Judge In No Fly List Trial Won't Let Plaintiff Or Her Lawyers See The Evidence

from the due-process! dept

Wed, Jan 8th 2014 1:32pm — Mike Masnick

We've written quite a few times about the lawsuit brought by Dr. Rahinah Ibrahim, testing the legality of the US's no fly list, which she was put on in what appears to be a massive mistake by Homeland Security, which they've proceeded to make worse every chance they get. Being on the no fly list also appears to have made the State Department deny her a visa to come to her own trial, and then DHS directly got involved to block Ibrahim's daughter from flying to the US to be a witness, and then directly lying about it to the court.

Edward Hasbrouck at the Identity Project, who has been doing a ton of excellent reporting on the case, has the latest, noting that the Judge, William Alsup, has now denied both Dr. Ibrahim and her lawyers from being able to see the classified evidence being used against her. This seems like a generally questionable move -- especially since Alsup himself has repeatedly questioned why certain information in the case was secret in the first place. But, in the end, this appears to mainly be a process issue. Dr. Ibrahim was told she could see the evidence if she was present in the courtroom, but since the State Department denied her a visa... she wasn't able to be there.

But, both her lawyers and Dr. Ibrahim herself knew all of this for a while, and could have (and probably should have) sought clearance to view classified documents. That's not to say it would have absolutely happened, but they didn't go through the basic process, and Judge Alsup has said that it's a bit late to suddenly ask.

Plaintiff's counsel could have sought clearance to view classified information well in advance of trial. Plaintiff's counsel did not. Instead, plaintiff's counsel waited until after trial to request an order for access to classified information. This order will not permit plaintiff's counsel to circumvent the usual classified clearance process at this late date when such unreasonable conditions are requested.

The "unreasonable conditions" included a request to discuss the classified information with Dr. Ibrahim, though, again, she also did not seek clearance. Now, there's a reasonable argument about whether or not the government ever would have allowed any of them to get clearance and to look at the evidence -- but not even seeking to go through the process appears to be a big procedural mistake, cutting off the opportunity to legally challenge those decisions.

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Filed Under: classified evidence, no fly list, rahinah ibrahim, william alsup

52 Comments

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Jose, 8 Jan 2014 @ 1:49pm

Amendment VI

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

Well, I guess William Alsup is out of a job.
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ltlw0lf (profile), 8 Jan 2014 @ 2:07pm

Re:
Amendment VI

The 6th Amendment (due to the 14th Amendment) only applies to those who are US citizens and/or living on US soil (thus, foreigners who come to visit or those who crossed the border illegally are covered, but those who live in foreign countries are not.)

Not saying it is right, just that this is the way it is.
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jackn, 8 Jan 2014 @ 2:08pm

Well then, Game on!
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weneedhelp (profile), 8 Jan 2014 @ 2:10pm

Re:
Thats not the secret Constitution that the Gov works from. [Requests to see the secret Constitution] Receives a page of redaction.

But but but... terrorists!!!

Oh we will let you see it but only if you can get here. Then denies Visa. The republic is dying a slow death as we sit by and watch. [Grabs Xanax]
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Bengie, 8 Jan 2014 @ 2:14pm

Pledge of Allegiance states "with liberty and justice for all", not for those on USA soil.

Obviously this judge is not in allegiance with the USA.
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pegr, 8 Jan 2014 @ 2:15pm

You don't want a security clearance
Distributing classified information is a crime only if the perpetrator already has a security clearance. If you have no clearance, you can distribute classified information all day long. That's how newspapers can get away with distributing the Snowden documents.

Why would I want to assume that potential liability?
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pegr, 8 Jan 2014 @ 2:20pm

This is the Google/Oracle judge
This judge is no dummy. If he makes a ruling like this, it's because he is limiting the ability for the defendant (DHS) to appeal his decision. I'm betting that he will not consider evidence not presented at trial, as he has rejected ex parte evidence in this very trial already.

