Archive for the ‘Secret Law’ Category

Is it a “state secret” that the no-fly list is unfair?

Monday, July 14th, 2014

Faced with a series of decisions by federal District Court judges that the procedures for putting names on the “no-fly” list lack the due process of law required by the Constitution, and with more no-fly and “watchlist” (blacklist) cases on track toward trial, the government is trying to claim that the basis (if any) for putting a US citizen on the no-fly list is a “state secret” exempt from judicial review.

The case of Gulet Mohamed, a Virginia teenager who was placed on the US no-fly list while he was visiting family members overseas, is one of the most egregious examples of the FBI’s systematic abuse of the no-fly list. It appears that Mr. Mohamed was placed on the no-fly list in order to pressure him to become an FBI informer, as was done with many other US citizens. When Mr. Mohamed’s visa expired and he couldn’t fly home to the USA, he was taken into immigration detention in Kuwait, where he “was repeatedly beaten and tortured by his interrogators,” one of whom spoke “perfect American English.”

After a series of government attempts to get Mr. Mohamed’s complaint dismissed for on jurisdictional and other grounds were rejected, the case was set for the first trial ever on the merits of a no-fly order. (The government had avoided such a trial in the case of Dr. Rahinah Ibrahim by conceding, on the eve of trial, that her initial placement on the no-fly list had been an FBI mistake.)

At this point, however, the government has invoked the “nuclear option” by moving to dismiss Mr. Mohamed’s complaint on the basis of a declaration by Attorney General Eric Holder that the reason (if any) why Mr. Mohamed is on the no-fly list is a “state secret” and that it would endanger national security to allow the court to review the no-fly decision or the evidence (if any) supporting it.

Attorney General Holder made similar claims in a declaration in Ibrahim v. DHS et al. In that case, it turned out that Dr. Ibrahim placed on the no-fly list because an FBI agent left blank a box he should have filled in on a “negative check-off” no-fly and watchlist nomination form.  Atty. Genl. Holder’s previous claim that disclosing this mistake would gravely endanger national security casts severe doubt on the credibility and reliability of his subsequent similar claims in other cases such as that of Mr. Mohamed.

Attorney General Holder is among the named defendants in Mohamed v. Holder, as he was in Ibrahim v. DHS et al. Granting his and the government’s motion to dismiss the case on the basis of his unverified (and by its own terms unverifiable) declaration would give him de facto immunity from any civil lawsuit he, in his sole discretion and without judicial review, chooses to ask to have dismissed on this basis.

The government has attached a policy statement issued by Holder in 2009 to his latest declaration in Mohamed v. Holder.  According to that policy, claims of “state secrets” won’t be used to conceal government misconduct. But that is exactly what Holder himself did in Ibrahim v. DHS.

In Mr. Mohamed’s response to the government’s latest motion to dismiss his complaint, he points out that the court doesn’t need to disclose or consider the evidence (if any) against him in order to determine whether the ex parte administrative procedure for putting his name on the no-fly list is unfair.

If someone is locked up without a trial, that’s a violation of their Constitutional right to due process of law. It’s irrelevant what evidence might be presented against them, or whether they might be found guilty if they were given a fair trial and a chance to present a defense.

The same goes for no-fly orders. The proper way to propose that someone be prevented from exercising their right to travel by common carrier is to petition a court for a no-fly order in the form of an injunction or a temporary restraining order, in accordance with established legal procedures for such orders.

Court rules “no-fly” review procedures lack due process

Thursday, June 26th, 2014

In a significant reaffirmation of the decision earlier this year in Ibrahim v. DHS, another federal District Court has now found that the US government’s administrative procedures for reviewing and appealing “no-fly” decisions violate both Constitutional standards of due process and the requirements of the Administrative Procedure Act.

The ruling this week by Judge Anna J. Brown of the US District Court for the District of Oregon, in Portland, comes in the case of Latif, et al. v. Holder, et al. This lawsuit was brought in 2010 by the ACLU on behalf of ten US citizens and permanent residents (green card holders). Their stories, as summarized in Judge Brown’s latest ruling, vary, but all of them have been prevented from boarding international flights to or from the US, and/or overflying US airspace.

Some of the plaintiffs in Latif v. Holder have been trapped in the US, separated from family and/or employment opportunities abroad, while others are trapped overseas, unable to return home. At least one of the plaintiffs who booked passage on a passenger-carrying ocean freighter to return to Europe from the USA was denied boarding by the ship’s captain as a result of a “recommendation” from the US Customs and Border Protection division of DHS.

