[Courtroom sketches of Judge Alsup (left, rear), plaintiff’s expert witness Prof. Sinnar (top right), Special Agent Lubman (FBI Terrorist Screening Center, center right), and Mr. Cooper (State Department, lower right) by kind permission of Jackson West, jacksonwest.com. Some rights reserved, CC BY 3.0 US.”]

Day four of the trial in Ibrahim v. DHS — the first lawsuit challenging a U.S. government “no-fly” order to  make it to trial — went forward with both the plaintiff Dr. Rahinah Ibrahim, and her daughter and potential witness Raihan Mustafa Kamal, still absent from the courtroom. Each of them was unexpectedly denied boarding for flights from Kuala Lumpur to San Francisco the last time they tried to fly to the U.S., Dr. Ibrahim in March 2005 and Ms. Mustafa Kamal this past Sunday.

Today was more Kafka than Orwell. The reasons why the two women were denied boarding and were still missing from Judge William Alsup’s courtroom despite their respective roles as plaintiff and potential witness were the main issues today — at least so far as the public could tell from what was said and which exhibits were displayed during those times when the courtroom wasn’t cleared of spectators.

Judge Alsup continued to apologize to the members of the public in attendance each time he ordered the courtroom cleared. While he has provisionally sealed the transcripts of the closed sessions, he is explicitly reserved judgment on whether some or all of those transcripts will eventually be made public.

Before the first witness could be called this morning, one of the government’s lawyers came forward to advise Judge Alsup that her client had provided Dr. Ibrahim’s lawyers with a copy of what was described as a “travel letter” addressed to air carriers, informing airlines that Ms. Mustafa Kamal is a U.S. citizen and is free to travel to the U.S. by air.

This begs the question, of course, of why a U.S. citizen would need such a permission letter, why freedom to travel wouldn’t be the default, or whether someone is “free” if they need a permit from the government.

Part of the answer lies in the fact that, as most Americans don’t realize but as we discussed in relation to the testimony yesterday of expert witness Prof. Jeffrey Kahn, everyone including U.S. citizens now needs U.S. government permission to board any flight to, from, or within the U.S.

“Normally” (if one can consider the current system to have become normal), U.S. government permission is provided, invisibly to the traveler, in the form of a boarding pass printing result transmitted electronically to the airline’s reservation system in response to the transmission to the DHS of the would-be traveler’s reservation details.  But now that the default has been changed from “yes” to “no” (or, more precisely, from “fly” to “no-fly”), and the U.S. government has deemed travel to be a privilege rather than a right, a government permission-to-travel letter might be needed not just to override prior erroneous or superseded no-fly instructions, but to ensure that an individual would be allowed to board in the absence of the usual electronic boarding pass printing instruction from DHS.  Why the normal permission message wasn’t or wouldn’t be forthcoming for Ms. Mustafa Kamal, and a “yes-fly” letter might be needed, we still don’t know.

At the end of today’s court session, the defendants’ lawyers provided Dr. Ibrahim’s lawyers with a  declaration regarding what they described as Ms. Mustafa Kamal’s “travel difficulties”. That’s something of an understatement for being denied boarding on a long-haul flight, without prior notice or any explanation, at the behest of an agency of one’s own national government.  Nothing was revealed as to the substance of that declaration, which Judge Alsup allowed to be filed under seal, at least for the time being.

The declaration concerning Ms. Mustafa Kamal was said to have been executed under penalty of perjury by Maureen Dugan, Acting Director of the National Targeting Center (NTC) operated by U.S. Customs and Border Protection (CBP), a component of the Department of Homeland Security (DHS).

The NTC maintains the CBP Automated Targeting System (ATS), the primary DHS database of individualized lifetime travel history dossiers. Every international traveler to and from the U.S.  has an ATS file, regardless of whether  they are a U.S. citizen and whether they are under any suspicion or listed on any “watchlist”. It is through the NTC that “fly/no-fly” decisions are translated into messages to be passed on to airlines.  [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.]

“I saw that e-mail that definitely suggested that DHS did something,” Judge Alsup said, referring to the “no-fly” order from the DHS to Malaysia Airlines which was shown to him by Dr. Ibrahim’s lawyer on Tuesday. “Will there be a witness here who can explain that?”

