FBI Scores Itself Another Lawsuit For Using The No Fly List To Punish A Lebanese Man For Not Becoming An Informant

from the FBI's-carrot-still-mainly-just-laying-off-the-stick-for-a-bit dept

For years, the FBI has threatened brown people with a miserable existence unless they're willing to become informants. What should be illegal somehow isn't -- or at least hasn't generated enough courtroom precedent to force the FBI to knock it off.

The FBI routinely approaches Muslims and people traveling to and from countries the US government considers questionable and tries to intimidate them into ratting out their friends, family members, and colleagues. Whether or not there's actually any ratting out to do seems to be, at best, a secondary concern. The FBI has spent years using informants to radicalize people, which it then arrests the moment they become radicalized enough. The FBI's counterterrorism budget depends on a healthy stable of informants and so the pressure tactics continue unabated.

The stick deployed most often is placement on the "No Fly" list, which makes it impossible to travel around the country, much less overseas to visit family and friends. The other stick is abuse of the immigration process. Visas can be revoked, family members removed, and other unpleasantness inflicted should someone reject these very forward advances from FBI agents.

We're still waiting for the judicial hammer to come down. It looks like it may finally be on its way. A lawsuit filed in 2014 over these tactics was recently given the green light to proceed by the Supreme Court.

Another lawsuit has been filed against the FBI for its months of pressure tactics deployed against Ahmad Chebli, a Lebanese man who was first approached by the FBI in 2018, which utilized a local government agency to trick Chebli into having a "conversation" with them. From the lawsuit [PDF]:

The FBI’s initial contact with Mr. Chebli was deceptive. On August 21, 2018, Mr. Chebli received a call from an individual who identified himself as an employee of the Roseville, Michigan Building Department. The caller informed Mr. Chebli that a Roseville gas station that Mr. Chebli leased and helped to manage was in violation of city permit requirements and requested that Mr. Chebli come in to discuss the matter in person. Mr. Chebli was concerned about any such violation and wanted to clear it up.

On August 23, Mr. Chebli arrived at Roseville City Hall. He was led to a conference room where two men were waiting for him. They told Mr. Chebli that they wanted to talk to him and that he was free to leave whenever he wanted. The men then identified themselves as FBI agents. Mr. Chebli did not feel that he could voluntarily leave. The door to the conference room was closed during the entirety of the one and a half hour meeting. Mr. Chebli never heard from city officials about any city permit “violation,” and it never came up again after this meeting.

The agents asked Chebli to show them he was not recording the meeting. Once the agents were assured only their official version of this time-shares-but-for-terrorism pitch session would be the only version on record, they proceeded to threaten Chebli and accuse him of being a terrorist.

Chebli told the FBI agents he wasn't interested. He had a steady job, a good life with his family, and moral objections to befriending FBI targets just so they could get set up and arrested. That angered the agents, who baselessly accused him of being a "Hezbollah agent." They also told him lying to federal agents is a felony (which it is) and claimed they could make all of this trouble (they had instigated) "go away" if he would just work for the FBI.

Chebli again refused. The agents then stated Chebli and his family would be subjected to surveillance, an investigation would be opened, and that there was a good chance it might end in the arrest of Chebli and his wife. They also said refusing to work with the FBI would cause problems for his wife's immigration application. They also said they would issue a "blue notice" -- something that would be disseminated to other government agencies identifying Chebli as a suspected terrorist.

Since Chebli didn't want any of this to happen, he continued to meet with the FBI agents. But he continued to refuse to become an informant. Since he no longer felt his family was safe in the US, he sent them back to Lebanon. After they left the airport, the FBI called Chebli to let him know his wife had gone through security without any problems, which made it clear agents were engaging in the surveillance they had threatened.

After several more fruitless meetings, Chebli decided things might be better for him if he left the United States for a month. When he tried to return after failing to find a stable source of income in Lebanon, he finally understood why the agents were so willing to help him leave.

On November 24, 2018, Mr. Chebli attempted to fly back to the United States. When he arrived at the Beirut Rafic Hariri International Airport, he handed his passport to the check-in agent, and noticed an alert come up on the agent’s screen. The agent called a supervisor, who informed Mr. Chebli that she had received an email from the United States government indicating that he could not board the plane, and he needed to consult the U.S. Embassy. When Mr. Chebli sought more information about why he was being denied boarding, the supervisor repeated that he should contact the embassy.

After getting no useful answers from the FBI and the US Embassy, Chebli decided to contact the DHS. That's when he discovered what the FBI had done in retaliation for his refusal to cooperate.

On December 20, 2018, Mr. Chebli received confirmation from DHS TRIP that he was on the No Fly List. The DHS TRIP letter stated that Mr. Chebli could “request additional information about your placement on the No Fly List and have the opportunity to respond to any information provided if you believe that the above determination is in error.” The letter further stated that if Mr. Chebli wished to request additional information, he was required to contact DHS TRIP within 30 days.

Thanks to other lawsuits, the DHS now actually has some form of recourse for travelers on this list. But, like so many other things the government is forced to do by court decisions, the DHS wasn't all that interested in holding up its end of the agreement. It never provided Chebli with an answer about his No Fly status. The ACLU (which is representing Chebli) secured a waiver so he could fly back to the United State.

Almost two years later, Chebli tried to board a domestic flight. He was again informed he was on the No Fly list. He was subjected to multiple, lengthy searches and screenings. When he arrived back in Michigan, he was once again accosted by FBI agents.

Now fully aware of his rights and determined not to be coerced, Mr. Chebli answered the FBI agents’ questions about his travel but refused to respond to any other questions. The agents then asked Mr. Chebli who was taking care of his children. Mr. Chebli questioned why they were asking about his children. One of the FBI agents named a man Mr. Chebli did not know, and said, “You need to cooperate with us. He has two daughters similar in age to your kids, and they’re safe right now because he chose to cooperate with us.” The agents also asserted that they would denaturalize Mr. Chebli’s wife. Mr. Chebli knew they could not take this action because his wife was not yet a U.S. citizen, but he also knew that a decision on her naturalization application had been inexplicably delayed for months. Concerned about the FBI’s threats, Mr. Chebli asked if he was free to leave, and when he did not get a straight answer, he called his ACLU lawyer, who asked to speak with the FBI agents. At that point, the FBI agents told Mr. Chebli he could leave.

