the rules they must follow can’t possibly compromise security. The real danger here is meaningless secrecy, which can hide security flaws, frustrate the justice system, create confusion, and undermine government accountability.’

The Constitution and laws like the Freedom of Information Act (FOIA) prohibit the government from imposing secret laws on the public. But if the lower court decision permitting the secrecy is allowed to stand, it opens the door to other government agencies creating undisclosed rules and regulations without oversight.

“‘Security’ shouldn’t be a magic password allowing the government to escape accountability,’ said Hofmann. “The Supreme Court should hear this case and review why the TSA insists on keeping this basic information secret.’ — Electronic Frontier Foundation

Since I’m in Boston right now, I’m going to forgo my usual summary of the background of the case and refer you to Ryan Singel’s excellent article at 27B Stroke 6.

The longer this goes on, the stranger it gets. Since Gilmore was denied boarding those fateful flights in 2002, many people have decided to attempt to fly without showing identification, and virtually all of them have succeeded in doing so.

Gilmore’s case, though, should clarify whether we are a secret police state where we have to follow laws that we aren’t allowed to read for ourselves, or whether some small vestiges of liberty still remain.