Posted in the
Washington Monthly:
SECRET LAWS....John Gilmore is suing the government because he doesn't think he should be required to show ID before boarding a commercial flight. I think this is stupid and he deserves to be thrown out of court.
At least, that's what I'd think if it weren't for this:
The Bush administration...claims that the ID requirement is necessary for security but has refused to identify any actual regulation requiring it.
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?"
....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.
WTF? Call me naive, but I've never heard of a secret law. I've heard of secret courts and secret evidence — which are bad enough already — but not secret laws. When did this happen?
And another thing. How could it possibly harm national security to identify the text of the law that requires passengers to show ID before boarding a plane? Maybe someone with a more vivid imagination than me can come up with something, but I can't.
POSTSCRIPT: Seriously, is this true? I'm just gobsmacked. Congress is passing laws that the American public isn't allowed to know about? Any of us might be prosecuted under one of these laws that we don't know exists? Courts are being asked to interpret laws they've never seen?
This gives Kafakesque a very chilling and newly concrete meaning.
...
What happens if you refuse to surrender identification when authorities demand it? You may go to jail. Or, you may not.
Maria Luisa Tucker, AlterNetWe humans are generally compliant creatures. We follow the path of least resistance, even if it's not to our advantage. We halt at stop signs even when there are no other cars around for miles. We unquestioningly accept the small "service fee" tacked on to our bills without knowing exactly what they are for. We are sheep who follow the herd -- most of us, most of the time.
This is the story of one rogue sheep.
Deborah Davis, a 50-year-old mother of four, is by all accounts an ordinary woman who worries about ordinary things like her mortgage and the safety of her middle son, who is a soldier in Iraq. To save money, she rides the bus to work in Denver, Colorado. That is, she used to ride the bus to work, until one morning in September when she dared to do what my favorite bumper sticker urges people to do: Question Authority.
Every morning, Davis's bus follows a route through the Denver Federal Center, a collection of government offices in an area with increased security. Every morning, officers from the Federal Protective Services, a branch of the Department of Homeland Security, board the bus and check the IDs of all passengers, whether or not they are exiting the bus at the Federal Center. Davis found it odd and irritating that she had to get out her ID just so an officer could glance at it; not even checking it against a "no ride" list or, maybe, a "no exiting at the Denver Federal Center" list.
One September morning she decided to stop being so compliant. And that's where the story gets interesting.
Davis says her discussion with the officer went basically like this:
Officer: "Do you have your ID?"
Davis: "Yes."
Officer: "May I see it?"
Davis: "No."
Some debate ensued -- officers would later describe Davis as "argumentative" -- and then the Federal Protective Services cops tossed Davis's cell phone, physically forced her off the bus, handcuffed her and took her into custody. Ultimately, she was ticketed for violating two mundane-sounding federal regulations regarding compliance with signs and access to federal property.
"I just want to be able to ride a public bus," Davis said. "This is about freedom to travel." She felt the ID check was more about submission than security, and so she decided to dispute the ticket. The American Civil Liberties Union of Colorado took up her case, along with an organization called the Identity Project, which fights for citizens to maintain the right to travel freely in the U.S.
"It took [the officers] two hours to try to figure out what regulations to write on the ticket. They had to go look for what to charge her with," said Mark Silverstein, legal director of the ACLU of Colorado. The charge that Davis failed to obey signs, Silverstein said, "begs the question" of whether officers only have the authority to make people show ID if there are signs alerting the public to that possibility.
Silverstein says the ACLU was interested in Deborah Davis's case because it exemplified the type of measures that infringe on citizens' privacy and freedom; measures justified by a post-9/11 government in the name of fighting terrorism.
"The ACLU wants to question some of these measures that we believe are not really justified in order to fight terrorism," Silverstein said. "We think a number of questions need to be asked. Does [a specific measure] actually advance safety? And if it does, how much does it infringe on citizen's right to privacy? In Davis's case, you don't even get past the first question. The ID check on the bus doesn't do anything to enhance safety. They don't check to make sure it is a valid ID. They don't even check the names against a pre-determined list of suspicious people."
Almost immediately, Davis's case became a cause celebre among the active but small contingent of Coloradoans fighting invasive security measures. When the Identity Project posted Davis's story on its website, PapersPlease.org, it received more than 1.5 million visitors in the first few days, and Davis received tons of supportive emails.
"It gives me a lot of hope. People have come out of the woodwork. People do care," Davis said, adding that she had no idea so many people would support her.
