Dec 23 2013

Briefing completed following “no-fly” trial

Today the parties in Ibrahim v. DHS submitted what were scheduled to be their final written responses to questions from the judge following the first trial in any of the cases challenging U.S. government “no-fly” orders:

The plaintiff’s brief in particular is worth reading in its entirety.

The case is now in the hands of U.S. District Judge William Alsup, who could either issue some sort of ruling deciding some or all of the issues before him, or ask for yet more input from the parties.

Today’s briefs from lawyers for the plaintiff (Dr. Rahinah Ibrahim) and the defendants (Federal agencies and officials responsible for interfering with her right to travel) address the specific questions about secrecy most recently posed by Judge Alsup: Whether the plaintiff’s lawyers could obtain clearances from the government to see the “secret” evidence most recently proffered by the government (1) (2) and if so, whether any of Dr. Ibrahim’s lawyers would be willing to submit to the clearance process and how long it would take.

Dr. Ibrahim’s lawyers point out that the defendants have already said that they “‘oppose any procedure that would provide classified information to Plaintiff’s counsel.’ Plaintiff’s counsel understand this to mean that the executive will not exercise its discretion in favor of granting a security clearance to plaintiff’s counsel.”

But even if the defendants are now willing to consider giving one or more of the opposing lawyers their “permission” to see the evidence they want the judge to rely on, “the government historically has contended that classified information can be withheld even from cleared counsel”:

Although at first blush it may seem like a feasible alternative to just get counsel “cleared,” in reality, any order to that effect will only provide defendants the ability (1) to arbitrarily deny plaintiff and her counsel access to classified information; (2) to conduct unfettered investigations into the personal lives of plaintiff’s counsel and their friends and family members; and (3) to hold up the case for months if not years while defendants conduct the investigation. It would cede authority over the progress in this case to an interested party, the defendants. The Executive already has enough of an advantage.

Despite all this, Dr. Ibrahim’s lawyers offer that one of more of them is willing to undergo the process of applying for a clearance to see the “secret” evidence the government wants to use against their client, provided that they are allowed “adequate access and opportunity to be heard regarding the information upon which defendants rely”, including to “discuss the information with their client so that she and they may rebut any allegations contained in the secret information.”

That’s sure to be a deal-breaker for the government defendants, who have been adamant that Dr. Ibrahim not be allowed ot know her status on any “watchlists” or the reasons for it. But this speaks directly to the concerns expressed by Judge Alsup during closing arguments in the trial regarding a person like Robert Oppenheimer who, without knowing the details of the allegations and evidence against him, wouldn’t know what exculpatory or rebuttal evidence to bring forward. It’s not enough for one of Dr. Ibrahim’s lawyers to learn the evidence against her client, if she can’t use that information to defend herself.

Dr. Ibrahim’s lawyers also argue that, regardless of the classification status of the “secret” evidence or the “clearance” status of any of the lawyers, Judge Alsup has the authority to decide the conditions under which the plaintiff and her lawyers can see the evidence:

Ibrahim has argued throughout this case that the supreme law of the land, the United States Constitution, and specifically the due process protection found in the Bill of Rights, requires that defendants provide adequate notice of the purported bases for their decision wrongfully to label her a terrorist and diminish her rights, including any classified information that is required to enable Ibrahim to respond to the accusations against her…. The Bill of Rights trumps defendants’ executive orders and evidentiary privileges….  The Court may overrule the state secrets privilege asserted by defendants and allow plaintiff and her counsel access to the information under appropriate protective orders.

The defendants don’t say whether they would “clear” any of Dr. Ibrahim’s lawyers to see the “secret evidence they want to show only to Judge Alsup (1) (2).  But they argue that the decision on access to information they deem “secret” is solely up to the Executive, i.e. to themselves. That would leave it up to the defendants to decide which evidence the plaintiff or her lawyers could see, since all of the agencies and officials responsible for clearance and classification decisions are defendants in the case. The judge, they say, has no authority to second-guess or overturn their decisions.  The defendants also indicate that they would immediately appeal any decision by Judge Alsup to allow any of Dr. Ibrahim’s lawyers or Dr. Ibrahim herself to see any of the “secret” evidence (1) (2) that they have submitted to the judge in camera and ex parte.

