“No-fly” trial: What happens now?

Today lawyers representing Dr. Rahinah Ibrahim in the first lawsuit challenging a no-fly order to make it to trial filed a notice with the court in San Francisco that they would not seek to re-open the case to present more evidence from and/or regarding Dr. Ibrahim’s daughter, Raihan Mustafa Kamal.

Ms. Mustafa Kamal, who unlike her mother is a U.S. citizen, was with her mother on one of the occasions when she was denied boarding, and was to have been a witness in her mother’s case. But Ms. Mustafa Kamal was herself denied boarding at the behest of the CBP (one of the defendants in the case) when she tried to fly from Malaysia, where she lives, to San Francisco for the trial last week.

In today’s filing, Dr. Ibrahim’s lawyers said that

At the closed hearing on Friday, December 6, 2013, regarding the travel difficulties of plaintiff’s daughter, Raihan Mustafa Kamal, the Court allowed plaintiff the opportunity to consider whether to re-open evidence for Ms. Mustafa Kamal to testify. Because of concerns about the safety and liberty of Ms. Mustafa Kamal were she to attempt to travel to the United States, plaintiff elects to proceed on the evidence presented at the trial, with one caveat that plaintiff mentioned at the hearing on Friday. [emphasis added]

The most obvious potential concern for Ms. Mustafa Kamal is that she might be allowed to fly to the U.S., but then not allowed to return to Malaysia, where she lives and works.

The “caveat” mentioned in today’s filing is that Dr. Ibrahim’s lawyers want to be allowed to refer to the evidence about what happened to Ms. Mustafa Kamal as evidence relevant to what happened to her mother:

Ms. Mustafa Kamal’s status and the effects of [it] are relevant to Dr. Ibrahim’s right to travel. The government has denied the very adverse effects for Dr. Ibrahim that Ms. Dugan’s testimony proves in fact occur.

We are extremely grateful to the anonymous reader who came forward with an offer to pay for a ticket for Ms. Mustafa Kamal — who said in her declaration that she could not afford another one — if she wanted to make another attempt to fly to San Francisco to testify in person. We were able to communicate that offer to Dr. Ibrahim’s payers before they filed their notice with the court today.

Friday’s hearing with respect to Ms. Mustafaf Kamal was closed to the press and public, and no orders from the court have been made public with respect to any of the issues it might have raised.

[Update: On Tuesday, Dec. 10, 2013, Judge Alsup requested further briefing, to be completed by December 20th, on whether the evidence concerning what happened to M.s Mustafa Kamal can be considered by him in reaching his decision in Dr. Ibrahim's case.]

Judge William Alsup has ordered each side to file proposed findings of fact and law by this Friday, December 13, 2013. He has also requested additional briefing on which categories of information claimed by the government to be “secret” can be accepted as evidence, and which of that evidence can be made public. The brief on this issue from Dr. Ibrahim’s lawyers is especially interesting.

Judge Alsup reserved judgement on many of these issues related to government claims of “secrecy”. He could still decide to exclude some evidence previously admitted provisionally, or to make public some exhibits filed under seal and/or transcripts of some portions of the trial for which the courtroom was cleared.

Judge Alsup could schedule additional oral argument on any of these issues, but normally a judge who has heard such a bench trial would issue a written opinion, without further hearing, some weeks or months later.  There is no deadline or standard schedule for the issuance of such an opinion.

Reports on the trial in Ibrahim v. DHS:

    Court records:

    Updates and other articles:

    10 Responses to ““No-fly” trial: What happens now?”

    1. Tom Betz Says:

      The Internet Archive reports the link to “The brief on this issue from Dr. Ibrahim’s lawyers” “has a problem with one or more of the metadata files that describe it, which prevents us from displaying this page.”

      You may want to look into it.

    2. bob Says:

      Thanks for all of your hard work and reporting.

    3. Edward Hasbrouck Says:

      @Tom Betz - Thanks for letting us know. We don’t know what’s up with the Internet Archive mirror, but we’ve uploaded a local mirror copy and switched the link to point to it.

    4. David Says:

      It seems to me that we must already live in a Totalitarian society if we are afraid to bring a citizen home to the US because we fear the Government will then not allow her to leave again…

    5. Anonymous Says:

      “Someone” allowed a secret police (DHS) to be created and now due to well-designed policies there is nothing that can be done to fix the machine. Good thing we have this alternative medium that cannot be “policied”.

    6. Richard Says:

      Thanks for all you’re doing. If you have time you might want to post a summary on truth-out.org. This site has some off the wall essays, but others are dead on, and it’s at least a way of getting more information out. Of course there hasn’t been a whisper about this trial in the US press.

      Incidentally, heard a story that a petition demanding accountability (regarding scanners, I think) against the TSA was posted on the White House site. To get a comment from the WH you need at least 25000 signers. Apparently they reached 22,500 and an article appeared in “Wired” encouraging readers to sign. At that point the petition mysteriously disappeared. If true it shows what we’re up against. But giving up is worse.

    7. Papers, Please! » Blog Archive » Briefs on issues remaining after “no-fly” trial Says:

      [...] that the “no-fly” trial in Ibrahim v. DHS et al. is over, what’s the [...]

    8. Papers, Please! » Blog Archive » Judge orders more disclosure about what happened to daughter of plaintiff in “no-fly” trial Says:

      [...] Kamal time to make another attempt to travel to the US to testify. But Dr. Ibrahim’s lawyers declined that offer: At the closed hearing on Friday, December 6, 2013, regarding the travel difficulties of [...]

    9. Papers, Please! » Blog Archive » Does a US citizen need the government’s permission to return to the US? Says:

      [...] on time, but , but was denied boarding as a result of an email message from CBP to the airline. She wasn’t booked on any other flight, and she never made it to her mother’s [...]

    10. Papers, Please! » Blog Archive » UN Human Rights Committee review of US implementation of the ICCPR: Day 1 Says:

      [...] While this point wasn’t made today, the most unambiguous evidence that the US is, in this regard, misinterpreting the treaty, is the guarantee in Article 12 of the ICCPR (freedom of movement) of the right of citizens of any country to return to the country of their nationality. By definition, anyone seeking to exercise this right is outside the country of their nationality. This right of return would be meaningless, and there would have been no reason to include it in the ICCPR, if the treaty itself was, as the US claims, inapplicable to actions whose harmful effects are visited on people outside US borders. Eggregious recent examples of violations of this right by the US include US citizens Gulet Mohamed (placed on the “no-fly” list while visiting family abroad as a teenager, and detained and tortured when he was unable to return to the US before hsi visa expired) and Raihan Mustafa Kamal (US-citizen daughter of the plaintiff in the first trial of a case challenging the “no-fly” list, who the US government induced airlines to refuse to allow to travel to the US to observe and testify as a witness at the trial on her mother’s case, and who now says she is afraid to return to the US. [...]

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