Dr. Rahinah Ibrahim’s lead counsel, Elizabeth Pipkin, opened the second day of trial of Dr. Ibrahim’s lawsuit against the government for putting her on its “no-fly” list without due process with an update on Dr. Ibrahim’s eldest daughter, U.S.-born U.S. citizen Rainan Mustafa Kamal, who was denied permission by the DHS to board a flight to the U.S. on Sunday to attend and testify at the trial in her mother’s lawsuit.
Ms. Pipkin reminded the court of what government counsel Paul Freeborne of the Department of Justice told the court before the trial recessed on Monday:
Freeborne: Your Honor, we’ve confirmed that the defendants did nothing to deny plaintiff’s daughter boarding. It’s our understanding that she just simply missed her flight. She has been re-booked on a flight tomorrow. She should arrive tomorrow.
“None of that was true,” Ms. Pipkin told the court this morning. “She didn’t miss the flight. She was there in time to check in. She has not been rebooked on another flight.” And most importantly, it was because of actions by the DHS — one of the defendants in Dr. Ibrahim’s lawsuit — that Ms. Mustafa Kamal was not allowed to board her flight to SFO to attend and testify at her mother’s trial.
Ms. Pipkin said that Ms. Mustafa Kamal had sent her a copy of the “no-board” instructions which the DHS gave to Malaysia Airlines, and which the airline gave to Ms. Mustafa Kamal to explain as much as it knew about why it was not being allowed to transport her. Ms. Pipkin handed Judge William Alsup a copy of the DHS “no-board” instructions to Malaysia Airlines regarding Ms. Mustafa Kamal.
Major props to Malaysia Airlines for providing a copy of the DHS instructions to Ms. Mustafa Kamal. Other airlines receiving similar instructions have acquiesced to DHS orders to keep the instructions from the DHS, and the reasons for the airlines’ actions, secret from the would-be travelers whose rights are affected. So far as we know, this is the first time an actual no-fly order has been disclosed to a would-be traveler or potentially to the public.
International airlines are required to send a complete copy of each Passenger Name Record (PNR) to the CBP division of DHS, which processes PNRs through a black box to which one of the inputs is the set of U.S. government “watchlists”. [The term used throughout the trial was, "watchlist". But these lists aren't used solely as a "watching" or surveillance tool. They are also used as the basis for "no-board" orders to airlines, and other actions. We think "blocking lists" or "blacklists" would be more accurate labels for these lists.]
If the would-be traveler is “cleared” by this process (the default is, “No”), CBP responds by sending an individualized permisison message in the form of an electronic “boarding press printing result”. (Diagrams and video explaining this process.) Presumably, the page-long DHS message to Malaysia Airlines was some sort of supplement or follow-up to a “not cleared” boarding pass printing result regarding Ms. Mustafa Kamal.
It would have been one thing for the ten government lawyers in Judge Alsup’s courtroom to claim that they “had no knowledge” of any DHS actions to interfere with Ms. Mustafa Kamal’s flight to the U.S. and appearance at the trial. But the government went much further when Mr. Freeborne claimed that the government had “confirmed” that the DHS did nothing to deny Ms. Mustafa Kamal boarding.
But Judge Alsup noted that the document with the DHS instructions to the airline was not supported by any sworn testimony or evidence of its authenticity. “You have to have a sworn record before I can do something dramatic.” Judge Alsup said he would consider the document if and when Ms. Mustafa Kamal arrives in San Francisco and can testify as to its authenticity.
Ms. Pipkin said that Ms. Mustafa Kamal was reluctant to spend the money on another airline ticket to San Francisco without some assurance that this time she would be allowed to board her flight.
“Get her on an airplane and get her here,” Judge Alsup responded. “She’s a U.S. citizen. She doesn’t need a visa. I’m not going to believe that she can’t get on a plane until she tries again. ” And Mr Freeborne, with disingenuous faux-solicitude, claimed that the government is “willing to do whatever we can to facilitate” Ms. Mustafa Kamal’s ability to board a flight to the U.S.
Judge Alsup wasn’t willing to take any action today on unproven allegations or unverified documents. But he made clear that, “I am disturbed by this…. We’ll hear from her [Ms. Mustafa Kamal] when she gets here. If it turns out that the DHS has sabotaged a witness, that will go against the government’s case. I want a witness from Homeland Security who can testify to what has happened. You find a witness and get them here.”
Following these and a few other preliminaries, Ms. Ibrahim’s lawyers resumed playing excerpts from her deposition, recorded on video in London (because the defendants won’t allow her to come to the U.S. to testify in person) in July 2013.
Even for those in the courtroom who were already familiar with Dr. Ibrahim’s story, it was a compelling human drama. The defendants’ gaggle of lawyers pretended not to be moved by Dr. Ibrahim’s testimony, but many of them appeared to be struggling to maintain disinterested visages.