Judge Alsup asked for briefs on whether any of Dr. Ibrahim’s lawyers could or would obtain clearances to enable them to see the government’s latest “secret” (in camera and ex parte) submissions to the court. Most of today’s briefing, however, was devoted to the follow-up question Judge Alsup didn’t ask: What should the judge do if none of Dr. Ibrahim’s lawyers are able and/or willing to obtain such clearances and access to the “secret” evidence on terms acceptable to both sides in the case?

The defendants argue that they can’t “defend” themselves without using one or another sort of “secret” evidence. Since they say the evidence must be kept secret, and their decision on “secrecy” is not subject to review by the trial judge, the case against them must be dismissed.  That seems to beg the question of why, if the case can be decided without the “secret” evidence, the defendants submitted it to the judge in the first place.  (Or, more precisely, in the last place, since they waited to do so until after the trial, after trying to submit secret evidence and arguments earlier in the case but being told by Judge Alsup that he wouldn’t even look at it: “[T]he Court will ignore all of the redacted material … and will rule on the same paperwork made available to both sides.”)  If the defendants have offered Judge Alsup an explanation of that, it’s in the secret briefs (1) (2) that accompanied the secret evidence.

Dr. Ibrahim’s lawyers argue that Judge Alsup can reach the opposite conclusion, and find that Dr. Ibrahim has been denied the due process to which she is entitled, without needing to consider the “secret” evidence proffered by the defendants (“The government’s attempts now to use secret evidence to deprive plaintiff of a remedy serve as further evidence they have deprived plaintiff of due process”), and (2) the “secret” evidence is, at this point, inadmissible, for numerous reasons:

  1. Secret evidence violates plaintiff’s Fifth Amendment right to due process, her right to a trial, and her right to confront her accuser.
  2. Just because something is classified does not make it true. Before the Iraq war in 2003, a number of classified reports said that Saddam Hussein had weapons of mass destruction. We all know how that turned out. See, e.g.,
  3. To the extent the government’s secret submissions rely on documents, reports, or declarations of witnesses to prove the truth of matters asserted, they are inadmissible hearsay.
  4. The government waived its right to use the secret evidence because it repeatedly represented to the Court that the effect of its privilege assertion was to “exclude the evidence from the case,” waiting until after trial to offer the alleged evidence that allegedly requires dismissal. For the same reason, the government is estopped from arguing for dismissal on these grounds.
  5. The secret evidence is also late because the government submitted it only after witnesses were excused and after the matter was submitted.

So far as we can tell, the case now stands submitted to Judge Alsup for his decision.

Dec 19 2013

“No-fly” trial: There are secrets, and then there are secrets.

Post-trial briefing was to be completed this week in Ibrahim v. DHS, the first challenge to a “no-fly” order to make it to trial. After that, the case would have been in the hands of U.S. District Judge William Alsup, who conducted the week-long trial without a jury earlier this month in San Francisco, for his verdict and findings of both fact and law.

But Judge William Alsup has now asked lawyers for both sides — plaintiff Dr. Rahinah Ibrahim and the array of Federal government agency and official defendants involved in or responsible for “watchlisting” and “no-fly” decisions — to submit additional information by Monday, December 23rd, about whether any of Dr. Ibrahim]s lawyers could obtain security clearances to allow them to view the classified evidence and arguments submitted by the government, whether any of them are willing to do so, and if so, how long the process of obtaining clearances might take.

Understanding what this means, and why Judge Alsup might have asked for additional briefing on this question, requires some understanding of the government’s Alice-in-Wonderland array of “secrets” — something which has perplexed commentators on the trial as well as Judge Alsup.