Chebli again tried to get some answers from the DHS about his No Fly status. He submitted his request in February 2021. As of the date of this filing (April 6), he still has yet to receive a response.

There's a long list of rights violations here. And none of this is going to change until the courts tell the DOJ the FBI cannot threaten and intimidate people to encourage them to become informants. Since these "meetings" are informal and unrecorded, the FBI can always argue it isn't doing this, even though there are dozens -- if not hundreds -- of people who've been subjected to the same coercive tactics described in this lawsuit. Applying pressure to create informants so the FBI can continue to rack up easy counterterrorism wins isn't making the country any safer. But it's definitely making the country worse.

Filed Under: ahmad chebli, fbi, informant, intimidation, no fly list, own plot, retaliation

Papers Please Has Something To Tell You About The 'No Fly' List And It's Going To Make You Sad

from the more-Douglas-Adams-than-George-Orwell-tbh dept

How does someone end up on the federal government's "no-fly" list? You'd think the shorter, less-convoluted question would be how one avoids ending up on this list. Unfortunately, the answer to either question is a convoluted mess -- one complicated unnecessarily by the number of federal agencies that think they should have a say in who lives and who flies.

Papers Please has attempted to explain the no-fly list and its parameters. And it has kind of failed, albeit through no fault of its own. The interconnectedness of government things -- the wheels of which were greased with countless pieces of post-9/11 legislation, memoranda of understanding, data-sharing agreements, and the insistence of numerous agencies that they, too, were important cogs in the War on Terror Machinery -- has made this almost impossible to parse.

Behold your tax dollars at work preventing you from flying:

If you can't see the embed, here's an annotated PDF version.

There were demands -- some made by the incoming President's people -- that participants in the Red Hat Insurrection should be added to the no-fly list. Bad idea. The no-fly list has been abused for years and it's not getting any better. Courts may be coming around to the fact that arbitrary federal-level decisions with almost zero recourse isn't what America's all about, but if change is coming, it will be slow, expensive, and stymied constantly by invocations of the "national security" mantra.

Here are some of the facts. The FBI has used the no-fly list as leverage to turn Muslims into informants so it can more easily score empty net goals against supposed "terrorists" too poor to buy terrorist supplies and too mentally incompetent to formulate an attack plan, much less draft their own statement of ISIS allegiance.

The feds' belated focus on domestic extremists doesn't excuse years of projecting a presumption of guilt on Muslims just because some extremists decided to fly planes into buildings. But the presumption of guilt continues -- encompassing pretty much any American who desires to board a plane.

Airlines aren't much without passengers. So it's in their best interest to sell as many tickets as possible and board as many people as possible. Their default assumption is everyone's good to fly unless proven otherwise. The government has taken an opposing stance, presuming everyone guilty of latent terrorism.

[F]ly/no-fly decision-making by airlines differs from that of the U.S. government in two major ways.

First, for an airline the default is generally “Yes”, whereas for the U.S. government, as discussed above, it has been “No” since at least 2008. If you have a ticket, you look more or less alive and human, your clothing covers your “naughty bits”, and you don’t break any rules (more on that below), the airline will generally let you on the plane. You don’t (usually) have to prove that you aren’t a terrorist.

This creates friction -- something exacerbated by the TSA, which operates under its own rules and has been granted considerable discretion to ground passengers and/or subject them to multiple levels of increasingly invasive screening.

If no flags fly, passengers can attempt to board a plane. But airlines are also given a lot of discretion about whom to serve -- something most private companies enjoy.

Second, airline procedures generally involve a greater degree of human discretion and judgement on how to interpret and apply the fly/no-fly criteria. Airlines would say that this allows flexibility (sometimes good) but it also allows arbitrariness (bad). For better or worse, whether you are allowed to fly can depend on a gate agent’s temper and mood.

International flights further complicate matters by adding new laws and agencies to the mix. Considering what's going on behind the scenes, it's a miracle airlines have been able to fill planes with passengers over the last decade.

As noted earlier, placement on a no-fly list is almost impossible to challenge. The government -- mainly the DHS -- has argued no-fly list status isn't something anyone's entitled to litigate. The placement occurs without court involvement. So, the DHS apparently feels the exclusion of court review during placement demands exclusion of court review after placement. Since there's very little court intercession, US agencies have continued to add people to no-fly lists for almost no reason at all.

Challenging no-fly status is incredibly expensive. A couple of court cases have managed to poke some holes in the government's arbitrary groundings. But it takes deep pockets to take a lawsuit far enough that high-level courts express their concerns about the constitutionality of no-fly lists.

Only one no-fly case has gone to trial, resulting in something of a Pyrric victory: After eight years of litigation, Dr. Rahinah Ibrahim found out that she was put on the no-fly list because the FBI agent who interviewed her as part of his mosque-watching assignment misunderstood how to fill out the blacklist and watchlist “nomination” form. Dr. Ibrahim’s name was taken off that list. But her U.S. visa was revoked (despite the fact that her children were born in the U.S. and are U.S. citizens), and she hasn’t been able to return to the U.S.

Dr. Ibrahim’s pro bono lawyers incurred almost $4 million in expenses to overcome what the 9th Circuit Court of Appeals described as “scorched earth” and “bad faith” litigation tactics by the government. It took the lawyers another seven years to get paid, (finally, last month, fifteen years after they started working on the case) after the government appealed the fee award all the way to the Supreme Court.

Other cases have bubbled up to this level, but have yet to secure courtroom victories. The expenses incurred in these long-running legal battles are likely on par with this effort -- one that took seven years (and more litigation) to get repaid.

All of this leads to the current situation, where irresponsible lawmakers are leveraging unprecedented actions and political animus to call for a federal level fucking of Americans who did stupid stuff and will -- in many cases -- end up facing federal charges.

We find it especially ironic that calls to deploy measures like extrajudicial no-fly orders are being made by politicians who profess to be those most committed to the rule of law. The current no-fly system, as should be apparent from the description above, is the antitheses of the rule of law, and epitomizes the lawlessness of the DHS in particular.

