Judge William Alsup convened day five of the trial in Ibrahim v. DHS — the first lawsuit challenging a U.S. government “no-fly” order to make it to trial — on Friday morning with the announcement that, “I received this additional material about the [plaintiff's] daughter and her attempts to come here.”
But as he said this, Judge Alsup noticed that lead counsel for both parties were still conferring in the corridor outside the courtroom. When they were brought in a moment later, Dr. Ibrahim’s lead attorney Elizabeth Pipkin came forward with an even more unexpected announcement: “We have told opposing counsel that we are considering the possibility of bar complaints against some of the attorneys on their team for their conduct during this trial.”
“There is some concern that on our team there have been some blatant misrepresentations made to the court,” one of the supervising attorneys for the Department of Justice team representing the government explained.
“I don’t know what you’re talking about,” Judge Alsup said. What exactly was he supposed to do?
Ms. Pipkin said she wasn’t asking Judge Alsup to do anything, and further volunteered that she had assured the government’s legal team that no such complaints would be made until after the conclusion of the trial.
But one of the government’s supervising attorneys told Judge Alsup she was concerned about compliance with internal rules of her agency that require that in cases where a supervising attorney is aware of the potential for bar complaints against a government lawyer, the supervisor is required to reassign that lawyer from the case while the possible complaint is pending.
That appeared to be an internal matter within the government’s legal team, and there didn’t seem to be anything for Judge Alsup to do. No announcement was made as to the departure of any of the government’s lawyers, but with a team one observer counted as ten lawyers and three paralegals before the bar on the defendants’ side, it was hard to keep track of whether one of them might have gone missing for the rest of the day.
Ms. Pipkin told the judge that, “We would prefer to take up the issue of the daughter first,” before closing arguments. “It’s integral to the case, and shows exactly what the issues are.” But Judge Alsup decided he wanted to get the closing arguments over with first, and scheduled a separate hearing regarding Dr. Ibrahim’s daughter after lunch. (See our separate report on that later hearing, which produced even more shocking revelations: “No-fly” trial, day 5, part 2: What happened to the plaintiff’s daughter? )
Each side to was allowed to make a 30-minute closing statement in open court, after which the courtroom was cleared and each side was allowed an additional 15 minutes to make arguments behind closed doors based on, or referring to, evidence that the government contends cannot be disclosed to the public.
“This case is about the right to travel freely, without government interference,” Ms. Pipkin began the public portion of her closing.
“Dr. Ibrahim is not able to be here because the government has not issued a visa for her to do so. She wants to maintain and enrich her ties to colleagues and institutions in the U.S. She has substantial ties to the U.S. But she has been unable to travel to the U.S. since 2005.”
Ms. Pipkin predicted — correctly – that, “The government will say that there’s been no real harm” to Dr. Ibrahim from the defendants’ actions because she’s been incredibly successful in her career and has been able to travel to other places. “But she has been denied access to the most important country in the world for research and scholarship. She wants to commercialize the patented inventions that she had made in her research, but she has been denied access to the most important center of entrepreneurship and investment in the world. She has been denied permission to travel to the U.S. to petition for redress of her grievances.”
Ms. Pipkin then walked through the evidence. Although she noted some issues she would only be allowed to address, or would address further, in her closed-session argument, she was allowed to refer in her public summary to some details of closed-session testimony that we hadn’t heard before.
Ms. Pipkin said that FBI special agent Kevin Kelley, who had testified in person but only in closed session, was responsible for “watchlisting” Dr. Ibrahim in 2004 before he ever met her. When he subsequently came to her house to question her, he asked her about her religion and her religious practices. And he had previously been involved in an FBI mosque-watching program.
[Ms. Pipkin used the government's term, "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.]
FBI Special Agent Debra Lubman, the former director of the Terrorist Screening Center (TSC), had made two important admissions, Ms. Pipkin said.
“Ms. Lubman concedes, as she must, that watchlisting has consequences in terms of visa decisions.” This was significant in terms of the government’s continued attempts to claim that since 2005 Dr. Ibrahim’s exclusion from the U.S. has been due solely to visa decisions in which her watchlist status was not a factor.
Ms. Pipkin said Ms. Lubman had admitted that watchlisting is intended to influence visa decisions, a point she would discuss further in her closed-session argument.
“Ms. Lubman also concedes that Dr. Ibrahim did not meet certain of the watchlisting standards,” a point she would also address further in closed session.
“We learned from Ms. Lubman that there were mistakes in the watchlisting process” with respect to Dr. Ibrahim. Specifically, “Ms. Lubman testified that FBI Agent Kelley Kelly named her to the wrong watchlist, and did not fill out the form correctly.”
Ms. Pipkin said Ms. Lubman also testified that, “She didn’t know if the TSC would ever conduct any substantive review of the evidence” underlying a watchlist decision, or if the TSC would only review FBI summaries of that derogatory information. And she confirmed that the only “redress” procedure is through DHS TRIP, a program operated by DHS, which does not make decisions about watchlists. (Those are made by the TSC.) But the TSC, which makes the decisions, does not do any additional factual investigation as part of TRIP to determine if “facts” are true.
