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

The Crazy Redactions Of The No Fly List Decision: The Kafkaesque 'On-Off-On' Redactions

from the dig-in dept

So, we already highlighted the key information revealed and the newly unredacted version of the court's ruling in the Rehinah Ibrahim "no fly list" case (namely: that the US has a "secret exception" by which it can put people into the terrorist screening database despite no "reasonable suspicion" that they're a threat). However, seeing as we had noted some of the bizarre redactions in the original, and now that we have the unredacted version, I figured we could look at some of the more bizarre redactions now that they've been revealed. Let's start with what might have been the most hilarious redaction from the original If you can't read it, it's:

Given the Kafkaesque [REDACTED] treatment imposed on Dr. Ibrahim, the government is further ordered expressly to tell Dr. Ibrahim [REDACTED] (always subject, of course, to future developments and evidence that might [REDACTED]). This relief is appropriate and warranted because of the confusion generated by the government's own mistake and the very real misapprehension on her part that the later visa denials are traceable to her erroneous 2004 placement on the no-fly list, suggesting (reasonably from her viewpoint) that she somehow remains on the no-fly list.

Now those redactions have been uncovered, and here's what we see (with the redacted portions in yellow): And the text version, with redacted portions underlined:

Given the Kafkaesque on-off-on-list treatment imposed on Dr. Ibrahim, the government is further ordered expressly to tell Dr. Ibrahim that she is no longer on the no-fly list and has not been on it since 2005 (always subject, of course, to future developments and evidence that might warrant reinstating her to the list). This relief is appropriate and warranted because of the confusion generated by the government's own mistake and the very real misapprehension on her part that the later visa denials are traceable to her erroneous 2004 placement on the no-fly list, suggesting (reasonably from her viewpoint) that she somehow remains on the no-fly list.

Many people rightly mocked the original version as the Kafkaesque nature of the situation appeared to be increased by that particularly hilarious looking redaction. Of course, now having seen all the redactions, we can see the true reason behind it. It appears that, despite all of this, Ibrahim is still in the Terror Screening Database (TSDB), for some secret reason, even though everyone admits she's no threat. And that secret reason is apparently unrelated to the original mistake.

In other words, the purpose of all those original redactions was to misleadingly suggest that Ibrahim had been cleared from all lists, but the "on-off-on-list" aspect was actually hidden in the redacted version. Now that it's all been revealed, reading between the lines, we see that Ibrahim is only being cleared from some lists and databases, while remaining in others that likely prevent her from ever returning to the US. In other words, the redactions were created to mislead the public into believing that Ibrahim has been totally cleared, when the reality is she's still in the same basic position -- other than the fact that she now knows she's in the TSDB rather than the no fly list, which she was removed from all the way back in 2005.

Still, other redactions seem equally bizarre. Take this one: The unredacted version says:

Government counsel has conceded at trial that Dr. Ibrahim is not a threat to our national security. 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. This the government admits and this order finds.

Why was that redacted? Perhaps the government thought the reasons someone might be put on the list needed to be secret? But, did anyone doubt that any of the things listed above were considered reasons why you might be put on the no fly list or the terrorist screening database? This identical redaction was done later in the ruling as well, again enforcing the idea that the government sought to hide the fact that you have to be a threat to one of those three things to be placed on the lists. But it also hid the fact that even if you were not one of those things, you can still be placed in the Terrorist Screening Database for a "secret exception" to the reasonable suspicion requirement.

Another bizarre one, concerning an attempt in 2006 to have her removed from all lists: The unredacted version:

In a form dated February 10, 2006, an unidentified government agent requested that Dr. Ibrahim be "Remove[ d) From ALL Watchlisting Supported Systems (For terrorist subjects: due to closure of case AND no nexus to terrorism)" (TX 10). For the question "Is the individual qualified for placement on the no fly list," the "No" box was checked. For the question, "If no, is the individual qualified for placement on the selectee list," the "No" box was checked.

Can anyone explain why this was redacted? It makes no sense at all.

There is also a lengthy discussion of how the US blocked Ibrahim's daughter, Raihan Binti Mustafa Kamal, from flying to the US for the trial and then lied about it. We noted how bizarre it was that Judge William Alsup's entire discussion of what happened there was redacted. Now seeing the full version, it is, once again, entirely unclear why it was redacted in the first place. The unredacted parts do show more screwups by the US, in which Homeland Security falsely flagged Kamal based on rules that are not supposed to apply to US citizens, even though she is a US citizen. In fact, it notes that Customs and Border Patrol realized in six minutes that she was a US citizen, but then there was a series of other confusions that resulted in her not being allowed to board the flight.