In 2012, the 9th Circuit Court of Appeals overturned the government’s effort to prevent the District Court from hearing this case. Last year, finally beginning to consider the merits of the complaint, Judge Brown ruled that international travel by air is a right that can only be restricted in accordance with due process of law.

Judge Brown’s latest ruling addresses whether the government’s current procedures, particularly the DHS “Traveler Redress Inquiry Program” (TRIP), provide such due process. Judge Brown has now decided that they do not, and must be changed to provide the subjects of no-fly orders with:

  1. Notice (at least after they have been denied boarding on an international flight and sought redress) of whether they are on the US government’s no-fly list.
  2. At least a summary of the nature of the “suspicion” and the evidentiary basis for the administrative decision to place them on the no-fly list.
  3. An opportunity for some sort of in-person hearing to present evidence to rebut the allegations and evidence against them.

Echoing Judge Alsup’s finding in Ibrahim v. DHS, Judge Brown found that the opportunity to submit exculpatory or rebuttal evidence through the TRIP program is meaningless without notice of what allegations have been made, on what evidentiary basis, and thus of what needs to be rebutted.

The decisions in Latif v. Holder continue a trend to narrow the implications of the 9th Circuit’s erroneous decision in Gilmore v. Gonzales.  In Latif v. Holder, the 9th Circuit found that (unlike in Gilmore v. Gonzales) the case could be heard by the District Court. And Judge Brown found that (unlike in Gilmore v. Gonzales) the hypothetical existence of alternatives to air travel did not eliminate the plaintiff’s interest in exercising their right to travel by air.

The complaint inLatif v. Holder was based exclusively on the lack of due process of law in the government’s procedures for making and reviewing “no-fly” decisions. The plaintiffs’ lawyers in this case did not raise, and Judge Brown’s ruling did not address:

  1. The Constitutionality of making “no-fly” decisions by administrative, rather than judicial, order. (Restrictions on travel and movement based on alleged threats to life and safety in other contexts, such as cases of domestic violence, typically take the form of court injunctions or restraining orders.)
  2. The criteria used in making no-fly decisions. (Judge Brown seemed concerned that the government issues no-fly orders restricting the travel of people against whom there is some basis for “suspicion”, even when the preponderance of the available evidence suggests that they pose no threat. But while Judge Brown ruled that this low standard of suspicion creates a high likelihood of erroneous no-fly orders, she didn’t address whether no-fly orders can lawfully be based on such slight suspicion.)]
  3. The basis, if any, for suspicion of any of the individual plaintiffs, or whether any of the plaintiffs should be prevented from travelling by air. (Despite Judge Brown’s latest ruling, none of the plaintiffs have obtained any relief yet, or know whether they will ever be able to travel by air.)

Having found that the plaintiffs had a right to travel by air, and that the “no-fly” orders preventing them form doing so had been illegally issued, Judge Brown should have enjoined the government from enforcing those unconstitutional administrative orders or otherwise interfering with the plaintiffs’ rights.

Instead, Judge Brown has allowed the secret (and unconstitutional) administrative no-fly orders to remain in effect, while offering the government a chance at a “do-over” to propose a revised procedure for notice and administrative appeals of those orders.

“Reform” of the process of administrative controls on freedom of movement is not the solution to the injustice of the no-fly list.  There is no reason to invent new procedures or establish new kangaroo “travel courts”. Travel, including air travel by common carrier, is a right. If the government wants to restrict someone’s travel, it should apply to a judge for a no-fly in junction or restraining order, in accordance with the existing, well-established judicial procedures for such orders.

Can the TSA retroactively declare public information “secret”?

Sunday, June 1st, 2014

At the request of the government, the Supreme Court has agreed to review the decision of the Court of Appeals for the Federal Circuit in favor of Robert MacLean, a TSA “air marshal” who was fired for telling a journalist, members of Congress, and the DHS Office of the Inspector General about an unclassified text message that the TSA,  three years later, would designate as “Sensitive Security Information” (SSI).

Mr. MacLean challenged his firing as being in violation of the Whistleblower Protection Act, which prohibits retaliation against Federal government employees for certain types of disclosures of information.  But the law has an exception for disclosures “specifically prohibited by law.”

