During an online panel last week hosted by the Cato Institute, TSA Privacy Officer Peter Pietra made some bold but false claims (starting at 18:05) about the case law on ID to fly:

Patrick Eddington, Cato Institute: I’m trying to understand if there is in fact a statutory basis for TSA to essentially say, “If you don’t show us an ID, you’re not getting on that airplane.”

Peter Pietra, TSA Privacy Officer: … I know that there was a case… where John Gilmore — Gilmore vs. Gonzales, I think was the case — did challenge ID requirements, and the 9th Circuit upheld them…. The one … case that I’m aware of being brought resulted  in upholding TSA’s ability to require ID.

But as Mr. Pietra and the TSA should know, that’s not what was decided in Gilmore v. Gonzales.

Based on pleadings submitted to the court ex parte and under seal by the TSA, the 9th Circuit found that the TSA’s “identification policy” did not require passengers to show ID credentials in order to fly, but provided an alternative of a more intrusive search:

The identification policy requires airline passengers to present identification to airline personnel before boarding or be subjected to a search that is more exacting than the routine search that passengers who present identification encounter….

Gilmore had a meaningful choice. He could have presented identification, submitted to a search, or left the airport. That he chose the latter does not detract from the fact that he could have boarded the airplane had he chosen one of the other two options.

Neither Mr. Gilmore nor his lawyers saw or had any chance to rebut the claims made to the 9th Circuit judges by the TSA in its secret submissions. But the court’s description of the TSA’s identification policy as not requiring passengers to show ID, but allowing a more intrusive search as an alternative, was based entirely on the TSA’s own claims.

Having gotten the court to uphold its policy by representing that policy to the court as not requiring passengers to show ID, the TSA can’t now claim that the court’s decision “upheld” a policy requiring passengers to show ID — a policy the TSA specifically disclaimed in that litigation. The TSA told the 9th Circuit in its sealed, ex parte filings that pursuant to its policy Mr. Gilmore could have flown without ID if he had submitted to a more intrusive search, and the 9th Circuit decided the case on that basis.

Neither the 9th Circuit panel in Gilmore v. Gonzales, nor any other court, has reached the question of whether a requirement for airline passengers to show ID to fly has any statutory basis or would be Constitutional, much less upheld such a requirement

Mr. Pietra went on to suggest that, if the Constitutionality or statutory basis for requiring airline passengers to show ID were in question, the issue would have been litigated. But that ignores the fact that, when Mr. Gilmore tried to litigate exactly this issue, the TSA evaded the issue by denying to the court that it had a policy requiring ID to fly.

We continue to believe that both the TSA’s de facto efforts to require ID to fly, and any TSA policy to require ID to fly, lack a statutory basis and are unconstitutional. We hope that passage of the Freedom To Travel Act will clarify this issue and make it possible for those who are prevented from flying without ID to obtain redress through the courts.