Unfortunately, despite considerable anger on Judge Alsup's part, when all of this came out, it appears that, in the end, he did nothing about this, other than make sure that Kamal's own record in the TSDB was "updated... to reflect that she was a United States citizen."

In the end, the revelation of these redactions do reveal that Ibrahim still appears to be unable to come to the US, and also suggests that the US government tried to use redactions to hide this fact -- allowing the public to believe that Ibrahim had been entirely cleared, when she had not been. It also sought to hide, as mentioned in our earlier post, that the DOJ has some "secret exception" that allows them to basically destroy someone's life, even if there's no reasonable suspicion that they're a terrorist threat of any kind.

Filed Under: kafakesque, no fly, no fly list, rahinah ibrahim, redactions, tsdb

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

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?

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

Entire Court Discussion Of Feds Blocking US Citizen From Flying To No Fly List Trial... Redacted

from the sickening dept

We already wrote about the release of Judge Alsup's ruling in the Rahinah Ibrahim case. However, I wanted to do a second post, concerning one of the issues that first grabbed our attention about the case -- the fact that Ibrahim's daughter, a US citizen, was put on the no fly list and blocked from flying to the US to be a witness at the trial. The DOJ insisted that this was untrue and the daughter had simply missed her flight -- claims that were later proven to be outright lies. At the time, it appeared that Judge Alsup was not at all happy about this, and we hoped that this would result in some sort of sanctions or punishment for the federal government lying to a federal judge.

And, that whole incident is discussed in the ruling, but we have no idea what it says. Because the entire section is redacted. At the beginning of the filing, Judge Alsup notes about this incident that: "the snafu was the result of government error, albeit corrected quickly, as will be outlined at the end of the findings of fact." Then you jump to the section about "The Citizen Daughter" and you get a brief recap, noting that Ibrahim's daughter, Raihan Binti Mustafa Kamal, a US citizen, was blocked from getting on her flight to the US in Kuala Lumpur. And then you turn the page and get this: In other words, if Alsup did anything about this "snafu," we're unlikely to ever know about it, which seems fairly ridiculous.

Filed Under: dhs, doj, no fly list, rahinah ibrahim, raihan kamal, redacted, us citizens, william alsup

Court Says FBI Agent's Wrong Checkmark Put Woman On No Fly List, Barred Her From The US For 10 Years

from the ouch dept

We've been covering the case of Rahinah Ibrahim for a little while now. She's the Stanford PhD student who was wrongfully placed on the no fly list -- something that pretty much everyone admitted early on -- but because of that her student visa to the US was pulled, and every attempt she made to come back was rejected, leaving her unable to come back to this country for nearly 10 years. As we noted last month, it seemed clear that Judge William Alsup had ruled that the feds needed to remove her from the no fly list and any other terrorist watch lists, but it was a little unclear, since the full ruling remained under seal. That ruling has now been released in redacted form, and is well worth reading. Not only does it highlight massive bureaucratic bungling over a ten-year period, it also shows how disingenuous and dishonest the DOJ has been in handling the entire case -- even to the point of promising not to argue "state secrets" to kill the case, and then (of course) claiming "state secrets" and trying to kill the case just a few weeks later. Judge Alsup appears somewhat limited in what he can do in response to all of this for procedural reasons, but he makes it clear that he's not pleased about all of this and orders the government to confirm that Ibrahim has been fully removed from the various terrorist databases and lists, as the government has flatly admitted that they don't believe she poses any threat to national security.

In fact, the ruling highlights that this is all due to one FBI agent totally fucking things up back in 2004 -- and not even realizing he had done so until his deposition a few months ago. Alsup makes clear (and it seems everyone agrees) that the FBI agent, Kevin Michael Kelley didn't screw up maliciously, but he simply misunderstood the directions in filling out the form:

Agent Kelley misunderstood the directions on the form and erroneously nominated Dr. Ibrahim to the TSA's no-fly list [redacted]. He did not intend to do so. This was a mistake, he admitted at trial. He intended to nominate her to the [very long redaction]. He checked the wrong boxes, filling out the form exactly the opposite way from the instructions on the form. He made this mistake even though the form stated, "It is recommended the subject NOT be entered into the following selected terrorist screening databases."