The short version is that the people and government agencies responsible for preventing Dr. Ibrahim from exercising her right to travel are claiming the right to define for themselves which evidence she is allowed to used to try prove her case against them, while also picking and choosing which of that evidence they are allowed to use themselves. The trial judge, they claim, is bound by the defendants’ own decisions in these matters. And the defendants are trying again, after being repeatedly rebuffed, to get the judge to base his ruling on evidence and arguments that are being kept secret from the plaintiff and her lawyers.

The government defendants have claimed that portions of the evidence or potential evidence in the trial, and the arguments and inferences that might be made on the basis of that evidence, falls within one or more of three different partially-overlapping categories of “secret” information: classified information, “state secrets”, and “Sensitive Security Information” (SSI).

There are different rules for which information falls within each of these categories, who is allowed to see or talk about it, who makes these determinations, and whether or how these determinations can be reviewed by which courts.

This led to some of the more bizarre interludes during the trial in Ibrahim v. DHS. Before clearing the courtroom so that “secret” testimony could be heard or “secret” evidence could be argued about, Judge Alsup would have to find out which sorts of “secrets were about to be presented or discussed, and then query the spectators individually about their clearances to determine which of them would have to leave and which could stay.

The colloquy with the audience would go something like this:

Judge Alsup: Which privilege applies to the testimony this witnesses is about to give?

Government Lawyer: This will be SSI [Sensitive Security Information].

Judge Alsup: OK. I apologize to the members of the public, but I’m going to have to clear the courtroom.

Audience Member 1: I have a “secret” security clearance. Am I allowed to stay?

Judge Alsup: No, that’s different. You have to leave unless you’re cleared for SSI.

Audience Member 2 (Prof. Jeffrey Kahn, who had already completed his testimony and been discharged as a witness): I’ve been approved as a “covered person” authorized to receive SSI for purposes of this trial, as a consultant to plaintiff’s counsel. May I stay?

Judge Alsup: Yes, you can stay. Everyone else has to leave.

Here’s an introduction to the players and the ground rules in the government’s game of secrets:

Read More

Dec 17 2013

Briefs on issues remaining after “no-fly” trial

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

Because this was a “bench trial” without a jury, Judge Alsup will decide both factual and legal issues.  His decision is not expected for weeks or months. There is no requirement for a speedy verdict in a case like this.

Before issuing his decision, Judge Alsup has asked both sides to submit briefs on a variety of legal issues, including which of the various categories of “secret” evidence he should consider and which he should make public.  Naturally, the government submitted its own brief on this issue in secret.

The current round of briefing is scheduled to conclude this Friday, December 20, 2013. Unless Judge Alsup asks for additional submissions on some question he thinks requires clarification, the next public activity in the docket will be the issuance of Judge Alsup’s next ruling. That could be either a verdict on the case, or a ruling on some or all of the preliminary matters such as which evidence to consider or make public.

Here are the briefs and orders relating to the issues remaining for Judge Alsup to decide:

Dec 10 2013

DHS stonewalls New York Times’ requests for travel records

A lawsuit filed last week by the New York Times shows that even reporters for the  Gray Lady have been targeted by U.S. Customs and Border Protection (CBP) for the same special scrutiny as less-mainstream journalists, and that the Department of Homeland Security (DHS) FOIA and Privacy Office continues to use the same tactics in responding to requests for its files about travelers, even when dealing with the Times, as it has used in response to requests and lawsuits by disfavored requesters such as ourselves:

  • Losing requests and appeals, or claiming to have no record of them;
  • Delaying responses or simply ignoring requests;
  • Failing to refer requests to the DHS components they knew were most likely to have responsive records; and
  • Claiming not to have sufficient information to locate records, or not to have identified responsive records, even when official notices published by the DHS or its components such as CBP have stated that records of this sport are part of a “system of records” retrievable by name or other personal identifier.