Does everyone convicted of a crime belong on the no-fly list? If so, for how long after their conviction? What about people suspected or accused of crimes? And why shouldn’t these decisions be made by judges?

Why should we focus on air travel, anyway? Surely those who came to Washington by air were less likely to have brought firearms or explosives than those who came by car.

The no-fly list should not be an all-purpose weapon to be deployed against anyone who's acted irresponsibly and/or criminally. The no-fly list probably shouldn't be used at all against anyone, but if it is going to remain active, it should only target known terrorists the government can definitively show would endanger the nation if they were allowed to fly. The list should be short and targeted. Instead, it's become a catchall for everyone the government is unsure of, as well as a receptacle for Muslims the government failed to turn into informants. Adding alleged domestic terrorists to the list is unwise, as most of those raiding the Capitol committed crimes of opportunity, rather than premeditated acts of terror.

Papers Please has made an admirable attempt to explain the no-fly list and how it operates. But much of its underlying legal rationale remains obscured, buried by national security invocations and unjustified claims that explaining the system would somehow allow people to avoid it. It's an unavoidable -- and mostly unchallengeable -- part of American life at this point. And it's never going to get better if opportunistic politicians continue to believe it's something necessary to secure the nation against all threats domestic and foreign.

Filed Under: civil liberties, civil rights, doj, fbi, no fly list

More Bad Ideas: Congressional Rep Suggests Participants In The Attack On The Capitol Building Be Added To The No-Fly List

from the we-need-less-of-this,-not-more dept

Proving that 2020 wasn't done with us yet, January 6, 2021 added a new horror to the long list of things that showed "may you live in interesting times" is a curse, rather than a blessing. Urged on by the guy less than ten days away from being escorted from the premises by security and his favorite legal advocate -- one that advocated for "trial by combat" over the election results -- Trump supporters invaded Washington, DC, hoping to somehow nullify the election through intimidation and violence.

This violent debacle (and it was violent -- five people dead and two explosive devices recovered) has resulted in a lot of backlash. The most immediate backlash will be felt by some of the red-hatted crowd that broke into the Capitol building in hopes of preventing election certification. An executive order signed by Trump -- one targeting "violent, left-wing extremists" -- will instead be used to enhance the prison sentences of violent, right-wing extremists. Perhaps the worst president in history will exit the office with his supporters feeling the brunt of this incredible self-own. MAGA, indeed.

But it's back to business as usual, now that things have settled down. An attack on the election process has resulted in calls for action. And calls for action prompted by singular events with almost no chance of being repeated almost always result in things being made worse for millions of citizens who did nothing more than watch in horror as events unfolded.

The 9/11 attacks resulted in an expansion of the surveillance state. The tragic attack was leveraged to take power away from the people and give it to their government instead. The same thing appears to be happening now, with President-elect Joe Biden demanding a War on (Domestic) Terrorism. And other legislators are demanding more be done now, ignoring the dire repercussions of their demands in favor of inflicting pain on people who didn't vote for them. (h/t Sam Mintz)

Flight attendants felt disturbed by the presence of Capitol Hill invaders on flights out of DC. This is fine. And, as private companies, airlines can certainly refuse to allow certain people to board their planes. But this private objection is being made public, courtesy of Rep. Bennie G. Thompson, the Chairman of the Homeland Security Committee. He wants these private complaints to become public by adding alleged "insurrectionists" to the incredibly expansive no-fly lists maintained by the federal government.

Given the heinous domestic terrorist attack on the U.S. Capitol yesterday, I am urging the Transportation Security Administration and the Federal Bureau of Investigation to use their authorities to add the names of all identified individuals involved in the attack to the federal No-Fly List and keep them off planes. This should include all individuals identified as having entered the Capitol building—an intrusion which threatened the safety of Members of Congress and staff and served as an attack on our Nation.

We already saw reports of ‘unruly mobs’ in the air on the way to Washington, D.C. It does not take much imagination to envision how they might act out on their way out of D.C. if allowed to fly unfettered. This is an action that TSA and the FBI, by law, are able to take but, to my knowledge, have not yet taken. Alleged perpetrators of a domestic terrorist attack who have been identified by the FBI should be held accountable.

Lots to unpack here.

First, the TSA should not be given any permission to do anything, given that it's done almost nothing with the vast amount of leeway it's already been granted.

Second, no-fly lists are an unconstitutional mess. Even given the massive amount of deference judges grant to "national security" arguments, courts remain unconvinced that forbidding someone from flying (and then refusing to even acknowledge this fact, much less given them a chance to challenge this determination) isn't a violation of their rights.

Adding a bunch of people to the no-fly list isn't a good idea, especially when the government has plenty of power to deal with the perpetrators of this Capitol Hill invasion without deciding they're no longer allowed to board airplanes. As Rep. Thompson says, perpetrators should be held accountable. There are plenty of laws on the books -- and one recent executive order -- that will help federal prosecutors achieve this goal. Banning perps from flying doesn't change anything about the prosecutorial matrix.

And if someone can be identified and added to a no-fly list, chances are they can be identified, arrested, and prosecuted. So the watchlist is just punitive damage with almost zero recourse. Let the law take its course. Leave the no-fly list out of it. If airlines want to refuse to serve suspects facing prosecution for the Capitol raid, they can do so. The government doesn't need to be involved. Federal agencies can BOLO suspects without putting them on a watchlist that severely curtails their ability to travel. And that's all it should do at this point, since we're supposed to presume innocence before determining guilt.

Filed Under: bad ideas, bennie thompson, due process, insurrection, no fly list, riots, tsa

Supreme Court Says Muslim Men Can Sue The FBI For Placing Them On The No-Fly List For Refusing To Become Informants

from the faith-based-harassment dept

The FBI really enjoys its take on the War on Terror. Starting with the hassling of Muslims at airports and border entries, the FBI cultivates a large collection of confidential informants. These informants then find pliable individuals to target with extra attention, pushing them towards threatening to engage in violence. Then the FBI swoops in to arrest these supposed "terrorists" -- ones that often seem unable to stay gainfully employed, much less capable of carrying out terrorist attacks. The FBI's favorite targets are impressionable Muslim men with mental health issues -- ones its agents and informants radicalize right into jail cells.

