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September 08, 2004

we can't tell you which law, but you broke it

John Gilmore's case has taken a strange course. The Fed's want to keep their testimony secret-not just from the public but from him and his attorneys:

"We're dealing with the government's review of a secret law that now they want a secret judicial review for," one of Gilmore's attorneys, James Harrison, said in a phone interview Sunday. "This administration's use of a secret law is more dangerous to the security of the nation than any external threat."

"How are people supposed to follow laws if they don't know what they are?" Harrison said.

The government contends its court arguments should be sealed from public view and heard before a judge outside the presence of Gilmore and his attorneys. The government, however, said it would plan to file another redacted public version of its arguments.

Posted by parody at September 8, 2004 12:49 PM

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The sad thing is that the feds will probably get away with this.

I can't be sure, because this is my first exposure to this case. But, if the feds follow usual form, they will argue that the passenger screening rules and regulations contain details about precisely how screening procedures are implemented and, if they were publicly disclosed, a malefactor would figure out precisely how to work around those procedures.

My response to that would be that, if mere disclosure jeopardizes the integrity of the rules, they aren't very good rules.

But this report is a somewhat overblown. It is fairly common for parties to a case to try to prevent public disclosure, or even disclosure to the adverse party, of information they deem confidential. In the case of law enforcement, it is typical to keep such things from publc disclosure. In terms of the "secret judicial review", that's just an in camera imspection, meaning, the Judge looks at the data alone, and decides whether any of it gets disclosed to the other side.

I've been involved in, I'd say, at least 50 cases involving in camera reviews. It's nothing special, and not nearly as sinister as this article suggests. I mean, you can't unring a bell.

Posted by: GS at September 8, 2004 01:50 PM

Ashcroft and company are claiming that a "a federal statute and accompanying regulations, however prohibit defendants from disclosing any such directive in open court." it then goes on to call for in camera and parte review.

so to correct the overblown aspect of the article:

1) there MAY be rules (not laws) that you must follow.

2) we can't tell you what they are, or if they are (because of a statute and regulations, not laws)

3) you have to do what we tell you.

4) yes i'm being EXTREMELY snide.

5) maybe you are being condescending.

6) it still reads like a bad production of Kafka.


8) There is no number eight.

9) security through obscurity never works (you can bank on that).

10) I still love you no matter what your opinion of me is right now.

Get the legal documents here:


Posted by: ffej at September 8, 2004 02:17 PM

OK, Ffej, go ahead and make me out to be a pal of Ashcroft's. The least disagreement with one of your techie heroes brands me as The Great Satan.

No, the Great Satan can't point out that in camera reviews are nothing special.

Neither can the Great Satan point out that he sees only idiocy in keeping these things secret, even where Hero agrees with him, e.g., Gilmore:

"Bad people, besides using fake IDs and stolen identities, can also make the system of checking IDs work in their favor. The Carnival Booth effect, as described by researchers at the Massachusetts Institute of Technology, means that terrorists can probe an ID security system by sending a number of people on innocent trips through the system and noting who is flagged for extra searches and who isn't. They then send only those who the system doesn't flag on terrorist missions."

vs. Great Satan:

"My response to that would be that, if mere disclosure jeopardizes the integrity of the rules, they aren't very good rules."

Neither can the Great Satan point out that these "secret rules" are not secret to the people they apply to, i.e., the people required to check the IDs.

And God forbid that the Great Satan point out the cockamamie legal pontification of this tech hero (uh, the "right to travel", such as it is, was, until very recently, founded only upon the Commerce Clause of Article 2, but, more recently, has been construed as flowing from the "Privileges & Immunities" clause of the 14th Amendment -- neither the 1st nor 4th Amendements are implicated -- fortunately, Gilmore doesn't write his own briefs (he hires evil lawyers for that) -- just his web page.

It's not enough that I agree with his position. It's not enough that I agree with his position so much that I refuse to get on an airplane. It's not enough that I think he is a great guy, and am glad someone is tilting at this particular windmill.

No, I have to gree that every single thing he says, despite the magnitude of variance from the way things really are, is 100% Holy Writ.

Failing that, I am the Great Satan, the Dark Lord, the Whipping Boy, the Scapegoat, the Source of All Evil in the Cosmos.

Like all lawyers (except, of course, those representing the Hero.)

Posted by: GS at September 8, 2004 03:39 PM

nope, none of the above.

just a whiney esq. who doesn't appreciate context.

it's kafka performed by the marx brothers, and you can't appreciate it for what it's worth.

Posted by: ffej at September 9, 2004 07:41 PM

You bet your life.

Posted by: GS at September 10, 2004 10:56 AM

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