Thursday, August 28, 2008

Issue Proliferation Exemplified

Gilmore v. Ashcroft is a high profile civil-liberties case, challenging parts of the Patriot Act's surveillance system. John Gilmore refused to submit to a search, required in the alternative to showing personal identification. What particularly disturbed Gilmore was the secrecy surrounding the legal requirements. Only unpublished Government directives authorized the ID requirement and its alternative.

Gilmore's brief to the 9th Circuit begins by stating these issues:
  1. Does requiring a passenger to show a government-issued proof of identity in order to fly violate that passenger's right to travel?
  2. Does requiring a passenger to show ID in order to fly violate that passenger's rights of assembly and redress?
  3. Does requiring a passenger to show ID in order to fly violate that passenger's rights to be free from unseasonable searches and seizures?
  4. Does forcing a passenger to choose between producing ID and being subjected to a more extensive search in order to travel violate the doctrine of unconstitutional conditions?
  5. Does the secrecy of the Government's requirement that a passenger show ID in order to fly violate that passenger's right to due process?
  6. Does Mr. Gilmore have standing to address the reasons for the ID requirement?
  7. Does the District Court have jurisdiction to hear challenges to actions of the Transportation Security Administration and the Federal Aviation Administration as applied?
  8. Did the District Court err in denying Mr. Gilmore's October 8, 2003 motion for request for judicial notice?
  9. Did the District Court err in denying Mr. Gilmore leave to amend his complaint?

Although these issues may appear independent, the state of the law ties them tightly together. (See Issue Proliferation, ¶ 2.") Deprivation of a single mode of transportation, settled law holds, does not violate any fundamental rights. Only impermissible secret regulation of Gilmore's access to transportation could have infringed Gilmore's right to travel. Settled law also holds that if the subject is not punished for refusing a voluntary search, the 4th Amendment does not prohibit it. Gilmore's right to be free of unreasonable search was not, consequently, infringed by the contingency between acquiescing to the search and boarding a plane. If Gilmore's right to be free of search was implicated, it was because the search, based on secret law, was conducted without due process. Gilmore should have confined his brief to the single substantive issue that secret laws violate due process, because he could prevail on the other claims only by prevailing against secrecy. Gilmore would receive no additional relief, moreover, for enumerating additional bases sustaining the same rights.

Gilmore's approach to the procedural issues is also mistaken, for a different reason, as Gilmore should have ignored most of the substantive issues, but he had to face the procedural issues. He should have de-emphasized them, however, treating the procedural issues combined as a single sub-issue. The Government raised the procedural issues as obstacles to plaintiff Gilmore's substantive litigation. To the extent the court focuses on the procedural issues, the plaintiff, whom these issues bar, is on the road to losing.

The survival of secret federal laws is hard to imagine, when able counsel attacks them in a deep brief, comprehensive because limited to the single real issue. Where Gilmore raised nine issues on appeal, I would have raised one.

No comments:

Post a Comment