It all starts at our nation's airports. If Muslims want to travel in and out of the United States (or just travel within the US), federal agents are always on hand to pressure them into becoming informants. Veiled threats are made and these targets are subjected to invasive searches and other harassment every time they set foot in an airport.

In some cases, Muslim men were placed on the "no fly" list simply for refusing to become government informants. A lawsuit filed in 2014 accused the FBI of retaliating against several Muslims who resisted the FBI's overtures. The district court ruled against the plaintiffs but the Second Circuit Court of Appeals revived the lawsuit in 2018, saying the men had sufficiently alleged violations of the Religious Freedom Restoration Act (RFRA). The government can't target people simply because of their chosen religion, but that's exactly what appears to be happening.

The case made its way to the Supreme Court and the nation's top court has sided [PDF] with the plaintiffs. The lawsuit can proceed and the FBI agents can be held accountable for violating the RFRA.

The government tried to argue the statute does not provide for lawsuits against federal officers in the personal capacity. Wrong, says the Supreme Court. The statute clearly states lawsuits can be brought against individuals, rather than their agency or the federal government as a whole.

We first have to determine if injured parties can sue Government officials in their personal capacities. RFRA’s text provides a clear answer: They can. Persons may sue and obtain relief “against a government,” §2000bb–1(c), which is defined to include “a branch, department, agency, instrumentality, and official (or other person acting under color of law) of the United States.” §2000bb–2(1) (emphasis added).

The Government urges us to limit lawsuits against officials to suits against them in their official, not personal, capacities. A lawsuit seeking damages from employees in their individual capacities, the Government argues, is not really “against a government” because relief “can be executed only against the official’s personal assets.” Kentucky v. Graham, 473 U. S. 159, 166 (1985).

The problem with this otherwise plausible argument is that Congress supplanted the ordinary meaning of “government” with a different, express definition. [...] A “government,” under RFRA, extends beyond the term’s plain meaning to include officials. And the term “official” does not refer solely to an office, but rather to the actual person “who is invested with an office.”

The Court then looks at whether or not damages can be pursued. This isn't a normal case alleging First or Fourth Amendment violations. The government argued this means damages can't be awarded. Again, the Supreme Court says the government is wrong.

A damages remedy is not just “appropriate” relief as viewed through the lens of suits against Government employees. It is also the only form of relief that can remedy some RFRA violations. For certain injuries, such as respondents’ wasted plane tickets, effective relief consists of damages, not an injunction. [...] it would be odd to construe RFRA in a manner that prevents courts from awarding such relief. Had Congress wished to limit the remedy to that degree, it knew how to do so.

If federal agencies want the law changed to shield them from accountability, they'll have to ask Congress to "fix" this perceived "wrong." The Court isn't going to get into the business of legislating from the bench (at least not in this case).

To be sure, there may be policy reasons why Congress may wish to shield Government employees from personal liability, and Congress is free to do so. But there are no constitutional reasons why we must do so in its stead.

It's an 8-0 shutout in favor of the plaintiffs who are now allowed -- six years after they filed their lawsuit -- to start holding the FBI accountable for its violation of their religious rights.

Filed Under: confidential informants, fbi, muslims, no fly list, scotus, supreme court

Appeals Court Says Gov't Will Be Paying Even More Legal Fees For Its Extended Loss In TSA No Fly List Lawsuit

from the quit-while-you're-behind-DOJbags dept

Fourteen years after an FBI agent mistakenly dumped Dr. Rahinah Ibrahim on the TSA's "No Fly" list, the Ninth Circuit Appeals Court is calling out the government for its horrendous behavior during the case, as well as ordering it to cough up more in legal fees.

The government's concession in this lawsuit was full and complete. It admitted Ibrahim posed no threat to national security, had never posed a threat to national security, and never should have been placed on the list, which stranded her in Malaysia back in 2005. En route to her victory, the government engaged in all sorts of malicious behavior, including arguing her No Fly status couldn't be discussed in open court, placing one of her witnesses on the No Fly list, and doing everything in its power to drag out the litigation. Stripped of all the legalese, the government basically spent most of decade arguing that an FBI agent's mistake fully justified Ibrahim being treated like a national security threat.

Ibrahim's case has made a return trip to the Ninth Circuit Court of Appeals -- this time asking for a second opinion on the district court's legal fee awards. The Appeals Court says the lower court shortchanged Ibrahim's representation (civil rights law firm McManis Faulkner) by failing to consider the government's horrendous behavior in its totality. The court really doesn't like the fact the government chose a mistake by a government agency as the hill it was willing to die for. From the decision [PDF]:

After the government engaged in years of scorched earth litigation, it finally conceded during trial in December 2013 that Dr. Ibrahim is “not a threat to our country. She does not pose (and has not posed) a threat of committing an act of international or domestic terrorism with respect to an aircraft, a threat to airline passenger or civil aviation security, or a threat of domestic terrorism.” But the government knew this in November 2004, when Agent Kelley completed the form; it knew it in January 2005, when the DHS agent told Dr. Ibrahim she was not on the No Fly list; and it was well aware of it two weeks after Dr. Ibrahim filed the underlying action, when a government agent ordered her “Remove[d] from ALL watchlisting supported systems (For terrorist subjects: due to closure of case AND no nexus to terrorism)” and further stated that Dr. Ibrahim was not qualified for placement on either the No Fly or TSA Selectee lists. Yet knowing this, the government essentially doubled-down over the course of the litigation with a no holds-barred defense.

The court then notes the government wasted more time (and racked up more legal fees) by stonewalling discovery efforts, evoking state secrets exceptions to anything it could, and engaging in extensive discussions about the whether the trial should be open to the public when it should have been arguing the merits of its dismissal motions.

The lower court somehow decided this lengthy headache was not the government's fault. It also decided every claim it didn't discuss was a loss for Ibrahim. The final tally was a 90% reduction in awarded fees. Ibrahim sought nearly $4 million in attorneys' fees and expenses. The district court said the extended dicking around by the government was worth less than $500,000. The Appeals Court says this is completely wrong. Ibrahim won decisively.