A 3-judge panel of the Court of Appeals found that the ex post facto administrative designation of the text message by the TSA as SSI did not make its disclosure “specifically prohibited by law.”  The Court of Appeals unanimously denied the government’s petition for rehearing en banc.  Now the Supreme Court has decided to hear the case, DHS v. MacLean, during its 2014-2015 term.

The issue presented to the Supreme Court is the meaning of the phrase, “specifically prohibited by law,” in the Whistleblower Protection Act.  But the case is also necessarily about the extent of the TSA’s authority to create “secrets” retroactively and by administrative fiat.

Federal laws and regulations shouldn’t be interpreted by the courts as though they were written in Orwell’s Newspeak.  Information known to the public is not “secret”. The TSA cannot make it “secret” by retroactive administrative action, and should not be allowed to punish those who talk about or disseminate it.

TSA includes all air travelers in pre-crime profiling

Friday, May 23rd, 2014

TSA-Pre-Crime

Since late last year, we’ve gotten several inquires from readers wondering why they got a boarding pass marked “TSA Pre-Check” or were sent through the “Pre-Check” lane at a TSA checkpoint even though they hadn’t participated in the “TSA Pre-Check Application Program”.

The confusion stems from the TSA’s own misleading publicity about the program, which tries to persuade travelers “voluntarily” to provide additional information to be used by the TSA, in exchange for the hope of being subjected to slightly less intrusive searches at TSA checkpoints.

The logical (but wrong) inferences are that TSA Pre-Check is a members-only program, and that the Pre-Check lane at a TSA checkpoint is only for those travelers who have “applied” and been “accepted” into the program.

There are actually three distinct components to “TSA Pre-Check” as a pre-crime scheme:

  1. “Voluntary” submission and collection of additional personal information about those travelers who chose to participate in the TSA Pre-Check Application Program.
  2. Pre-crime profiling of all travelers and determination of a “risk assessment” score for each traveler, based on all information available to the TSA including the information, if any, submitted through the TSA Pre-Check Application Program.
  3. Graduated treatment of travelers at TSA checkpoints, including searches of varied intrusiveness and potential total denial of passage, on the basis of these risk assessments and other secret algorithms.

Only the application component of the program — the submission of additional personal information by travelers to the TSA — is voluntary.  The TSA obtains information from various sources about all travelers. All travelers are profiled. All travelers are assigned risk assessment (pre-crime) scores based on whatever information is available to the TSA.  All travelers are subjected to a more or less intrusive search, and may or may not be allowed to pass through the checkpoint, on the basis of these scores and other secret factors.

Some travelers who are assigned sufficiently low risk assessment scores and meet other secret criteria are directed to the “Pre-Check” lane and subjected to slightly less intrusive searches, regardless of whether they participated in the TSA Pre-Check Application Program.  The TSA calls this process “managed inclusion” in TSA Pre-Check.

A traveler whose risk assessment score is low enough, and who meets the other secret criteria (again, regardless of whether they participated in the TSA Pre-Check Application Program) can be selected for less intrusive search when she applies for a boarding pass.  The TSA’s assignment of such a traveler to the Pre-Check lane is sent to the airline with, or as part of, the permission message or Boarding Pass Printing Result (BPPR) for that traveler sent to the airline by the TSA.

The TSA’s Pre-Check designation is printed on the boarding pass and included in a 2D bar code in IATA-standard format. “For flights originating in the USA, the digital signing of barcodes and the management of security certificates and key pairs is required by the TSA.”

The TSA also assigns some travelers to Pre-Check lanes on the spot at its checkpoints, using secret criteria and techniques including a randomizer app (like the magical Sorting Hat at Hogwarts) to determine how intrusively to search each person.

Through this process, the TSA chooses one of four basic levels of search and seizure for each traveler:

  1. “TSA Pre-Check” (slightly less intrusive search)
  2. “Standard screening” (including virtual strip-search or manual groping)
  3. “Secondary screening” (more intrusive search including more thorough groping)
  4. “No-fly” (denial of the right to travel by common carrier, possibly accompanied by other adverse actions)

There are refinements within these basic categories. In a document filed with the court following the trial of Dr. Rahinah Ibrahim’s lawsuit challenging her placement on the no-fly list, the government disclosed that that each entry in the Terrorist Screening Database (which includes the no-fly list and the list of “selectees” for secondary screening) includes a “handling code” indicating what airline and checkpoint personnel should do if that person attempts to check in for a flight or pass though a TSA checkpoint.

