Witness in “no-fly” trial finds she’s on “no-fly” list too

The Federal civil rights trial in Ibrahim v. DHS — the first lawsuit seeking judicial review of a government “no-fly” order to make it to trial — began this morning in San Francisco with a surprise:

When the case was called at 7:30 a.m., Elizabeth Pipkin and Christine Peek, pro bono lawyers for the plaintiff Dr. Rahinah Ibrahim, began by informing U.S. District Judge William Alsup that Dr. Ibrahim’s oldest daughter Raihan Mustafa Kamal was denied boarding in Kuala Lumpur yesterday when she tried to board a flight to San Francisco to observe and testify at the trial in her mother’s lawsuit.

Ms. Mustafa Kamal, an attorney licensed to practice law in Malaysia, was born in the U.S. and is a U.S. citizen. Ms. Mustafa Kamal was with her mother when Dr. Ibrahim was denied boarding on a flight from K.L. to San Francisco in 2005 (after having been told that her name had been removed from the “no-fly” list) under what now seem eerily similar circumstances. The DHS had been given notice that Ms. Mustafa Kamal would testify at the trial as an eyewitness to those events she witnessed in 2005.

According to Ms. Pipkin, airline employees who refused to check Ms. Kamal in for flights to the U.S. told her that they were acting on orders from the DHS.  Airline staff in K.L. gave Ms. Mustafa Kamal a telephone number in Miami to call for further information, saying it was the number of an office of the CBP (the Customs and Border Protection division of DHS).

When Ms. Pipkin learned of this from Ms. Mustafa Kamal on Sunday night at 8 p.m. San Francisco time, she called the number Ms. Mustafa Kamal has been given. It was apparently a CBP office, but the person who answered the phone refused to give his name and refused to provide any information about what had happened to Ms. Mustafa Kamal. When Ms. Pipkin asked to speak with his supervisor, she was given another phone number that went to voicemail. She left a message, but nobody called back.

On hearing this account, Judge Alsup asked the lawyers representing the DHS and the other Federal agency and official defendants (led by Lily Farel of the Department of Justice) to respond.

After consulting with DHS agency counsel, Ms. Farel claimed that this was the first that any of the government’s lawyers in the case had heard about Ms. Mustafa Kamal’s having been prevented (by their client the DHS) from traveling to the U.S. to attend and testify at her mother’s trial.

Judge Alsup ordered the government defendants’ lawyers to investigate and report back. “You’ve got ten lawyers over there on your side of the courtroom. You can send one of them out in the hall to make a phone call and find out what’s going on.”

At the end of the first day’s session of the trial (more on that below), the governments’ lawyers told Judge Alsup that they had made inquiries and had been told that “the plaintiff’s daughter just missed her flight” and was rebooked on a flight tomorrow (Tuesday) afternoon.

Needless to say, that story strains credulity. If Ms. Mustafa Kamal had merely missed her flight, why would she have been given a CBP phone number in Miami to call for information about what had happened?  The governments’ lawyers insisted that, “That’s what we have been told”, but Judge Alsup wasn’t satisfied.

“We may have to have a separate evidentiary hearing about this,” Judge Alsup said, and ordered the defendants to provide further information tomorrow (Tuesday).  “I want to know whether the government did something to obstruct a witness, a U.S. citizen.”

It’s possible that the DHS deliberately put Ms. Mustafa Kamal on the no-fly list (or put her back on the no-fly list) to prevent her from attending and testifying at her mother’s trial. But it’s also possible that Ms. Mustafa Kamal, perhaps along with the rest of Dr. Ibrahim’s family, was placed on the no-fly list for some other reason, or for no reason at all.  It remains to be seen how the DHS will explain itself to Judge Alsup, or whether they will fall back on their standard refusal to confirm or deny whether any individual is or was on the no-fly list.

Meanwhile in the courtroom in San Francisco, Judge Alsup took up a collection of disputes regarding which documents and witnesses would be admitted into evidence and which could be discussed in open court.

These questions are complicated not just because of the defendants’ Orwellian demands to have public information retroactively defined as secret and unmentionable, but also because Dr. Ibrahim’s lawyers were provided with some information under protective orders or restrictions including those applicable to “covered persons” receiving documents defined by the TSA as “Sensitive Security Information” (SSI). Dr. Ibrahim’s lawyers have, for example, been given some information about why Dr. Ibrahim was put in the “Terrorist Screening Database” (TSDB), but are forbidden to share this information with their client Dr. Ibrahim herself.

