US Has A 'Secret Exception' To Reasonable Suspicion For Putting People On The No Fly List

from the also-known-as-the-'because-we-wanted-to' dept

Fri, Apr 18th 2014 7:44am — Mike Masnick

Over the past few months, we covered the bizarre trial concerning Rahinah Ibrahim and her attempt to get off the no fly list. In January, there was an indication that the court had ordered her removed from the list, but without details. In February, a redacted version of the ruling revealed that the whole mess was because an FBI agent read the instructions wrong on a form and accidentally placed her on the no fly list, though we noted that some of the redactions were quite odd.

However, earlier this week, the court finally released the unredacted version, and we'll have a few things to say about the choice of redactions in a later post. But first, there were three main "reveals" from the newly unredacted version. The first is that Ibrahim was actually put on multiple lists by mistake (and never for any clear reason) and was actually dropped from the no fly list years ago (though the other lists created the same effective problem in barring her from being allowed to travel to the US). The second is that the US government has a "secret exception" to the requirement that there be "reasonable suspicion" to put someone in various terrorist databases, and that secret exception was later used on Ibrahim. And third, that despite the implications from the redacted versions, the fully unredacted ruling shows that Ibrahim is still likely blocked from coming to the US for separate undisclosed reasons, even though the government fully admits that she is no threat. All of these things were hidden by the redacted version.

Let's start with the first issue -- that Ibrahim was not just on the no fly list, but multiple other lists and databases. This all stemmed (at first) from that initial mistake from FBI Agent Kevin Michael Kelley. The yellow highlighted portions on this form were redacted in the original version, but now they're public:

As you can see, Agent Kelley was supposed to be checking which lists NOT to put Ibrahim on, and did the reverse of what he intended to do, meaning that she got placed on both the no fly list and the Interagency Border Information System (IBIS). In the redacted version, all mentions of IBIS were redacted. Note that, from this, Kelley did intend to put her on the Selectee list. Later, an unredacted portion reveals that at the time she was removed from that selectee list, she was added to the lists the US gives to Australia and Canada (TACTICS and TUSCAN -- though no reason for that was ever provided). The court also notes that all the way back in 2006, a government agent requested that Ibrahim be removed from all lists, and she was removed from some, but not the others.

However -- and here's where it gets really sketchy -- the government started putting her back into the terrorist screening database (TSDB). She was added back in 2007... and then removed three months later, for no clear reason. But then, in 2009 she was added back to the TSDB "pursuant to a secret exception to the reasonable suspicion standard." Let's repeat that. In order to be put into the TSDB, the government is required to show a "reasonable suspicion" that the person is a terrorist. However, what this court ruling has revealed is that there is an unexplained secret exception that allows people to be placed on the terrorist screening database even if there's no reasonable suspicion, and the government used that secret exception to put Ibrahim back on the list.

Later in the ruling it notes that the terrorist screening center knows Ibrahim is not a terrorist threat. This line was revealed back in February:

The TSC has determined that Dr. Ibrahim does not currently meet the reasonable suspicion standard for inclusion in the TSDB.

However, the next two sentences were redacted until now:

She, however, remains in the TSDB pursuant to a classified and secret exception to the reasonable suspicion standard. Again, both the reasonable suspicion standard and the secret exception are self-imposed processes and procedures within the Executive Branch.

The ruling also makes it clear that Ibrahim has not been on the actual no fly list (even if she is on other lists) since 2005, and that she should be told this (and, indeed, to comply with the law, the government has now told her solely that she's not on the "no fly" list and hasn't been since 2005). It also tells the government to search for all traces of her being on all such lists and correct all of those that are connected to Agent Kelley's initial mistake. However, it's not at all clear if this applies to the later additions to the TSDB, which was done for this secret and undisclosed exception, and might not be directly because of Agent Kelley's mistake (though, potentially is indirectly because of that). In fact, a different unredacted section now says that the reasons why Ibrahim was denied a visa (which were revealed to the court in a classified manner) were valid, and thus it appears that Ibrahim will still be denied visas in the future (unredacted portions underlined) -- and, indeed, as we explain below that has already happened:

The Court has read the relevant classified information, under seal and ex parte, that led to the visa denials. That classified information, if accurate, warranted denial of the visa under Section 212(a)(3)(B) of the Immigration and Nationality Act, 8 U.S.C. 1182(a)(3)(B). (That information was different from the 2004 mistaken nomination by Agent Kelley.) Therefore, under the state secrets privilege, any challenge to the visa denials in 2009 and 2013 must be denied

Thus, it appears that while Ibrahim has been told she's been taken off the no fly list (and has been for nearly ten years), she's still not going to be able to travel to the US, because she's still in the TSDB for an unrevealed secret reason -- even though everyone admits she's not a threat. And, indeed, Ibrahim tried to apply for a visa to the US on Monday and was denied (with the apparent reason -- if you read between the lines -- being that she is related to someone "engaged in a terrorist activity.")

Either way, what sort of country is this where there's a secret exception to "reasonable suspicion" that will put you on a set of secret lists that get you treated like a terrorist for wanting to travel?

2014 04 15 Full Ibrahim Order With Highlighted Redactions (00169263xBDAE4) (PDF)2014 04 15 Full Ibrahim Order With Highlighted Redactions (00169263xBDAE4) (Text)

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Filed Under: doj, no fly list, rahinah ibrahim, redactions, secret laws, tsdb

38 Comments

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Anonymous Coward, 18 Apr 2014 @ 7:55am

Welcome to the United Stasi of Amerika.
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- beltorak (profile), 18 Apr 2014 @ 9:46am
  
  Re:
  I prefer "The People's Constitutionally Democratic Republic of the Americas" myself. PCDRA just sorta rolls off the tongue and lets the world know that we, like the People's Republic of China and the Democratic People's Republic of Korea, are at least named accurately.
  [ link to this | view in chronology ]
Just Another Anonymous Troll, 18 Apr 2014 @ 8:13am

I hacked into the government's computer systems and discovered the secret expection! The secret exception is "if we feel like it".
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- Oathbreaker in Chief (profile), 18 Apr 2014 @ 8:26am
  
  Re: Damn you Eric Holder!
  I had ordered you not to leak the Secret Exemption!
  
  Now you need your people to investigate you for violating the States Secret Act.
  
  I'll expect your resignation on my desk by noon today, and I already have your ticket arranged to Diego Garcia where you will be greeted by the open arms of CIA interrogators who will help you work out your "issues".
  
  And by the way STOP POSTING ON TECHDIRT as "Just Another Anonymous Troll" or any other name for that matter or I'll declare you are an "Enemy Combatant" because of your "Domestic Terrorist" acts and drone strike your ass.
  
  Respectfully submitted,
  
  Oathbreaker in Chief
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- DSchneider (profile), 18 Apr 2014 @ 9:16am
  
  Re:
  No, I believe it's actually called the "Why? Because fuck you, that's why" exception.
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  - Anonymous Coward, 18 Apr 2014 @ 10:48am
    
    Re: Re:
    Traveller: I would like a visa
    Agent: No
    Traveller: Why not?
    Agent: Because
    Traveller: Because why?
    Agent: Because Fuck you, Next!
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- Anonymous Coward, 18 Apr 2014 @ 9:44am
  
  Re:
  And here I thought the reason was because.
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Anonymous Coward, 18 Apr 2014 @ 8:20am

Who makes a form where you check what you DON'T want to add a person to? That's insanity.
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- Anonymous Coward, 18 Apr 2014 @ 8:23am
  
  Re:
  Because the form is being filled in there is a suspicion that the person is dangerous, therefore by default add them to everything.
  /Authoritarian thinking
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- Chronno S. Trigger (profile), 18 Apr 2014 @ 9:45am
  
  Re:
  "Who makes a form where you check what you DON'T want to add a person to? That's insanity."
  