And from that one screwup, basically a bureaucratic mess appears to have followed, and even if she was removed from that list (as is suggested elsewhere), once her name got into a series of connected databases, she effectively became toxic, and no one would allow her back into the US. So even though everyone now admits that she posed no threat to national security, when she applied for a visa to come back to the US, not only was it rejected, but the reason for the rejection was given as the code for "terrorist activities" (8 USC 1182 (a)(3)(B)) -- and to make matters even more insane, someone at the State Department helpfully scribbled "terrorist" on the form that was sent to her denying her entry. Judge Alsup notes just how incredibly disruptive this whole situation has been on Ibrahim's life, noting clearly that this has ended up depriving her of the right to travel, the right to be free from incarceration and the right to be free from stigma and humiliation of a public denial of boarding and incarceration. And while he orders the various databases to be cleansed of bogus information about Ibrahim, there's also a weird part of the order that is redacted, in that she's ordered to be told... something.

Given the Kafkaesque treatment imposed on Dr. Ibrahim, the government is further ordered expressly to tell Dr. Ibrahim [redacted] (always subject, of course, to future developments and evidence that might [redacted]). This relief is appropriate and warranted because of the confusion generated by the government’s own mistake and the very real misapprehension on her part that the later visa denials are traceable to her erroneous 2004 placement on the no-fly list, suggesting (reasonably from her viewpoint) that she somehow remains on the no-fly list.

It is true, as the government asserts as part of its ripeness position, that she cannot fly to the United States without a visa, but she is entitled to try to solve one hurdle at a time and perhaps the day will come when all hurdles are cleared and she can fly back to our country. The government’s legitimate interest in keeping secret the composition of the no-fly list should yield, on the facts of this case, to a particularized remedy isolated by this order only to someone even the government concludes poses no threat to the United States. Everyone else in this case knows it. As a matter of remedy, she should be told that [redacted].

Given that she should be told something, it seems utterly bizarre that what she should be told must be redacted.

The victory here is the first legal success in getting someone off of the no fly list, but it likely has limited use elsewhere, unfortunately. The case specifics are pretty narrow, and Judge Alsup makes it pretty clear that the government has a right to keep secret databases in which it forbids people from boarding airplanes. He notes that other cases will come along to take on those other issues, and we're sure to pay attention to them as they come up.

Filed Under: fbi, no fly list, rahinah ibrahim, william alsup

Court Rules That Woman Wrongfully Placed On No Fly List Should Be Taken Off The List... We Think

from the no-fly dept

We've written a few times about the troubling case of Rahinah Ibrahim, a PhD. student at Stanford who was wrongfully placed on the "no fly" list because (it appears) some clueless law enforcement officials mixed up the names of a networking group of professional Muslims in Malaysia who had returned from work or study in the US and Europe (which she was a part of) and a very, very different terrorist organization. While she had received something of an apology for initially not being allowed to fly to Malaysia (and then allowed to fly), it appeared that her name was then placed on the no fly list, preventing her from ever returning. She was later blocked from even flying back to the US for her lawsuit against the government.

The ruling issued today, and we'd love to tell you what's in it... except for the fact that it's sealed. Judge William Alsup has stated that he believes that the entire order should be made public, but that the US government is fighting that. So, for now, the order is under seal until April 15, while Homeland Security is supposed to agree to what it will allow to be released in a redacted version. However, in the meantime, Judge Alsup has released a "public notice and summary" of the findings of fact -- basically revealing what he can of the order. Many of the important details are still missing, but it certainly sounds like Ibrahim has mostly succeeded in the case. Alsup notes that "some but not all of the relief" sought by Ibrahim has been granted. And this includes having her name scrubbed from the no fly list:

Once a plaintiff shows concrete, reviewable adverse government action has occurred, and, as here, shows that the action resulted from an error by the government, then the plaintiff is entitled by due process to a post-deprivation remedy that requires the government to cleanse and/or correct its lists and records of the mistaken information and to certify under oath that such correction(s) have been made. The government’s administrative remedies fall short of such relief and do not supply sufficient due process. In light of the confusion caused by the government’s mistake, such cleansing-certification relief is ordered in this case. Also, the government is ordered to disclose to plaintiff her current status on (or off) the no-fly list (without prejudice to future adjustments based on new information). In this connection, the government concedes that plaintiff is not a threat to our national security.

That appears to suggest that the government ought to remove her from the no fly list and let her know that she's now off the list. But it's not entirely clear that's the case. In theory, they could inform her that she's still on the list as well.