Dr. Ibrahim first came to the U.S. in 1983 as a college freshman on a Malaysian government merit scholarship based on her performance on competitive high school exams. She earned her bachelor’s degree in architecture at the University of Washington in Seattle, where she married a fellow Malaysian who was part of the same foreign-study scholarship cohort. Her eldest daughter Raihan (the one now trying to get back to San Francisco to testify at trial) was born in Seattle in 1987. She remained in the U.S. until after receiving her master’s degree in southern California in 1990, when she returned to Malaysia to practice as an architect.
Several years later, after transitioning back into academia as a lecturer at the Universiti Putra Malaysia (UPM), Dr. Ibrahim met Stanford University professor Boyd Paulson Jr., who invited and encouraged her to pursue a PhD at Stanford. Excited by the rare opportunity to have a member of its faculty obtain a doctorate from such a globally prestigious university, UPM insisted that she apply for the Stanford program, and arranged for four years of funding for her work toward a doctorate. That forced her to complete the Stanford program substantially more quickly than most students, who typically take six years or longer — but she succeeded.
Dr. Ibrahim returned to the U.S. after being admitted to Stanford as a doctoral candidate in architecture in 2000. When her funding from UPM ran out in 2004, her doctoral dissertation would have been complete except for delays caused by medical issues that eventually required major surgery. Prof. Paulson — her mentor, research partner, and thesis advisor — thought so highly of her that he cobbled together fellowship money to support her that fall until after her oral exams and oral defense of her thesis In December 2004.
(Professor Paulson died of cancer in 2005. Because of being barred from the U.S., Dr. Ibrahim was unable to see him before he died or attend his funeral, and has been unable to visit his grave as she would like to do.)
Although Dr. Ibrahim expected to have to return to Stanford and work face-to-face with some of her other advisers to finalize her thesis, her contract with UPM required her to return to Malaysia and resume teaching. Because she was still recovering from abdominal surgery, in pain (as she had been for months before the recent surgery) and under doctor’s orders not to lift more than 5 pounds, her younger daughter, then age 14, came from Malaysia to help her pack up for her move back to Malaysia.
Dr. Ibrahim and her daughter were at her apartment on the Stanford campus, surrounded by a mess of boxes, some packed and some not, when two FBI agents knocked on their door on December 23, 2004. The FBI agents (one of whom was the person who “nominated” Dr. Ibrahim for the “no-fly” list, for reasons she still doesn’t know), claimed that the INS had asked them to talk to Dr. Ibrahim. But the FBI agents said that they were not sure why the INS had asked them to talk to her, and they never asked to see her U.S visa or any of her U.S. immigration documents. “The first thing that came to my mind was that maybe the FBI was trying to recruit me as an informant,” Dr. Ibrahim testified.
The FBI agents asked about Dr. Ibrahim’s family, about her religious beliefs and practices and where she went to prayers, about her involvement with Muslim community organizations at Stanford (she was a volunteer with an interfaith spiritual care group supporting patients at the Stanford hospitals, several members of which have attended the trial in San Francisco this week) and other NGOs, and about her travel plans, all of which she told them.
The FBI agents also asked about whether Dr. Ibrahim was familiar with Jemaah Islamiyyah in Malaysia. She said she had heard of it only from reading online newspapers, but that from what she had read, it was an un-Muslim terrorist organization.
Later in her deposition, Dr. Ibrahim noted that since returning to Malaysia in 2005, she has become active in Jamaah Islah Malaysia, a non-profit professional networking group for Muslims who have returned to Malaysia after post-secondary schooling in the U.S. and Europe. The two groups have names that could easily be confused by non-Malays, and are sometimes referred to by the same acronym, “JIM”. But both are well-known and readily distinguishable to Malaysians. And the FBI agents who visited her in 2004 didn’t ask about “Jamaah Isla Malaysia”, the entirely innocent organization with which Dr. Ibrahim is now involved. This potential confusion is the only hint in the public record to date about any possible explanation, legitimate or not, for FBI “Special Agent” Kelly’s nomination of Dr. Ibrahim for inclusion on the “no-fly” list.
Ten days later, on January 2, 2005, Dr. Ibrahim and her daughter were scheduled to fly from San Francisco to Kona, Hawaii, where Dr. Ibrahim was to present a research paper at a conference, and then on to Malaysia after a 5-day stopover in Hawaii. Dr. Ibrahim testified that she had separate tickets from SFO to KOA (paid for by a Stanford grant) and from KOA via LAX to KUL (paid for by the Malaysian government, since UPM is a government university). So whatever access DHS had to her reservations and whatever “screening” and “watchlist” review she received at SFO should have been only that applicable to a domestic flight within the U.S. – she wasn’t on a through ticket or connecting through to an international flight.