Arguments and objections over information that the defendants believed could not be mentioned at all, or could not be mentioned in open court, continued throughout the day. There were line-by-line arguments, for example (for portions of which the courtroom was cleared of journalists and other spectators) over which entries on a timeline in a slide to be used in the plaintiff’s opening statement could be shown to the spectators, which could be shown to the court and used in argument but only if the courtroom was cleared, and which the government believed were entirely inadmissible.

Even after Judge Alsup’s preliminary rulings, the government’s attorneys repeatedly interrupted Ms. Pipkin’s opening statement with more objections. Among the documents which the government objected to having read publicly, on the grounds that the TSA had subsequently determined that some of the information it contained was SSI, was a 2005 San Francisco Airport Police report that was not produced by or obtained from the DHS and which had been part of the public court docket since 2006.

Although this isn’t the language in which it was framed, the essence of the disputes over SSI was whether “Sensitive Security Information” is a category of information or a category of government documents and records.  The government contends that SSI is a category of information, and that if the TSA designates some information as SSI, any documents or evidence concerning that information become SSI, regardless of their source, as do any statements concerning those factual matters.

Judge Alsup wasn’t willing to accept such an Orwellian claim of government authority to define independently and publicly known facts and independent evidence as secret or unspeakable:

That’s ridiculous. Are you saying that if the president makes a speech, TSA can retroactively make it a secret what he said? It cannot be the law that something that is publicly known later becomes hidden…

Here’s my ruling: If it’s in a document that’s SSI, but it’s also available from some other publicly available source, it’s public information, and cannot be withheld from the public in this courtroom…. The government is taking such an unreasonable position on how to run a trial. If it’s been in the public domain for years, you’re barred from making the argument that the plaintiff’s counsel cannot “disclose” it….

Trials are important. Trials are supposed to be public.

I want to categorically reject one thing: If information is publicly available in some other way, the government does not have the right to retroactively clamp it down and remove it from the public record. Even if it could have been protected as SSI within the government, if the plaintiff obtains this information independently, the government can’t clamp that down.

The plaintiff has the right to prove her case. If she can prove it through publicly available admissible evidence, she can do so even if that information is also included in internal government documents designated as SSI.

That’s the way I feel. That’s the law, that ought to be the law, and that’s the only way to run this country. That’s my ruling, and if the government disagrees, I invite you to take an emergency writ to the Ninth Circuit Court of Appeals.

In her opening statement on Dr. Ibrahim’s behalf, Ms. Pipkin alluded to Dr. Ibrahim having been put on and taken off different levels of watch lists and her status having been changed several times. Ms. Pipkin said that evidence would be introduced during the trial showing that these decisions against Dr. Ibrahim were made arbitrarily. That evidence, Ms. Pipkin said, will show that the watchlisting procedures and criteria that the government has publicly described are not the criteria that are really being used. Watchlist decisions are being made by people who received inadequate and biased anti-Muslim training, on the basis of secret criteria, and with inadequate notice to the people like Dr. Ibrahim who are the subjects of these decisions.

[Ms. Pipkin used the government’s term, “watchlist”. But these lists aren’t used solely as a “watching” or surveillance tool. They are also used as the basis for “no-board” orders to airlines, and other actions. We think “blocking lists” or “blacklists” would be more accurate labels for these lists.]

Ms. Pipkin was allowed to show the courtroom audience an excerpt from an internal State Department e-mail message on this subject disclosed by the government on discovery.  The message, from a visa officer responsible for decisions based on watchlist status, noted that in many cases these decisions were based on “virtually no derogatory information…. There is no practical way to determine what the basis is for these actions” without contacting the case officer responsible for “nominating” each individual for inclusion on the watchlist.

“Since we don’t have the time to contact the case agent,” the State Department officer continued, his agency would proceed on the basis that “the opening of an investigation itself is prima facie evidence of ineligibility”.   So much for claims of individualized review of the evidentiary basis (if any) for watchlisting, even when watchlist status is used as the basis for other decisions affecting individuals.

In the government defendants’ opening statement, Ms. Farel made two basic arguments, within the framework of refusing to confirm or deny whether Ms. Ibrahim ever was, or now is, on any watchlist, or if so why.