According to their complaint, two reporters for the Times, C.J. Chivers and Mac William Bishop, were “subject to segregated questioning by DHS employees at JFK on May 24, 2013, as they prepared to board an international flight for a work assignment as journalists.”

Both reporters subsequently filed requests with the DHS headquarters for “records used or created by DHS employees in respect to the questioning of Plaintiffs at JFK airport” and for “all information and records in the possession of DHS concerning” them.

It appears that the Times’ reporters were unfamiliar with the Privacy Act “System Of Records Notices” that the DHS has published, which are required to describe which agencies keep which types of records about individuals. A SORN must be published, and must disclose the type of information contained in such a systems and how it is used,  even when the records themselves have been exempted from disclosure.

In any event, the Times’ reporters didn’t send their requests to CBP or specifically mention that CBP records should be included in the search for responsive records. And they didn’t specifically refer to the systems of records (including the Automated Targeting System and TECS) that should be searched.

This shouldn’t be necessary, of course, but in our experience, DHS FOIA officers pretend to be even more incompetent than they really are. Unless you spell out which systems of records of which DHS components you want them to search, they will search (if at all) only in places other than those where the responsive records are likely to be found.

The records that enabled the DHS to intercept Messrs. Chivers and Bishop at JFK airport, as well as the records of their questioning (which was probably conducted by CBP officers) are almost certainly part of the CBP “TECS” and/or “Automated Targeting System” (ATS) databases.

We’ve written previously about How airline reservations are used to target illegal searches using TECS records, using examples of DHS records related to searches and questioning of other journalists.  We’ve posted templates to request your own records as well as examples of responses.  Contact us if you’d like help interpreting responses to your requests.

Rather than referring the Times’ reporters requests to CBP or searching for their TECS and ATS files, the DHS headquarters FOIA office:

  1. Lost (or pretended to lose) their requests;
  2. Delayed responses, or failed to respond at all;
  3. Referred the requests to two other DHS components (TSA and ICE) that they knew or reasonably should have known would be unlikely to have the requested records, but not to CBP; and
  4. Claimed not to have enough information to conduct a search, even though TECS and ATS are specifically designed to allow travel records to be searched for by as many criteria as possible: name, passport number, credit card number used to pay for the ticket, telephone number provided to the airline when reconfirming reservations, IP address from which the reservation was made, etc.

All this is depressingly familiar to us from our years of experience in trying to obtain such records.

In light of the involvement and intimate familiarity of the DHS headquarters FOIA and Privacy Office with the ongoing, high-level controversy over usage of, and access to, PNR data included in the TECS and ATS systems operate by CBP, the failure to refer the request to CBP is unambiguous evidence of either bad faith or gross incompetence in processing the requests from the Times’ reporters.

We wish the Times and its reporters all success in their lawsuit.

Dec 09 2013

“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 judgment 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:

Dec 07 2013

“No-fly” trial, day 5, part 2: What happened to the plaintiff’s daughter?

“Your Honor, we’ve confirmed that the defendants did nothing to deny plaintiff’s daughter boarding. It’s our understanding that she just simply missed her flight.”

Neither the public, nor Dr. Rahinah Ibrahim, nor her daughter, Seattle-born U.S. citizen Raihan binti Mustafa Kamal, yet know why a U.S. Customs and Border Protection Officer sent the email message excerpted above  to the airline on which Ms. Mustafa Kamal was scheduled to fly to San Francisco last Sunday to testify at the trial in Dr. Ibrahim’s lawsuit challenging her placement on the U.S. no-fly list. (Click the image for a larger version or here for the complete e-mail forwarding thread.)

We do know, however, that whatever happened when Ms. Mustafa Kamal showed up at Kuala Lumpur International Airport (KUL)  two hours and 45 minutes before the scheduled departure of her flight and tried to check in, it certainly wasn’t (and CBP’s lawyers in San Francisco certainly couldn’t later have “confirmed”, as they claimed to the court on Monday), that Ms. Mustafa Kamal “just simply missed her flight”.

