please the court my name is james harrison i represent appellate judge gilmore or is there five minutes of my time for rebuttal yes just keep an eye on the clock to the clock on one of the greatest dangers we face in the war on terrorism comes from what we do to ourselves in the name of security in the judiciary lest sometimes protect us from our own well intentioned but misguided behavior let me cut to the heart of this case here no matter how you define it or qualify it without a record and the answer is no as as judge nelson said this is not a trial court as just trot just said we're not here to read do something we don't you don't have a record to review in this case there is they want to file pleadings under seal and and which i presume would lead to some secret proceedings and some i don't know what that is if the issue is that you know they have to it is your structural question the question is can this more exercise its list of jurisdiction without a record and the answer is no in southern california aerial advertised theories have been filed here let's say it should have been filed here to begin with we would look at what was filed to see if we had jurisdiction when we that is correct your honor why why can't we do it now because if it wasn't filed in a district court in the district court should not have had the keys right and why can't we left what would have been presented this originally avoid all this jockeying back and forth and say we indeed have jurisdiction based on on the sealed block if this court wants to take a look at the proceedings and who is my face say or otherwise stay under forty six one one zero we have amend our complaint in the district court because she found there was no jurisdiction if that's the case if the cases that have belongs here we asked to amend but i don't think it belongs here your honor because it involves a broad constitutional challenge to the administration are no facts that are particular to john gilmore that are so intertwined that make him so different he's not really litigating any facts there are no facts so the issue of of there being a problem with that in the district court statute here we have nothing to look at here not only is our best case not only do we make this stand on fourth amendment because you know in davis the court warned about the obvious danger that administrative search would be subverted for law enforcement purposes if you have an example and put in forty three that the law enforcement would use have some you know maybe you have must be able to avoid the search for electing not to fly that doesn't mean that if you do fly you probably want to get into does not apply it still applies if you elect to fly what it means is that the court looked at what happens if you if you don't like to fly in the courts for an entire section section four in davis on the right to travel they found that the right to travel is fundamental and it fully one over all the language that we know about it to travel by airplane no you every aspect of of an airport search must be given critical examination for example is this an upon the right to travel lower court took a look at this instead of rights travel and so on one form secret last period there are i can't stress that enough what t s a is about to argue is is that congress told us to do it doesn't matter who told them to do it terry does not apply nor does the area of fourth amendment analysis where that where the cop asks can i look in the truck they're not asking one hundred million people your car i look in your wallet for your id this is an administrative search administrative search in a matter how you define the id requirements no matter how you qualify the id requirement you get in the line at the airport and it says passengers must show id to see you on your best case and that's a case that this part of the administrative search your honor and and they can't it couldn't be clearer i don't like to say to you about that congress has told us the congress is also going to say that this is this is a sign we can't tell you record for a substantive review of an order by the f a a is the same situation you have nothing to review this must be sent down somewhere i asked that this case be remanded for the development of please the court my name is joshua waldron i'm from the united states department of justice here representing the federal the planets in this case to protect airline security and passenger safety passengers are required to share their identification mutual search before they board an airline united states versus davis this court upheld screening procedure just like that one you're up against a fourth amendment challenge and against the right to travel challenge he this is right on him as applied to him that's correct your honor and but nothing in the screening procedure at all impinges upon a person to assemble they can assemble wherever they want they can petition wherever they want they all merely have to comply with this reading procedure he can travel  other modes of transportation assemble in any way that they want to and most here is a very minimal incidental fact i'm your right to assemble which does not implicate first amendment rights at all under the case idea requirement in all aspects of the screening process are restricted to good faith effort to deter weapons or explosives those two aspects sufficiently can confine the discretion of government officials and resolve by section four six but how do i know then how did the district court know that at the time they had moved well i think the first question have to ask is whether or not there's a quote order within the meaning of forty six one ten ok court judge said i assume the existence of the security directive i understand that to be in order within the meaning of forty six one ten and therefore i the just the court did not have jurisdiction it's exclusively but the government can stipulate that there was an order so i don't see why it would not be it seems kind of strange not to take a look at whatever it is out there whatever it may view well i think the district court felt that it was in the position to determine that the jurisdictional issue without actually looking because they're all intertwined intertwined with the order but would you want to see whatever it is out there in order to make that determination whether it's all down the line why think you just look at the face of the complaint what he's saying is there's a security direct constitutional challenges must go directly to the