Witness In No Fly List Trial, Who Was Blocked From Flying To The Trial, Shows That DOJ Flat Out Lied In Court

from the incredible dept

Mon, Dec 9th 2013 7:33am — Mike Masnick

On Friday the case against the US government, brought by Rahinah Ibrahim over her being placed on the "no fly list," officially concluded with closing arguments, but that may have been the least interesting part of everything. Apparently, the day got off to a rocky start, after Ibrahim's lawyers informed the DOJ that they intended to file bar complaints against some of the DOJ legal team for their actions in court, specifically concerning "misrepresentations" made to the court. It seems clear that this was mainly about the DOJ denying that the US government (mainly DHS) had done anything to prevent Ibrahim's daughter, Raihan Mustafa Kamal, an American citizen, from coming to the US to be a witness in the trial. As you may recall, on Monday it had come out that she had been denied in her attempt to board her flight in Malaysia, and the DOJ claimed, flat out, that Kamal had merely missed her flight and rebooked on another flight.

It appears that none of that was true.

Instead, while Kamal had been rebooked by her travel agent earlier in the week to a different flight (because Expedia informed her that her original flight was full and she wouldn't be able to travel on it), she arrived at the airport with nearly 3 hours to spare for her own flight, and was then denied the ability to board. There was a lot of back and forth, but eventually she obtained the email that had first been sent to Philippines Airlines (she was flying from Malaysia to the Philippines and then on to San Francisco), warning that Kamal was "a possible no board request."

While that's not a full on "denial" it was enough to have the airline deny her passage, and clearly shows that, contrary to the DOJ's claims, DHS specifically had targeted Kamal and was hinting very strongly to airlines not to let her fly. It seems unlikely that they ever expected that email to get out. Either way, Kamal had spent nearly $2,000 of her own money on the original flight, and noted in her own deposition that she was unable to afford another immediate flight to the US (especially given that it's holiday travel season).

Judge Alsup held a closed hearing about all of this, so it's not entirely clear what he's going to do, though from the public statements he has made to date, he did not appear to be happy about all of this. During the closing arguments -- some of which involved kicking the public out -- he even noted how ridiculous it was that they had to have a closed session since he didn't think any of the "sensitive security information" was really that sensitive. He also challenged the government's argument that they can properly review people who "appeal" their status without ever letting anyone know if or why they're on the list. From Edward Hasbrouck's transcript of the exchange:

JUDGE ALSUP: That's just going back to the same sources that were wrong in the first place, and of course they are going to say, “We were right the first time.”

That troubles me.

Do you know what happened to Robert Oppenheimer?

He was denied his clearance. It was totally unjust. The information was bogus. They suspected him of being a Communist, but that was wrong.

It was a low point for America, to do that wrongly to an American hero.

You’re not seeing the other side of what can happen.

DEFENDANTS’ COUNSEL: TRIP is a continually improving process…

JUDGE ALSUP: We know that there’s going to be mistakes in your system, in any system, and people are going to get hurt.

What do we need? Should there be some sort of follow-up FBI interview to find out if there is contrary evidence?

DEFENDANTS’ COUNSEL: When a TRIP letter is sent, the recipient is offered the possibility of review by a Court of Appeals. Review by a Court of Appeals would reveal any improper basis for the decision.

JUDGE ALSUP: How could the Court of Appeals tell that from the file it is handed up by the agency?

Even if it includes the derogatory information, how is the Court of Appeals going to know from looking at the face of the document whether it’s true?

Couldn’t there be some process where you tell the person the nature of the allegations (”You contributed money to Al Qaeda”) without revealing the specific sources or methods for the information containing those allegations?

DEFENDANTS’ COUNSEL: We can say more in closed session, but we can’t do that.

The government also appeared to admit in its closing that the original no fly determination on Dr. Ibrahim was a mistake, but then seems to bend over backwards not to take responsibility for all the additional fallout from that incorrect designation -- including the repeated denial of a visa to go back to the US (even for this very trial).

