Judge In No Fly Case Explains To DOJ That It Can't Claim Publicly Released Info Is Secret

from the that's-not-how-it-works dept

Thu, Dec 5th 2013 9:02am — Mike Masnick

Yesterday, we wrote about the bizarre happenings in the lawsuit filed by Rahinah Ibrahim for placing her on the no fly list without any kind of explanation or due process (and no way to get off). The focus of that post was on the government apparently placing Ibrahim's daughter -- a key witness expected to testify in the case -- on the no fly list as well to block her from coming, and then insisting it did no such thing, only to have Malaysia Airlines provide the notice from the US government telling them not to let the daughter board her flight. However, we also mentioned that the DOJ lawyers were trying to insist that all sorts of publicly available information was actually "sensitive security information" (SSI) and Judge William Alsup blew up at them, calling such a claim "ridiculous."

It appears that the DOJ lawyers didn't get the message from Alsup on Monday. On Wednesday, it continued its campaign of insisting that publicly available information was secret. While much of the testimony on Wednesday did cover secret matters, leading to the courtroom having to be cleared, Ibrahim's lawyers were able to have Jeffrey Kahn testify about how the no fly list basically violated every concept of basic due process. Kahn is the author of Mrs. Shipley's Ghost: The Right to Travel and Terrorist Watchlists and is clearly an expert on the subject. However, the government apparently kept objecting to his testimony, making him explain what public source provided the information he was describing.

As recounted by Edward Hasbrouck at the Identity Project:

At one point, in response to such an objection, Prof. Kahn identified the source for one of his statements as being FBI watchlist guidelines released by the FBI itself to the Electronic Privacy Information Center (EPIC), and posted on the EPIC website. Those documents showed that the mere opening of an investigation was itself deemed to be sufficient grounds for placing a person on a watchlist, without the need to evaluate whether there had been any factual predicate for the opening of the investigation. This contradicted the government’s claims about the existence of threshhold evidentiary criteria for watchlist decisions.

The government’s lawyers tried to argue that despite having been released by the FBI itself in response to a FOIA request, and having been publicly available for years on the EPIC website, these documents couldn’t be discussed publicly.

Judge Alsup overruled their objection. “This is America. You can’t take something that is in the public domain and make it a secret. If you wanted to shut down that website, you should have done so.”

Well, that's never really stopped the government from trying. Still, you'd think that the DOJ lawyers would have gotten the message by now.

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Filed Under: doj, jeffrey kahn, no fly list, public domain, rahinah ibrahim, sensitive security information, william alsup

39 Comments

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Ninja (profile), 5 Dec 2013 @ 7:22am

If you wanted to shut down that website, you should have done so.

Well, that's never really stopped the government from trying. Still, you'd think that the DOJ lawyers would have gotten the message by now.

ICE + illegal domain seizures (without due process) due to counterfeiting and/or copyrights. The slippery slope entrance is far, far behind already.
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Anonymous Coward, 5 Dec 2013 @ 9:09am

"This is America"

Unfortunately that statement doesn't really seem to mean much.
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out_of_the_blue, 5 Dec 2013 @ 9:10am

Lawyers are immune to common sense. They have a position.
A lawyer groupie like you should know that. But you probably think this is some aberration within lawyers. Nope. Common sense is the item removed from legalistic minds right after the conscience.
Where economist Mike brags of hanging out with the really cool kids: lawyers!

05:09:55[g-82-1] [ This suppresses the kids from fraud of using my screen name. ]
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Martin, 5 Dec 2013 @ 9:13am

"This is America. You can�t take something that is in the public domain and make it a secret."

When I hear those words I cannot help but fantasize of some judge who would also declare that: "This is America. You can�t take something that is in the public domain and make it copyright protected" ...
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That One Guy (profile), 5 Dec 2013 @ 9:17am

Re:
Same thing really, retroactive copyright extensions are taking something that was in the public domain and making them secret, it's just you can (assuming the works are made available) pay to access them.
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Anonymous Coward, 5 Dec 2013 @ 9:35am

Re: Lawyers are immune to common sense. They have a position.
I hope theirs is not bent like yours.
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Anonymous Coward, 5 Dec 2013 @ 9:36am

Re: Lawyers are immune to common sense. They have a position.
What is it with your obsession with Mike? It's super creepy. I think you're unbalanced and should probably talk to a professional.
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Zos (profile), 5 Dec 2013 @ 9:50am

loving seeing the DHS get a curbstomping from an unimpressed judge. bets on how long till they force him to recuse himself from the case?
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halley (profile), 5 Dec 2013 @ 9:52am

Re: Re:
Need to be careful here about "public domain."