We don’t know how many handling codes there are. But according to the government’s court filing:

[FBI Agent] Kelley designated Dr. Ibrahim as “handling code 3.” … [T]he majority of individuals in the TSDB were assigned handling codes 3 or 4…. Defendants state that the advantages of Handling Code 3 include allowing law enforcement officers to ask the individual probing but non-alerting questions, and searching the individual’s passport [REDACTED].”

Presumably, other handling codes include those that tell airline or checkpoint personnel to attempt to detain the traveler and contact local law enforcement agencies, the FBI, or the Terrorist Screening Center.

You can’t “opt out” of pre-crime profiling by choosing not to participate in the TSA Pre-Check Application Program.  You will be profiled, on a per-flight basis, every time you try to fly.

“Anything you say may be used against you,” although the TSA doesn’t say this on the TSA Pre-Check application forms.  If you participate in the Pre-Check Application Program, the additional information you provide will be added to the other inputs to the TSA’s black box. It might result in the TSA assigning you a lower risk score, and subjecting you to a less intrusive search.  Or it might result in the TSA assigning you a higher score, and searching you more intrusively or preventing you from traveling by air.

Albuquerque Journal investigates DHS “Mission Creep”

Thursday, May 22nd, 2014

For many years after 9/11,  the Department of Homeland Security got a “free pass” from most mainstream media. This has been especially true of the largely unreported negative impact of the DHS and the homeland security industrial complex at the state and local level.

We’re pleased to call the attention of our readers to one of the most notable exceptions to date: a recent series of articles by Michael Coleman, Washington correspondent for the Albuquerque Journal, on what the DHS and its contractors and state and local accomplices are actually doing “on the ground” in New Mexico:

  1. Homeland Security a ‘runaway train’ (April 27, 2014)
  2. NM footprint grows: ‘We’ve up-armored’ (April 28, 2014)
  3. Feds help militarize police agencies (April 29, 2014)
  4. Editorial: Homeland’s ‘mission creep’ works on 3 levels (May 4, 2014)
  5. Follow-up: New DHS head says agency needs change (May 4, 2014)

We’ve been paying particular attention to events in Albuquerque, of course, as part of our work with Phil Mocek, whose lawsuit against DHS and Albuquerque police personnel is currently on appeal from the US District Court for the District of New Mexico to the Court of Appeals for the 10th Circuit.

But we suspect that what the Albuquerque Journal uncovered in New Mexico is a typical case study that could usefully be repeated in any other state or metropolitan area.  We hope that national and other local journalists are inspired by this example to look into DHS activities throughout the country.

Court to “review” TSA’s use of virtual strip-search machines

Thursday, May 8th, 2014

As we’ve noted previously, the US Court of Appeals for the 11th Circuit has scheduled oral arguments June 4th in Miami as part of its “review” of the TSA’s use of virtual strip-search machines. The Court may decide on the day to close portions of the argument to the public, but has overruled the latest objections of the TSA, which claimed that any oral argument would necessarily reveal “secrets” that would jeopardize aviation security.

Jonathan Corbett will be speaking for himself, pro se, before the Court of Appeals, as he has done throughout the tortured history of his lawsuit.  Mr. Corbett has posted the latest round of appellate briefs in Corbett v. TSA, which provide a case study of how the TSA has sought to evade judicial review of its actions even when they involve extra-judicial restrictions on the fundamental rights of US citizens, residents, and visitors.

Corbett v. TSA charges that the TSA is engaging in unreasonable, suspicionless, warrantless, and unconstitutional searches of travelers. The case was originally filed in 2010 in U.S. District Court. But the TSA successfully argued that challenges to the Constitutionality of TSA orders, such as those requiring travelers to submit to either naked scanners (”advanced imaging technology”) or manual groping of their genitals (”enhanced pat-downs”), can only be heard by the Courts of Appeals. After the Supreme Court declined to review that jurisdictional finding, Mr. Corbett refiled his case in the Court of Appeals as a “petition for review” of the TSA’s (secret) orders.

The TSA’s claim is that the Court of Appeals can only review the “administrative record” submitted by the TSA itself. There is no trial, discovery, cross-examination, or adversary fact-finding process in the appellate court. The TSA can pick and choose what evidence to submit for review.  Portions of that evidence have been shown to Mr. Corbett (on condition that he not discuss them publicly), but other portions have been submitted to the Court of Appeals ex parte and under seal. Mr. Corbett doesn’t know what they allege, and has no way to know what secret arguments or allegations he should be trying to rebut.