The achievement of Dr. Ibrahim and her attorneys in successfully challenging her No Fly list placement and forcing the government to fix its error was not just “excellent,” but extraordinary. Hensley, 461 U.S. at 435. Although this is not a class action, and thus we assess Dr. Ibrahim’s individual success, the pathbreaking nature of her lawsuit underscores her achievement. Dr. Ibrahim was the first person ever to force the government to admit a terrorist watchlisting mistake; to obtain significant discovery regarding how the federal watchlisting system works; to proceed to trial regarding a watchlisting mistake; to force the government to trace and correct all erroneous records in its customer watchlists and databases; to require the government to inform a watchlisted individual of her TSDB status; and to admit that it has secret exceptions to the watchlisting reasonable suspicion standard. Dr. Ibrahim, in her first appeal to our court, established that district courts have jurisdiction over challenges to placement on terrorist watchlists, including the No Fly list.

And the government behaved badly throughout the years of litigation, long after it discovered Ibrahim's placement on the No Fly list was a clerical error.

In sum, the district court’s ruling that the government did not act in bad faith was in error because it was incomplete. The district court focused primarily upon Agent Kelley’s “unknowing” placement of Dr. Ibrahim’s name on the No Fly list, which it deemed “the original sin,” rather than considering the “totality” of the government’s conduct, “including conduct ‘prelitigation and during trial.’” [...] And this conduct should have included both an analysis of the government agencies’ and its legal representatives’ conduct. Dr. Ibrahim should not have had to endure over a decade of contentious litigation, two trips to the court of appeals, extensive discovery, over 800 docket entries amounting to many thousands of pages of record, and a weeklong trial the government precluded her (and her U.S.-citizen daughter) from attending, only to come full circle to the government’s concession that she never belonged on the No Fly list at all—that she is not and never was a terrorist or threat to airline passenger or civil aviation security. It should not have taken a court order to require the government to “cleans[e] and/or correct[] . . . the mistaken 2004 derogatory designation” of Dr. Ibrahim, which had spread like an insidious virus through numerous government watchlists.

Ibrahim will still have to spend a bit more time in court before all of this is done. But the Appeals Court's message to the district court is clear: she should be awarded pretty much every penny of the $5 million she's requested.

Filed Under: 9th circuit, attorneys' fees, civil rights, dhs, doj, no fly list, rahinah ibrahim, tsa

Court Won't Let FBI Dodge Lawsuit By Removing American Citizen From No-Fly List Shortly Shortly After Being Sued

from the nothing-prompts-the-government-into-action-like-litigation dept

The FBI uses the "no fly" list as leverage. What should be used to keep threats to national security off airplanes is being used to turn people into informants. If someone travels to a country the US government views with suspicion, citizens and legal residents are often approached by FBI agents who use the threat of revoking flying privileges to obtain new info sources.

DOJ policy expressly forbids this sort of behavior, but the FBI doesn't care. It tells the CBP to keep an eye on travelers who visit or originate from certain countries, accost them in the airport, and subject them to invasive searches/interrogations with an eye on converting them to unofficial G-men.

Earlier this year, the Second Circuit Appeals Court said federal agents could be sued for tossing three men on the "no fly" list for refusing to become informants. The Ninth Circuit Appeals Court is saying the same thing. There are procedural differences between the two cases, but in both, the plaintiffs have been allowed to move forward with their lawsuits.

The case [PDF] from the Ninth Circuit deals with the FBI's coercive tactics. An American citizen from Oregon dealt with this after flying to Sudan:

In April 2010, while still in Sudan, Fikre was approached by two FBI agents who questioned him about his association with the as-Saber Mosque in Portland and his commercial finances. The agents told Fikre that he had been placed on the No Fly List, which identifies individuals who are prohibited from flying into, out of, or over the United States and Canadian airspace by commercial airlines. The FBI agents offered to remove Fikre from the list if he became a government informant. Fikre refused.

Then things got a whole lot worse for Yonas Fikre. He went from Sudan to the United Arab Emirates later that year where he was seized, imprisoned, and tortured by UAE police. Questioning centered on the Portland mosque and his captors told him the FBI had requested his detention. Once released, Fikre was trapped overseas. Unable to return to the US because of his no fly list status, Fikre sought refuge in Sweden.

Fikre appealed his no fly status, but the DHS refused to confirm or deny his placement on the list. Following the government's loss in another no fly list lawsuit, the DHS finally confirmed Fikre was on the list but refused to reinstate his flying privileges. The DHS claimed Fikre was a "threat to civil aviation or national security," but refused to provide further details as to why the agency believed this. Sweden's government ultimately expelled him from the country (presumably because the US government had pretty much declared Fikre a terrorist) and his wife left him while he spent a half-decade overseas trying to find a way to travel back home.

Fikre sued the FBI for a variety of Constitutional violations, asking for damages and an admission/declaration from the government that he should never have been placed on the no fly list. The government responded by trying to dodge the lawsuit altogether. It arbitrarily removed Fikre from the list and said that was enough to make all of his claims moot. The lower court agreed, deciding the attempt to dodge the lawsuit was the equivalent of making Fikre whole for the half-decade of overseas screwing he received because he refused to be an FBI informant.

The Appeals Court disagrees with this assessment of the government's attempted mooting. As Fikre points out, there's nothing preventing the FBI from putting him back on the no fly list once the lawsuit has been dismissed. The government points to no reason or underlying policy for Fikre's removal, much less makes any declaration it no longer considers him a national security threat.

[T]he FBI’s decision to restore Fikre’s flying privileges is an individualized determination untethered to any explanation or change in policy, much less an abiding change in policy. The DHS re-evaluated Fikre’s presence on the No Fly List in 2013 and 2015 pursuant to its TRIP procedure and determined that no adjustments to his status were necessary. Indeed, the DHS affirmed as late as March 2015—after it had amended TRIP to conform to the decision in Latif—that Fikre posed “a threat to civil aviation or national security” and it refused to remove him from the No Fly List. Yet it did just that fourteen months later, without explanation or any announced change in policy. [...] This record suggests that Fikre’s removal from the No Fly List was more likely an exercise of discretion than a decision arising from a broad change in agency policy or procedure.

