Feds Insist It Must Be Kept Secret Whether Or Not Plaintiff In No Fly List Trial Is Actually On The No Fly List

Legal Issues

from the kafkaesque dept

Fri, Dec 6th 2013 10:44am — Mike Masnick

In the latest update in the ongoing trial concerning the legality of the US's "no fly list" brought by Stanford grad school student Rahinah Ibrahim after what appears to be a series of monumentally stupid actions by the US government, the feds continue to try to play games that Judge William Alsup isn't interested in playing. Edward Hasbrouck at the Identity Project continues his fine reporting with detailed coverage of Thursday's events. Apparently, the DOJ lawyers tried to insist that the mere fact of whether or not Ibrahim is on the "no fly list" has to be kept secret, including from Ibrahim herself. Judge Alsup pointed out that the mere status of someone -- on the list or off -- wasn't listed anywhere in the list the government provided him of "sensitive security information" (SSI):

Why can’t we tell the party [to the lawsuit] what her status is?

This depends on our saying that national security depends on us having this information, but not her having it. I question whether that is true….

Something’s going on in this case that’s strange, and I mean on the part of the government.

I don’t understand why you’re fighting so hard to avoid having this poor plaintiff know what her status [on the no-fly list] is.

It’s easy for anyone to buy a ticket and try to get on an airplane. If they’re allowed to fly, they know they’re not on the no-fly list. If they’re stopped and handcuffed and sent to jail in the back of a police car, they know they’re on the list.

It’s so easy to find out what your status is by trying to get on an airplane — at least for the no-fly list. That’s a lot easier than months of litigation.

Later, as the government presented its case, it included a discussion of how the State Department later pulled Ibrahim's visa after she was back in Malaysia (it's not entirely clear how this helps their case, since the no fly issue is separate from the visa). But, even there, the statements from the government didn't make much sense to Judge Alsup who called out a witness for saying something that didn't appear to be true -- arguing that Ibrahim could have asked for a special waiver on the visa issue, but didn't. Just one problem: as Judge Alsup noticed, there's a box on the form saying if you're eligible to apply for a waiver -- and the form sent to Ibrahim did not have that box checked.

It’s possible for someone deemed ineligible for a visa to apply for a waiver of that ineligibility. Had Dr. Ibrahim failed to exhaust her administrative remedies by failing to apply for such a waiver?

It was Judge Alsup who pointed out that the box on the notice given to Dr. Ibrahim marked “You are eligible to apply for a waiver of in eligibility” had not been checked. “If there’s a box for that, and the box isn’t checked, wouldn’t that imply to you that she couldn’t apply for a waiver?” the judge asked Mr. Cooper.

“You could infer that,” Cooper replied from the witness box, with an inflection that suggested, “….but you would be wrong.”

“It would certainly imply that to me,” Judge Alsup shot back.

The trial should be wrapping up today, and it's not looking good for the US government at this point.

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Filed Under: dhs, doj, no fly list, rahinah ibrahim, william aslup

39 Comments

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Anonymous Coward, 6 Dec 2013 @ 11:01am

Is it wrong of me to want Do'J' to get bitch-slapped for $500m in punitive damages?
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- Anonymous Coward, 6 Dec 2013 @ 11:14am
  
  Re:
  That is not the proper outcome. The taxpayers would just have to pay those damages and it really wouldn't matter to the DOJ that much as it really isn't their money anyway. What WOULD be a proper outcome is for those responsible here to be exposed, indicted and tried.
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  - Anonymous Coward, 6 Dec 2013 @ 12:30pm
    
    Re: Re:
    That is not the proper outcome. The taxpayers would just have to pay those damages and it really wouldn't matter to the DOJ that much as it really isn't their money anyway. What WOULD be a proper outcome is for those responsible here to be exposed, indicted and tried.
    
    Actually, it is the proper outcome. The reason the TAXPAYERS SHOULD be footing the bill is because we taxpayers elected the assholes directing the assholes to do this shit and letting them get by with it.
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    - Anonymous Coward, 6 Dec 2013 @ 12:45pm
      
      Re: Re: Re:
      That would apply if the electorate had a real choice, rather than simply a choice between self selecting authoritarians. The alternatives to these p[arty people, independent candidates, and loose coalitions like the pirate parties are too scary, and lack experience for most people to consider as real alternatives, however elect a significant minority of them, and politicians might start to consider the people they are meant to represent, because they see a threat to their position.
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      - David, 7 Dec 2013 @ 1:52am
        
        Re: Re: Re: Re:
        The alternatives to these p[arty people, independent candidates, and loose coalitions like the pirate parties are too scary, and lack experience for most people to consider as real alternatives,
        
        "too scary"? The leading caste of the U.S. currently is well mimicking the early 30s NSDAP, just replacing the scaremonger of the "Jewish world conspiracy" with "international terrorism". And it is their experience with and lock-in into fascist techniques like overstepping all constitutional bounds and strategically pressing the acceptance of excessive force and invasion of privacy at unavoidable venues like airports and schools and now at home that is scary as hell.
        