Friday afternoon, after what was to have been the conclusion of the trial in Ibrahim v. DHS, Judge William Alsup held an evidentiary hearing and heard argument from lawyers for Dr. Ibrahim and the government regarding what happened to Ms. Mustafa Kamal and what (if anything) he should do about it.

(See our separate article about the morning session, including the possibility of bar complaints against some of the government’s lawyers and a history lecture from Judge Alsup to the government about the blacklisting of Robert Oppenheimer on the basis of secret, false, allegations that he was a Communist: “No-fly” trial, day 5, part 1: Closing arguments.)

At the insistence of the government and on the basis of a declaration submitted in advance by the one witness, and over objections by Dr. Ibrahim’s lawyers, the courtroom was cleared for almost the entirety of both the hearing and the argument.  The only in-person witness, Ms. Maureen Dugan, Director of the “National Targeting Center” operated by the Customs and Border Protection (CBP) division of DHS in Reston, Virginia, was questioned only behind closed doors, and her additional written declaration was filed with the court under seal.

Dr. Ibrahim’s lawyers were unable to present her side of the story through in-person testimony, of course, since the U.S. government agencies which are the defendants in the case have prevented both Dr. Ibrahim and Ms. Mustafa Kamal from coming to the U.S. for the trial. But a sworn written declaration by Ms. Mustafa Kamal, including the email message from CBP  that led to her being denied boarding when she tried to fly to San Francisco last Sunday for the trial, was filed in the public court docket.

Following the hearing, Dr. Ibrahim’s lead counsel, Elizabeth Pipkin, said that at the conclusion of the closed court session Judge Alsup ruled:

  1. That the parties could refer to the events, exhibits, and testimony related to Ms. Mustafa Kamal in their proposed findings of fact and conclusions of law in Dr. Ibrahim’s case, and
  2. That Dr. Ibrahim and her lawyers would be allowed until noon Monday, December 9th, to decide whether to move to re-open the case.

If the case is re-opened, the parties would be able to present new evidence, call new witnesses, and/or re-call witnesses including government witnesses whose original testimony might be contradicted and whose credibility might be impeached by what happened to Ms. Mustafa Kamal and what statements they made about it.  Ms. Mustafa Kamal could even be called as a witness, if she could find the money for another airline ticket and make it to the U.S. (In her declaration, she says that her original ticket cost MYR5751, equivalent to US$1782, and she can’t afford another ticket at that price.  It’s already peak season for trans-Pacific travel to and from SFO, and on many airlines seats are unavailable at any price until after New Years.)

Aside from seeing Ms. Dugan enter and leave the closed courtroom, and what Ms. Pipkin said afterward about Judge Alsup’s rulings, we don’t know what the government may have claimed to Judge Alsup.

But when read closely, the public filings from Ms. Mustafa Kamal raise extraordinary questions of whether CBP and DHS have:

  1. Misrepresented their operations in official statements including their most recent formal report to the European Union on how they use airline reservation data,
  2. Tried to secretly strip a person born in the U.S. of her citizenship through some secret administrative action or deem her “inadmissible” to the U.S. despite her U.S. citizenship, and/or
  3. Misled the airline about the basis for their no-board request, and manipulated the airline through those false pretenses into wrongly denying boarding to Ms. Mustafa Kamal despite the fact that she is a native-born U.S. citizen with an absolute, unconditional, and irrevocable entitlement to admission to the U.S.

Read More

Dec 07 2013

“No-fly” trial, day 5, part 1: Closing arguments

Judge William Alsup convened day five of the trial in Ibrahim v. DHSthe 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.”

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Dec 05 2013

“No-fly” trial, day 4: Why can’t the plaintiff (or a witness) be at this trial?

[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, Some rights reserved, CC BY 3.0 US.”]

Day four of the trial in Ibrahim v. DHSthe 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.]