The court grants the government some good faith it hasn't earned by saying it doesn't believe it removed Fikre from the list simply to moot the lawsuit, but notes it has done nothing to assure Fikre or the court that his removal will be permanent or has anything to do with the national security machinations used to strip his flying privileges.

The notice filed by the government averred only that “counsel recently was advised by the Terrorist Screening Center that [Fikre] has been removed from the No Fly List.” Absent an acknowledgment by the government that its investigation revealed Fikre did not belong on the list, and that he will not be returned to the list based on the currently available evidence, Fikre remains, in his own words, “stigmatiz[ed] . . . as a known or suspected terrorist and as an individual who represents a threat of engaging in or conducting a violent act of terrorism and who is operationally capable of doing so.” Because acquaintances, business associates, and perhaps even family members are likely to persist in shunning or avoiding him despite his renewed ability to travel, it is plain that vindication in this action would have actual and palpable consequences for Fikre.

Nothing will be mooted. Fikre can continue suing the government for violating his rights and hopefully obtain a full -- and honest -- declaration that he was never a threat and will not pose one in the future. Short of a big win by Fikre, it's tough to see this litigation resulting in the FBI dropping its informal policy of pressuring people into becoming informants by threatening to strand them in foreign countries. The DOJ's policies aren't worth the paper they're printed on -- not if the FBI continues to use the no fly list as leverage.

Filed Under: 9th circuit, american citizen, cbp, fbi, informants, no fly list, sudan, yonas fikre

Court: FBI Agents Can Be Held Accountable For Tossing Immigrants On The No-Fly List Because They Refused To Be Informants

from the time-for-some-settlements-and-retraining dept

The Second Circuit Appeals Court has revived a lawsuit brought by a group of Muslim men who allege the FBI placed them on the "no fly" list after they refused to become informants. This is not unusual behavior -- on the part of the FBI. Documents obtained by The Intercept show the CBP and FBI routinely pressure immigrants and visitors to become informants, threatening them with deportation or adverse decisions on visa requests.

In this case, the lead plaintiff, Muhammad Tanvir, claims the FBI pursued him for months. The effort to convert Tanvir into an informant led to him being detained for hours any time he tried to fly, as well as being subjected to periodic visits from FBI agents at his workplace. Despite being a lawful resident, Tanvir was threatened with arrest and deportation for refusing to submit to a polygraph test. After returning from a trip to Pakistan to visit his family, Tanvir was detained for five hours by federal agents and his passport confiscated for six months. This confiscation was leveraged against Tanvir, with agents telling him he would be deported if he did not cooperate.

These tactics are expressly forbidden by the DOJ and yet, they appear to be in common use. Tanvir's experience with the FBI roughly aligns with that of his co-litigants. They sued the FBI agents who harassed and threatened them, claiming the tactics violated their religious freedom. In the plaintiffs' view, becoming an informant meant violating their religious beliefs. The district court ruled they could not pursue these claims against the federal agents under the Religious Freedom Restoration Act (RFRA).

The Appeals Court disagrees [PDF]. Violations and damages alleged by Tanvir -- including the inability to travel by air, which resulted in the loss of his job as well as prevented him from visiting his family in Pakistan -- can be recouped from the agents responsible.

The government argued RFRA does not permit lawsuits against individual government employees. The Appeals Court points out the plain language of the statute clearly permits doing exactly that.

RFRA’s use of the word “official” in the statutory definition of “government” does not mandate that a plaintiff may only obtain relief against federal officers in official capacity suits. In ordinary usage, an “official” is generally defined simply as “one who holds or is invested with an office” and is roughly synonymous with the term “officer.” Merriam‐Webster Unabridged, http:/unabridged.merriam‐webster.com/unabridged/official (noun definition). There is no reason to think that, in using this ordinary English word, Congress intended to invoke the technical legal concept of “official capacity,” rather than simply to state that government “officials” are amenable to suit. Moreover, the statute permits suits against “officials (or other person[s] acting under color of 7 law).” 42 U.S.C.A. § 2000bb‐2(1). The specific authorization of actions broadly against “other person[s] acting under color of law,” undercuts the assertion that the term “official”’ was intended to limit the scope of available actions.

The wording of the statute is not as clear when it comes to defining "appropriate relief." The government argues this does not include money damages, even if the court finds individual agents can be sued under RFRA. The court again disagrees. Precedential decisions -- including those of the Supreme Court -- dealt with lawsuits brought against government officials in their official capacity. Sovereign immunity may have ended those attempts to obtain "appropriate relief," but are not helpful here. This suit is filed against agents personally, not against the agencies or the federal government as a whole.

Although the Supreme Court and our sister circuits declined to construe the phrase “appropriate relief” to amount to an explicit waiver of sovereign immunity, Plaintiffs’ individual capacity suits against Defendants present no sovereign immunity concerns here. This is so because Plaintiffs seek monetary relief from those officers personally, not from the federal or state government.

The government claimed this conclusion turns "appropriate relief" into "a chameleon," leaving the government unsure of where its stands when facing lawsuits under RFRA. The court points out the definition of the term "appropriate relief" is malleable because circumstances surrounding claims brought under the statute are rarely static or easily comparable.

[W[e are tasked with interpreting the meaning of RFRA’s phrase “appropriate relief,” an inquiry that is “inherently context‐dependent.” Sossamon, 563 U.S. at 286. Indeed, the word ‘appropriate’ does not change its meaning; rather, the question addressed in each of these various contexts is what sort of relief is ‘appropriate’ in that particular situation. And, since the relevant animating principles vary appreciably across legal contexts, the meaning of ‘appropriate’ may well take on different meanings in different settings.

Having decided the lawsuit can continue, the Appeals Court decides it doesn't need to reach a finding on the agents' qualified immunity assertions. This will be handled on remand by the lower court, which will first have to make this decision before deciding what (if any) damages the plaintiffs are entitled to.

This is far from a victory for the plaintiffs but it does open the door for similar lawsuits against federal officers for harassment and intimidation tactics deployed in hopes of turning lawful residents and visitors into government informants. Raising the possibility of a successful lawsuit above the previously-presumed zero percent should hopefully act as a minor deterrent against future abuses of power.