Dr. Ibrahim was told in 2005 that she was taken off the no-fly list, but she has never been told why she was on any list. “It’s just like a mistake on a credit score. We all know how hard it is to get rid of that” and its lingering effects, Ms. Pipkin said.
Ms. Pipkin next reviewed the testimony of Prof. Jeffrey Kahn. “Professor Kahn testified that the TSC is responsible for the watchlists, but hidden from view…. You have to make a complaint through another agency that doesn’t have the power to remove you from the list. The TSC has established a law unto themselves.”
Ms. Pipkin said she would say more in closed session as to how the TSC’s “standards” for watchlisting were not followed, but there was no oversight of compliance with those standards.
“We learned from Professor Kahn that there is no limit to the use of watch lists. A watchlist could be used to keep people out of this courthouse, Your Honor. Prof. Kahn also testified that this is not the first time in U.S. history that travel restrictions have been imposed without due process. Each time, the threat has seemed extreme and existential, but courts have eventually stepped in….”
“We also heard from expert witness Prof. Shirin Sinnar, who told us how the low standard for watchlist in creates the opportunity for use of other improper factors. Both practices and policies allow use of criteria such as religion and national origin.”
With respect to the testimony in both closed and open session of Sean Cooper of the State Department, Ms. Pipkin pointed out that Mr. Cooper had admitted that he was not the person who adjudicated Dr. Ibrahim’s visa applications. He had reviewed the files, but he knew only what had been recorded in the files as to the basis for the decisions, which didn’t necessarily reflect the actual motives of the decision-makers.
Ms. Pipkin said Mr. Cooper had admitted that in the process of review by the State Department of whether Ms. Ibrahim’s visa application should be denied on “security” grounds, other agencies including the TSC were consulted. Why would the TSC be consulted if it were true that, as Mr. Cooper claimed, TSC watchlist status has no bearing on visa decisions?
“The watchlist system affects every American. What happened to Dr. Ibrahim could happen to any of us. Your Honor may not know that Nelson Mandela was on a U.S. watch list. [He was taken off that list only by act of Congress in 2008.] Dr. Ibrahim’s daughter has been caught up in this, and she’s a U.S. citizen,” Ms. Pipkin concluded her public remarks.
We have to confess that there were so many players on our scorecard of the government defendants’ legal team that we’re not sure of the name of the lawyer who gave their closing argument.
On behalf of the government, he began by saying that the denial of boarding to Dr. Ibrahim in January 2005 was a “regrettable mistake” (as close to an apology as she has ever gotten), but that it was “fixed that day” and she was subsequently able to fly to Hawaii and back to Malaysia.
The question, the government argued is, “Has she suffered harm that would warrant injunctive relief? She has not shown such harm… Since that day she has been allowed to travel to many countries. In none of those countries has she been denied boarding, arrested, or even delayed.” [Scarcely surprising, since none of those trips were to the U.S. -- she was denied boarding when she tried to come back to the U.S. in March 2005 -- and there's no evidence that any of those trips were on U.S. carriers, as Ms. Pipkin had pointed out.]
“The only place that she can’t travel is to the U.S.,” the government argued., “and that’s because she doesn’t have a visa,” a fact which the government says is not subject to judicial review.
Moreover, the government claimed, “There is no causal connection between watchlisting and visa determinations. We’ve heard evidence that an individual can be on a watchlist and receive a visa.”
“Nor has Dr. Ibrahim suffered any stigma for being on a watchlist,” contrary to Dr. Ibrahim’s own testimony. “There has to be some sort of publicizing or disclosure of the watch list status in order for it to be a source of stigma. But the government has never disclosed Dr. Ibrahim’s status on any watchlist, and never discloses the status of any individual on any watchlist. The government protects the secrecy of that information, “which protects the individual against any possibility of being stigmatized for it.
The government next argued that due process is a balancing test. In order to prevail in this lawsuit, Dr. Ibrahim “must show that due process requires some additional or substitute procedures” that would meet that test when balanced against the “unwarranted harm to the national interest” that they would cause.
The government described what it said were “checks and quality assurances” in the watch listing process:
- “Nominations” of individuals for inclusion in the TSDB are reviewed by the TSC before they are “accepted”. [That gives new meaning to "accepting a nomination", doesn't it?]
- Watchlist status is reviewed after any “encounter” with an individual.
- Any individual who believes they have been improperly placed on a watch list can submit a request for “redress” through the DHS TRIP website.
[All of these "checks" consist either of review by the same entity that made the original decision, or by an entity -- such as DHS TRIP with respect to watchlist decisions made by the FBI and/or TSC -- with no authority to overrule the decision.]
