The end of Gilmore v. Gonzales

| Comments (15) | Security: Airport
The Supremes have declined to hear Gilmore v. Gonzales. I can't say I'm too surprised; Americans seem in general pretty inured to airport searches, in part due to an exaggerated sense of the danger of air travel (both due to accidents and terrorism).


What dissapoints me is that the supreme court has now effectively said you can have secret law.

Or worse, secret regulation, executive branch created and enforced strictures without ANY oversight.

But typical, I'm afraid.

This would be upsetting if you thought it meant, say, that careful consideration had led a set of independent legal scholars to determine that the constitution permits secret law. But in practice, this just means that this panel of nine political appointees has made some sort of political decision, based on their own ideas about what the country should look like, the favors they still owe to the people who appointed them, etc. Twenty years from now, another supreme court may decide the opposite thing without any obvious embarassment.

So ignorance of a policy you are required to be ignorant cannot be your defense against followint the policy? Especially, as in this case, when those who were in charge of enforcing the policy don't know how to apply the policy, because they are also ignorant of the policy, so neither they or you can be sure that they or you are following the policy in question?

Kafka, anyone?

So there's this huge secret airbase in the Nevada desert, and I've heard that if you try to drive up to it, you'll get accosted by military folks who, if you try to pull a Gilmore on them, will make your life a lot more miserable than any airport TSA monkey ever could. I strongly suspect that there are lots of other such places--top secret installations where just showing up is problematical, for reasons that the government doesn't care to discuss.

Should the government be required to publicly list every one of them, together with explicit rules regarding how close to them you're allowed to get, where you are and aren't allowed to photograph, how energetically you're allowed to conceal your identity and/or evade apprehension if spotted, and so on, so that Americans don't have to worry about being governed by any "secret laws"?

Actually Dan, I think you've just made Fraud Guy's point. I imagine there is a law that says, "The US military may have secret military installations that have the following legal properties..."

My guess is that one of the provisions is that a judge may review an official notice provided by the AG in camera to verify whether a given piece of land is on that list.

Or maybe the law simply says that people must obey signs of a given form.

But at the end of the day, they'll show you a section of the USC.

Kevin, I'd definitely be interested to see that law--and to compare its specificity with that of the law that authorizes the TSA to issue security directives to airports. Personally, I'd be quite astonished if the two laws differed in their degree of open-endedness anywhere near as much as they differ in the degree of indignation being expressed about them. But I'm open to persuasion, if you'd care to do the research and make the case.

Excellent Dan. See USC Title 18 Sections 795-797 concerning photographing and sketching of defense installations. Here's one possible link:

There's also USC Title 18 Section 1382 that covers entering military property:

Now, if you can just point me to the USC title and section corresponding to the TSA security directives, we can compare specificity.

Those laws about photographing or entering military installations are just about as vague as I expected. For example, if a soldier in charge tells you to leave a military installation and you stay or re-enter, you're breaking the law. No indication whatsoever as to what grounds are sufficient for a soldier to issue such an order--let alone where those military installations actually are.

Now, it may be--I can't be bothered to check--that the regulation allowing TSA guys to stop John Gilmore from getting on an airplane is purely administrative--that is, that there is no actual law stating, "it's against the law to board an airplane if a TSA guy has told you not to". If so, I'd be perfectly happy to see one passed, and I doubt it would have any trouble sailing through Congress and getting signed. At that point, the laws governing air travel security and military installation security would be pretty much on an even footing in terms of secrecy and clarity. Somehow, though, I don't think that that was Gilmore's goal.

Seems disingenuous of you to draw a conclusion without producing the corresponding TSA law. Remember, the assertion is that it's secret. If you can't produce any law at all, seems like you've lost the argument about secret laws.

Moreover, 795-797 does require the President to keep a list of secret installations--almost exactly as I surmised. And property records show where federal property is.

Your last point simply changes the subject. I think Gilmore's point was in fact that he would like to see the law that says TSA or airline personnel have the right to deny him access to air travel. Have you even been to papersplease to learn what this is all about?