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Dec 04 2013

“No-fly” trial, day 3: Why and how was Dr. Ibrahim barred from the U.S.?

There’s been an argument on Twitter about whether we should have described the treatment of Dr. Rahinah Ibrahim — the plaintiff in the first lawsuit challenging a US government no-fly order to make it to trial — as “Orwellian” or “Kafkaesque”.  We’re inclined to agree with those who say, “But it’s both.”

True to form, day three of the trial began with arguments over whether the court could take judicial notice of statements made by the defendant government agencies on their own “.gov” websites, and of news articles linked to from the government’s own press releases on those websites.

“I would expect that the defendants would not dispute the statements that are made on their own websites,” said Christine Peek, one of Dr. Ibrahim’s attorneys.  Eventually the government’s lawyers agreed to allow their clients’ press releases, and the articles from other sources they had cited and linked to, to be entered into evidence —  but not without first putting up a fight about their admissibility.

While the first two days of the trial focused on what had happened to Dr. Ibrahim (she was denied boarding for a flight from San Francisco to Hawaii, falsely arrested and mistreated at the airport, and subsequently had her U.S. visa revoked), today’s testimony focused on why and how the U.S. government decided to take these actions against Dr. Ibrahim.

Testimony was presented in a variety of formats. Some witnesses appeared in person, others through excerpts from video recordings of depositions, and others through a surreal sort of stage play in which lawyers for the parties enacted portions of the depositions, using the transcripts as their script.

Perhaps the strangest moment came during one of these re-enactments for the record of Dr. Ibrahim’s deposition. The government’s lead counsel took the witness box to read Dr. Ibrahim’s lines from the transcript, while Dr. Ibrahim’s lead counsel played the role of the government’s lawyer cross-examining her client.

Dr. Ibrahim, of course, was the one witness who had no option of testifying in person at her own trial. The State Department’s witness today confirmed that Dr. Ibrahim applied for a U.S. visa in 2009 for the specific purpose of coming to San Francisco to be deposed in this case. Knowing that was the purpose for her trip, the State Department denied her application for a visa.

The government’s attorneys objected to questioning about why that visa application was denied, and most of those objections were sustained on the grounds that the reasons for the visa denial, like those for the “nomination” and placement of Dr. Ibrahim on the no-fly list by the FBI and its Terrorist Screening Center, were “state secrets.”

However, the limited State Department testimony that was allowed to be presented in open court suggested that the State Department visa officers who denied Dr. Ibrahim’s application in 2009 did so purely on the basis of the fact that her name had been placed on a so-called “watchlist” in 2004 or 2005, without any review or even knowledge of the “derogatory” information (if there ever was any) which had been alleged by the original “nominating” FBI agent to provide a basis for that watchlist placement.  [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.]

Most of the testimony from government witnesses (the former acting deputy director of the Terrorist Screening Center, the FBI agent who personally “nominated” Dr. Ibrahim for inclusion on the no-fly list, and the State Department’s designated official representative for the officer who revoked Dr. Ibrahim’s visa) was presented in a closed courtroom from which the press and the public were excluded because the testimony included what the government claimed was “Sensitive Security Information.”

“I have to ask you to leave the courtroom for reasons that don’t make much sense sometimes. I’m sorry for that,” Judge William Alsup said when the government insisted that the court be cleared.

In contrast, the plaintiff’s first expert witness, Jeffrey Kahn, was allowed to testify in open court — over the government’s objections — because all of his testimony was based on publicly-available information and interviews he conducted as part of his research as a law professor and author.  The government’s lawyers repeatedly interrupted Professor Kahn’s testimony to demand that he identify  the public-domain sources for his statements, even though he had already done so in his written pre-trial expert report and in the footnotes to the scholarly book and law journal article on which most of his report and testimony was based.