Remember, the DoJ tried to get him to look at evidence outside of the trial (by courier, no less), and he told them to take a hike.

He likely accepted out-of-band evidence from the DoJ in order to prevent a sympathetic appeals judge from listening to the DoJ whine about "He didn't even look at our evidence!"

Remember, just being a judge doesn't mean you get to expose classified information, but you sure as hell can ignore it.
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silverscarcat (profile), 8 Jan 2014 @ 2:35pm

Re: Re:
But wasn't she just visiting a foreign country?

I need a recap here.
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Anonymous Coward, 8 Jan 2014 @ 2:38pm

Road-Blocks
The Strategy of the US Government in this case is simple, and straight-forward, on the disclosed public information, they haven't got a leg to stand on, and would be liable to a compensation payment at a minimum, but they use every procedural trick at trial and about trial, to trip up the plaintiff's case. Using the No Fly List to distract the plaintiff & lawyers (best lawyers the plaintiff could afford) from noticing the "national security" fence around the evidence. it doesn't even matter if they know what the evidence is.
The US constitution sounds more like a list of rules that are required to be broken to get promotion in the US government.
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Anonymous Coward, 8 Jan 2014 @ 2:39pm

where was the court?? on the moon
she does know there are other forms of transport other than flying doesn't she ?
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Anonymous Coward, 8 Jan 2014 @ 2:40pm

Re: You don't want a security clearance
so you admit snowden has committed specific crimes !!
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Anonymous Coward, 8 Jan 2014 @ 2:41pm

Because NATIONAL SECURITY!! NOW SHUT UP!
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Anonymous Coward, 8 Jan 2014 @ 2:43pm

Re: You don't want a security clearance
"Distributing classified information is a crime only if the perpetrator already has a security clearance. If you have no clearance, you can distribute classified information all day long."

no !! just no, that is not right at all.
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John Fenderson (profile), 8 Jan 2014 @ 3:03pm

Re: Re: Re:
My understanding is that the Dr. Rahinah Ibrahim is not a US citizen, but that her daughter is. Her daughter is also on the no-fly list and was prevented from entering the US to testify in court, despite her citizenship.
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Anonymous Coward, 8 Jan 2014 @ 3:08pm

Re:
The people requesting this evidence aren't being prosecuted. They're suing the DHS.
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Anonsters (profile), 8 Jan 2014 @ 3:08pm

Uh. CIPA?
Why didn't they ask for unclassified summaries, a la CIPA?
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Anonymous Coward, 8 Jan 2014 @ 3:09pm

Re:
this is not a criminal prosecution - note that the doctor is the plaintiff, not the defendant.
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ltlw0lf (profile), 8 Jan 2014 @ 3:16pm

Re: Re: Re: Re:
Her daughter is also on the no-fly list and was prevented from entering the US to testify in court, despite her citizenship.

Correct. An entirely different situation. But then again, I was going to add YMMV to my comment since the last two administrations (B and W) have been pretty good about not following, repealing, and rewriting the Amendments in all sorts of ways that shouldn't be legal.
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davep, 8 Jan 2014 @ 3:22pm

Re: where was the court?? on the moon
Let's consider that.

I believe she was in Pakistan.

I suppose she could have flown to Canada or Mexico.

Do you really think that she'd still be able to cross into the US being on the so-called "do not fly" list?
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John Fenderson (profile), 8 Jan 2014 @ 3:36pm

Re:
I love the Pledge. Originally written to be socialist propaganda, then adopted by the hard-right conservatives (of the day -- they'd be called "moderate conservatives" today) who added that "under God" business then forced into schools as a nationalistic propaganda effort. It's quite a mindbender!
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Anonymous Coward, 8 Jan 2014 @ 3:37pm

The no fly list blocks flights as long as the airline flys to the united states. So you cant fly to Canada on any airline that flys both to the united states and Canada (the law is secret so they may also block affiliates too).

