RE: Gilmore case...Who can make laws?
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" <measl@mfn.org> To: "cypherpunks@al-qaeda.net" <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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On Tue, 7 Sep 2004, Tyler Durden wrote:
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?
Incorrect. There are serveral backdoors. The POTUS can issue a Presidential Finding, and said "finding" effectively creates a "law". The SCOTUS can make laws as well, also by issuing findings, although they are then called "decisions" :-/ -- Yours, J.A. Terranson sysadmin@mfn.org 0xBD4A95BF "...justice is a duty towards those whom you love and those whom you do not. And people's rights will not be harmed if the opponent speaks out about them." Osama Bin Laden - - - "There aught to be limits to freedom!" George Bush - - - Which one scares you more?
http://news.bbc.co.uk/2/hi/technology/3634572.stm John Young and John Gilmore aren't the only cypherpunks in the news lately. J. Alif Terranson was in a BBC article about getting the company to agree to drop the hundred or so major spammers who've been using their network. Some of them are former C&W customers, some are new, and they've been estimated to be about $2M/month business for Savvis, so this is a non-trivial step for Savvis. On the other hand, Savvis risked getting its whole network blacklisted by the major spam anti-spam groups if it didn't do something. We'll see if they follow through.
On Wed, 8 Sep 2004, Bill Stewart wrote:
http://news.bbc.co.uk/2/hi/technology/3634572.stm
John Young and John Gilmore aren't the only cypherpunks in the news lately. J. Alif Terranson was in a BBC article about getting the company to agree to drop the hundred or so major spammers who've been using their network.
Some of them are former C&W customers, some are new, and they've been estimated to be about $2M/month business for Savvis, so this is a non-trivial step for Savvis. On the other hand, Savvis risked getting its whole network blacklisted by the major spam anti-spam groups if it didn't do something.
We'll see if they follow through.
The actual memos are at http://www.savvis.info Other articles (mostly with greater detail) include: http://www.nwfusion.com/edge/news/2004/0908leakmemos.html http://www.computerworld.com/managementtopics/outsourcing/isptelecom/story/0... 01,95769,00.html http://arstechnica.com/news/posts/20040908-4168.html http://news.bbc.co.uk/1/hi/technology/3634572.stm http://techdirt.com/articles/20040908/103247.shtml http://ads.osdn.com/?ad_id=4985&alloc_id=10663&site_id=1&request_id=1806376 -- Yours, J.A. Terranson sysadmin@mfn.org 0xBD4A95BF "...justice is a duty towards those whom you love and those whom you do not. And people's rights will not be harmed if the opponent speaks out about them." Osama Bin Laden - - - "There aught to be limits to freedom!" George Bush - - - Which one scares you more?
On Tue, 7 Sep 2004, Tyler Durden wrote:
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.
Well, there's the "Executive Order", as well as the fact that many organizations are empowered to create "policy". Although policy is not specifically law, it may as well be. I am curious though: 1) Can the laws that grant policy making privileges be themselves secret? 2) Are policy making privilege laws restricted within a certain scope (within a specific organization)? 3) Are all *SIGNED* executive orders publically available? -Chuck -- http://www.quantumlinux.com Quantum Linux Laboratories, LLC. ACCELERATING Business with Open Technology "The measure of the restoration lies in the extent to which we apply social values more noble than mere monetary profit." - FDR
TD writes:
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.
The big loophole here is "regulation." Congress passes a law declaring that some governmental organization has the power to regulate something, and then that organization may create rules, impose financial penalties, and send people to jail under a plethora of laws against obstructing organizations blessed with regulatory powers. Congress, for instance, does not make every single law governing the behavior of pharmacutical companies, or every single law governing the use of the radio spectrum. Instead, it makes one law granting the FDA or FCC regulatory powers, and exercises only oversight with regards to their subsequent behavior. An argument that the TSA cannot make rules, even secret rules, regulating air travel, because it is not Congress, will not pass the giggle test in court, unless you can show that the TSA exceeded its regulatory powers. -- Eric Michael Cordian 0+ O:.T:.O:. Mathematical Munitions Division "Do What Thou Wilt Shall Be The Whole Of The Law"
On Tue, 7 Sep 2004, Eric Cordian wrote:
An argument that the TSA cannot make rules, even secret rules, regulating air travel, because it is not Congress, will not pass the giggle test in court, unless you can show that the TSA exceeded its regulatory powers.
Absolutely correct. I am however intrigued that they may be preparing to posit that secret rules (which act under color of law) can be enforced without being described publicly. This, if accepted, would effectively end all constitutional protections. -- Yours, J.A. Terranson sysadmin@mfn.org 0xBD4A95BF "...justice is a duty towards those whom you love and those whom you do not. And people's rights will not be harmed if the opponent speaks out about them." Osama Bin Laden - - - "There aught to be limits to freedom!" George Bush - - - Which one scares you more?
participants (5)
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Bill Stewart -
Chuck Wolber -
Eric Cordian -
J.A. Terranson -
Tyler Durden