In this case, Judge Alsop is using the legal phrase to indicate any information that has been exposed to a wide, arbitrary or uninvolved set of parties. This phrase, along with "open source" had definitions long before their use in software. It's not about ownership, it's about whether a secret has been breached.

Trade secret law would be more similar than copyright.

In terms of copyright, the phrase is about ownership, not about secrecy or breach. All of society "owns" things in the public domain (viz CC-0 where there is no legal concept of public domain ownership). (Even if you don't agree that information can be owned, the law has not caught up with this practical truth.) The legal concerns are pretty different, or should be. It should be a civil matter.
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Anonymous Coward, 5 Dec 2013 @ 10:00am

Anybody else get the feeling that the DOJ wants to be able to decide that anyone anywhere in the world is guilty of a crime and have the courts act as a rubber stamp to their decisions?
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DogBreath, 5 Dec 2013 @ 10:14am

Re:
No need to get him removed that way. They'll just put him on the secret "No-Judge" list. End of trial.
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kenichi tanaka (profile), 5 Dec 2013 @ 10:18am

The judge is wrong. This is NOT America, it's communism at it's best. America is not a communist country.
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Erik Grant, 5 Dec 2013 @ 10:23am

Re:
Actually, he did. If I'm not mistaken, he presided over the Google v. Oracle trial and ruled that Oracle's API was not copyrightable.
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Rich, 5 Dec 2013 @ 10:37am

Re:
What does this story have to do with communism?
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Anonymous Coward, 5 Dec 2013 @ 10:37am

Re:
just not to the government that has trampled the constitution every chance it gets... I'm sure it still means something to the people
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Rich, 5 Dec 2013 @ 10:41am

Re: Re: Re:
I believe he was just making a sarcastic remark about retroactive copyrights. No need for lesson in pedantry.
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Zos (profile), 5 Dec 2013 @ 10:47am

Re: Re:
kenichi are you reading the same story as the rest of us?
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Oblate (profile), 5 Dec 2013 @ 11:10am

Re:
I just can't wait to see what happens the next time the judge tried to fly somewhere and is finds out he is on the no-fly list.

At this point, I wouldn't put it past the DOJ/TSA.
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Anonymous Coward, 5 Dec 2013 @ 11:15am

Just wait...
Some day the judge, or a family member is going to want to fly home from vacation...
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Anonymous Coward, 5 Dec 2013 @ 11:17am

Re: Re: Re:
I think what he was trying to say was this is not the America that most of us were raised to believe that it is supposed to be. From our memories America isn't a country that stomps on the principles set forth in the Constitution, such as due process and fair trials. Our government is supposed to uphold those principles especially to it's own citizens (and yes I know she isn't a citizen but her daughter is.) It is the communists (eg. the Stasi) that did those things not America.
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Erik Grant, 5 Dec 2013 @ 11:20am

Re: Just wait...
I am confused. You are speaking as though the judge is somehow complicit in this. The judge has been scathing to the prosecution regarding this do not fly list. There are other articles around, but he seemed deeply offended an American citizen was not being allowed to return home, and the only apparent reason for it was to prevent testimony.

Judge Alsup does not fuck around.
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Anonymous Coward, 5 Dec 2013 @ 11:24am

Re: Re:
That would probably be about the dumbest thing they could do. A federal judge has the ability to issue court orders on lots of things. The judge can order that they declassify practically their entire case if he so decides. Furthermore, given that he has 1. gone through the scrutiny that it takes to become an federal judge in the first place and 2. has had a somewhat distinguished career in that regard for a significant length of time, any such attempt would have to be justified by solid reasoning backed by verifiable evidence that would be very difficult for them to fabricate. That's a can of worms that I seriously doubt they would be dumb enough to open.
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Anonymous Coward, 5 Dec 2013 @ 11:29am

Re: Re: Just wait...
He's not implying that the judge is complicit. He's saying that to spite him sometime in the future the judge will travel overseas on vacation and then have trouble returning to the country because they put him on the list.
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DCL, 5 Dec 2013 @ 12:31pm

Re: Re: Re:
Part of me is hoping they prove you wrong and are dumb enough to do that.