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Filed Under: cbp, dhs, doj, no fly list, rahinah ibrahim, raihan mustafa kamal, william alsup

52 Comments

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Reader Comments

The First Word

“

Hubris

What I find amusing is the note at the bottom of the letter claiming that it is sensitive information and that releasing it would violate various US laws without written permission from the US government as if a foreign citizen in a foreign country working for a foreign airline would be subject to those laws. Kudos to the ticket agent that used common sense in determining that the person they were denying the ability to board the plane at the request of the US government was one of the people that "needed to know" what was in the request and released it to her.

—Anonymous Coward

”

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TheResidentSkeptic (profile), 9 Dec 2013 @ 6:22am

Where's the money?
Under what authority is the money for the ticket being forfeited? Where's the money? Who is keeping it? With hundreds of thousands of names on the list and tickets running hundreds to thousands of dollars...hmmmmmm. It wasn't her plans that changed that would trigger the "non-refundable" clause - it was government interference - so her original ticket should have been refunded NQA. But, that would be "fair" and "just"... and DOJ and our government have shown that neither is in their playbook anymore. With the Department of JUSTICE proving that it does not care about Truth or Justice, and has been caught again in lies in court, it is time to flush it and start over. And refund all the stolen funds, return all the stolen domains...
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silverscarcat (profile), 9 Dec 2013 @ 6:50am

The bigger question is...
Will the Executive Branch care what the judge says? Considering that the Executive Branch is completely out of control, like when Nixon and Hoover were in charge, I doubt it.
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That One Guy (profile), 9 Dec 2013 @ 7:31am

Re: The bigger question is...
Given they pretty flat out gave a 'Haha, no' when a judge told them to declassify the ruling/interpretation they were using to justify their spying, I'm going to guess that they won't really care what the judge says.
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Quiet Lurcker, 9 Dec 2013 @ 7:54am

Re: Re: The bigger question is...
The government won't care that much - until they get that paper that tell them to tell the judge why they should not be held in contempt of court and possibly found guilty of perjury and witness tampering at minimum.

Make no mistake, what the government did is nothing short of a crime in most jurisdictions, and if memory serves (it probably doesn't this time around) the court can infer that the government is probably guilty solely on this basis. I believe the term of art is 'negative inference'.

Any lawyer types out there care to edu-ma-cate me on where I'm wrong?
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Government Shill, 9 Dec 2013 @ 7:57am

"he even noted how ridiculous it was that they had to have a closed session since he didn't think any of the "sensitive security information" was really that sensitive. "

Anything that has the potential to embarrass the government is sensitive information. After all, wouldn't you consider anything potentially embarrassing about you, like your medical records, confidential?
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Anonymous Coward, 9 Dec 2013 @ 7:59am

A list
After WW2 the Nazi hunters had a tough time tracking everyone down. Now would be a good time to compile a public list of all of the "we were just following orders" people so that when we finally get our country back, we know exactly who did what to whom and put them in jail for a long time.

They compile lists on us, we need to start one on them.
Names, Actions, Relatives, Associates, Places of Employment, etc... We can only hope in the next 10 years the court system is filled to the top with all of these criminals.
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vegetaman (profile), 9 Dec 2013 @ 8:04am

The list works as intended -- only important people with real social status, like Ted Kennedy, can clear themselves up.

