We’ve noted previously that, as the DHS increasingly relies on state and local law enforcement officers and private contractors to carry out its extrajudicial “no-fly”, search, and surveillance orders, those individuals and their employers face a growing risk of liability for their actions against travelers.
Case in point: Ibrahim v. DHS et al.
We’ve reported previously on some of the earlier stages in this case, originally filed in 2005 by a Malaysian architect, then a doctoral candidate at Stanford University and today (having received her Ph.D. from Stanford in absentia) a professor and Dean of the Faculty of Design and Architecture at UPM in Malaysia. When she tried to check in at San Francisco International Airport (SFO) for a flight back to Malaysia to give a presentation about her Stanford research, she was arrested by SFO airport police (a branch of the San Francisco police force) on the direction of a private contractor who answered the phone at the TSA’s Transportation Security Operations Center (since renamed — we are not making this up — the “Freedom Center”). She was told she was on the “no-fly” list, but was allowed to fly home to Malaysia the next day, after which her US student visa was revoked.
Through her lawyers in the US, Ibrahim sued the various Federal agencies involved in no-fly decisions; their individual officials, employees, and contractors; and the San Francisco city and county, airport, police department, and individual police officers, for violations of her 1st and 5th Amendment rights.
The case has a had a tortured procedural history. After seven years, there has been no discovery, fact-finding, or rulings on any of the substantive issues. The case has, however, survived a series of District Court rulings and two appeals to the 9th Circuit Court of Appeals, first in 2008 on which, if any, Federal court (district or circuit, in San Francisco or DC) had jurisdiction to hear the case, and then in February 2012 on whether Dr. Ibrahim had standing, as a non-US citizen now residing (involuntarily) outside the US, to bring her Constitutional claims in US courts.
The latest ruling by the 9th Circuit in Ibrahim v. DHS, which allows the case against the government and its agents to go forward, is significant for its rejection of several of the Federal government’s key arguments against judicial review of no-fly decisions:
First, the Court of Appeals found that the “reasonable inference” was that Dr. Ibrahim “is on one or more government watchlists,” and that the government’s refusal to confirm or deny this fact does not deprive Dr. Ibrahim of the right to have her placement on the watchlist(s) reviewed by the courts.
Second, the Court of Appeals recognized the significance of the US government’s extraterritorial application of its no-fly and other watchlists, which places Dr. Ibrahim and other foreigners at risk of denial of their rights even if the revocation of her US visa means that she wouldn’t be able to return to the US regardless of whether she was removed from the no-fly list:
The No-Fly List prevents her from boarding any U.S. carrier, whether or not a flight departs from or lands in the United States. It also prevents her from flying over U.S. airspace. These are injuries unrelated to her lack of a visa. Further, TSC [Terrorist Screening Center] shares the TSDB [Terrorist Screening Database] with 22 foreign governments. We can reasonably infer that Ibrahim will suffer delays (or worse) when traveling abroad, even on foreign carriers, resulting from the presence of her name on the No-Fly List.
This isn’t a far-fetched argument at all. To give just one example of flights between places near Dr. Ibrahim’s home in Malaysia, United Airlines operates daily flights in both directions between San Francisco and Singapore via Hong Kong, with a stop in Hong Kong and the right to carry local traffic between Singapore and Hong Kong. US security directives to the airline prohibit United from carrying any passengers, even local passengers from Hong Kong to Singapore or vice versa, even if they aren’t ticketed or traveling to or from the US, if their names (or similar names) are on the US no-fly list.
Dr. Ibrahim’s case against the Federal government defendants and their private contractors is now, once again, being remanded to the US District Court in San Francisco, where it once again seems likely to be the first case in which any US no-fly decision might be reviewed on its merits by a US court.
The outcome of Dr. Ibrahim’s claims against the local government and its officers may be almost as significant. According to a footnote in the latest decision by the Court of Appeals:
Petitioner [Ibrahim] sued the San Francisco Airport, City and County of San Francisco, San Francisco Police Department and certain San Francisco Police Department officers for false arrest as part of this action. This claim was settled when she received the sum of $225,000.
While those claims were settled rather than being decided by a jury or judge, the willingness of these defendants to settle reflects, presumably, their judgment that they would have an extremely hard time defending the legitimacy of an arrest based solely on a telephone message from a private contractor informing them that someone’s name appeared on a list, not on the basis of an arrest warrant or other judicial authorization for arrest, but on the basis of a secret and purely administrative process.
Other airports, airport operators, and state and local law enforcement officers should pay close attention to the situation that San Francisco and its police were placed in by choosing to carry out TSA arrest orders without asking whether they were based on any warrant, injunction, or other judicial authorization.