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Should The Government's Request to Close Court Proceedings Relating to Airline Anti-Terror List Criteria Be Granted?
An Argument for a More Moderate Solution

Tuesday, Sep. 14, 2004

Recently, the Department of Justice asked a federal appellate court - the U.S. Court of Appeals for the Ninth Circuit - to take the unusual step of closing a legal argument to the public.

It is very rare for an appeals argument to be closed. By definition, appeals address legal - not factual - questions. Facts at issue have generally already been established in the trial court. Indeed, appellate courts typically cannot go outside the factual record to make fact findings of their own.

But this is an unusual case: one in which the facts at issued are actually facts about what the relevant law - here, a government security directive -- says.

Attorneys for John Gilmore, the plaintiff in the case, say that this double layer of secrecy is exactly the problem: "We're dealing with the government's review of a secret law that now they want a secret judicial review for."

Sounds Kafkaesque, doesn't it? As Gilmore points out, how can citizens be asked to comply with laws when they don't know what they say - and doesn't closing an argument about those laws only aggravate the problem?

But the government, in response, says the law's secret status is the very reason that there ought to be secrecy any time it's discussed in court: If the arguments are open, the government says, then "sensitive security information" will be illegally revealed. The ballgame, the government fears, will be over before it starts: One of the issues the case raises is whether these laws ought to remain secret in the first place.

Their point, too, has its appeal: An oral argument shouldn't be allowed to moot the very question the argument raises, right?

In this column, I will argue that a more moderate solution than closing the entire argument ought to be available.

The Underlying Facts and Issues In Gilmore's Case

The underlying case arose in July 2002, when airline agents refused to allow a businessman named John Gilmore to board planes in San Francisco and Oakland -- unless he either showed identification, or underwent a more-intrusive-than-usual search. Gilmore refused to do either.

Gilmore then sued, claiming that his Fourth Amendment rights against unreasonable, warrantless searches and seizures had been violated. He pointed out that he had not been charged with any crime. Nor did the agents believe they had probable cause - or indeed, any reason at all -- to arrest him.

Apparently, the agents' sole reason to ask him to provide identification, or be searched more thoroughly than usual, was that he sought to board an airplane. Gilmore's identification was requested not because of anything he did, or because of who he was - but simply as part of a routine airport procedure.

Gilmore objects to being forced to show identification. His position, he has said, is that "People in the U.S. have a right to travel and associate without being monitored or stopped by their government, unless they are actually suspected or convicted of a crime, and unless that suspicion is reasonable." But, as explained below, he also objects to what is currently done with identifying information once it has been provided.

Gilmore's case raises a number of issues. It raises Fourth Amendment questions about seizures, including detentions of individuals who are not suspected of criminal activity. It raises questions about a possible First Amendment right to remain anonymous. And it raises questions about the dimensions of the constitutional "right to travel," which has been implied from other constitutional guarantees.

Gilmore claims that a denial of the right to fly may mean, in effect, a denial of the right to travel - especially given that increasingly, a whole range of other forms of transportation are also requesting passenger identification, so those who refuse to show ID may someday soon have their travel options very severely restricted.

The Case for Closing the Argument: Sensitive CAPPS Criteria Are At Issue

If the oral argument dealt with the identification requirement alone, there wouldn't be much reason to close it. But it also deals with the issue of what is done with the identifying information once it has been provided: The information is compared to the government's "no fly" and "selectee" lists.

The lists of "selectees" -- who are though to warrant additional scrutiny -- are generated for the airlines by the Computer-Assisted Passenger Prescreening Program (CAPPS). (As Anita Ramasastry has discussed, CAPPS may soon be replaced by a more intrusive successor program, CAPPS II.) The lists are based on data representing passengers' behavioral characteristics - which the program may or may not deem to be suspicious. The "no fly" list, in contrast, is provided directly by the government; it includes the names of known or suspected terrorists.

The public doesn't know how CAPPS works - in the sense of which criteria will make a given person a "selectee." And the government doesn't want anyone to know. And this secrecy, to some extent, has a good reason behind it: If terrorists know the behavioral characteristics by which the government is identifying them, they will doubtless change their behavior.

Presumably, the secret "security directive" the government is trying to protect from disclosure in this case, relates to these criteria. If not, it's hard to see that the government has any interest in secrecy here at all. If the security directive just says, "Require ID, then submit identifying information to CAPPS analysis" and does not reveal any of the CAPPS criteria, then what's the big deal about discussing it openly?