She would also be barred from boats.

Most likely she would need to chatter a private flight to central america and drive up. When she hits the boarder its highly likly she will be found on the no fly list and be barred from walking into the united states as well. (because the law is secret there is no way to know if this is true or not).
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John Fenderson (profile), 8 Jan 2014 @ 3:40pm

Re: Re: You don't want a security clearance
Uhhh, what?? I've never seen anyone claim otherwise.
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John Fenderson (profile), 8 Jan 2014 @ 3:45pm

Re: Re: You don't want a security clearance
It's kinda-sorta right. Technically, it's against the law to disclose classified information you are in possession on even if you don't have a security clearance (but it is not illegal to merely possess it). This only applies to information that is related to the national defense, however. Disclosure of other classified information is not criminalized. Whether or not the information is related to the national defense is to be determined by a jury, not the government.

This is why the Watergate documents, for instance, could be legally distributed despite being classified: they weren't related to national defense.

In practice, though, the government very rarely prosecutes ordinary citizens who pass along such information.
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Anonymous Coward, 8 Jan 2014 @ 3:50pm

so, she's going to be continuously on the 'no fly list' and wont ever know the reasons? if that makes sense, i'm a brain surgeon!!
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Quiet Lurcker, 8 Jan 2014 @ 3:56pm

Reversible error???
Would the plaintiff even have had to file the motion in the first place, if they had managed to get to the court?

Sounds like William Alsup is either a) blessed with an awe-inspiring lack of common sense or b) a traitor. Pending further evidence, I choose option A.

However, that the court has denied the petition to see the evidence against plaintiff is a plain error of both law and equity.
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Anonymous Coward, 8 Jan 2014 @ 4:44pm

Re: Re: Re: Re: Re:
The Judge should ascertain that the daughter is not on the no fly list to prevent her testimony in this trial.
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art guerrilla (profile), 8 Jan 2014 @ 5:31pm

i guess i'm alone on this...
...but HOW the fuck can a person be 'convicted' on evidence they can't see ? ? ?
it's fucking secret 'evidence' and i don't care what the 'law' is, this makes no sense justice-wise...

this bullshit uber-trump card of 'state security' is a tired and ratty excuse for fascism...

i know, i know, we are in bizarro, upside-down world now, where anything goes; but this catch-22 legal system is more kafkaesque than kafka...
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erik grant, 8 Jan 2014 @ 7:00pm

why the hate for the judge on this one? given his demeanor so far, there is no reason to think he has an interest in unfairly punishing the plaintiff. the plaintiffs lawyer just plain screwed up. frankly, i think both sides in this case have been pitifully incompetent.

the judge is simply upholding the law, as he has been charged to do. he is openly and harshly critical of the government, and seems like he would be happy to rule against the government, but he has to do it fairly and legally or the the inevitable appeal will be an easy win for the government.

tldr - not everything is a god damn conspiracy people.
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That One Guy (profile), 8 Jan 2014 @ 8:00pm

Re: Re:
What's really funny about it is where and how the hand used to be held when people recited it. Wasn't always flat against the chest.
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Anonymous Coward, 8 Jan 2014 @ 8:29pm

Re:
In all criminal prosecutions

This isn't a criminal prosecution.

the accused

In this case the person you're talking about is actually the plaintiff - the opposite of "the accused" (although there's no real 'accused' here since this is not a criminal case).

shall enjoy the right to a speedy and public trial

Which was already conducted and concluded, though not in Plaintiff's favor. Plaintiff wants a second bite at the apple after the fact, despite not doing complete due diligence the first time around.

Well, I guess William Alsup is out of a job.

It's not that you're wrong that bothers me so much, because we all make mistakes, but that you just seem so darned proud of it. The smugness is absolutely palpable.

Well, humility is perhaps the emotion most alien to the Techdirt group-think...
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Just Sayin', 8 Jan 2014 @ 8:36pm

Re:
Agree with you here.

