Saturday, June 23, 2007

After month long search, here is a judge doing the right thing. 3 years ago.

EDITORIAL: A blow against the secrecy state

Federal government didn't even want to produce its photo ID law

Judges today are often former prosecutors, political creatures who got where they are by putting their finger to the wind, all too often more interested in enforcing the state's "prerogatives" than defending the inconvenient rights of the little guy.

In such an environment, heroes can be in short supply. So anyone who stands up for an individual's rights -- especially in the face the war on terror -- needs to be celebrated.

The 9th U.S. Circuit Court of Appeals has drawn its share of criticism over the years for its creative readings of the Constitution. But on Sept. 10, that court struck a solid first blow against the burgeoning secret police state.

John Gilmore is an Oakland resident who made millions as a founding employee of Sun Microsystems Inc.

On July 4, 2002, Southwest Airlines employees at Oakland International Airport barred Mr. Gilmore from boarding a flight to Baltimore after he refused to produce a government-issued photo ID. He also refused to allow security personnel -- who had no warrant based on probable cause -- to pat him down and search through his luggage.

Mr. Gilmore went through a similar experience with United Airlines employees at San Francisco International Airport later that same day. Both airlines said they were following federal directives.

Mr. Gilmore, who hasn't flown since, proceeded to sue the government and the airlines in federal court, alleging among other things that the identification requirement violates his right to freely assemble because he can't travel by air.

The U.S. Department of Justice has refused to even confirm or deny the existence of the rule the airline employees said they were following. The department has argued that national security requires directives dealing with transportation must be kept secret.

Though Mr. Gilmore's lawsuit was thrown out by a lower court judge, the 9th Circuit agreed to take up the matter on appeal. Thereupon the Department of Justice said it needed to file its reply -- detailing why the appeals court should throw out Mr. Gilmore's challenge -- under seal.

This nonsense is laughable.

On Sept. 10, the 9th Circuit ruled against the government in Mr. Gilmore's case, stating federal officials must argue their case in public.

Thank heavens.

Imagine if the other default setting should prevail. What could be a more basic premise and foundation of a free society than the public's ability to find out what laws are proposed, to debate them in the light of day, and -- at the very least -- promptly be told which laws have been enacted, and what they stipulate?

How is a law to be challenged if no one knows what it is? How could its provisions be tested for constitutionality in a court if those seeking to mount the challenge were not allowed to read its clear and concrete language?

Are we even to be arrested for violating "secret" laws, which we couldn't possibly know existed?

To assert that any government officials should be able to say, "I'm now going to arrest you but I don't have to tell you what law you broke, or how you can comply with it in future" takes us back not merely before the establishment of the U.S. Constitution, but back to the days before the Magna Carta, when a king could imprison or execute one of his subjects on nothing more than a passing whim.

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