Popcorn anyone?
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BernardoVerda (profile), 5 Dec 2013 @ 12:53pm

The really troubling (even scary) part of all this...
... is that the DOJ lawyers apparently seem to believe that they can get away with this sort of thing -- that federal judges (after perhaps a token objection or smack-down) will just compliantly roll over, credulously swallow any blatantly ridiculous, patently self-serving excuse that the government presents under the colours of "national security".

Perhaps because that is, in their experience, what generally happens?
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JEDIDIAH, 5 Dec 2013 @ 1:34pm

There is always a bigger fish...
Yes. I suppose that's possible. However, the chances are that the judge has more powerful friends than the people trying to push him around.
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DB (profile), 5 Dec 2013 @ 1:37pm

You would like to think that a federal judge would never end on the do-not-fly list. But these women should never have been on the list either.

The same lack of due process and review that had them on the list could allow an individual agent, on their own initiative, putting the judge's family members on the list. You can imagine the twisted logic of "close associates of someone that has assisted potential terrorists". Sure, it seems unlikely, but there is a huge difference between "that would never happen" and "that probably won't happen".

I'm hoping the judge sees the parallel between what happened here, and what the overall case is about. I'm guessing that he does, and it's simply not useful for him to bring it up. But it is appropriate for him to point out that what has apparently happened is effectively witness tampering, no matter how it is spun.
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Anonymous Coward, 5 Dec 2013 @ 1:45pm

Re: There is always a bigger fish...
Hence, why I also stated that doing so would be one of the dumbest things that they could possibly do.
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Jerrymiah, 5 Dec 2013 @ 2:55pm

Judge In No Fly Case Explains To DOJ That It Can't Claim Publicly Released Info Is Secret
and guess who is behind all that. He's supposed to uphold the Constitution and since he's been name Attorney General, all he's been doing is screw up the constitution. Did you day Eric .....
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Dan, 5 Dec 2013 @ 3:04pm

I cant decide if the actions of our Dept of Justice and the Executive branch are those of a 5 year old child who just doesn't understand things or if this truly is the most nazi-esque administration we have ever seen.

Change the meaning of words to fit the action

Refuse to answer direct questions

Claim something in the public domain is a state secret

Put people on a terror watch-list to prevent them from testifying

Putting buddies and buddies friends into positions of authority

Refuse to acknowledge petitions of hundreds of thousands who say they don't like what is happening

Using local police forces as para-military units and arming them as such

Revolving door between corporations and government positions

Massive fines for minor offences

A congress that makes exceptions for themselves to the laws they place on the rest of us

Constant spying on citizens (just in case someone gets uppity)

Its just too much.
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PRMan, 5 Dec 2013 @ 3:42pm

Re:
Not only point out that it's witness tampering, but he needs to disbar the lawyer that tried it.
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Anonymous Coward, 5 Dec 2013 @ 4:03pm

Re: Re: Just wait...
The word is revenge, as in against the judge.
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Anonymous Coward, 5 Dec 2013 @ 4:47pm

Re: Re:
He probably does. The sad thing is his definition of "professional" refers to the winged unicorn imps dancing in his head.
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Anonymous Coward, 5 Dec 2013 @ 5:32pm

WAIT!
Never underestimate the ability of self centered Gov. drones to turn bullshit into cake frosting and then call it an enhancement. This whole situation looks like a growing RICO investigation and there should be NO immunity at all for anyone involved. The big fish need to get fried on a bigger fire.
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beltorak (profile), 5 Dec 2013 @ 6:58pm

Re: Re: Re:
well from the looks of it, all they have to do is claim "oops, we meant the notorious outlaw band 'William Alsup Guerilla Terrorists', not 'William Alsup, Honorable Justice'. I guess someone made a mistake typing it in. Sorry about that."
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out_of_the_blue, 5 Dec 2013 @ 8:12pm

Re: Lawyers are immune to common sense. They have a position.
no it doesn't

10:12:42[i-p-freely]
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Rekrul, 5 Dec 2013 @ 9:26pm

Well, that's never really stopped the government from trying. Still, you'd think that the DOJ lawyers would have gotten the message by now.

That implies that the government actually listens to and obeys court decisions.
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David, 6 Dec 2013 @ 2:15am

Re:
Well, the judges are sworn to the constitution, not the government. It would be interesting to see what would happen if some consider their oath more serious than their paycheck, and we have the government and law makers struggling to change laws faster than they are being arrested.

I have a dream.
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btrussell (profile), 6 Dec 2013 @ 2:32am

"Still, you'd think that the DOJ lawyers would have gotten the message by now."

They are confused as to why the judge hasn't received the envelope they mailed to him last week.
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