In a separate case, the Court of Appeals for the D.C. Circuit ruled that the TSA had violated the Administrative Procedure Act by failing to conduct a formal “rulemaking” concerning its use of virtual strip-search machines. Such a rulemaking must include notice of the proposed rules, an opportunity for the public to comment on them, and consideration of those public comments by the TSA before the rules are finalized.

Twenty months after being ordered to do so by D.C. Circuit Court, the TSA published proposed vitrtual strip-search “rules” and provided an opportunity for public comments.  More than 5,000 people and organizations submitted comments, including the Identity Project. Almost all of the commenters objected to the TSA’s virtual strip-searches and groping of travelers.

More than a year after the close of the comment period, the TSA has yet to publish any analysis or response to these public comments, or any final “rules”. And although the TSA is required by the Administrative Procedure Act to consider these public comments as part of its rulemaking, the agency doesn’t appear to have submitted any of them to the 11th Circuit as part of the “administrative record” to be reviewed in Corbett v. TSA.  This appears to be either an admission that the public comments have been ignored in the TSA’s decision-making, in flagrant violation of the APA, or an equally blatant attempt to deceive the 11th Circuit about the actual content of the record before the TSA.

How do FBI agents decide who to put on the “no-fly” list?

Wednesday, May 7th, 2014

Dr. Rahinah Ibrahim still doesn’t know why she was placed on the “no-fly” list, even after the trial of her lawsuit against the US government and US District Judge William Alsup’s finding that Dr. Ibrahim was denied the due process of law which was her right.

At trial, the government admitted that back in 2004, FBI agent Kevin Kelly — fresh off a stint on the FBI’s mosque-watching detail — mistakenly left blank a negative check-off box on an internal form and thereby “nominated” Dr. Ibrahim for the no-fly list. By admitting that this was a “mistake”, the government successfully evaded having the court reach or review either (a) the criteria (if any) for “no-fly” decisions or (b) the factual basis (if any) for any of the government’s other decisions or actions with respect to Dr. Ibrahim.

Judicial review of the factual basis and legal criteria for a “no-fly” order remains for future no-fly cases, with that of Gulet Mohamed likely to be the next to go to trial.

Contrary to some reports, Judge Alsup didn’t order the government to take Dr. Ibrahim’s name off the no-fly list or tell her why it put her on multiple other “watchlists” including the “selectee” list to which Agent Kelly intended to nominate her.  Despite previous claims that government agencies and agents only put people on the “no-fly” list if they are able to articulate some reasonable basis for a suspicion of terrorism, we now know that there is a secret exception to this (non-binding) watchlisting criterion, pursuant to which Dr. Ibrahim and other non-suspects are also watchlisted.

Nor does Judge Alsup’s decision mean that Dr. Ibrahim is now free to travel. The US still won’t give her a visa to return to the US, on the basis of secret allegations that she “has engaged in terrorist activity” (contrary to the government’s admission and Judge Alsup’s finding to the contrary) and on the basis of a “guilt by family association” law and some other  secret allegations that apparently relate to her husband.

Judge Alsup ordered the government to tell Dr. Ibrahim her status on the “no-fly” list, which it did. As of April 15, 2014, Dr. Ibrahim wasn’t on the “no-fly” list. And the government was ordered to correct the consequences of the one specific mistake it had admitted, FBI Agent Kelly’s failure to check the “not nominated for the no-fly list” box on the form.

But Judge Alsup’s decision leaves the government free to leave Dr. Ibrahim on any other “watchlists” (including those which function as de facto secondary no-fly lists), and/or put Dr. Ibrahim back on the “no-fly” list itself, at any time, for any reason or no reason, as long as those actions aren’t a direct result of Agent Kelly’s mistaken failure to check the right box on the nomination form nine years ago.

Visa denials aren’t normally subject to review by US courts. Neither Dr. Ibrahim’s placement on watchlists other than the no-fly list, nor the de facto banishment from the US of her US-citizen daughter, were raised in the complaint in this case, or addressed in Judge Alsup’s decision.  Nor could they have been, since they only occurred or became known later.

Judge Alsup’s finding that the “no-fly” system lacks due process is a step forward, but far from a happy ending or one that redresses the grievances of Dr. Ibrahim or her family.

What we did learn from this case is that the real decision to prevent Dr. Ibrahim from traveling was made by a single FBI agent. No matter how obvious Agent Kelly’s “mistake” was, nobody reviewed or corrected it.