Move along, citizen. Nothing to see here.
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LVDave (profile), 9 Dec 2013 @ 8:04am

I always wonder WHY everyone acts suprised when government lies... Kinda like when people act suprised when snakes and lions bite. Government LIES, about EVERYTHING, ALL THE TIME.. There IS no surprise here, people!!!
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scotts13 (profile), 9 Dec 2013 @ 8:10am

First ones against the wall...
when the revolution comes, to borrow a phrase from Douglas Adams. There were a fair number of people who took pains to cover their asses when they saw the direction Germany was taking 70 years ago; never though I'd live to see the necessity for that in this country. But, it's true.
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Anonymous Coward, 9 Dec 2013 @ 8:14am

Re:
Lying in court is perjury, which can have some unpleasant penalties. People are surprised that the government is telling blatant lies in a place where the people making them can catch severe personal repercussions for them, as well as heavily damage their own case.
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Anonymous Coward, 9 Dec 2013 @ 8:18am

It's getting REALLY annoying and frustrating to see the government commit these sort of "errors" and have no punishment over it, even though they are screwing with people's lives.
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Anonymous Coward, 9 Dec 2013 @ 8:19am

DEFENDANTS� COUNSEL: When a TRIP letter is sent, the recipient is offered the possibility of review by a Court of Appeals. Review by a Court of Appeals would reveal any improper basis for the decision.

"possibility" in government eyes is the same as "if we give shit enough to "offer" it to you in the first place. Provided by the same court that decides your fates ex parte.

Freedom? Where?
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Anonymous Coward, 9 Dec 2013 @ 8:19am

Hubris
What I find amusing is the note at the bottom of the letter claiming that it is sensitive information and that releasing it would violate various US laws without written permission from the US government as if a foreign citizen in a foreign country working for a foreign airline would be subject to those laws. Kudos to the ticket agent that used common sense in determining that the person they were denying the ability to board the plane at the request of the US government was one of the people that "needed to know" what was in the request and released it to her.
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Anonymous Coward, 9 Dec 2013 @ 8:24am

Re: Hubris
Good point!

We already see the wheels turning in some of those torture cases where people are not allowed to discuss their tortures because those are state secret now!

Next up... Someone going to jail and not being told why because of state secret!
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WDS (profile), 9 Dec 2013 @ 8:27am

I can here it now.
"See we didn't place her on the no-fly list, we just told them we were strongly thinking about it. If they then elected to not let her on the plane, how is that our fault?"
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Anonymous Coward, 9 Dec 2013 @ 8:28am

Re:
After all, wouldn't you consider anything potentially embarrassing about you, like your medical records, confidential?

There is a difference between private life and actions carried out as a representative and servant of the people. Accepting any public role should come with the realization that you will be required to explain your actions, or why some information should be kept secret. Using secrecy to hide mistakes is an abuse of power by a public servant. The problem of course is that too many public servants think that they have absolute power over citizens.
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Rapnel (profile), 9 Dec 2013 @ 9:13am

Re: Re:
Apparently those unpleasant penalties are not severe enough.

I'm starting to think that the criminal enterprise that is the executive branch far and away outweighs the totality of all actual criminal enterprise combined.
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Rekrul, 9 Dec 2013 @ 9:23am

Re: Re: Re: The bigger question is...
Make no mistake, what the government did is nothing short of a crime in most jurisdictions, and if memory serves (it probably doesn't this time around) the court can infer that the government is probably guilty solely on this basis. I believe the term of art is 'negative inference'.

So what? It's not like the law actually applies to the government...
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Rekrul, 9 Dec 2013 @ 9:26am

Re: Re:
Lying in court is perjury, which can have some unpleasant penalties.

That's only for the little people, the government (and the rich) can break the law with impunity.
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Anonymous Coward, 9 Dec 2013 @ 9:34am

Re: Re: Re:
Cases in point: Clapper and Alexander committed perjury and apparently those "unpleasant penalties" are non-existent for them.
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Anonymous Coward, 9 Dec 2013 @ 9:46am

Nice
It's also nice to see that the sender's email address was included with the email when published. I imagine that mailbox is being filled with complaints and has been added to a ton of spam lists by now.
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Anonymous Coward, 9 Dec 2013 @ 9:58am

Re: I can here it now.
"It was the least untruthful answer we could give."
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Bergman (profile), 9 Dec 2013 @ 10:08am

Re: Re: The bigger question is...
The proper response to that one, were the court not a puppet show, would be "declassify it or we strike it down".
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Matthew Cline (profile), 9 Dec 2013 @ 10:26am

