Hum. Another wrinkle in this thing occurred to me here, though I'm sure various Cypherpunks will (rightly) declare me naive. This describes the "Government" as creating secret laws. But, theoretically, only the congress and the Senate can create new laws, correct? The Executive branch has never been empowered to create laws, and I'm thinking these travel laws did not go through congress or the senate. So not only are these laws secret, they emanate from a body that is not empowered to make laws within the US. Is there a precedent, or perhaps because the "War on Terror" must be waged everywhere, the Commander in Chief can claim the right to make new domestic laws as a function of his wartime leadership. -TD

From: "J.A. Terranson" To: "cypherpunks@al-qaeda.net" Subject: Gilmore case: CNN Date: Tue, 7 Sep 2004 06:50:16 -0500 (CDT)

http://www.cnn.com/2004/LAW/09/06/airline.id.ap/index.html

Government wants ID arguments secret Monday, September 6, 2004 Posted: 4:07 PM EDT (2007 GMT)

SAN FRANCISCO, California (AP) -- The U.S. Department of Justice has asked an appellate court to keep its arguments secret for a case in which privacy advocate John Gilmore is challenging federal requirements to show identification before boarding an airplane.

A federal statute and other regulations "prohibit the disclosure of sensitive security information, and that is precisely what is alleged to be at issue here," the government said in court papers filed Friday with the U.S. Ninth Circuit Court of Appeals. Disclosing the restricted information "would be detrimental to the security of transportation," the government wrote.

Attorneys for Gilmore, a 49-year-old San Francisco resident who co-founded the Electronic Frontier Foundation, a civil liberties group, said they don't buy the government's argument and that its latest request raises only more questions.

"We're dealing with the government's review of a secret law that now they want a secret judicial review for," one of Gilmore's attorneys, James Harrison, said in a phone interview Sunday. "This administration's use of a secret law is more dangerous to the security of the nation than any external threat."

Gilmore first sued the government and several airlines in July 2002 after airline agents refused to let him board planes in San Francisco and Oakland without first showing an ID or submitting to a more intense search. He claimed in his lawsuit the ID requirement was vague and ineffective and violated his constitutional protections against illegal searches and seizures.

A U.S. District Court judge earlier this year dismissed his claims against the airlines, but said his challenge to the government belonged in a federal appellate court.

Now in his appellate case, Gilmore maintains the federal government has yet to disclose the regulations behind the ID requirement to which he was subjected.

"How are people supposed to follow laws if they don't know what they are?" Harrison said.

The government contends its court arguments should be sealed from public view and heard before a judge outside the presence of Gilmore and his attorneys. The government, however, said it would plan to file another redacted public version of its arguments.

A date for a hearing on the matter has not yet been set.

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