When a legal challenge was brought against an aviation security directive concerning passenger identification checks, a government lawyer expressed his confidence in the constitutionality of the secret law— even as he told a federal judge that the law itself could not be seen by the judiciary! Here is a telling excerpt from the court session:
Judge: What is the rule, if at all, concerning
identification?
Government Attorney: The identification
check, every passenger is requested
to produce identification. As I’ve
indicated, the statute provides one of
the purposes to check whether that
person is amongst those known to
pose a risk to aviation safety. The other
reason it’s used for purposes of the prescreening
system, is this a person—
Judge: I understand, you said all of
that. You were saying the rule is not
void for vagueness and we can move
on. I just want to know what the rule is
that isn’t void.
Government Attorney: If you are asking
me to disclose what’s in the security
directives, I can’t do it.
...
The possibility that Americans will now be held accountable for noncompliance with unknowable regulations is not the subject of heated debate in Congress. Indeed, it has not been debated at all.