Dr. Ibrahim was still weak and in pain, suffering from post-surgical complications, and under her doctor’s orders not to lift more than 5 pounds. Friends took her to the airport and carried her luggage for her, and she had requested wheelchair assistance from the check-in counter to the gate.
When Dr. Ibrahim tried to check in with United Airlines at SFO, airline staff called the San Francisco airport police, who arrested and handcuffed her in front of her daughter and about 50 other passengers. They drove her to the airport police station, locked her in a holding cell, threatened her (”Don’t make me angry. You won’t like me when I’m angry!”), delayed allowing her to take her prescribed pain and other medications, and gratuitously humiliated her in various other ways. About three hours later, they released her with a form indicating that they were “satisfied that there are insufficient grounds for making a criminal complaint.” They never told her why they had arrested her, or what (if any) criminal offense they had ever suspected her of.
At one point the police told Dr. Ibrahim that the FBI was sending agents to interview her, but nobody ever spoke to her that day who identified themselves as being from the FBI.
Notably, neither the San Francisco airport police nor the DHS “Aviation Security Inspector” (the title for those few TSA employees who are actually law enforcement officers) who visited her in the holding cell ever asked her about her visa or immigration status, or about anything related to terrorism or aviation security.
It seems clear that the police had no lawful basis for an arrest, which is why the City and County of San Francisco paid Dr. Ibrahim $225,000 to settle her claims against the police. The police arrested Dr. Ibrahim because someone told them that her name was on some list, not because someone told them that there was probable cause to suspect her of committing a crime. That someone’s name is on a list is not a lawful basis for an arrest, unless it is a list of individuals for whose arrest there are outstanding warrants, and unless there is actually a valid warrant for the arrest of that specific individual.
Similarly, the mere fact that someone’s name appears on a list labeled as a “no-fly list” is not a basis for the denial of their right to travel by common carrier, unless that list is a list of individuals with respect to whom there are valid outstanding court orders (injunctions or restraining orders) restricting their right to travel. The proper way to “nominate” someone for inclusion on a “no-fly” list is to apply to a Federal court for a “no-fly” order in the form of an injunction or a temporary restraining order.
The TSA inspector wouldn’t tell Dr. Ibrahim why her name had been on any FBI list (she was never told why her name had been on any list), but told her that her name had been removed from the no-fly list.
By the time Dr. Ibrahim was released by the police and taken back to the United Airlines check-in counter, she was shaking, crying, and too weak to stand. Since by that time she had missed the last direct flight to Kona for the day, she agreed to take a flight the next morning.
The people Dr. Ibrahim was dealing with face to face at the airport (once she was released by the police) were apologetic to her. But Dr. Ibrahim testified that, “No one should ever go through my experience just because the people in authority are simply doing their job. This is the worst excuse.”
The next day, she was allowed to fly to Kona, although there was a considerable delay when she tried to check in and she was subjected to more intrusive search as a “selectee” with a boarding pass flagged “SSSS”. The same thing happened when she flew from Hawaii back to Malaysia four days later. But at least she had been told that her name had been taken off the no-fly list.
In March 2005, she bought a ticket to fly back to San Francisco from Malaysia to confer with one of her thesis advisors about the last remaining chapter of her dissertation, and to discuss joint ventures between Stanford and UPM. For this trip, she had to pay for her own ticket, which cost about a month’s salary.
This time she went to the airport in Kuala Lumpur with her older daughter, Raihan Mustafa Kamal. (This is the incident about which Ms. Mustafa Kamal would testify as an eyewitness at the current trial.) When she tried to check in, the Cathay Pacific Airlines staff first told her they had gotten the message that they would have to get “clearance” from the U.S. Embassy before they could allow her to board, and then eventually told her that the U.S. Embassy would not allow her to fly to the U.S. because her student visa had been revoked.
This was her first notice that her U.S. visa had been revoked. She was never told when or why it was revoked.
The U.S. Embassy in Kuala Lumpur told her to apply to the TSA for “Passenger ID Verification”, which she did in March 2005. She got no response to this application until March 2006, a year later, when she got the standard noncommittal letter from the TSA saying that if any action had been deemed appropriate, it had been taken. She couldn’t tell if any of the records about her had been corrected or whether she had been removed from any list(s).
In September 2009, Dr. Ibrahim applied for another U.S. visa to attend legal proceedings in this case. At her visa interview at the U.S. Embassy in Kuala Lumpur, she was asked about why she was suing the government of the U.S., about her family, and about the nonprofit organizations with which she was involved.
Two months later, in December 2009, she was called back to the U.S. Embassy where she was given a form indicating that her visa application had been denied on the basis of Section 212(a)(3)(B) of the Immigration and Naturalization Act (”terrorism”).