        And it does not help that they have secret killer commands that somehow "thwart" purportive terrorist plots without anybody appearing in court for it because the defense rests, usually blown into small pieces. Yes, you have the situation again that your neighbor of Near East ethnicity might be dragged off in the night and you'll never hear where he appeared to, and it will be a state secret, and ask too much, and you'll disappear as well.
        
        Except that you are not living in Germany, but the U.S. But if you are living in Germany, have no fear: the U.S. "thwarts" "terrorist" plots even there without bothering to heed the laws.
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    - Anonymous Coward, 6 Dec 2013 @ 3:38pm
      
      Re: Re: Re:
      the only proper way would be the depertment budget got docked by that amount, and since we don't really want to interfere with useful? jobs of the government all govenment employees that contributed to this FU gets their pay docked, starting with agency heads.
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      - Atkray (profile), 6 Dec 2013 @ 10:28pm
        
        Re: Re: Re: Re:
        I think you are on to something...I know it is extreme but these are extreme times.
        
        A constitutional amendment stating that any losses suffered by any government agency due to litigation (so including settlements not just judgements against) will be be deducted from that agency's budget for the following 3 years.
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    - Anonymous Coward, 7 Dec 2013 @ 8:48am
      
      Re: Re: Re:
      "The reason the TAXPAYERS SHOULD be footing the bill is because we taxpayers elected the assholes directing the assholes to do this shit and letting them get by with it."
      
      I didn't vote for them, yet, I still have to pay the taxes that pay the bill.
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- Anonymous Coward, 6 Dec 2013 @ 12:01pm
  
  Re:
  Dude, it would not be wrong of you to want the DOJ tied nude upside-down to a power-line whilst flaying it's buttocks with an Arizona prison-strap (and simultaneously beating it's genitalia with ball-peen hammer).
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- Brazenly Anonymous, 6 Dec 2013 @ 1:39pm
  
  Re:
  No, though money isn't really the important thing here. The judge should mandate the release of the No-Fly list in its current state (easily discoverable == not classifiable) and mandated removal of the plaintiff and her daughter from said list. Alongside even a small amount of punitive damages for putting someone on the list without reasonable articulable suspicion, this would set a precedent that could actually kill the list.
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Anonymous Coward, 6 Dec 2013 @ 11:11am

It�s so easy to find out what your status is by trying to get on an airplane � at least for the no-fly list.

It can also be expensive, buying the ticket. And having been refused once, do how do you find out if you are still on the list, other than by trying to fly again. Secrecy means that they do not have to admit to, or notify people, of any mistakes they make.
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CSMcDonald (profile), 6 Dec 2013 @ 11:24am

Unfortunately I suspect that the administration will refuse to abide by the court's judgement if they rule against the DOJ.
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- Anonymous Coward, 6 Dec 2013 @ 11:36am
  
  Re:
  Unfortunately I suspect that the administration will refuse to abide by the court's judgement
  
  Well, suppose the Obama administration pulled an Andy Jackson and told the court to go fly a kite. Under those circumstances, what would Congress do?
  
  I guess it would depend in large part on what happens next November 4th. If the House of Representives remains in Republican hands�
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  - Anonymous Coward, 6 Dec 2013 @ 12:01pm
    
    Re: Re:
    Who even knows what the hell is going on anymore with our government.
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  - Pragmatic, 9 Dec 2013 @ 5:48am
    
    Re: Re:
    Peter King supports the NSA, and therefore this kind of crap. Add to that the fact that Ms. Ibrahim is a Muslim and I doubt she'll get much help from him and his fellow religious authoritarians. They've had all this time to rein in the NSA and all they've done is deprive Congressional staff members their funding for their healthcare while trying to shut down the ACA.
    