So in practice, “no-fly” decisions are made by individual FBI field agents. How do FBI agents use their power to decide who is and who isn’t given government permission to fly?

Since 9/11, one of the FBI’s highest priorities has been to recruit Islamic-American informers. Not surprisingly, FBI agents have repeatedly used or threatened to use their “no-fly” nomination authority to coerce American Muslims into becoming FBI informers.

In 2010, FBI agents tried to persuade US citizen Yonas Fikre to become an FBI informer. After Mr. Fikre refused to “cooperate” with the FBI agents, they put him on the “no-fly” list while he was visiting relatives overseas, consigning him to detention and torture in the UAE when his visa expired. In 2012, after being allowed to leave the UAE (but not to return home to the US, since he was still on the US “no-fly” list)  Mr. Fikre applied for political asylum in Sweden.  Shortly thereafter, in further retaliation (and/or to make sure he never tries to come home to the US, even if his asylum request is eventually denied), the US indicted Mr. Fikre for failing to report routine money transfers from the US to family members in the UAE and Sudan. Mr. Fikre is also pursuing a civil lawsuit in the US against those US government officials complicit in his no-fly listing, arrest, and torture.

Was this an isolated case? No. Last year, Muhammad Tanvir filed a lawsuit against the FBI and other government agencies and agents for putting him on the “no-fly” list in retaliation for declining to become an FBI informer. Mr. Tanvir is a Muslim, a permanent US resident (green-card holder), and a shopkeeper in New York City.  On April 22nd, 2014, an amended compliant was filed in the case (Tanvir et al. v. Holder et al.). Three other Muslims from the tri-state area of New York, New Jersey, and Connecticut, one a US citizen and two others lawful permanent residents,  have joined Mr. Tanvir in making similar claims.

These abuses are an inevitable result of having decisions about whether we are allowed to exercise our rights be made in secret at the discretion of law enforcement officers or administrative officials. Decisions on whether to restrict the exercise of rights, including the right to travel, should be made by judges, not cops, through existing legal procedures for the issuance of injunctions or temporary restraining orders.

Lawyers for Dr. Ibrahim say government acted in bad faith in “no-fly” case

Saturday, April 19th, 2014

Did government lawyers lie to the judge and the plaintiff in the first “no-fly” case to go to trial?

As first noted yesterday by the Courthouse News Service, lawyers for Dr. Rahinah Ibrahim have renewed their allegation that the government acted in “bad faith” before, during, and after the trial.

Since the government chose not to appeal the decision by District Judge William Alsup, the only remaining issues are:

  1. Whether the government defendants should be required to pay Dr. Ibrahim’s legal fees and costs.
  2. Whether the government has complied with Judge Alsup’s judgement and order, which requires the government to (a) inform Dr. Ibrahim of her status on the no-fly list and (b) expunge, correct, and prevent andy future adverse consequences for Dr. Ibrahim form the FBI agent’s mistake in checking the wrong box on a form to put her on the “no-fly” list despite the fact that she posed and poses no threat.

This week, as we noted earlier,  Judge Alsup ruled that, because many of the government’s legal arguments and tactics were “unreasonable”, the government must pay some but not all of Dr. Ibrahim’s legal fees and costs.  But Judge Alsup also found that the government has not acted in “bad faith”, and therefore that Dr. Ibrahim’s lawyers were entitled only to government-standard rates that are a fraction of their usual rates.

The next day, the government submitted a set of declarations purporting to show that the defendants have complied with Judge Alsup’s orders.

The day after that, Dr. Ibrahim’s lawyers filed a motion for reconsideration of Judge Alsup’s decision with respect to legal fees and costs, on the basis of the government’s new declarations as new evidence of government “bad faith” justifying assessment of legal fees at full market rates.

The new declarations show that Dr. Ibrahim was on many watchlists, blacklists, and databases that the government previously failed to disclose, even in response to Judge Alsup’s previous orders granting motions to compel responses to an interrogatory to “identify any other lists or government databases into which plaintiff’s name has been placed.”

The new declarations show that, despite a letter sent to Dr. Ibrahim that “Where it has been determined that a correction to records is warranted, these records have been modified,” this had not in fact been done.

And the new declarations reveal that the government denied Dr. Ibrahim’s latest visa application, purportedly on the basis of a threat of terrorism, despite having admitted in court that it does not in fact believe that she poses any such threat, and despite Judge Alsup having found it uncontested that she poses no such threat.

