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12/13/2005 Archived Entry: "Star Chamber ahoy!"

WARNING! You may be in violation of a secret law!!
Kevin Drum, the Political Animal, blogs the following, which I reprint in full below with my commentary appended....

December 10, 2005 SECRET LAWS....John Gilmore is suing the government because he doesn't think he should be required to show ID before boarding a commercial flight. I think this is stupid and he deserves to be thrown out of court.

At least, that's what I'd think if it weren't for this: C/Net news story, December 8 "Airport ID checks legally enforced?"

The Bush administration...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?"

....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.

WTF? Call me naive, but I've never heard of a secret law. I've heard of secret courts and secret evidence — which are bad enough already — but not secret laws. When did this happen?

And another thing. How could it possibly harm national security to identify the text of the law that requires passengers to show ID before boarding a plane? Maybe someone with a more vivid imagination than me can come up with something, but I can't.

POSTSCRIPT: Seriously, is this true? I'm just gobsmacked. Congress is passing laws that the American public isn't allowed to know about? Any of us might be prosecuted under one of these laws that we don't know exists? Courts are being asked to interpret laws they've never seen?

This gives Kafakesque a very chilling and newly concrete meaning.

Drum has clearly not heard of Star Chambers: "The Star Chamber was an English court of law at the royal Palace of Westminster that began sessions in 1487 and ended them in 1641 when the court itself was abolished. The court was so named because the court chamber had a pattern of stars on a dark blue background painted on its ceiling. In modern usage, legal or administrative bodies with strict, arbitrary rulings and secretive proceedings are sometimes called, perhaps metaphorically or poetically, star chambers."

The Constitution and the American legal tradition provide specific safeguards against secret proceedings. For example, habeas corpus, which is latin for "you have the body. A writ of habeas corpus is a judicial mandate to a prison official ordering that an inmate be brought to the court so it can be determined whether or not that person is imprisoned lawfully and whether or not he should be released from custody." It is a frontline protection against secret imprisonment or arbitrary imprisonment under 'secret law.' It may seem like a small matter -- a secret law involving I.D. at airports -- but this is the way judiciakl precedent is set and how liberties erode. Not even inch by inch, but centimeter by centimeter.