At this point, Judge Alsup interrupted to ask a hypothetical question about the process. Suppose there’s some wrong information in a file that suggests that someone is a Communist, and as a result they get put on a watchlist. They apply for redress, and say, “I’m good person. I’ve never done anything wrong.” If they don’t know that they’re on the watchlist because they have been accused of being a Communist, how do they know to say, “And by the way, I’m not a Communist”?
“I can see that DHS TRIP would clear things up in the case of misidentification.” But how does the TRIP process allow the aggrieved party to address the secret information. “How does a person know that there is an improper reason that they would need to try to rebut?”
The government answered that the DHS will review the file. “The problem [with informing the individual of the reason for the watchlisting decision] is that DHS can’t confirm or deny that any particular person is on a watchlist.” The argument implicit in the government’s answer is that the government’s “problem” disclosing this information is more important than any problems being on a watchlist might cause to an individual.
“But suppose someone is on the no-fly list because they’re accused of contributing money to Al Qaeda,” Judge Alsup wanted to know. “But they didn’t contribute any money to Al Qaeda. They hate Al Qaeda. They raise the flag and salute it in their front yard every day. How is that person supposed to know to send in an affidavit to say, ‘I hate Al Qaeda?’”
The government responded that it simply “can’t” reveal that information. “It’s the policy of DHS that we can’t reveal that in any circumstances.”
“So how do we then deal with the case of the innocent person who is believed to be a contributor to Al Qaeda,” Judge Alsup still wanted to know?
The government’s lawyer again began to describe DHS TRIP, but Judge Alsup cut him off. (This and the rest of these colloquys are from our notes, as we don’t yet have the transcripts):
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.
After this history lesson, Judge Alsup allowed the government’s lawyer to finish the public portion of his closing argument:
There’s no right for a non-citizen to challenge their visa denial in court. The right to a visa is not a fundamental right. There’s no evidence of targeting of individuals on the basis of religion or nationality. The Terrorist Screening Database doesn’t even have a field for the subject’s religion, so religion couldn’t be a factor in TSDB decisions. When FBI agents visited mosques, they weren’t “investigating” those mosques — they were “offering themselves” as points of contact to help with any “concerns” that Muslims might have. And at the end of the day, courts simply cannot adjudicate watchlisting or visa decisions.
In rebuttal, Ms. Pipkin argued that in one of the two previous decisions by the Court of Appeals in this case (before it even got to trial!), the 9th Circuit decided that Dr. Ibrahim should be treated for purposes of this case as having the same due process rights as a U.S. citizen, in light of her connections to Stanford, her extensive contact with the U.S., and the fact that she was living in the U.S. at the time of the original events. The impact on her U.S.-citizen daughter provides additional grounds for this. That decision in this case by the 9th Circuit allows the District Court to consider the issue of Dr. Ibrahim’s visa.
Ms. Pipkin listed other ways that Dr. Ibrahim could be harmed by being on a watchlist, even if she could obtain a visa. Even if she were to get a visa, she would have to be vetted through TECS [the database which includes the Automated Targeting System], so she could still be stopped and turned back at a border or point of entry. [It was the government itself that argued throughout the trial that a visa is not an entry permit, but merely "permission to approach the border or port of entry and ask to be let in"]. Or the government could call ahead to Kuala Lumpur and say, “She’s not going to be admitted, so don’t even let her on the plane.” [Which is essentially what did happen to her daughter, despite her being a U.S. citizen.]
Ms., Pipkin pointed out that, “The government keeps saying that she is not barred from getting a visa. But she’s now tried, twice, to get a visa, and both times she was not successful.”
“When the government says, ‘redress,’, they are saying, ‘Just trust us. We’ll review everything we did on our own. We don’t need any oversight.’ That’s not how due process works,” according to Ms. Pipkin.
As for the the need to keep all this secret, Ms. Pipkin said that, “The government is already revealing who is on watchlists by stopping people at the border.” If someone is stopped with no other reason, they know they are on a watchlist.
Judge Alsup asked both sides, in their post-trial briefs, to address two issues:
- Is there any recent decision of a Court of Appeals (or the Supreme Court) regarding revealing the nature of the allegations against an individual to that individual? “I think the answer is no, there is no such case, but I want to know.”
- Are there alternative procedures that could be used to satisfy the requirements of due process without unduly compromising the government’s legitimate interests? “I am particularly interested in the problem of someone in Robert Oppenheimer’s position, who is accused of something false.”
At this point Judge Alsup ordered the courtroom cleared for the “secret” portion of each side’s closing arguments.”I apologize again to the press and the members of the public for having to ask you to leave…. I don’t believe that the SSI [Sensitive Security Information] is really that sensitive, and I believe that it’s a mistaken public policy to exclude you, but for the time being I have no choice.”
Both sides had rested, but the trial may be re-opened as a result of Friday afternoon’s hearing on what happened to Dr. Ibrahim’s daughter: “No-fly” trial, day 5, part 2: What happened to the plaintiff’s daughter?