And so he stayed home

James J. Kilpatrick
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Posted: Sep 08, 2006 12:01 AM

On the Fourth of July in 2002, John Gilmore set out to fly from the West Coast to Washington, D.C. As things turned out, he never made the trip, mainly because the airline security folks wouldn't let him board a plane. He hasn't flown commercially from that day to this.

On that incident four years ago hangs the case of Gilmore v. Gonzales , filed last month in the U.S. Supreme Court. It's unlikely the court will agree to hear the case -- it doesn't have a high-court feel -- but it presents aspects of governmental secrecy that raise some libertarian hackles.

The facts are not in dispute. Gilmore's petition identifies him as a founding employee of Sun Microsystems in California. On this Independence Day he intended to manifest his own independence by a dramatic gesture: He would fly to the nation's capital -- or attempt to fly there -- and make a personal appeal to Congress. He would urge a law that would prohibit the airlines from demanding that passengers identify themselves as a condition for coming aboard.

(It is a measure of Gilmore's idealism, or naivete, that he expected to appeal to members of Congress on the weekend of the Fourth of July. On this weekend, believe me, this town is as empty as a beer barrel after a bikers' party.)

Sure enough, at the Southwest Airlines ticketing counter in Oakland, gate agents obliged him by asking for identification. He asked what authority they had for thus invading his privacy. They were unable, or unwilling, to cite chapter and verse. It was just something the FAA required. After some sparring around, the agents offered to give him a boarding pass if he would submit to a pat-down, a shoe search, a body scan by handheld magnetometer and a hand search of his luggage. This may have been a deal he couldn't refuse, but he refused anyhow and left. Later the same day he tried his luck at the San Francisco airport. Same story.

Naturally he sued. The U.S. district judge, Susan Yvonne Illston, dismissed his complaint. A panel of the 9th Circuit affirmed. Now his appeal is pending in the high court in Washington.

Something in the soul of every reporter dearly loves a maverick. On the merits of his case, John Gilmore hasn't a wing to fly on. In the dangerous world of 2006, airline passengers need all the protection the system reasonably can provide. Pat me down, pat me down! All the same, this unreconstructed rebel has performed a public service: He is challenging -- what? A public law? Decree? Diktat? Edict? Rule? Regulation? By whose or what command must we submit to gross invasion of our privacy?

Gilmore's counsel asked to see the text of this gauzy ordinance. Judge Illston said the text couldn't be disclosed to her at the District Court level, so -- go ask the Court of Appeals for the 9th Circuit. He did as told. After much haggling and a secret "in camera" inspection, the Court of Appeals decided that Gilmore's baggage could be tumbled under the authority of an "administrative order."

This "order," sometimes called a "security directive," is of uncertain provenance. Whatever it is, the appellate court concluded that its text "does not have to be disclosed to the petitioner." It just has to be obeyed.

Is there something Orwellian going on? It was in George Orwell's "1984" that laws appeared overnight. Here is a diktat imposed upon millions of travelers every day -- for their own good, of course -- but its contents could be disclosed, under seal, only to three judges on the 9th Circuit: Stephen Trott, Thomas Nelson and Richard Paez. An uneasy impression emerges from the Supreme Court record in this case that there is no uniform, nationwide set of rules and regulations governing the issuance of boarding passes.

In his opinion for the panel, Judge Paez noted properly that the airport security regulations do not impose criminal sanctions. The rules simply prevent an uncooperative passenger from boarding a commercial flight. Yes, Gilmore was "inconvenienced," but the inconvenience "did not rise to the level of a constitutional violation." He could have taken a train to Washington. Or boarded a bus. He could have driven there. His "right to travel" had not been violated, for he has no fundamental right to travel "by commercial airplane."

My guess is that even the most libertarian of libertarians will back away from defending unlimited liberty on the airlines. We may not have a compelling need for a passenger's name, but hey! What's that ticking lump in his valise?

(Letters to Mr. Kilpatrick should be sent in care of this newspaper, or by e-mail to kilpatjj@aol.com.)

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