On the Record

Harrison argued that the ID requirement exceeded the limitations on airport searches laid down by the 9th Circuit decision in United States v. Davis. That ruling found that airport searches are a permitted exception to the Fourth Amendment as an administrative measure.

But according to the ruling, these searches must be limited to looking for weapons and explosives and must be applied to everyone. Harrison argued that these measures cannot legally be used to find people on secret lists. He noted that the Davis case specifically forbids law enforcement from using passenger manifests to search for particular individuals.

Appellate judge Richard Paez asked if the person couldn't simply leave the airport without showing ID, Harrison noted that the law protects people who are not suspects from punishment if they refuse to give a police officer their ID. But he noted that demanding ID from passengers - who are not suspects - punishes them by forbidding them from flying.

Appellate judge Stephan Trott sharply questioned Harrison several times about whether it was unconstitutional to ask for an ID in public. Harrison argued again that the airport ID requirement is considered an administrative search where the passenger is presumed not to be a suspect and no ID is required. He contrasted this with a Terry stopin which where suspects are permitted to be briefly detained and asked for their ID. But Trott appeared unsatisfied with the answer.

Trott also grilled Waldman as to why the government was playing "cat and mouse" with the courts by refusing to define the identification policy. The government had offered to show the policy to the appellate court but not the district court.

Waldman argued that the identity requirement did not place an undue burden on the right to travel and enhanced airport security. "The requirements promotes the right to travel by promoting everyone's safety," said Waldman.

But Waldman acknowledged "the incremental additional of the ID requirement" which the Davis case forbids insisting it was "no big deal."

Gilmore contends that the airport ID requirement which kept him from flying to Washington D.C. prevented him from exercising his First Amendment right to petition the government for redress of grievance. Waldman countered that Gilmore could travel by other means. "You can assemble any way you want, it does not impact First Amendment rights at all," said Waldman who added, "I'm not aware of any right to travel anonymously."

Yesterday's hearing was covered by a number of media organizations including Wired News, CNET and the AP. Two of those stories published contained significant errors.

The CNET story mistakenly stated that the Supreme Court decided in 2004 "that they could arrest anyone they stopped who refused to show an ID." After the hearing, Gilmore noted outside the courtroom that in the case of Hiibel vs. Sixth Judicial District, the Supreme Court found that people not considered suspects, such as those simply boarding airplanes, do not have to answer questions or show an ID. "The Supreme Court said this is impermissible," said Gilmore.

The Supreme Court in this case also relied on a decision by the Nevada Supreme Court which ruled that under Nevada law, suspects have to give their name, but are not required to show an ID.

But the worst error by far was included in the AP story which falsely stated that Gilmore asked the appeals court to broaden the scope of his case to include other forms of transportation. In fact Gilmore's case has always included all forms of ID in its challenge to the government. The government tried to narrow the scope claiming that Gilmore had not tried to travel on trains or buses. Gilmore alerted the court yesterday that has since been barred from purchasing Amtrack tickets without ID.

I was with Gilmore when he attempted to fly from two airports on July 4, 2002 without showing ID. After some wrangling with airport officials, who could not produce the law requiring ID, he was told that he didn't actually need an ID if he was willing to undergo a more thorough search before boarding. Gilmore declined the search, sued the government and has not flown domestically since.

"What's shocking is that the judiciary is getting one story and the American people are getting another," said Harrison to the judges referring to the little known policy that exempts passengers from showing ID to fly if they are willing to undergo secondary screening.

A U.S. District Court dismissed Gilmore's case ruling that administrative orders that must be heard by an appeals court. Harrison asked the judges to remand the case back down to the district court because it had no record of the ID requirement - or a statement of facts for the appellate court to review.