Having such a law sail through Congress is yet another of your hypothetical conjectures with no facts to back you up.

Kevin, the laws authorizing the TSA to formulate security regulations and screening procedures protecting aircraft and airports, and making it a crime to violate those regulations, can be found at

These laws are equivalent to the laws you cited authorizing military personnel to keep people out of secret military bases. In neither case are the specific policies applied under these laws made public--nor are they required to be. In short, there is no "secret law" in either case--only a secret set of policies formulated and applied under a published law.

As far as I know, Gilmore has never claimed that the law authorizing the TSA to set regulations governing access to airplanes and secured areas of airports is a "secret law". Rather, he has complained that the "security directives" issued by the TSA--including directives that require the showing of ID before entering such areas--are secret. He could very well make the same argument on being shooed away from a secret defense installation: the law requires him to leave such an installation when ordered to, but the regulation that asserts that a given location is part of such an installation, and tells guards when, where and under what circumstances to shoo him away from one, is, by his standard, a "secret law".

You should check out papersplease where Gilmore very clearly makes the claim that this is a secret law:

As for the correspondence of the two laws, the one I cited clearly specifies that trespass and photography are illegal. They leave some determination up in the air, but you could protest any given determination in court.

The one you cited covers submitting to screening in 44901(a) and consent to search in 44902(a). ASFAIK, Gilmore was perfectly willing to go through the screening line and consent to search.

I think you mean to cite 49 CFR section 1544.305(a) which covers security directives. But this section is a whole lot more vague than the ones I cited.

Why don't you read:

which discussed this in detail. It seems pretty clear that this area of regulation was explicitly made secret. Gilmore wanted to contest the Constitutionality of such secrecy.

Okay, I've read all the materials, and they appear to me to confirm everything I said previously. Gilmore's "secret law" complaint refers to the TSA's ID requirement--something that is (we assume) specified in the TSA's "security directive", which the TSA is by law allowed to formulate--and, I might add, also specifically allowed to keep secret.

(I might also add that Gilmore refused a secondary security screening, because it was required on the grounds that he had refused to show ID. Again, the TSA is specifically authorized to set regulations regarding such screenings.)

As for being able to "protest any determination in court" following being shooed off a secret military installation--why do you believe that such a protest wouldn't follow exactly the same trajectory as Gilmore's? Wouldn't you expect the courts simply to say, as they did to Gilmore, "sorry, you were trespassing, and no, you can't see the secret map of 'black' military installations that proves it"?

Well, I guess we'll have to disagree on the interpretation. I think that 1544.305 provides much more discretion and secrecy. The Undersecretary can pretty much make up anything he wants in terms of what, where, when, and who. With the military installations at least you can verify that the US owns the land and the President's only discretion is to designate a location.

It's true that the TSA's discretion regarding restricting access to airplanes and airports is very broad. One can argue whether this free rein is justified or worrisome. Personally, I'm not terribly concerned, because it applies only to air travel access, and because I'm generally comfortable giving law enforcement a lot of discretion, so that they can deal with unforeseen circumstances, and relying on administrative and political control to keep personnel in check.

But reasonable people can differ on the specifics of this (or most any other) instance of law enforcement empowerment. What bothered me about discussion of this case was more the "secret law" alarmism that was being bandied about, as if for all we know TSA officials may have been covertly authorized to kidnap random air travellers and ship them to labor camps, or something. What they have been empowered to do is base their airport screening policy on up-to-the-minute information without necessarily having to tip off the subjects of that information that they're doing so. That may be more discretion than some people would like, but it's not the complete collapse of the rule of law as we know it.

It does alarm _me_ and apparently Dan Gilmore as well. As for me, I don't think the rule of law will collapse, but I would like to see more oversight.

I think the amount of discretion and the secrecy behind how they exercise that discretion is pretty rare within our legal system. As I argue, more than what we use to protect our military installations.

It seems reasonable to examine whether this unusual power is justified.

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