John Gilmore, an early employee of Sun Microsystems and co-founder of the Electronic Frontier Foundation, says the answer should be "no." The libertarian millionaire sued the Bush administration, which 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?"
Replied Joshua Waldman, a staff attorney for the Department of Justice: "We couldn't confirm or deny the existence of an order." Even though government regulations required his silence, Waldman said, the situation did seem a "bit peculiar."
"This is America," said James Harrison, a lawyer representing Gilmore. "We do not have secret laws. Period." Harrison stressed that Gilmore was happy to go through a metal detector.
Gilmore sued the federal government after being told he could not fly without ID from Oakland, Calif., to Washington, D.C., which he said he was doing to exercise his First Amendment right to petition the government for a redress of grievances. U.S. District Judge Susan Illston dismissed (PDF) his case in March 2004, ruling that Gilmore had "numerous other methods of reaching Washington."
Oral arguments on Thursday, which lasted about 40 minutes, returned repeatedly to that point. Judge Richard Paez suggested that when your ID is requested at an airport, "You can always leave."
Waldman, the Justice Department attorney, said that as long as no commercial airline flight is required, Americans "can assemble wherever they want. They can petition wherever they want." He added, "I'm not aware of any right to travel anonymously."
Two cases that were mentioned on Thursday could provide a glimpse into how the appeals court will rule. In one, decided in 2004, the U.S. Supreme Court ruled 5-4 that police could arrest anyone they stopped who refused to show ID. In the other, U.S. v. Davis, the 9th Circuit said in 1973 that airport searches were permissible as a form of administrative screening.
It's unclear what will happen next. Because of a procedural twist involving lawsuits against federal agencies, the district court concluded that only an appeals court enjoys authority to resolve some aspects of the dispute. But the 9th Circuit judges also could, if they side with Gilmore, send the case back to the lower court for a full trial.
On the courthouse steps after the arguments, Gilmore said he felt confident about the case and welcomed a verbal concession from the Justice Department. "I was glad the government admitted it was 'peculiar' and Orwellian to make secret laws," Gilmore said.
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.