At one point, in response to such an objection, Prof. Kahn identified the source for one of his statements as being FBI watchlist guidelines released by the FBI itself to the Electronic Privacy Information Center (EPIC), and posted on the EPIC website. Those documents showed that the mere opening of an investigation was itself deemed to be presumptively sufficient grounds for placing a person on a watchlist, without the need to evaluate whether there had been any factual predicate for the opening of the investigation. This contradicted the government’s claims about the existence of threshhold evidentiary criteria for watchlist decisions.

The government’s lawyers tried to argue that despite having been released by the FBI itself in response to a FOIA request, and having been publicly available for years on the EPIC website, these documents couldn’t be discussed publicly.

Judge Alsup overruled their objection. “This is America. You can’t take something that is in the public domain and make it a secret. If you wanted to shut down that website, you should have done so. It’s too late now.”

The essence of Prof. Kahn’s testimony was the absence from the watchlist procedures of essential elements of due process: notice, opportunity to be heard, and the ability to have decisions reviewed by an entity independent of the decision-making agency. As Prof. Kahn summarizes this in his book, on the basis of information including interviews with the officials who established and operated the system of watchlists:

The watchlisters are prosecutor, judge, jury, and jailer. Their decisions are made in secret and their rules for decision — like their evidence for deciding — are classified. There is no appeal from the decisions of the watchlisters, except to the watchlisters themselves.

This is key to Dr. Ibrahim’s complaint, which is both (1) that there was no, or no sufficient, factual basis for her placement on the no-fly list and other watchlists, and (2) that the decisions to place her on those watchlists violated due process, regardless of any evidence on which they might have been based, because she was not given notice, an opportunity to rebut any allegations against her, and an opportunity to have the decisions independently reviewed.

As an expert witness relying on public sources, Prof. Kahn couldn’t testify about any of the specific facts of Dr. Ibrahim’s case. But his testimony could establish facts about the decision-making process (which the government says is itself a “secret” even when it is public knowledge) sufficient to show that it lacks essential elements of due process.

Prof. Kahn testified that his interviews and research led him to the conclusion that the real decisions about entries on watchlists are made by the Terrorist Screening Center. The TSC was established in 2003 by a purely executive act, Homeland Security Presidential Directive 6. The Terrorist Screening Database (TSDB), which includes the “no-fly” list, is maintained by the TSC.

What’s the standard for inclusion of an individual on the TSDB? “It’s one level above a hunch,” Prof. Kahn testified. “It’s the lowest level known to the law, a so-called reasonable articulable suspicion.” Not proof beyond reasonable doubt, not a preponderance of the evidence, not probable cause.

There is no statutory basis for the actions or authority of the TSC. There have never been any publicly promulgated regulations or notice and comment regarding the actions of the TSC.  There are “criteria” for TSC actions, but there  are exceptions to those criteria . According to Prof. Kahn, “The TSDB is not limited in its use by any logic, or by any statute. It’s limited only by the imagination of those who created it.”

Is there any external review of the process? “No, no,” Prof. Kahn testified. “If an individual is nominated for the TSDB, there’s no one you can appeal to, and the individual probably won’t even know. Certainly there’s no notice to the individual. There’s no way for an individual to contact the TSC,” and its location is officially “secret” although it has been publicly revealed.

The only way to “appeal” a TSC decision or TSDB placement, Prof. Kahn continued, is the DHS TRIP program. That’s an appeal to the same agency that may have made the decision. “You can fill out the form on the TRIP website, push send, and it goes into a black box. At some later time you might get a letter in the most Orwellian terms” from which you can’t tell what action, if any, has been taken, or if so, by whom. “The only way to tell if you have been taken off the no-fly list is to try to fly again,” and see what happens.

Most of the facts and opinions in Prof. Kahn’s testimony today and the written expert report he submitted to the court in this case are developed in much greater detail in his recent book, Mrs. Shipley’s Ghost: The Right to Travel and Terrorist Watchlists.  While his testimony and expert report were confined to a narrower set of issues, it’s worth considering the larger thesis within which he places them in his book:

All travelers now require the federal government’s express prior permission to board any aircraft (or maritime vessel) that will enter, leave, or travel within the United States. Of course, no one realizes that permission is required — or has even been sought — until it has been refused….