On the later decision by the US government to deny her a visa, the court orders DHS to provide an actual reason in the law for the denial. It would appear that the previous denials did not specify one of the "nine subsections" in the law for which a visa can be denied, and Alsup has ordered DHS to "remedy" that. It also hints very, very strongly (as was pretty clear during the trial), that in refusing her visa, she was told that she was not eligible for a waiver when, in fact, she was. Thus, he orders the government to properly let her know that she can apply for a waiver... but notes that the court cannot review the eventual decision as to whether or not she's granted a visa.

Nothing is said in all of this about the later actions by DHS to block Ibrahim's daughter, a US citizen, from flying to the US to testify in the case. Though, perhaps there is something about that in the sealed documents.

All in all, it appears that Ibrahim has mostly prevailed here, but the details could be rather important. And, it also appears that even with all of this, the court may be quite limited in how much it can force the government to take someone who has been falsely placed on the no fly list, off of it. Hopefully, the full decision will provide greater clarity.

Filed Under: dhs, no fly list, rahinah ibrahim, sealed order, william alsup

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

from the due-process! dept

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.

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

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

from the incredible dept

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

It appears that none of that was true.

Instead, while Kamal had been rebooked by her travel agent earlier in the week to a different flight (because Expedia informed her that her original flight was full and she wouldn't be able to travel on it), she arrived at the airport with nearly 3 hours to spare for her own flight, and was then denied the ability to board. There was a lot of back and forth, but eventually she obtained the email that had first been sent to Philippines Airlines (she was flying from Malaysia to the Philippines and then on to San Francisco), warning that Kamal was "a possible no board request." While that's not a full on "denial" it was enough to have the airline deny her passage, and clearly shows that, contrary to the DOJ's claims, DHS specifically had targeted Kamal and was hinting very strongly to airlines not to let her fly. It seems unlikely that they ever expected that email to get out. Either way, Kamal had spent nearly $2,000 of her own money on the original flight, and noted in her own deposition that she was unable to afford another immediate flight to the US (especially given that it's holiday travel season).

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

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

That troubles me.

Do you know what happened to Robert Oppenheimer?

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

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

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

DEFENDANTS’ COUNSEL: TRIP is a continually improving process…

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

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

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

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

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

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

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

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

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

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

from the kafkaesque dept

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Judge In No Fly Case Explains To DOJ That It Can't Claim Publicly Released Info Is Secret

from the that's-not-how-it-works dept

Yesterday, we wrote about the bizarre happenings in the lawsuit filed by Rahinah Ibrahim for placing her on the no fly list without any kind of explanation or due process (and no way to get off). The focus of that post was on the government apparently placing Ibrahim's daughter -- a key witness expected to testify in the case -- on the no fly list as well to block her from coming, and then insisting it did no such thing, only to have Malaysia Airlines provide the notice from the US government telling them not to let the daughter board her flight. However, we also mentioned that the DOJ lawyers were trying to insist that all sorts of publicly available information was actually "sensitive security information" (SSI) and Judge William Alsup blew up at them, calling such a claim "ridiculous."

It appears that the DOJ lawyers didn't get the message from Alsup on Monday. On Wednesday, it continued its campaign of insisting that publicly available information was secret. While much of the testimony on Wednesday did cover secret matters, leading to the courtroom having to be cleared, Ibrahim's lawyers were able to have Jeffrey Kahn testify about how the no fly list basically violated every concept of basic due process. Kahn is the author of Mrs. Shipley's Ghost: The Right to Travel and Terrorist Watchlists and is clearly an expert on the subject. However, the government apparently kept objecting to his testimony, making him explain what public source provided the information he was describing.

As recounted by Edward Hasbrouck at the Identity Project:

At one point, in response to such an objection, Prof. Kahn identified the source for one of his statements as being FBI watchlist guidelines released by the FBI itself to the Electronic Privacy Information Center (EPIC), and posted on the EPIC website. Those documents showed that the mere opening of an investigation was itself deemed to be sufficient grounds for placing a person on a watchlist, without the need to evaluate whether there had been any factual predicate for the opening of the investigation. This contradicted the government’s claims about the existence of threshhold evidentiary criteria for watchlist decisions.

The government’s lawyers tried to argue that despite having been released by the FBI itself in response to a FOIA request, and having been publicly available for years on the EPIC website, these documents couldn’t be discussed publicly.

Judge Alsup overruled their objection. “This is America. You can’t take something that is in the public domain and make it a secret. If you wanted to shut down that website, you should have done so.”

Well, that's never really stopped the government from trying. Still, you'd think that the DOJ lawyers would have gotten the message by now.

Filed Under: doj, jeffrey kahn, no fly list, public domain, rahinah ibrahim, sensitive security information, william alsup