Moreover, as Jose mentioned about, the 6th amendment doesn't apply to everyone all over the world, only to US citizen and US residents. There is very little indication that there is anything in the US law that would allow a foreign national outside of the US to appeal being on the no fly list, especially when the information that put them there is considering confidential / top secret / whatever.

This judge seems to have sided with the plaintiff as much as possible, but there are limits, and yes, the US government does reserve the right to refuse any non-citizen entrance to the country for any reason they choose.
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Craig, 8 Jan 2014 @ 9:16pm

Re: where was the court?? on the moon
No visa
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Craig66 (profile), 8 Jan 2014 @ 9:24pm

Re: where was the court?? on the moon
I suppose she could have come by boat if she had a visa.
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That One Guy (profile), 8 Jan 2014 @ 9:33pm

Re:
Agreed, from everything I've read of the case, the judge seems to be not at all happy with how the government has been acting throughout the entire case, is not on their side because of it(flatly lying to a judge usually isn't the best thing to do while in court), and is sticking exactly to the letter of the law here to keep the government from having an easy time appealing the case by claiming that the judge didn't treat both parties fairly during the trial.
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Anonymous Coward, 9 Jan 2014 @ 1:38am

darryl and horse with no name just hate it when due process is enforced.
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Ninja (profile), 9 Jan 2014 @ 1:52am

Re: Re:
So because it's a foreigner then all basic rights should be thrown out of the window? That's the issue with the US bulk collection programs and with humanity in general. Borders, races and the likes are on our rotten, massively devolved heads. Everybody should have the goddamn same rights to due process.

If the evidence is secret then it should not be used in trial. And the court has all the powers to shit on the Govt no-fly list and grant permission to the involved to fly into the country to testify regardless of what the shitty Executive says or could arrange a conference via the Internet. This judge doesn't care. If he did we'd see very interesting developments.
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Anonymous Coward, 9 Jan 2014 @ 1:58am

Re: Re:
The issue here is that 'the Accused' is refusing to let the plaintiff see the evidence. IT does not matter if the case is civil or otherwise, aside from within the Amendment.

If you cannot see the difference here to those police officers sued elsewhere in the States over wrongful deaths, then I have a bridge to Oahu to sell you.
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Bergman (profile), 9 Jan 2014 @ 2:03am

Re: Re:
No, the doctor was just sentenced to a punishment without a conviction or even a trial.

Having to sue in civil court to find out why you are being punished isn't right. Being told you can't find out why even if you win is downright evil.
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Niall (profile), 9 Jan 2014 @ 5:02am

Re: Re: Re:
Sieg Jesus!
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pegr, 9 Jan 2014 @ 5:42am

Re: Re: You don't want a security clearance
Your rebuttal seemed a bit lacking. OK, here's some support for my contention:

"In order to obtain a security clearance, an applicant must promise not to disclose information obtained from classified documents except in accordance with specified rules and procedures. Unauthorized disclosure of classified information by a person holding a security clearance is treated essentially as a breach of that person�s promise. There is no prohibition, restriction, or penalty for any use, discussion, or publication of classified information by anyone who does not hold a security clearance."

Amusingly, this is from a post by John Gilmore from the context of this very trial: http://papersplease.org/wp/2013/12/19/no-fly-trial-there-are-secrets-and-then-there-are-secrets/

And, of course, you may wish to familiarize yourself with the Classified Information Procedures Act: http://www.law.cornell.edu/uscode/html/uscode18a/usc_sup_05_18_10_sq3.html

Otherwise, could I ask you to post a bit more than "That's wrong!" next time? Or even, God forbid, do some research before you declare someone else wrong? Thank you, good netizen!