court of appeals where facial challenge is can go to the district court not was the police of one ten now the of plato's allegations in this case the constitutional challenges are all as applied challenge and we know that for several reasons first if you look at his statement of issues he speaks about as applied constitutional challenge second if you look at his argument and his complain constitutional challenges rely on facts particular to him we don't agree that the that the outcome actually turns on that but that's how he how he present them to the court for example his right to travel plans hinges on one of his arguments is i can't travel by any airplane or otherwise and i can't even get my own car and drive because i have a medical condition that prohibits me to drive which is something that's particular to him and not to your average plaintiff he sa s respect to the fourth amendment claim i have a particular fear that i'm going to be arrested and not just simply allowed to go on my merry way if i don't show my id thief based on a nine hundred ninety six arrest again is something that he did not and it's going to make his challenge as applied challenge rather than a facial challenge and he makes similar allegations in his of his due process claim about the nature of precisely what he was told by various airline representatives made it gave to him again we don't agree with with that that the outcome on the merits would turn on those things but they do make this challenge as applied rather than facial and therefore under me is fear not what mace we call the broad constitutional challenge there what mason progeny would call an ass apply challenge and therefore must be filed directly by petition for review in this court it's a little bit convoluted i had i admit that the  fine regulations that relates as has on and what it says is that there are no the just reported chinese can disclose this information without you know a need to know and it was the position information felony or something while it's not classified information it's good but i mean if you're if you're an attorney a government attorney in the just a court and you are down by this regulation that says you can't disclose its content its existence its cetera  to files and say well we've only we've offered in least we stand ready you know we're continuing to offer if the court feels that there's a need to know in order to resolve this case we stand ready to file it in camera about whether it's in the file and see that's right i mean i personally don't understand it i mean it would give the court if the court felt it was necessary and offer to need to actually review the thing that we're talking about everyone's been treating it as a answer and then if affirm on the merits under davis and all the arguments on the merits in the brief and we give arguments on in our briefs on how you can decide the case without looking at the seal material and you know it since that's not really here the same thing with the with the right to travel it's that arguably it's not an imposition at all it promotes the right to travel by protecting everyone's safety and davis itself makes that point the terms of the first as being able to get onto an airplane without showing your photo id which by the way according to the plane he didn't have to use either he could have just admitted to what he called a heightened search with his latest the plane and not showing his id so i mean i think only way that that person could travel would have of all forced a court to address the choice question in other words if you can turn to spin on your tracks and go back the right to travel is whether the burden placed upon it is a reasonable one for an unreasonable and in the government's view the small minimal requirement of showing your identification when it's done for such the issue of jurisdiction in which one of the issues that has been large in this case is is just what forms of travel the appellant is challenging his challenging all forms of travel in the united states t retired identification as a prerequisite for their use amtrak presently requires id to travel by train it doesn't give an option of the heightened level of search it is id or nothing the coast guard on their website in work one standard says all passenger vessels must get i d d from their passengers before they can board we would like to rush in the other forms of travel that required identification if they were standing issues we would like to correct that this davis is not limiting on on on what they can do i mean i'm sorry i got that backwards davis is the extremely limiting on what they can do in the administrative airport searches it must be confined in good faith first search of weapons and explosives only that if you take a look at all the cases after davis about but it's it's it's not walking on the street it's in what you're telling me is there are no cases this is unique in america that we are facing uncharted territory and we rely on the judiciary to lead us through th he's bringing everybody must be everybody must show id although they're saying everybody must not show id i frankly don't understand what the rule is your honor and i think that ninety nine percent of america would be just floored if they knew next time you go to the airport look it says it right there the t s a sign government attorneys are coming in here and saying to this clerk no passengers don't have to show i d and they are in office if i think that this country would be shocked are getting another regarding anonymous anonymity administrate of searches cannot be these on personal it cannot be personal it's it's a specialist and for that reason it's not personal the idea requirement makes it personal all the sudden we're not looking at somebody for what they have with them we're looking at who you are and that's that's that's just an opposite to administrative search  all of it going back to the very beginning of administrative searches regarding aircraft in the only way to travel look at one hundred twenty four thousand cases look at look at davis it is a unique for that reason it recently received special stuff the one of the reasons that the court puts out in one piece seventy nine in our in our brief is that what they're doing with the id test is conducting  behavioral test on people to see if they're willing to do to show i d or not what are they doing here they're conducting behavioral tests living within the lines of t s a that's not their job their job is to search for weapons and explosives