Thoughts, essays, and writings on Liberty. Written by the heirs of Patrick Henry.

June 23, 2008

Freedom To Travel: Such A Pre-9/11 Concept

by Brad Warbiany

Ah, the good old TSA. When faced with a minute* number of citizens asserting their rights, they simply take those rights away.

And what’s worse? They don’t even take the rights away from everyone, only the loudmouths like us cantankerous civil libertarians:

Passengers who refuse to show ID, citing a constitutional right to fly without ID will be refused passage beyond the checkpoints. Passengers who say they have left their ID at home, will be searched, and then permitted to board their flights.

While TSA’s announcement stated that the goal of the change was to “increase safety,” this blogger disagrees. The change of rules seems to be a pretty obvious case of security theater. Real terrorists do not refuse to show ID. They claim to have lost their ID, or they use a fake.

TSA’s new rules only protect us from a non-existent breed of terrorists who are unable to lie.

Don’t you feel safer?

* I say a minute number, because as a very frequent traveler, I don’t know the exact regularity at which people are doing this. I’ve often considered trying the “refuse to show ID” thing myself, but haven’t wanted to see my business travel delayed and jeopardize my own job simply to thumb my nose at the TSA.

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  • llorgam

    where is there a “right to fly”? I have a hard time finding it in the Constitution. U.S. airspace belongs to Uncle Sam; airlines operate in it under permission/regulation — most terminals are funded through Federal dollars… I trust you get my drift
    since when was the last time you wrote a check for large purchases without showing ID?

  • http://thelibertypapers.org Brad Warbiany

    Sure, I get your drift. That which the federal government regulates, it owns. Why should we subjects free citizens have any right to disagree with what they do with their property?

    Was that your drift?

  • http://www.thelibertypapers.org/author/tarran/ tarran

    Mr. lloram, if you actually bothered to read the Constitution, you would know that it is a document that authorizes the Federal Government to exercise a certain amount of power. Thus, unless the government is specifically granted a power under the Constitution, it does not legally posses it.

    Now, armed with this knowledge, why don’t you go and find the part where the federal government is granted ownership of the air.

  • http://www.kipesquire.com KipEsquire

    As I commented at that very link two weeks ago:

    While I am totally sympathetic, Sohoian is unfortunately misreading the TSA release:

    “This change will apply exclusively to individuals that simply refuse to provide any identification or assist transportation security officers in ascertaining their identity.”

    That “or assist” part makes quite a bit of difference. “Passengers who refuse to show ID, citing the rights” still will be accommodated if they “assist transportation security officers in ascertaining their identity.”

    This is similar to the Fourth Amendment case law on ID, which is also widely misunderstood by the lay public. You have every right not to carry ID, but you do not have the right to withhold your identity from law enforcement if they have a legitimate reason for knowing it (e.g., because you’ve been lawfully arrested).

    The TSA is merely clarifying that, “you have no right to fly anonymously,” not that “you no longer have the right to invoke your right to fly without ID.” They’re two different things.

    If you have a problem with the former (what TSA is saying) as well as the latter (what you think TSA is saying), then more power to you. But the “To clarify:” paragraph in Soghoian’s article (and which Brad blockquotes) is just flat-out incorrect.

  • http://www.wikiprotest.com/blog Jeffrey Henderson

    The Constitution doesn’t give us our rights, it just defines some of them and places strict limits on the government.

    Read the 9th and 10th Amendment and this will be much more clear.

    The Constitution LIMITS government and says the people retain all rights no specifically granted to the states of the federal government.

  • lordjoe

    Where is the right to fly?!!

    Where is the right to drive in the constitution? Where is the right to bike? The right to jog? The right to walk your dog? The right to sit on a park bench or do just about anything? Do you really think that “Uncle Sam” should be able to arbitrarily card you for any of these just because the Constitution doesn’t say you can do it without ID?

    We have a principle in this country called unlawful search and seizure (heard of the 4th amendment?) that makes it clear that government representatives cannot search or harass us without due cause.

    Now, you may believe that wanting to fly is a good enough reason to require us to submit to searches and the verification of identity, llorgam, but basing that on the argument that we do not have a specific right to fly is just silly (and only a short hop away from a full blown police state).

  • http://www.murdoconline.net Murdoc

    Requiring ID = Loss of Freedom to Travel?

  • http://thelibertypapers.org/ Brad Warbiany

    Kip,

    After reading your comment, I did some searching online, and saw that you posted a similar comment on a law-related blog regarding the Hiibel v. Sixth District decision of the Supreme Court.

    Respectfully, and with the full understanding that I’m not a lawyer, nor do I play one on TV, I think this precedent may not apply. Also with the understanding that Wikipedia is a horrendous place to find legal information, I did pull up some of the below background information that may be important:

    Stop-and-identify laws have their roots in early English vagrancy laws that required suspected vagrants to face arrest unless they gave a “good account” of themselves; this practice, in turn, derived from the common-law power of any person to arrest suspicious persons and detain them until they gave “a good account” of themselves. Modern stop-and-identify laws combine aspects of the old vagrancy laws with a guide for police officers conducting investigatory stops, such as those authorized under Terry v. Ohio, 392 U.S. 1 (1968).