Have a nice day!
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Pragmatic, 9 Jan 2014 @ 6:03am

Re: Re:
@ John Fenderson, why do you call the "liberty and justice for all" part of the Pledge of Allegiance "Socialist propaganda?" Is there a citation for this anywhere?
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ltlw0lf (profile), 9 Jan 2014 @ 7:47am

Re: Re: Re:
So because it's a foreigner then all basic rights should be thrown out of the window?

Again, not saying it is right, just saying that it is the law (or at least, it is how the law has been interpreted openly.)

I personally believe the Constitution of the United States, which I must remind everyone is a document that *controls* the Federal, State and Local governments in the US, not the people of the US, when used correctly, should apply to everyone in the Universe. We already have all the rights laid down by the Constitution, given to *all of us* by nature/God/the Flying Spaghetti Monster/whatever. The Constitution merely tells the government what they can or can't do to take those rights away.
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John Fenderson (profile), 9 Jan 2014 @ 8:45am

Re: Re: Re: Re: Re: Re:
I think he already did, and found that blocking her entry to the US was specifically to prevent her from testifying, and he scolded the feds for it.
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John Fenderson (profile), 9 Jan 2014 @ 8:47am

Re: Re: Re: Re:
Your interpretation is correct. The constitution occasionally limits certain things to citizens or US persons, but where it does not, then it applies globally.
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John Fenderson (profile), 9 Jan 2014 @ 8:55am

Re: Re: Re:
I'm not calling it socialist propaganda based on my analysis of its content, I'm calling it that because that was the overt intention of its author. Wikipedia's entry on this is actually very good: http://en.wikipedia.org/wiki/Pledge_of_Allegiance

As for the "liberty and justice for all" part, that is not opposed to socialist ideals -- that's pretty much the goal of socialism.

However, this bit from the wikipedia entry is interesting:

Bellamy's original Pledge read as follows:

I pledge allegiance to my Flag and the Republic for which it stands, one nation indivisible, with liberty and justice for all.

The Pledge was supposed to be quick and to the point. Bellamy designed it to be recited in 15 seconds. As a socialist, he had initially also considered using the words equality and fraternity[6] but decided against it � knowing that the state superintendents of education on his committee were against equality for women and African Americans.

Also, That One Guy is hilariously correct, the original salute was identical to the one that is now indelibly associated with Nazis. It was changed to the hand over the heart because of that fact.
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Anonymous Coward, 9 Jan 2014 @ 1:39pm

I don't think the Constitution applies globally. But I do believe any kind of case under any U.S. Judicial System is covered by the Constitution no matter who the people are involved in it. Also, I believe any thing at all done by any representative of our government anywhere is also covered, inluding any part of DHS, Armed Forces, etc.
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BeeAitch (profile), 9 Jan 2014 @ 5:06pm

Re: Re: Re: Re:
"(or at least, it is how the law has been interpreted openly.)

(emphasis mine)

I am both proud (of you) and sad (for all of us) that you felt that you must include this qualifying clause.
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BeeAitch (profile), 9 Jan 2014 @ 5:16pm

Re: Re:
Well, humility is perhaps the emotion most alien to the Techdirt group-think...

You had a good argument going. Too bad you ruined it with the obvious ad-hom...
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BeeAitch (profile), 9 Jan 2014 @ 5:20pm

Re: Re: Re:
Like this?
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BeeAitch (profile), 9 Jan 2014 @ 5:27pm

Re: Re: Re: Re:
As for the "liberty and justice for all" part, that is not opposed to socialist ideals -- that's pretty much the goal of socialism.

That's pretty much the goal of Socialism and Democracy.

The means are the primary difference.
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BeeAitch (profile), 9 Jan 2014 @ 5:42pm

Re: Road-Blocks
The US constitution sounds more like a list of rules that are required to be broken to get promotion in the US government.

Again, sad, but true.

I'm so going to copyright, trademark, and patent the shit out of this sentence.
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btrussell (profile), 14 Jan 2014 @ 5:16am

Re: Re: Road-Blocks
Don't forget to include the ones for "on the internet."
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