There’s also more in the motion for reconsideration about the injustice and bad faith implicit in the newly-revealed but still classified and “state secret” (”state secret” like the fact that the FBI agent had checked the wrong box on the form was a “state secret”) exception to the non-binding “standards” for no-fly decisions that the government claims allows it to put people on the no-fly list and deny their right to travel even if it admits there is no reasonable basis to suspect them of anything illegal.

Decision in first “no-fly” trial finally unsealed

Wednesday, April 16th, 2014

The complete unredacted decision in favor of Dr.. Rahinah Ibrahim issued by U.S. District Judge William Alsup in January, following the first trial in any case challenging a US government “no-fly” order, was finally made public today by order of the court.  (Unredacted version as unsealed; version with previously redacted portions highlighted.)   The deadline for any appeal has passed, and this order is now final.

Despite the government’s claims that the redactions were of vital “state secrets”, the formerly-redacted portions of the decision, and the declarations filed yesterday by the government, shed relatively little new light on what happened to Dr. Ibrahim and her family. They do, however, contain a previously-redacted chronicle of her having been placed on and off various “watchlists” (de facto blacklists) while her lawsuit was pending, and of a previously unmentioned exception to the nonbinding “standards” for watchlisting:

45. To repeat, government counsel have conceded at trial and this order finds that Dr. Ibrahim is not a threat to the national security of the United States. 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.

46. In March 2005, Dr. Ibrahim filed a Passenger Identity Verification Form (PIVF) (TX 76).  [This was a predecessor to the DHS-TRIP form.]

47. In December 2005, Dr. Ibrahim was removed from the selectee list. Around this time, however, she was added to TACTICS (used by Australia) and TUSCAN (used by Canada). No reason was provided for this at trial.

48. On January 27, 2006, this action was filed.

49. 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.

50. In 2006, the government determined that Dr. Ibrahim did not meet the reasonable suspicion standard. On September 18, 2006, Dr. Ibrahim was removed from the TSDB. The trial record, however, does not show whether she was removed from all of the customer watchlists subscribing to the TSDB.

51. In a letter dated March 1, 2006, the TSA responded to Dr. Ibrahim’s PIVF submission… The response did not indicate Dr. Ibrahim’s status with respect to the TSDB and no-fly and selectee lists.

52. One year later, on March 2, 2007, Dr. Ibrahim was placed back in the TSDB. The trial record does not show why or which customer watchlists were to be notified.

53. Two months later, however, on May 30, 2007, Dr. Ibrahim was again removed from the TSDB. The trial record does not show the extent to which Dr. Ibrahim’s name was then removed from the customer watchlists, nor the reason for the removal.

54. Dr. Ibrahim did not apply for a new visa from 2005 to 2009. In 2009, however, she applied for a visa to attend proceedings in this action. On September 29, 2009, Dr. Ibrahim was interviewed at the American Embassy in Kuala Lumpur for her visa application.

55. On October 20, 2009, Dr. Ibrahim was nominated to the TSDB pursuant to a secret exception to the reasonable suspicion standard. The nature of the exception and the reasons for the nomination are claimed to be state secrets. In Dr. Ibrahim’s circumstance, the effect of the nomination was that Dr. Ibrahim’s information was exported solely to the Department of State’s CLASS database and the United States Customs and Border Patrol’s TECS database.

56. From October 2009 to present, Dr. Ibrahim has been included in the TSDB, CLASS, and TECS. She has been off the no-fly and selectee lists….

60. On December 14, 2009, Dr. Ibrahim’s visa application was denied….

64. The TSC has determined that Dr. Ibrahim does not currently meet the reasonable suspicion standard for inclusion in the TSDB. 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.

65. In September 2013, Dr. Ibrahim submitted a visa application so that she could attend the trial on this matter…. Trial in this action began on December 2 and ended on December 6. As of December 6, Dr. Ibrahim had not received a response to her visa application. At trial, however, government counsel stated verbally that the visa had been denied. Plaintiff’s counsel said that they had not been so aware and that Dr. Ibrahim had not been so notified….

70. Since 2005, Dr. Ibrahim has never been permitted to enter the United States.

The other most significant remaining questions concern Dr. Ibrahim’s daughter, Ms. Raihan Mustafa Kamal, who was born in the US and is a US citizen, but was prevented from flying to the US to observe and testify at her mother’s trial. (Previous reporting about Ms. Mustafa Kamal here, here, and here.)