Although the government permits the airline to sell [a] ticket right away, that reservation cannot be redeemed for a boarding pass without the government’s assent… In other words, each time you travel by airplane in American airspace, it is by the grace of the U.S. Government….  [E]very time a citizen wishes to fly somewhere, the state must approve the itinerary….

I reject the premise that puts a citizen’s right to travel into conflict with national security. The premise is that the state has a right to restrict any citizen’s travel that frustrates the state’s foreign policy or national security objectives. This premise naturally suggests a balancing test: when national security outweighs a citizen’s interest in travel (and, so characterized, it nearly always can be made to seem to do so), the state should prohibit this travel. But… [c]itizens of a republic… should be no more obliged to abridge their travel to serve the state’s interests than they are obliged to curtail their speech when it conflicts with the state’s preferences…. It is rarely constitutionally appropriate to weigh a citizen’s travel interest against how that itinerary will affect foreign policy. Travel restriction in the service of the state is the hallmark of authoritarian regimes, not democratic republics….

The right to travel should be curtailed only to the extent that strict judicial scrutiny determines it is necessary to achieve a compelling government interest. A secret, summary, executive decision to curtail all air travel for an indeterminate time and without meaningful procedures to contest the decision would not pass such review. The No Fly List must be adapted to our liberty rich society, not the other way around.

These are, of course, the arguments that we’ve been making for many years, and we’ve been the only organization to testify and file formal objections on these grounds at each stage of the implementation of this permission-based travel control regime. We hope Dr. Kahn’s research and writing draws more attention to the unconstitutionality of this system, and the need to base travel restrictions on judicial orders.

The plaintiff’s lawyers plan to present their final witnesses on Thursday, after which the defendants are expected to move (again) for exclusion of most of the evidence and dismissal of the complaint on the grounds that the remaining evidence is insufficient to satisfy the plaintiff’s burden of proof. Unless that motion is immediately granted, the defendants will present their case on Thursday and Friday.

Dec 04 2013

Dr. Ibrahim’s legal brief’s theories about what DHS did wrong

Rahinah Ibrahim’s trial brief goes over the basic legal theories of the case, and details what Dr. Ibrahim is asking the court to do.  This is not legal advice; you can read what we think about some of its high points, or just follow the link and read it yourself.  This focuses more on the factual allegations than the details of the legal rules that Dr. Ibrahim claims DHS has violated.

The first thing you’ll notice about this 53-page document is that looks like something that went through government censorship, like a FOIA result full of blacked-out passages.  That is because it did go through government censorship.  Dr. Ibrahim’s lawyers have no security clearances, but at the insistence of the judge, they have been checked-out by the government and authorized to see documents that are DHS “Sensitive Security Information”, a sui-generis class of stuff-you-can’t-see that doesn’t even have most of the protections for the public that classified information has.  Carefully tweaked language in Congressional bills that used to exempt federal aviation research from public view have turned into a Kafkaesque power by the head of DHS to say anything is “SSI” for just about any vague reason.  Dr. Ibrahim’s lawyers can see things that they cannot reveal to Ms. Ibrahim or to the public.  They can write things in their legal brief that neither the public nor Dr.. Ibrahim are permitted to know (that’s the stuff that is blacked out).  Dr. Ibrahim is still not permitted to know if she is or ever was on the No-Fly list!!!

Pages 10 through about 19 detail the facts about what happened to Dr. Ibrahim and her family over the last decade.  Much of this will have to be proven in court with evidence, but it’s mostly uncontested.

Then come the legal arguments.  These may be tough slogging on first read, but here’s what seem to be  the meat of the allegations about what Dr. Ibrahim thinks DHS is doing wrong. Read More