  This is what bothers me most about this story. A check list to say what lists someone shouldn't be on just shows how deeply "guilty until proven innocent" is engrained. Everyone is guilty until that checkbox is checked, everyone is a threat, everyone is the enemy.
  [ link to this | view in chronology ]
- Rekrul, 18 Apr 2014 @ 3:12pm
  
  Re:
  Who makes a form where you check what you DON'T want to add a person to? That's insanity.
  
  "Make sure to not check the boxes that you do not wish to include the subject from being excluded from."
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ThatFatMan (profile), 18 Apr 2014 @ 8:20am

(At least) One Secret Exemption to rule them all.
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- ThatFatMan (profile), 18 Apr 2014 @ 8:21am
  
  Re:
  that should read....Exception
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- Anonymous Coward, 18 Apr 2014 @ 8:30am
  
  Re:
  And in the darkness bind them...to waterboards.
  [ link to this | view in chronology ]
Anonymous Coward, 18 Apr 2014 @ 8:28am

That classified information, if accurate, warranted denial of the visa.

I don't suppose that her lawyers will get a chance to see and challenge the accuracy of that information. Due process, anyone?
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- Anonymous Coward, 18 Apr 2014 @ 9:09am
  
  Re:
  Unless the accused is told the exact charges against them there can be no due process, and a lawyer is not a substitute as they do not have the accused's life history available.
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- beltorak (profile), 18 Apr 2014 @ 9:55am
  
  Re:
  > Due process, anyone?
  
  "No thanks. I'm good."
  
  - the government
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- Anon., 20 Apr 2014 @ 11:17pm
  
  Re:
  It's quite obvious that the "classified information" is not only inaccurate, but actually completely fraudulent.
  
  The "state secrets privilege" is of course a whole-cloth invention of the courts and entirely unconstitutional. It was invented in a case where "state secrets" was being used to conceal criminal activity, as we now know (since the facts were finally revealed).
  
  Perhaps a judge should notice this minor fact and declare this entire pile of criminal bullshit to be the criminal bullshit which it is. Alternatively, we could overthrow the illegitimate government. Take your pick; I prefer #1.
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Anonymous Coward, 18 Apr 2014 @ 8:46am

what in the everloving fuck.
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- Anonymous Coward, 18 Apr 2014 @ 8:47am
  
  Re:
  I mean I'm sorry for the no-content post, but seriously:
  
  what in the everloving fuck.
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Anonymous Coward, 18 Apr 2014 @ 9:04am

But Wait There's More
It looks like this was just the first episode of a new series. The visa refusal letter states that she is eligible to seek a waiver of the ineligibility. Presumably she'll do that next.
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Anonymous Coward, 18 Apr 2014 @ 9:14am

Double Secret Probation for all!
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JoeCool (profile), 18 Apr 2014 @ 10:22am

Duh
The "secret" exception is "if they're making us look bad." Note that it may be either making them look bad privately or publicly. Make them look bad, and they'll punish you by adding you to the list.
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Felix Atagong (profile), 18 Apr 2014 @ 12:16pm

Secret Exception
This sounds so much like my ex. "You can't have another beer, because I tell you so."
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Anonymous Coward, 18 Apr 2014 @ 1:33pm

THE most transparent administration in history
Legal system's so transparent now, we can't see any of the laws! Nice work, Mr. President!
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Richard (profile), 18 Apr 2014 @ 1:52pm

The government needs to accept
The government needs to accept that not every threat can be protected against and sometimes democracy, open government and judicial fairness demands that we simply take the hit.
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Todd Shore (profile), 18 Apr 2014 @ 3:05pm

VISA for Citizen
If she is a US citizen why does she need a VISA?
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- PaulT (profile), 19 Apr 2014 @ 12:17am
  
  Re: VISA for Citizen
  Click on her name in the story to get the full history. She's not a US citizen, but she was mistakenly added to the no fly list while legally studying her phd at Stanford.
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- Anonymous Coward, 20 Apr 2014 @ 7:29am
  