    http://www.huffingtonpost.com/2013/10/15/peter-king-gop_n_4103195.html
    
    As has been pointed out numerous times, neither of the Big Two give enough of a rats to save us. It's time to choose a reasonable, middle-ground third party and promote it as much as you can. If we can get more third party candidates in, the craziness will stop because they'll make it stop. Or you can keep voting for the same people and act all surprised when nothing changes. Again.
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Peter (profile), 6 Dec 2013 @ 11:34am

Damages?
Just to be clear: The airline and the US Govt both let me buy a ticket and travel to the airport in the full knowledge that they will prevent me from boarding because I am on the no-fly list?
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- BentFranklin (profile), 6 Dec 2013 @ 11:56am
  
  Re: Damages?
  You understand it exactly.
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- Michael, 6 Dec 2013 @ 1:02pm
  
  Re: Damages?
  No.
  
  The airline lets you purchase a ticket, but does not know you are on the list. The government stops you when you get to the airport.
  
  In addition to the traveler being, the airline should be pissed that the government is interfering with their business by preventing law-abiding citizens from using their services without giving anyone an explanation as to why.
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  - Mike Brown (profile), 6 Dec 2013 @ 1:32pm
    
    Re: Re: Damages?
    The airline doesn't give a rat's ass. If you buy a non-refundable ticket, it not their fault TSA won't let you beyond the metal detector. They are under no obligation to refund your money. So they get paid whether you fly or not.
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    - akp (profile), 6 Dec 2013 @ 3:19pm
      
      Re: Re: Re: Damages?
      ..and they'd rather you did get stopped at the checkpoint, so they can get the money of the other 20 people they overbooked for your seat.
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- SilenceDogood, 6 Dec 2013 @ 1:03pm
  
  Re: Damages?
  Or, even better, as has also happened in recent cases involving the "we don't know nothing about no NFL", is that you will be able to buy a ticket, get on a flight overseas, and THEN be placed on the "we can't talk about it" NFL and stranded in a foreign country with the Feds disavowing any knowledge while simultaneously sending you in circles to get it "resolved".
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Nemo, 6 Dec 2013 @ 11:51am

Testing no fly-list inclusion
If they�re allowed to fly, they know they�re not on the no-fly list.

All that shows is that, at the time of obtaining a boarding pass, you are not on the no-fly list. You could be on the no-fly list a minute later, and find yourself denied boarding for your next flight.
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- SilenceDogood, 6 Dec 2013 @ 1:09pm
  
  Re: Testing no fly-list inclusion
  Or, as with the panty bomber your name is on the list, but whatever spook added it misspelled your name and you are allowed to fly anyway.
  
  The NFL is a joke. All anyone has to do once they have discovered that they are on the list is get married (if female and legally change their surname), enter a different middle initial in the inSecure Flight information on the airline's website than what's on the ID you'll present, enter a birth date different from your own in the inSecure Flight section, or simply fat finger your own name enough that the boob checking documents at TSA won't notice that the ID and boarding pass aren't an exact match. And those are just the free (mostly) ways to do it. Like a real terrorist is going to go through all of this trouble. The NFL isn't going to stop anyone determined to get on a plane for the purpose of using it as a bomb. That DHS doesn't know that is beyond appalling.
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BentFranklin (profile), 6 Dec 2013 @ 11:58am

Judge Alsup should get ready to get taken off the case for appearance of impropriety.
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- BernardoVerda (profile), 6 Dec 2013 @ 7:16pm
  
  Re:
  > Judge Alsup should get ready to get taken off the case for appearance of impropriety.
  
  I've been wondering if this was the DOJ strategy -- get Alsup so incensed that he can be over-ridden on the basis of lacking impartiality.
  
  (IIRC, Judge Thomas Penfield Jackson had his remedies (ie. the break-up of Microsoft) over-ruled in the Microsoft anti-trust trial, in very large part because he made the mistake of commenting, outside the court, on the utterly atrocious and blatant misconduct which Microsoft had displayed during the trial. It's a shame to see what the DoJ appears to have learned from that experience).
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Rekrul, 6 Dec 2013 @ 12:10pm

The trial should be wrapping up today, and it's not looking good for the US government at this point.