Apparently, the day got off to a rocky start, after Ibrahim's lawyers informed the DOJ that they intended to file bar complaints against some of the DOJ legal team for their actions in court, specifically concerning "misrepresentations" made to the court.
To play devil's advocate, maybe the DOJ lied to its own lawyers, and the lawyers didn't know what had been done about the witness.
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ebilrawkscientist (profile), 9 Dec 2013 @ 10:30am

Deport
The witness is now in the "other country" illegally and now must be "DEPORTED" back to the country of origin.

Problem solved.
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Anonymous Coward, 9 Dec 2013 @ 10:38am

Re: Nice
That's nothing. The sender's email address being included makes it really easy to drag the sender into court and question them about the email. Something the DoJ will probably be quite unhappy about.
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Anonymous Coward, 9 Dec 2013 @ 10:51am

Re: Re: Nice
Who, besides Judge Alsup perhaps, is going to drag them into court? The DOJ isn't going to charge their own.
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Anonymous Coward, 9 Dec 2013 @ 11:19am

Re: Re: Re: Nice
Indeed - that would be too much like necro-incest to be any good.
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alternatives(), 9 Dec 2013 @ 11:29am

Good to see this make the mainstream
Ibrahim's lawyers informed the DOJ that they intended to file bar complaints against some of the DOJ legal team

As well EVERYONE should.

An overview of fraud in the Court.
www.bargrievance.net was at one time running to help you do just that.

The radioshow/podcast Rule of Law Radio on some shows covers bar grieving and why to do it.
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Anonymous Coward, 9 Dec 2013 @ 11:30am

Re: Re: Re: The bigger question is...
Can't the judge simply declare the classification improper and release it publicly by admitting it into record and not putting it under seal? The judge gets to decide if something stays under seal or not in his court.
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Anonymous Coward, 9 Dec 2013 @ 11:32am

Re: Re:
Lying in court is perjury, which can have some unpleasant penalties

And because you are citing a crime, that takes a DA, Judge or Grand Jury to approve criminal charges.

But go ahead and explain how the non DA/Judge/Grand Jury is supposed to get criminal charges?
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DB (profile), 9 Dec 2013 @ 12:17pm

Perjury vs. witness tampering: burden of proof...
Perjury charges would be difficult to sustain. The attorney could be repeating what they were told. Even something that comes across as an outright lie can be explained as a misunderstood message. A trial could take years, especially with the specific details, the procedures and the policy all covered under different 'SSI' rules.

On the other hand witness tampering can be immediately investigated by the court. It's much less dependent on determining intent, instead focusing on the facts and effect of actions. My understanding is that once the interaction with the witness is shown, the burden of proof shifts to show that it was not tampering.
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alternatives(), 9 Dec 2013 @ 12:25pm

Good to see this make the mainstream
Ibrahim's lawyers informed the DOJ that they intended to file bar complaints against some of the DOJ legal team

As well EVERYONE should.

An overview of fraud in the Court.
www.bargrievance.net was at one time running to help you do just that.

The radioshow/podcast Rule of Law Radio on some shows covers bar grieving and why to do it.
[ link to this | view in thread ]
Anonymous Coward, 9 Dec 2013 @ 1:03pm

Re: The bigger question is...
This Administration and it's Departments are out of control because the "journalists" are too busy "reporting" WH talking points to cover any other stories.
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PRMan, 9 Dec 2013 @ 1:28pm

Re: Where's the money?
Oh, no. They'll refund her. She'll get a check in the mail in about 90 days...
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Mike Brown (profile), 9 Dec 2013 @ 2:20pm

Re: Hubris
That ticket agent has probably been terminated by now.
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Anonymous Coward, 9 Dec 2013 @ 4:26pm

Re: Hubris
"... as if a foreign citizen in a foreign country working for a foreign airline would be subject to those laws."