Granted, there's a slim possibility the government is trying to maintain secrecy here simply because it interprets federal law to require it. But it's much more likely the information is truly sensitive - and it's truly sensitive because it relates to the "selectee" and no-fly lists.

So should the oral argument be closed to protect the secrecy of the CAPPS criteria? As I will explain, perhaps - but only partially.

Gilmore's Case: A Direct Challenge to the ID Requirement, Not CAPPS Itself

The key question is how much the details of CAPPS - and thus, presumably, the content of the security directive -- actually come into the Gilmore case in the first place.

Remember, Gilmore himself was not subjected to a CAPPS analysis - he refused to give identification. So no specific facts exist as to how CAPPS was applied to Gilbert - because, in fact, that never happened.

If such facts had existed, they might provide a good reason to close the oral argument. For example, suppose Gilmore had given identification, but had still been refused the chance to board, because CAPPS said he was too high a risk. The details of CAPPS would be directly implicated.

Moreover, Gilmore would be raising an "as applied" Due Process challenge that took direct aim at CAPPS' structure, its secrecy, and its imposition of consequences on persons who are not terrorists, but only thought to be possible terrorists. (As it is, Gilmore may not even have standing to bring such a challenge - for, again, CAPPS never actually was applied to him.)

In that case, the argument would have to be closed, at least with respect to any non-obvious trait that CAPPS associates with the likelihood that the passenger is a terrorist. Such security information is genuinely sensitive; the government has a right to protect it.

But that's a hypothetical case - and in Gilmore's real case, the Fourth Amendment issue is the key issue. For this case, a general description of CAPPS may suffice for the oral argument - to give the judge's a sense, for Fourth Amendment purposes, of what kind of burden the identification requirement is actually imposing on Gilmore, and what kind of privacy intrusions his providing information might have triggered.

Alternatively, suppose a specific description of CAPPS is necessary. In that case, the argument could be closed only when it turns to that particular issue - and that closed portion of the argument could be omitted, or included only in part, in the resulting transcript of the argument.

The government has offered to publish a partial transcript of the secret argument. But the court should turn down this offer: If a partial transcript is released, then it should be judges, not the government, who decide what it contains.

This is another example of the Bush Administration attempting to take a properly judicial function - such as the determination of whether the facts support an "enemy combatant" designation - away from judges. The Ninth Circuit shouldn't put up with this kind of encroachment on its powers and duties.

Should Gilmore, At Least, Be Able to Learn the Details of CAPPS?

For these reasons, the right solution - if the security directive is truly sensitive - is to have judges decide which part of the argument to close, and which part of the transcript to withhold.

One final issue must be addressed, however: The government insists that CAPPS details must remain private even from Gilmore and his lawyers. In other words, the government wants to have an oral argument that is not only secret, but one-sided - with no one advocating for Gilmore's side.

That should not happen. Our legal system is fundamentally an adversary system - and this solution would betray its very nature. Also, there are other alternatives:

The court could allow Gilmore and his attorneys to attend, but warn that it will impose harsh criminal penalties for contempt of court if they disclose sensitive information. Or, the court could allow Gilmore's lawyers to attend, but not Gilmore himself - if it fears Gilmore will try to martyr himself to the cause, by releasing the secret information and then going to jail for it. .

If the court deems these options too risky, and Gilmore's lawyers don't have suitable security clearances, it should find lawyers who do - and who are acceptable to Gilmore.

Sometimes, closing an argument is truly necessary for security reasons. If CAPPS details are implicated by the security directive at issue in the Gilmore case, partial closure might be proper. But the extent of that closure should be policed by judges, not the government. And to close the oral argument entirely to one side of the argument is an extreme measure that must not be adopted here.

Julie Hilden, a FindLaw columnist, practiced First Amendment law at the D.C. law firm of Williams & Connolly from 1996-99. She has appeared as a legal commentator on ABC, CNN, Court TV, and NPR. Hilden's first novel, 3, was published recently. In reviewing 3, Kirkus Reviews praised Hilden's "rather uncanny abilities," and Counterpunch called it "a must read.... a work of art." Hilden's website,, includes MP3 and text downloads of the novel's first chapter.

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