According to a section of Judge Alsup’s decision (pp. 24-25) about Ms. Mustafa Kamal that was previously redacted in its entirety:

On December 1 [2013], the National Targeting Center (“NTC”) within the Department of Homeland Security began vetting passengers for the Philippine Airlines flight. NTC officers determined that Ms. Kamal was matched to a record that was listed in the TSDB in a category which notifies the Department of State and Department of Homeland Security that other government agencies may be in possession of substantive “derogatory” information about the individual that may be relevant to an admissibility determination under the Immigration and Nationality Act. United States citizens, of course, are not subject to the admissibility provisions of the Immigration and Nationality Act….

On December 2, Ms. Kamal’s records were updated in the TSDB to reflect that she was a United States citizen. The request for additional screening was rescinded and it was requested that Ms. Kamal be allowed to board without delay.

Since Ms, Mustafa Kamal was not a party to her mother’s case (although the government had been notified that she was a potential witness), the issues related to her were not pursued or resolved in that case.

So we still don’t know what “derogatory” information would be relevant to the “admissibility” to the US of a US citizen, or why DHS is keeping records of such information or “watchlisting” such individuals.

Also today, Judge Alsup ruled that the government must pay some, but not all, of Dr. Ibrahim’s legal fees and costs. The exact amount remains to be determined by a special master.  Judge Alsup found that the government had been “unreasonable” in many of its actions and arguments, but had not been shown to have acted in bad faith.

As we’ve previously reported, other no-fly cases are moving forward, with that of Gulet Mohamed (currently in the early stages of discovery in Disctrict Court on remand following denial by the 4th Circuit Court of Appeals of the government’s motions to dismiss) likely next in line for trial.

FBI tells Dr. Ibrahim she’s not on the “no-fly” list

Wednesday, April 16th, 2014

Yesterday, in response to a court order, the FBI — the nominal “owner” of the US government’s “no-fly” list — sent the letter above to Dr. Rahinah Ibrahim, informing her that she isn’t on that list.

This is the first time the US government has ever officially disclosed to an individual whether they are on the “no-fly” list, although of course — as the judge noted during the trial in Dr. Ibrahim’s lawsuit challenging her placement on the “no-fly” list — anyone can tell that they are on the list if they are prevented from flying despite having a valid ticket and all other required documents and complying with all of the rules the airline’s tariff.

Attorney General Eric Holder and Director of National Intelligence James Clapper personally signed declarations under penalty of perjury that to disclose exactly this information, to Dr. Ibrahim specifically, would harm national security, and that this information was therefore a “state secret”.

Needless to say, the sky didn’t fall yesterday when the FBI told Dr. Ibrahim the “state secret” that she is not on the “no-fly” list.

The letter from the FBI to Dr. Ibrahim was included in a set of declarations from officials of Orwellian US government organizations like the “Directorate of Terrorist Identities” which were filed with the court by the government yesterday to show that it had complied with the order by U.S. District Judge William Alsup.

These declarations give interesting insights into the structure of the various interlocking databases, but say nothing about the criteria for “no-fly” and other blacklisting and watchlisting decision.

Despite Dr. Ibrahim not being on the “no-fly” list, and despite testimony at the trial that she poses no threat, she has repeatedly been denied a visa to return to the US on the grounds that she “has engaged in terrorist activity” and is the spouse or child (presumably this allegation relates to her husband) of a person who is similarly inadmissible to the US, pursuant to 8 U.S. Code §1182(a)(3)(B)(i)(I) and §1182(a)(3)(B)(i)(IX). Her latest visa application was refused on these grounds just this Monday, April 14, 2014, at the US Embassy in Kuala Lumpur.

The declarations filed by the government say nothing about what happened to Dr. Ibrahim’s daughter, Ms. Raihan Mustafa Kamal, who was born in the US and is a US citizen, but was prevented from flying to the US to observe and testify at her mother’s trial. (Previous reporting about Ms. Mustafa Kamal here, here, and here.)

In accordance with Judge Alsup’s orders, and the government’s decision not to appeal, the unredacted version of Judge Alsup’s findings (including several pages of sealed findings concerning what happened to Ms. Mustafa Kamal) was scheduled to be unsealed yesterday.  The decision is now officially “unsealed”, but is still being processed by the court clerk’s office. We’ll publish it as soon as we receive it.