The government’s lawyer said Ms. Dugan will be available in person in court in San Francisco on Friday to testify concerning why Ms. Mustafa Kamal wasn’t allowed to board her flight in Kuala Lumpur last Sunday. Judge Alsup scheduled Ms. Dugan’s testimony to be the first item of business at 7:30 Friday morning.

The government’s lawyers indicated, however, that they would ask Judge Alsup to clear the courtroom during Ms. Dugan’s testimony, because it might reveal an individual’s current status on, or not on, a watchlist.

The government has moved to prohibit disclosure to the plaintiff herself of her watchlist status, on the grounds that this is “Sensitive Security Information”.  But Judge Alsup said that watchlist status didn’t appear to be one of the 15 categories of information enumerated in the SSI regulations (49 CFR §1520.5).

“You said in your brief that the watchlist status of an individual is in the statute as SSI, but I can’t find it on this list,” Judge Alsup told the government. “Is watchlist status in the penumbra of the statute?… I don’t want there to be this general blather. You’re going to have to tell me which of these 15 factors covers individual status on watchlists,” or document that there’s been a proper designation of this information, “dotting all the i’s and crossing the t’s”, under the 16th catch-all category of SSI.

Judge Alsup noted that Dr. Ibrahim’s lawyers had been cleared to know her watchlist status, but weren’t allowed to tell their client:

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.

Judge Alsup ordered further briefing on whether watchlist status could be disclosed to the party to the lawsuit (Dr. Ibrahim) herself, directing the government to specify the applicable item on the list of categories of SSI and document exactly how this item included individual watchlist status. [Here is that brief as filed later Thursday by the government, which we recommend reading for the scope of its claims of secrecy.]

After these preliminaries, Dr. Ibrahim’s lawyers called their final witness, Professor Shirin Sinnar of Stanford Law School.  Prof. Sinnar had met Dr. Ibrahim casually in 2001 through the Islamic Society at Stanford, but testified as an expert on national security and counterterrorism law.  She was volunteering her expertise without pay, and her testimony and opinions were based entirely on public documents.

Prof. Sinnar’s testimony mainly served to support Dr. Ibrahim’s claim that she was improperly targeted on the basis of her religion and/or national origin.

Prof. Sinnar testified that the “reasonable suspicion” standard for watchlisting is “low and vague. This facilitates use of racial, ethnic, and religious criteria. No policy prohibits any use of race, religion, or national origin” in making watchlisting decisions.

Prof. Sinnar noted that guidance provided by the Department of Justice in 2003 prohibits reliance on religion or national origin in routine law enforcement investigatory decisions, but completely excludes national security and border activities from those restrictions on the use of religion or national origin.

In national security matters, Prof. Sinnar said that FBI guidelines only prohibit use of these criteria as the sole basis for investigatory decisions, but allow their use as primary or dominant factors in making investigatory decisions (as long as their is even a scintilla of other evidence).

There are numerous examples of surveillance and investigation of Muslims and Muslim organizations in this period, Prof. Sinnar testified. She noted that government surveillance and investigation of Muslims was specifically stepped up in the fall of 2004, which is when Dr. Ibrahim was visited by the FBI agent who “nominated” her for the no-fly list as a suspected terrorist.

As evidence of impermissible religious bias, Prof. Sinnar cited training materials used at this time which taught FBI agents that the more devout a Muslim is, the more likely they are to be associated with terrorism.

Prof. Sinnar also noted that overt reliance on religion or national origin could be evaded through the use of criteria that were strongly correlated with, and served as effective proxies for, these criteria, such as travel or residence in particular countries. After September 11, the INS “special registration” program was explicitly based on national origin, and 24 of the 25 countries whose nationals were included in this program were majority Muslim. Some other later FBI interview programs had explicitly been based on national origin.

The plaintiff’s attorneys rested their case after Prof. Sinnar’s testimony, and the government defendants immediately moved for a directed verdict dismissing the complaint on the grounds that the plaintiff had failed to present sufficient admissible evidence (taking into consideration the government’s objections to the admissibility of “state secrets”, even if they were publicly known from other sources) to satisfy her burden of proof.