    However, the Court has identified a constitutional difficulty with many modern vagrancy laws. In Papachristou v. Jacksonville, 405 U.S. 156 (1972), the Court held that a traditional vagrancy law was void for vagueness because its “broad scope and imprecise terms denied proper notice to potential offenders and permitted police officers to exercise unfettered discretion in the enforcement of the law.” In Brown v. Texas, 443 U.S. 47 (1979), the Court struck down Texas’s stop-and-identify law as violating the Fourth Amendment because it allowed police officers to stop individuals without “specific, objective facts establishing reasonable suspicion to believe the suspect was involved in criminal activity.” And in Kolender v. Lawson, 461 U.S. 352 (1983), the Court struck down a California stop-and-identify law that required a suspect to provide “credible and reliable identification” upon request.[4] The words “credible and reliable” were vague because they “provided no standard for determining what a suspect must do to comply with [the law], resulting in virtually unrestrained power to arrest and charge persons with a violation.”

    “The present case begins where our prior cases left off. Here there is no question that the initial stop was based on reasonable suspicion, satisfying the Fourth Amendment requirements noted in Brown. Further, the petitioner has not alleged that the statute is unconstitutionally vague, as in Kolender. Here the Nevada statute is narrower and precise.” The Nevada Supreme Court had held that the Nevada statute required only that the suspect divulge his name; presumably, he could do so without handing over any documents whatsoever. As long as the suspect tells the officer his name, he has satisfied the dictates of the Nevada stop-and-identify law.

    (emphasis added)

    I would state that this policy is unconstitutionally vague, suggesting that you must meet some undetermined and discretionary standard of “cooperation” with the TSA screeners. In addition, it runs afoul of any reasonable suspicion on the part of the screeners that the individual has engaged upon, is engaging upon, or will engage upon criminal behavior (unless you believe the desire to fly without showing ID inherently involves reasonable suspicion to commit a crime).

    The previous policy, subjecting those who fly without ID to a moderately standard “secondary screening” policy, in order to ensure the safety of fellow passengers, is at least consistent with Gilmore v. Gonzales, and I think there are potential ways that the new policy may be inconsistent with the decision in that case.

  • nikolai

    Altho Warbiany has a point in that refusing to show one’s I.D. should not be just cause to keep one from boarding one’s plane, I have to point to what KipEsquire said in that it’s refusing to ID yourself or aid in IDing yourself that is the real issue. Now, if one is to loudly refuse to show one’s ID and make a scene then one should probably expect to draw attention to oneself, and you know how underpaid TSA workers just love to snag “troublemakers.” However, if one really doen’t want to show his ID, is it not a simple matter to tell a “white lie” that one left their ID home and undergo a simple search then board one’s plane? Don’t each and every one of us tell white lies on almost a daily basis? Why antagonize the TSA workers with technicalities? I agree it sucks having to show ID and go thru the security crap, but unless the TSA folks get out of line, it doesn’t bother me to show ID. Now, if you REALLY want to get me going, let’s talk about the NATIONAL ID PLAN the feds have up their sleeves which will only pin down the law-abiding citizens, as the bad guys will have either fake IDs, or will not carry one at all and will not follow the rules/play the game associated with carrying a national ID.

  • Akston

    I agree with nikolai in that the path of least resistance is an easy one here, but the danger I see from the original post is less about pragmatism in the short term and more about an unsavory larger trend.

    My objection is well summarized by the Brown v. Texas, 443 U.S. 47 (1979) ruling quoted above – affirming that officers need to have “specific, objective facts establishing reasonable suspicion to believe the suspect was involved in criminal activity.” in order to comply with the Fourth Amendment.

    If simply refusing to identify yourself is enough to raise “suspicion to believe the suspect was involved in criminal activity”, how low have we set the bar? What other actions or non-actions now become sufficient to deny a citizen the right to travel? Refusing to lay out the exact agenda of your trip at the destination? Refusing to answer a religious and philosophical questionnaire? Why would you refuse? What do you have to hide? Only a criminal would try to hide these intimate details from any government official who demands them…right?

    Freedom is seldom lost in one fell swoop. Subtle, incremental changes are a much more common (and effective) method to get that frog boiled. Whether intentional, or simply an unintentional lapse in eternal vigilance, these subtle revocations of civil liberties in the name of security are often the largest long term threat to a free society.

  • http://www.thelibertypapers.org/author/tarran/ tarran

    It would be one thing if a person refused ot identify themselves to an officer investigating a crime.

    In the case of flying, though, the officers demanding that you identify yourself are not investigating any crime. There is no difference between a TSA agent setting up a metal detector and demanding that you show identification to get on an airplane and one that sets up the metal detector on the on-ramp to an interstate highway, or at the foot of your driveway. Most of us would balk at permanent checkpoints where police demand you identify yourself before they will allow you to go about your business.

    Making an exception for aircraft strikes me as being very odd.

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