Like anyone in the government cares what the courts think...
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Anonymous Coward, 6 Dec 2013 @ 12:28pm

While trial has been very surreal
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Jerrymiah, 6 Dec 2013 @ 1:09pm

Feds Insist It Must Be Kept Secret Whether Or Not Plaintiff In No Fly List Trial Is Actually On The No Fly List
It definitely looks like Eric and Barack don't want anybody to know what they're doing. Everythin they do has to be secret. Both excel in the art of screwing up the constitution.
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- Aussie Geoff (profile), 7 Dec 2013 @ 2:55am
  
  Re: Feds Insist It Must Be Kept Secret Whether Or Not Plaintiff In No Fly List Trial Is Actually On The No Fly List
  The US still has a constitution? Amazing, I learn something everyday.
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  - Anonymous, 7 Dec 2013 @ 8:55am
    
    Re: Re: Feds Insist It Must Be Kept Secret Whether Or Not Plaintiff In No Fly List Trial Is Actually On The No Fly List
    Of course the US still has a constitution. It's what the supreme court used to legitimize the tax penalty portion of Obamacare.
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  - That One Guy (profile), 7 Dec 2013 @ 10:59pm
    
    Re: Re: Feds Insist It Must Be Kept Secret Whether Or Not Plaintiff In No Fly List Trial Is Actually On The No Fly List
    'Has' and 'Follows' are two very different things, especially in this instance.
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Anonymous Coward, 6 Dec 2013 @ 2:10pm

There are no alternatives to finding out if you are on the no fly list or not other than buying a ticket. There are no alternatives to questioning, removing mistaken flags, nor obtaining reasonable info on why.

This smacks a lot of the same mentality of the constant use of national security as a stonewall to prevent having to be held responsible for any mistakes made or even to be held accountable.

There have been several people stranded at their destination and not allowed to return after being put on the no fly list en-route. That's not by accident but rather on purpose. The whole idea is to drain any funds the traveler might have so they can't fight.

This is all bs from the most transparent administration in history to hear it told. /s
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- BernardoVerda (profile), 6 Dec 2013 @ 7:37pm
  
  Re:
  I forget whether it was 60 minutes or 20/20 that ran a story about a dozen guys with the same (common) name (Robert Johnson) who had all run afoul of the no-fly list, and couldn't get their names removed, let alone their presence on the list explained, even though it seemed patently obvious that none of them were a threat (heck, the youngest one was something like 6 years old -- when they filmed the episode).
  
  Of course, if I were a terrorist, and my name was Robert Johnson, I would just use an alias.
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- Anonymous, 7 Dec 2013 @ 8:57am
  
  Re:
  No alternatives? If it's in a database, it can either be hacked or obtained from the inside.
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DB (profile), 6 Dec 2013 @ 2:40pm

It appears that the government back-pedaled on its assertion that a witness (the plaintiff's daughter) was not on the no-fly-list, and simply was late for her flight.

They had *firmly* asserted this to the court, even in the face of a document that said otherwise.

I'm hoping that there is an immediate follow-up hearing on witness tampering. Any change to the do-not-fly list will likely be immediately stayed pending appeal. But the issue of executive branch agencies blocking a witness from testifying against in a federal trial based solely on executive branch secret internal rules isn't something that can be pushed off to an indeterminate future retrial.
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- Quiet Lurcker, 6 Dec 2013 @ 3:25pm
  
  Re:
  I have a two-stage plan for how to fix this mess.
  
  I understand witness tampering is a felony. So, in stage one, the judge orders whoever detained or stopped the witness from boarding to appear in person to explain themselves. That person, of course, won't do so. So, a warrant issues, and the offending party is hauled in front of the judge ( by strong preference in chains ) to face at minimum contempt of court.
  
  In state two, the president the Attorney General and the head of TSA are also ordered to appear in person to explain this behavior. They of course won't, so a second round of felony warrants. President, AG, and head of TSA get picked up by federal marshals and given a perp walk, face the judge (again in chains, thank you) and go to jail, with no bond until they come up with a few answers.
  
  Then, we'll see a few things changed.
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Tony Blair, 6 Dec 2013 @ 3:37pm

And the USA wonders why
And the USA wonders why there are people in the world who plotted to fly airliners into buildings. It couldn't have anything to do with the US being the largest terrorist organization in the world? They do everything a terror operation does - operate in secrecy. Kill people and overthrow governments in secrecy. Send in missiles that usually take out civilians as well. Sounds like Al Queda? No, the USA government.
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Jazzz2 (profile), 6 Dec 2013 @ 5:01pm

After the Bush administration signed off on torturing I'm sure the DOJ thinks they can do anything they want to do and so far they have.
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rafeh1 (profile), 7 Dec 2013 @ 10:10pm

our criminal justice system
is a criminal justice system.

run by criminals for criminals and of criminals (to paraphrase Lincoln)
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