Ms. Pipkin responded that the plaintiff had presented sufficient evidence to show that:

1. She was improperly placed on a TSDB watchlist as suspected of being associated with terrorism;
2. The watchlist and “redress” procedures lacked due process; and
3. She was profiled on the basis of her religion and national origin.

Judge Alsup denied the motion for a directed verdict, without prejudice. “I want to hear all the evidence” before I make a decision, he said.

Next came the defendants’ case-in-chief. The defendants called two witnesses, both government employees who had already been called by the plaintiff as the designated representatives of their agencies.

FBI Special Agent Lubman of the Terrorist Screening Center (TSC) described the legal basis (such as it is) for the TSC and the Terrorist Screening Database (TSDB). “I apologize to the reader of the transcript for all these acronyms,” Judge Alsup interjected at one point.  The TSC and TSDB were established by a series of executive orders, “Homeland Security Presidential Directives” HSPD6, HSPD11, and HSPD24.

That may sound like a legal nicety of no real significance, but it’s actually indicative of something significant: the usurpation by the executive of legislative and judicial functions that’s implicit in having decisions to restrict the exercise of rights be made by executive or administrative fiat.  There was no mention in Ms. Lubman’s testimony or that of any of the other government witnesses of any accountability to legislative constraints or judicial review.

In fact, when Ms. Lubman was cross-examined as to whether there is any statutory basis for the actions of the TSC, she seemed genuinely puzzled, as though the need for statutory authorization for executive action had never occurred to her. “I’m not certain if there is any statutory authorization…. I believe it’s based on executive order. That’s the only way to make the system work,” she said. Watchlist guidance for the TSC comes directly from the White House national security staff, not even from the FBI or DHS.

But there’s no need to worry about unchecked executive power. According to Ms. Lubman, “There are many levels of review throughout the watchlisting process to make sure it meets the reasonable suspicion standard.”

What does that “review” consist of?  Ms. Lubman testified that an individual who believes that they might have been “improperly” watchlisted (how can they know, when the criteria for “proper” watchlisting are secret?) can submit an application for “redress” through the DHS “Traveler Redress Inquiry Program” (TRIP).

Ms. Lubman testified that when the DHS receives a TRIP form, and determines that it concerns an actually watchlisted individual rather than an individual who has been misidentified as someone else on a watchlist, a de novo review of the watchlist entry is conducted by… the same agency that made the original watchlist decision.

In other words — words that Ms. Lubman didn’t use, of course — the TRIP application for “redress” functions solely as a petition for ex parte rehearing, not as an appeal. The “review” is neither adversarial nor conducted by an entity independent from the original decision-maker.

On cross-examination, Ms. Lubman made explicit that there is no notice to the individual as to what information forms the basis for any decision, and no opportunity to be heard or introduce evidence to rebut that information.

Ms. Lubman said that an individual cannot be included on a watchlist  solely on the basis of religion or activity protected by the First Amendment. But that leaves open the possibility that an individual could be watchlisted on the primary basis of those invidious criteria, as long as there is even the slightest other secondary or tertiary basis for the decision.

The government’s final witness, following further secret testimony by Ms. Lubman in a cleared courtroom, was Sean Cooper of the State Department’s Visa Office.  Mr. Cooper hadn’t actually played any role in any of the decisions regarding Dr. Ibrahim’s visa applications, but he was designated to review the State Department’s files related to Dr. Ibrahim and speak for the State Department in this trial.

One of the government’s answers to Dr. Ibrahim’s complaint, which was reiterated in the government’s opening statement at trial, is that Dr. Ibrahim’s status on the US government’s no-fly list is moot, and in any case harmless, because she doesn’t current have a valid U.S. visa. Without a visa, she wouldn’t be allowed to board a flight to the U.S., regardless of whether she were on the no-fly list.