Of course they would. US laws apply world-wide. That's what drones are for.
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Anonymous Coward, 9 Dec 2013 @ 4:30pm

Re:
"To play devil's advocate, maybe the DOJ lied to its own lawyers, and the lawyers didn't know what had been done about the witness."

So far, though, I haven't seen the lawyers making that claim.
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Anonymous Coward, 9 Dec 2013 @ 4:39pm

Re: Perjury vs. witness tampering: burden of proof...
"Perjury charges would be difficult to sustain. The attorney could be repeating what they were told."

Wait, were the lawyers themselves testifying in this case or were they filing sworn testimony from other sources? Couldn't those other sources be charges with perjury?
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Anonymous Coward, 9 Dec 2013 @ 9:30pm

Re: Re:
You obviously missed that my post was sarcasm. I guess my sarcasm sounds so like the real arguments made that everyone was fooled even with the name "Government Shill".
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Anonymous Coward, 9 Dec 2013 @ 10:04pm

Re: Re: Perjury vs. witness tampering: burden of proof...
Well no, if the other sources were never sworn in under anything they certainly can't be held liable as if it were sworn testimony. Reminds me of hearsay not being allowed.
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James Burkhardt (profile), 9 Dec 2013 @ 10:41pm

Re: Re: Re: Re:
they didn't do it in court. lying to congress is business as usual. lying in court stiill has penalties.
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Anonymous Coward, 9 Dec 2013 @ 10:51pm

Re: Re: Re: Perjury vs. witness tampering: burden of proof...
That's why things like depositions and so forth are taken under sworn oath and submitted to the court under penalty of perjury. And it's why courts don't allow hearsay. So, somebody here probably committed perjury. If not the attorneys, then those whose sworn testimony was submitted.

Unless the court gave the gov't a big ole "lie for free" card and let them submit unsworn testimony.
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Lurker Keith, 10 Dec 2013 @ 3:06am

Re: Re: Re:
You forgot Poe's Law, didn't you?
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Lurker Keith, 10 Dec 2013 @ 3:08am

Re: A list
How often does Poe's Law get followed by Godwin's Law?
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That One Guy (profile), 10 Dec 2013 @ 6:48am

Re: Re: Re: Re: Re:
Only if you lack sufficient money and/or connections.
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Anonymous Coward, 10 Dec 2013 @ 7:57am

Re: Re: Re: Re: Re:
Lying to Congress is still perjury though even if it isn't in court.
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John Fenderson (profile), 10 Dec 2013 @ 9:53am

Re: Re:
Lying under oath to Congress is just as illegal as lying under oath in court.
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x, 11 Dec 2013 @ 7:59am

SIEG HEIL!
Der Gestapo ist alife and vell in Amerika......
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Anonymous Coward, 11 Dec 2013 @ 3:18pm

Re:
I think it's a flaw in our legal "old boy" network. If you'll recall, folks like Righthaven, Prenda, and many many others, all being attorneys at law, lie their heads off and end up with NO penalties whatever. If you or I tried that, we wouldn't see the light of day for months or years.
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zenxyzzy (profile), 15 Dec 2013 @ 5:57pm

If the judge had cojones.
He would use his almost unreviewable contempt power to jail the Government lawyer for lying to him to his face. probably doesn't have the cojones for it, though.
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A guy who thought about it, 1 Jan 2014 @ 10:25am

Where did soveriegn immunity come from?
Exactly where in the Constitution of a Republic is the doctrine that the government can lie to us? Where is the doctrine of sovereign immunity where they can contend that as the State the 'king can do no wrong?'

We like in a Republic where the power of the government derives from the people - not from a grant of sovereign power. If the people cannot lie to the government, then where does the government get the power to lie to us, if it derives all of its powers from us?

Sovereign immunity might be 'well settled law' but just because it is well-settled does not mean the original decision was correct. It is like saying that global warming is 'well-settled' while your ship remains stuck in the ice . . . .
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