Filed Under: 2nd circuit, fbi, informants, muhammad tanvir, no fly list

Who Needs A No-Fly List When You Can Just Ground 91 Million Citizens?

from the you-know-what-a-valid-driver's-license-is-good-for?-DRIVING,-citizen. dept

Great news for people who think there's just too damn much freedom in this country: the government's "no-fly" list is about to get much, much longer.

The citizens of several US states may soon find that they can't use their drivers' licenses to get into federal facilities or even board planes.

Enforcement of a 2005 federal law that sets identification standards, known as "Real ID," has been long-delayed. But now Department of Homeland Security officials say enforcement is imminent. The "Real ID" law requires states to implement certain security features before they issue IDs and verify the legal residency of anyone to whom they issue an ID card.

For the residents of Alaska, California, Illinois, Missouri, New Jersey, New Mexico, South Carolina, Minnesota and Washington (along with American Samoa, Puerto Rico, Guam and the Virgin Islands), this means their ID cards are perfectly legal within those states, but only as long as they stay in those states. (And, apparently, never need to enter a government building -- like, say, to acquire a new, compliant ID card).

States that have not complied with the REAL ID Act -- including Missouri and Minnesota, which both passed legislation telling the federal government to take a hike -- will not be granted extensions. Residents in those states will now unofficially join countless others on the government's "can't board a plane" list. On the bright side, they'll at least have some idea as to why they've been denied access, but will be similarly limited in their redress options. (Move to another state?)

The rationale behind the law -- which carries with it privacy-undermining data sharing requirements -- is, of course, terrorist-related.

The statute is in part a response to the suggestion of the 9/11 Commission, which noted that four of the 19 hijackers used state-issued ID cards to board planes.

Not that the new law would prevent the same thing from happening. It may make it slightly more difficult to do so, but it's not as though a halfway decent fake wouldn't fool our nation's crack team of under-qualified security guards, who seem much more interested in dumping out breast milk and feeling up people with medical conditions. For that matter, it's been proven more than once that having an approved government ID really isn't integral to the boarding process.

There are other options available for residents of these states, should the TSA move forward with enforcing the REAL ID law. (The DHS has suggested it won't be waiting around for the holdout states and territories.) But these options are mostly useless. The New York Times reports people will be allowed to present other government-issued ID, like passports -- something domestic travelers rarely carry with them.

The federal government is now forcing states into compliance with the law by using the sort of leverage it never should: its constituents. It's robbing law-abiding citizens of the ability to board airplanes or enter government buildings to force states to fall in line.

Filed Under: dhs, drivers' license, homeland security, identification, no fly list, privacy, real id, states

No Matter What You Think Of Gun Control, Relying On The No Fly List For Anything Is Monumentally Stupid

from the due-process dept

As you may have noticed, the attacks in San Bernadino last week quickly became seen through the lens of what political point certain people wanted to make. The Democratic party quickly attempted to push for a bizarre type of gun control, barring people on the "no fly list" from buying guns. It's one of those things that sounds good if you have no real knowledge about what's going on. But it's still being pushed because it sounds like a sensible thing at first glance: why, if someone is a potential terrorist threat, they think, they probably shouldn't be able to buy guns. Hell, here's how President Obama himself put it last night in his big speech about terrorism (and gun control) in the wake of the attacks:

Now, here at home, we have to work together to address the challenge. There are several steps that Congress should take right away. To begin with, Congress should act to make sure no one on a no-fly list is able to buy a gun. What could possibly be the argument for allowing a terrorist suspect to buy a semiautomatic weapon? This is a matter of national security.

Well, here's the problem: being on the "no fly list" does not mean you're a terrorist suspect. For the President to equate the two is not just wrong, it's disgraceful. First of all, there are two separate lists: the no fly list and the "terrorist screening database." There is overlap between the two lists, but they are not the same thing by any stretch of the imagination.

Second, there is no due process whatsoever involved in putting people on the no fly list. As we noted just last year, a court found that the lack of any legitimate way of getting off the no fly list was unconstitutional. Another case involved an FBI agent checking the wrong box, which put a woman on the no fly list, and kept her out of the country for a decade. In another case, a court had to force the DOJ to admit to people they were on the no fly list, because it refused to even let them know before. While the DOJ finally changed this policy a few months ago, the lack of due process is ridiculously concerning.

Then... there's this: Leaks to the Intercept revealed that the "process" by which people are put on either the no fly list or the terrorist watch list basically involves hunches, and revelations from just a few months ago show that DHS still uses flim flam pseudo science to put people on the list based on hunches that the government laughably calls "predictive judgment," but which experts have said has no scientific basis whatsoever.

If you want to understand how incredibly wrong this proposal is, you just need to replace "buy guns" with something else, like "the right to assemble" or "the right to use the internet." It's easy to say: "What could possibly be the argument for allowing a terrorist suspect to use the internet?" But then you remember that these aren't actual suspects -- they're just people put on a list by law enforcement with no thorough process, let alone due process to defend themselves or to get off the list. And, of course, being a "suspect" doesn't mean you're guilty. Innocent until proven guilty used to actually mean something.

Thankfully, at least some are now recognizing this with Republicans suddenly arguing that they don't like this gun control policy because the no fly list is a joke. Here's presidential candidate Marco Rubio:

“These are everyday Americans that have nothing to do with terrorism, they wind up on the no-fly list, there’s no due process or any way to get your name removed from it in a timely fashion, and now they’re having their Second Amendment rights being impeded upon.... The majority of the people on the no-fly list are often times people that just basically have the same name as somebody else who doesn’t belong on the no-fly list.... Sometimes you’re only on that list because the FBI wants to talk to you about someone you know, not because you’re a suspect."

He's not wrong per se, but note that he's only concerned about the potential Second Amendment impact of this should that amendment move forward (which it won't) -- and not about the impact of all those innocent people whose lives are totally disrupted by being on the list.