For what it’s worth, being on a U.S. no-fly list could have adverse consequences even for someone who isn’t trying to enter the U.S. U.S. carriers are required to vet all passengers on all their routes worldwide — even routes between points outside the U.S. — against the U.S. no-fly list.  Dr. Ibrahim wouldn’t need a U.S. visa to travel from Singapore to Hong Kong, a route on which United Airlines has daily nonstop service and local traffic rights.  But she wouldn’t be allowed on that United Airlines flight if she was on the U.S. no-fly list.  Other countries including Canada already require airlines serving their countries to enforce U.S. no-fly orders, and the U.S. is working actively to persuade more countries to do likewise. The same story this week in one of the major Malaysian newspapers that reported on Dr. Ibrahim’s trial also reported that the Malaysian government is in the process of setting up its own no-fly list, to include information “shared” with other countries potentially including the U.S. So if Dr. Ibrahim is on the U.S. no-fly list, she could find herself barred from air travel to, from, or within her own country.  Like his U.S. counterparts, a Malaysian official “declined to comment…  when asked about the criteria for placing suspects on [the] list.”

It wasn’t clear to us, at least from the portions of Mr. Cooper’s testimony in open court, what the government was trying to establish through his testimony. Hovever, that testimony and the documents Mr. Cooper introduced did give us a clearer picture of Dr. Ibrahim’s U.S. visa history.

In September 2000, the State Department issued Dr. Ibrahim a five-year multiple entry student visa.  That visa remained valid even after Dr. Ibrahim’s visit from FBI agent Kevin Kelley in December 2004, false arrest at the airport in San Francisco,  and successful flights to Hawaii and then back to Malaysia in the first week of 2005.

At that point Dr. Ibrahim had been explicitly told by the DHS “Aviation Security Inspector” at SFO that her name had been removed from the no-fly list. That seemed to be confirmed by the fact that she had subsequently been allowed to fly on both domestic and international flights.  Nothing in been said to her about any change in her visa status.  She had every reason to assume that whatever “mistake” might have been made had been corrected, and had no reason to think that she needed to do anything further, other than buying an airline ticket, in order to come back to the U.S.

But according to evidence presented by Mr. Cooper, Dr. Ibrahim’s visa was officially revoked by the Deputy Assistant Secretary of State on January 31, 2005.  It’s unclear to us, from the evidence and testimony presented in open court, whether this occurred just before or just after the U.S. Embassy in Kuala Lumpur received a formal diplomatic note from the Malaysian foreign ministry requesting an explanation from the U.S. government for Dr. Ibrahim’s mistreatment at SFO.

No notice of the revocation of Dr. Ibrahim’s visa was provided to her, however, until April 14, 2005, several weeks after she had been denied boarding when she tried to come back to San Francisco in March 2005.

Mr. Cooper stressed in his testimony that the “revocation” of a visa does not constitute a final determination of ineligibility to apply or receive a new visa. Since receiving notice of the revocation of her previous visa, Dr. Ibrahim has twice applied for visas to travel to the USA, once in 2009 for a planned deposition in her lawsuit, and the second time in September 2013 to attend her trial this week.

Dr. Ibrahim’s 2009 visa application was eventually denied on the grounds that she was ineligible for a visa to the U.S. because of some association with terrorism. The basis (if any) for this determination was not mentioned in open court, although Mr. Cooper gave an elaborate explanation of the procedures that are supposed to be followed in making such a determination on the basis of classified “derogatory” information.

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 ineligibility” 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.

Dr. Ibrahim was interviewed at the U.S. embassy in K.L. in October 2013 concerning her September 2013 application. “I’d like to know what happened,” Judge Alsup said. “It would be better if she were here.” But Mr. Cooper didn’t know. Ms. Pipkin said she had heard nothing, but that her client would surely have told her if she had received a visa. That left it uncertain whether Dr. Ibrahim’s latest visa application was denied or is still being considered (although effectively denied by the delay, at least for purposes of this trial).

On Friday morning, Ms. Dugan’s testimony regarding Ms. Mustafa Kamal is scheduled to be followed by closing arguments on the issues remaining to be decided by Judge Alsup. These include numerous questions of admissibility and sealing from public view of portions of testimony and exhibits, on which Judge Alsup reserved his decisions until after all evidence had been proffered.

Judge Alsup has allotted each side 30 minutes for closing argument in open court, to be followed by 15 minutes of argument in closed court concerning issues which the defendants still claim — over the plaintiff’s continued objections — cannot be mentioned before the public and press.