  Re: VISA for Citizen
  She isn't a citizen but her daughter is.
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Matthew Cline (profile), 18 Apr 2014 @ 4:34pm

even though the government fully admits that she is no threat
Ah, but you see, implicit in that was the "reasonable suspicion". That is, the government fully admits that there is no reasonable suspicion that she is a threat. But the government has met a burden of proof besides "reasonable suspicion" to put her on the list. Of course, I wouldn't be so churlish as to say that they have an unreasonable suspicion. No, it must be that the government has come up with a new form of reasoning which transcends usual logic; they have a "transreasonable suspicion". Of course, they have to keep this new system of logic secret, lest the terrorists use it, so it's covered under the "secret exception".
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Coyne Tibbets (profile), 18 Apr 2014 @ 9:40pm

Fingers crossed
The government has written an exception for everything; in secret laws. In effect, despite what they say, there is no public law anymore.

Between the exceptions that allow rich people to escape jail "because they won't do well there" (poor dears); the laws that companies ignore while government enforce[less]ers wink and look the other way; and the laws that the government passed but says it doesn't have to follow because, "Oh, we had our fingers crossed..."

...Well, it's only us peons who have to follow laws these days; and good luck figuring out what the laws are.

BTW, I expected this: When the court ordered the government to take Rahinah Ibrahim off the no fly list, I knew that somehow they would ensure that she still could not fly. It's like sparring with a shadow; even if she should overcome this new list, there'll just be another and another and another. She can spend all the rest of her life on this, but she'll never fly here again.
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Anonymous Coward, 19 Apr 2014 @ 7:31am

Ok so the court admits in their statement that they don't know for sure if the classified information in the later visa denials is accurate or not but then denies any attempt to challenge them? Isn't that the point of having a court decide whether the denial is valid or not. Before you can decide if the action is valid, don't you have to first determine if the evidence is accurate? That is basically saying that if the government fabricates evidence to support a good enough reason, the court will basically stick it's fingers in it's ears and say,"la, la, la... we can't hear you."
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- Anon, 20 Apr 2014 @ 11:19pm
  
  Re:
  Unfortunately the legal standard for visa issuance is "totally discretionary", and has been for a long time.
  
  Wait for a case involving a US citizen. US citizens have a well-established right to return to their own country, established in US and international law.
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RonKaminsky (profile), 19 Apr 2014 @ 11:30am

Remind me of a certain lyric
Where instead of a fist,
They put you on a list,
It's bureaucratic,
But hey, it's home!
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Andy, 20 Apr 2014 @ 11:36am

I can think of such a secret reason - Chaos theory
It's the likelyness of a terrorist attack to happen.

If she is aboard such an airplane, she isn't even the terrorist or in anyway aquianted to them, she is just the catalyst that let's the butterfly flap it's wings.

But actually I think insanity describes the situation pretty well.
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My Name Here, 21 Apr 2014 @ 2:21am

Finally, some due process.
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Anonymous Coward, 21 Apr 2014 @ 5:15am

So can we have another "Secret Exception" then?
Namely that anyone who tries to claim power from a secret law in court shall suffer summary execution by being hung by the neck from the top of the flag-pole outside.

Secret laws are such bullshit it is tempting to start arguing that there is a more secret law that they don't know about whenever they cite one. That they don't know about it proof that they weren't authorized to know about it before. Have fun trying to make them prove a negative. Of course that would involve more logic than our legal system would ever allowed. Good god, isn't siting secret laws supposed to be for the lunatic fringe like Sovereign citizens?
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- Pragmatic, 22 Apr 2014 @ 8:14am
  
  Re: So can we have another "Secret Exception" then?
  Sovereign citizens cite made-up laws. Example:
  
  http://www.theatlantic.com/politics/archive/2014/04/the-irony-of-cliven-bundys-unconstitutio nal-stand/360587/
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