Davis's civil liberties dispute drew support from both Libertarian-leaning conservatives and liberal Democrats. "This is the first time I've seen people across the political spectrum really getting it," said Bill Scannell, media liasion for the Identity Project. "It has always been the right that has been way better on privacy rights than the left, but now the liberals and the left are really waking up to how dangerous all this stuff really is."
As the intensity of the media attention mounted, the case against Davis crumbled. On Wednesday, just two days before her scheduled arraignment, the U.S. Attorney's office decided to drop the charges due to a "technicality" regarding the official signs that Davis was supposedly disobeying by refusing to show her ID. Jeff Dorschner, spokesman for the U.S. attorney's office in Denver, would not say whether any changes in the signs were planned, or if Federal Protective Services officers would ticket Davis again if she refused to show ID on the bus. A spokesperson from the Federal Protective Services was not immediately available to comment.
"If they continue arresting people they will probably find themselves back in court," said Scannell. "This isn't about one woman getting uppity and getting her way, this is about making things better for everyone."
Davis's story has inspired rather dramatic comparisons to Nazi Germany, and the bus boycott begun by Rosa Parks. For most of us, though, Davis's experience evokes not a cataclysmic drama, but a sense of mundane recognition. If a police offier, security guard, or anyone else reeking of officialdom demands something, we usually give it up. Sometimes, this gives us a possibly false sense of security that our public buses, subways and airlines are safer. But at other times, it feels like we are being given a lesson in passivity, and submitting to an unnecessary reach into our privacy that may be worth protesting against.
When can you question authority without getting handcuffed and taken away? Unfortunately, there is no clear answer, despite a handful of recent cases that have tested the limits of law enforcement's right to demand ID.
Take, for example, the case of Dudley Hiibel, which is also spotlighted by the Identity Project. Hiibel, a cowboy type living in Nevada, was stopped in May 2000 by a Humboldt County sheriff's deputy when a passerby called in a possible domestic violence incident after seeing Hiibel and his teenage daughter in a heated argument while driving. By the time the deputy showed up, Hiibel had pulled over to the side of the road, and was standing outside talking to his daughter, Mimi. The sheriff's deputy approached, said he'd heard there had been some trouble, and asked to see identification.
Hiibel repeatedly asked why he had to show ID and refused, finally saying, "No, just take me to jail." And that's exactly what deputies did -- that is, after throwing Hiibel's daughter on the ground and cuffing her, too, when she began to protest her father's arrest. (Video footage of the arrest is available on PapersPlease.org.)
Dudley Hiibel was never charged with domestic violence or resisting arrest. He was fined $250 for refusing to identify himself to police. Hiibel went to court to challenge the Nevada law that allows police to demand identification pretty much whenever they want, arguing that demanding ID without reasonable cause violated his Fourth and Fifth Amendment rights. You remember those: no unreasonable search and seizure and the right to remain silent so you don't incriminate yourself.
The case eventually made it up to the Supreme Court, which upheld the Nevada law requiring people who are stopped under "suspicious circumstances" to identify themselves to a police officer. However, the Supreme Court made one exception to that law -- you do not have to identify yourself if simply giving your name is incriminating. This presents a tremendous catch-22. What do police officers do with someone who refuses to identify himself citing his Fifth Amendment right not to incriminate himself?
Imagine one possible scenario. A police officer stops a man who is suspiciously lurking behind a dumpster at 3am. The following conversation ensues:
Cop: What're you doing back there, mister?
Mister: Just hangin' out.
Cop: Okay. Can I see some ID?
Mister: Nope. I have a legal right not to identify myself. The Supreme Court said so.
Cop: And why's that?
Mister: Because if I tell you who I am, I would be incriminating myself.
Cop: Uh, hmm. All right then, I guess I'll let you go with a warning. Don't do anything suspicious again.
Somehow I don't think that will -- or should -- happen. It is bad policing and bad policy. Under any circumstance, it remains unclear what the legal consequences are for refusing to identify yourself, whether you are incriminating yourself or not. At least 19 other states have similar laws requiring people to show identification if they are stopped under suspicious circumstances, which means thousands of law enforcement officers must attempt to comply with this confusing decision.
As for Davis, Thursday morning she was back on the bus, riding with friends and supporters in a victory lap through the Denver Federal Center. If the Federal Protective Services officers ask again for ID, chances are she won't comply. Asked whether she was prepared to go to jail for this cause, Davis said, "If that's what it takes, absolutely."