Dr. Ibrahim hasn’t been able to visit the U.S. since 2005. When she completed her dissertation (she received her Stanford PhD in absentia), she had verbal expressions of interest for several postdoctoral fellowships in the U.S., and was in active discussions regarding collaboration with other Stanford researchers. Without being able to visit the U.S., she has been unable to pursue these and other significant professional opportunities, present papers at conferences in the U.S., or meet face-to-face with U.S. collaborators.
Some of Dr. Ibrahim’s research has commercial implications, and successfully commercializing research results is increasingly important for promotion within the UPM faculty. Not being able to travel to the U.S. and personally pitch investors has effectively denied her the ability to exploit the commercial potential of her research. The largest pool of venture funding is in the U.S., including Silicon Valley venture capitalists to whom she would have had access through her Stanford connections. Most investors are unwilling to invest in an innovative venture without meeting the lead inventor face to face, Dr. Ibrahim testified.
Finally, Dr. Ibrahim was asked, “What would you like to happen at the end of this lawsuit?”
“I would like to collaborate freely with colleagues in the U.S. and other countries,” she testified. “I would like my children not to hate America because of what happened to me…. I would like for nobody to have to go through what happened to me.”
In the cross-examination portion of Dr. Ibrahim’s deposition, the government’s lawyers asked about where else Dr. Ibrahim had traveled since 2005, and whether she had been arrested or detained at airports in any other countries. Dr. Ibrahim testified that she had taken at least 20 international flights, to countries on multiple continents, and had never had any problems with government authorities except in the U.S.
The government’s implicit point was that Dr. Ibrahim is still free to travel anywhere except to the U.S. (or on a U.S. flag airline or vessel). But this questioning could also support the inference that no other country in the world shares the U.S. government’s opinion that Dr. Ibrahim is too dangerous to be allowed to fly.
The government’s attorneys also asked Dr. Ibrahim, “Has anyone ever confirmed that you were on the no-fly list?” and “Has anyone confirmed that you are on any U.S. government watchlist?” The answer to both questions was, “No.”
Presumably, the intent of these questions was to lay the basis for a claim that Dr. Ibrahim can’t prove that it was actually the defendant’s fault that she was arrested and prevented from boarding a flight, despite having a valid ticket — as if any entity other than the government could have caused that to happen. More significantly, these questions help show that the real reason for the government’s refusal to confirm or deny who is on a watch list, or why, is not to protect security but to frustrate lawsuits like this one, and to protect administrative and police agencies against the possibility of judicial review.
On re-direct examination, Dr. Ibrahim was asked why she didn’t apply for a visa to visit the U.S. between 2005 and 2009. “I was afraid to go to the U.S. Embassy in Kuala Lumpur. It looks like a jail outside,” she testified. She went on to paint a picture of a place that feels like a jail inside, with intimidating guards and unwelcoming treatment of visa applicants. Dr. Ibrahim said she applied for a visa in 2009 only because it appeared that it would be necessary for her to come to the U.S. to attend and testify at hearings in this lawsuit.
For the remainder of today’s session of the trial, the court heard testimony (in the form of a video deposition) from Debra Lubman, an FBI “Special Agent” (all FBI agents are “Special”) who at the time of her deposition was the deputy director of the Terrorist Screening Center (TSC).
The courtroom was cleared of spectators during most of Ms. Lubman’s testimony, because it included information which the TSA has designated as “Sensitive Security Information”. But in the brief portion of Ms. Lubman’s deposition which was played in open court, she began to describe the procedures and criteria which were and are used for “nominating” and including individuals in the Terrorist Screening Database (TSDB).
According to Ms. Lubman, an FBI Special Agent would fill out an NCIC Violent Gang and Terrorist Organization File (”VGTOF”) form, which they would send to the Terrorist Watch and Warning Unit (TWWU), where an analyst would send it on to the National Counterterrorism Center (NCTC), which would in turn forward the nomination to the TSC, which would enter the name into the TSDB.
Alphabet-soup acronyms aside, the process testified to by Ms. Lubman sounded like a unidirectional conveyor belt, not a system of evaluation, review, or checks and balances.
Ms. Lubman was asked, “Were nominations subject to review by supervisors?”
“I don’t know if a supervisor looked at it” before it was passed on up the line, she testified.
“Reviewers” at the NCTC would check to see if the nomination met the criteria for nomination, but the only information they had to go on in conducting this “review” was the summary of derogatory information provided by the nominating FBI special agent. So they could check whether the allegations, if true, would meet the secret criteria for watchlisting, but would have no way to evaluate the truth or falsehood of those derogatory allegations.
The plaintiff’s case is scheduled to continue on Wednesday. Ms. Lubman’s video deposition will continue, most likely again in a closed courtroom, followed by in-person testimony of expert witness Jeffrey Kahn, author of Mrs. Shipley’s Ghost: The Right to Travel and Terrorist Watchlists.