an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Undisclosed Prisons, Detention Without Charges, and Now Secret Laws: the Bush Adminstration's Latest Act of Contempt for the Rule of Law
The Bush Administration has time and again demonstrated contempt for the basic principles of the rule of law when it deems it necessary for the war on terror. [I thought about wording this more politely, but why beat around the bush on a matter of such importance]. Its obsession with secrecy is also well documented. So this story on CNET news should come as no surprise. But it's still shocking.
Apparently there is a federal regulation or order of some kind which requires that everyone who boards a commercial flight must produce an ID. This seems to be a sensible precaution [see Concurring Opinions for funny but serious commentaries on security measures]. The shocker is not the regulation, but the fact that, in a case based upon this regulation, the Justice Department refuses to disclose the terms of the regulation, or even to confirm that it exists.
A three-judge panel of the 9th Circuit Court of Appeals seemed skeptical of the Bush administration's defense of secret laws and regulations but stopped short of suggesting that such a rule would be necessarily unconstitutional.
"How do we know there's an order?" Judge Thomas Nelson asked. "Because you said there was?"
Replied Joshua Waldman, a staff attorney for the Department of Justice: "We couldn't confirm or deny the existence of an order." Even though government regulations required his silence, Waldman said, the situation did seem a "bit peculiar."
That was an impressive understatement. Every account of the "rule of law" requires that laws enforced against the public must be made public. But the Justice Department, our national law enforcement agency, thinks not:
The Justice Department has said it could identify the secret law under seal, which would be available to the 9th Circuit but not necessarily Gilmore's lawyers. But any public description would not be permitted, the department said.
It is impossible to figure out what possible reason the Bush Administration could have for keeping the terms and status of this regulation or order a "secret," since it is being invoked (at least implicitly) millions of times each day [Unless it's a massive bluff and no such reglation exists?]. But never mind that.
This is a gross violation of the rule of law, for which no justification could be adequate.
UPDATE: Orin Kerr at Volokh Conspiracy has added a more information to this bizarre story. His basic point is that this situation is not as bad as it sounds because people who refuse to produce an ID are not arrested, but merely won't be let on the plane. This response is besides the point: a secret law is unacceptable. Besides being wrong in principle, it once again tarnishes our credibility as a country. We cannot insist that we abide by the rule of law (and lecture other countries on the subject), while claiming that it is okay to have a secret law. It's kind of like the Bush Administration insisting that we are opposed to torture and denying that we commit torture, while resisting the enactment of a law against torture and seeking to immunize our agents who might commit torture. Nobody buys it. Posted
by Brian Tamanaha [link]
Orin Kerr discusses this at the Volokh Conspiracy. It's somewhat less sinister than it would appear initially. http://volokh.com/posts/1134369043.shtml
Brian - Is there any comparison to be made with the Deborah Davis case in Colorado? http://www.papersplease.org/davis/ The Fed's reason for dropping the case against Davis seems to imply that because notification of the ID requirement was NOT clearly displayed, they could not prosecute.