And here's House Speaker Paul Ryan suddenly concerned about due process violations with the no fly list -- but again, showing no interest in actually doing anything about it, other than using it to block gun control:

“People have due process rights in this country,” Republican House speaker Paul Ryan said in explaining his party’s opposition to the vote, apparently with a straight face. He went on to say there shouldn’t be a rush to pass legislation at the risk of “infringing upon the rights of law-abiding citizens...”

Again, sure. But if the no fly list is a due process nightmare, why is it still around? Why aren't Rubio and Ryan looking to end that? And why have both of them supported all sorts of other legislation that infringes upon the 4th Amendment rights of law-abiding citizens?

It's great that some folks are suddenly aware of the fact that the no fly list is an unconstitutional, due process nightmare -- but focusing on the whole gun control aspect of it is pretty ridiculous. The no fly list is a problem on its own. It should be done away with. If people want gun control, focus on gun control, not on expanding the mess that is the no fly list. If people don't want gun control, go ahead and make that argument. But don't suddenly point to the problems of the no fly list and not do anything about them except block the gun control measure.

Filed Under: due process, gun control, marco rubio, no fly, no fly list, paul ryan, president obama, terrorist watch list

Feds Still Shrugging People Onto Terrorist Watchlists Based On Hunches

from the you-might-be-a-terrorist-IF...-we-decide-you-might-be-a-terrorist-WHEN dept

The US government's desire to keep terrorists off airplanes has resulted in heavily-populated "watchlists" -- lists short on due process and long on hunches.

The TSA, in particular, has embraced a mixture of borrowed ideas and junk science to staff airports with Behavioral Detection Officers, who attempt to keep terrorists from boarding planes by looking for any number of vague indicators. The end result is a billion-dollar program with the accuracy of a coin flip.

That's the physical version of the government's "predictive policing" security efforts. The same sort of vague quasi-science is used to populate its "no fly" list.

The U.S. government’s reliance on “predictive judgments” to deprive Americans of their constitutionally protected liberties is no fiction. It’s now central to the government’s defense of its no-fly list—a secretive watch list that bans people from flying to or from the United States or over American airspace—in a challenge brought by the American Civil Liberties Union.

Court filings show that the government is trying to predict whether people who have never been charged, let alone convicted, of any violent crime might nevertheless commit a violent terrorist act. Because the government predicts that our clients—all innocent U.S. citizens—might engage in violence at some unknown point in the future, it has grounded them indefinitely.

The court itself found the "no fly" list's redress processes (or lack thereof) to be unconstitutional, as it was basically unchallengeable by listed travelers. (And the only sure way for a person to discover they were on the "no fly" list was to buy a ticket to somewhere and attempt to board a plane.) According to the court, the list and its lack of proper redress was a perfect storm of civil liberties violations.

In summary, on this record the Court concludes the DHS TRIP process presently carries with it a high risk of erroneous deprivation in light of the low evidentiary standard required for placement on the No-Fly List together with the lack of a meaningful opportunity for individuals on the No-Fly List to provide exculpatory evidence in an effort to be taken off of the List.

While the DHS has slightly improved its redress process for those who find themselves on the list, it hasn't made any changes to its dubious selection standards. In fact, it's made this part of the process worse.

[T]he U.S. government launched its predictive judgment model without offering any evidence whatsoever about its accuracy, any scientific basis or methodology that might justify it, or the extent to which it results in errors.

In our case, we turned to two independent experts to evaluate the government’s predictive method: Marc Sageman, a former longtime intelligence community professional and forensic psychologist with expertise in terrorism research, and James Austin, an expert in risk assessment in the criminal justice system. Neither found any indication that the government’s predictive model even tries to use basic scientific methods to make and test its predictions.

As Sageman says, despite years of research, no one inside or outside the government has devised a model that can predict with any reliability if a person will commit an act of terrorism.

And there go any redress improvements. To get off the list, a person must convince the government he or she won't commit a criminal act that its "predictive model" has determined they might. At least in the FBI's terrorist "investigations," there's a minimum of intent and activity. In the case of would-be travelers like the ACLU's clients, there's nothing more than a predictive model spitting out probabilities.

In all likelihood, the predictive model used by the US government is based on more than faulty science. It's also based on faulty reasoning. As Doug Saunders at the Globe and Mail points out, analysts researching tracking and surveillance of would-be terrorists are finding the usual presumptions are mostly wrong.

Analysts began looking at the work of Paul Gill, a criminologist at the University College of London. In a highly influential 2014 paper titled “Bombing Alone: Tracing the Motivations and Antecedent Behaviours of Lone-Actor Terrorists,” Dr. Gill and his colleagues analyzed known terrorists not by what they thought or where they came from, but by what they did.

In the weeks before an attack, terrorists tend to change address (one in five) or adopt a new religion (40 per cent of Islamic terrorists and many right-wing terrorists did so). And they start talking about violence: 82 per cent told others about their grievance; almost seven in 10 told friends or family that they “intended to hurt others.”

A huge proportion had recently become unemployed, experienced a heightened level of stress or had family breakdowns. And most had done things that looked like planning – including contacting known violent groups.

Predictive modeling often looks like "thought policing," but that is of little use, apparently. There are other indicators that are far more telling, but these factors aren't being given proper weight by the models in use. Saunders notes that there has been a shift in modeling over the past couple of years, thanks to research from analysts like Paul Gill, but that shift in predictive factors hasn't slowed legislators from demanding even more futile, invasive "thought policing."

Unfortunately, governments, including Canada’s, are behind the curve: Just as their terrorism experts and security employees have abandoned policies which resemble the policing of thoughts, they're passing disturbing laws to make such obsolete practices easier.

The DHS may be using smarter modeling now, but it's not as though it's been examining its existing list to remove those who don't match the vague criteria. Instead, it's only responding to challenges made by travelers who find themselves on the list, and even then, it may still withhold information a listed flyer could use to challenge their status if the agency deems the release of such info a threat to national security. The nod to due process leads to an exchange of information and paperwork with the government, but there's nothing adversarial about the redress procedure. It's your word against theirs, with the agency -- not a court -- making the final determination as to whether a person can ever board an airplane.

Filed Under: behavioral targeting, doj, hunch, junk science, no fly list, terrorist watchlist, tsa