First, Ms. Farel argued that while an (unspecified) “mistake” was made that was “quickly corrected”, Dr. Ibrahim has not been harmed by any of the  defendants’ actions. Since Dr. Ibrahim has not been issued a visa, she couldn’t travel to the U.S. regardless of whether or not she was on a watchlist.  Even if the defendants were responsible for barring her from the U.S., that hasn’t harmed her career. She has been able to travel elsewhere in the world, just not to the U.S., and has been professionally and academically successful despite not being able to conduct research, participate in events, or interact face-to-face with peers in the U.S.

Second, Ms. Farel argued that because all evidence of whether or why Dr. Ibrahim was placed on a watch list has been deemed inadmissible as a “state secret”, Dr. Ibrahim will necessarily be unable to satisfy her burden of proving a causal connection between defendants’ actions and any harm she might have suffered. That argument seems to fly in the face of Judge Alsup’s ruling that he will allow Dr. Ibrahim’s lawyers to attempt to establish the facts necessary to prove her case through independently available public sources. But Ms. Farel indicated that the government intends to to move for dismissal of the complaint at the close of the plaintiff’s case, on the grounds of Dr. Ibrahim’s failure to satisfy her burden of proof.

Today’s session concluded with the start of Dr. Ibrahim’s testimony, in the form of excerpts from a video recording of a deposition taken in London this summer (because, of course, the defendants would not allow Dr. Ibrahim to come to the US to testify in person).  Dr. Ibrahim’s testimony and the remainder of her case will continue on Tuesday morning.

14 Responses to “Witness in “no-fly” trial finds she’s on “no-fly” list too”

  1. In first no-fly trial, witness ends up unable to fly to testify | Dewayne-Net Archives Says:

    […] [Note:  This item comes from Dave Farber’s IP list.  DLH]

    From: John Gilmore <gnu@toad.com>
    Date: Tue, Dec 3, 2013 at 3:18 PM
    Subject: In first no-fly trial, witness ends up unable to fly to testify
    To: dave@farber.net, gnu@toad.com
    (for IP)The US no-fly list has existed for decades in a legal limbo, and no court has yet ruled on the legality or constitutionality of its ban on citizen travel or its lack of due process for victims.  It is being challenged in court this week.

    Rahinah Ibrahim, a middle-aged Muslim Stanford grad student from Malaysia, was put on the no-fly list in 2005 for no obvious reason,and arrested in the SFO airport.  A day later, she was allowed to leave the US to go to a conference, whereupon her longstanding student visa was canceled and she could not return.  She ultimately completed her Stanford PhD remotely, from her native Malaysia, and is now the dean of the architecture school at a Malaysian university.  She has diligently pursued a court case against DHS and the San Francisco police who arrested her in the airport ever since.
    After years of Federal delaying tactics, including two trips to the Court of Appeals and the invocation of the “state secrets privilege”,Judge William Alsup forced the matter to trial, which is happening this week in San Francisco.  Earlier in the case, he refused to look at DHS-offered secret evidence, declaring that travel is a right that cannot be denied without “an effective means of redress”.

    The news from Monday, the first day of the trial, is that Ms. Ibrahim’s daughter, who was born in the US and is a US citizen and a witness in the trial, was prevented by DHS on Sunday from flying to San Francisco for the trial.  The daughter, Raihan Mustafa Kamal, was 14 years old in 2005 when she accompanied Ms. Ibrahim through the San Francisco airport where she was arrested.  Ms. Ibrahim’s lawyers had notified the DHS that they planned to call her as an eyewitness to the events of that day.  DHS appears to have put her on the no-fly list,and as a result she has not been able to attend the trial. (For the same reason, Ms. Ibrahim cannot attend her OWN trial against the Federal government.  She went to London to testify, with attorneys from both sides present, and part of her videotaped testimony was shown in court on Monday.  Apparently she can fly anywhere else in the world except the lawless USA.)

    DHS lawyers claimed that Ms. Kamal “just missed her flight”, which is not what she told her mother’s lawyers.  Judge Alsup ordered them to provide more information today, saying, “I want to know whether the government did something to obstruct a witness, a U.S. citizen.”

    More information is here:<http://papersplease.org/wp/2013/12/02/witness-in-no-fly-trial-finds-shes-on-no-fly-list-too/><http://papersplease.org/wp/2013/12/01/first-no-fly-trial-to-begin-this-week-in-san-francisco/&gt;

    Ms. Ibrahim already reached a settlement with the San Francisco police, which cost the taxpayers of the city a cool $225,000 for thatf alse arrest.  The city’s lawyers realized that they had had no grounds to arrest Ms. Ibrahim, who had not broken any laws, and settled rather than risk a trial.  (TSA agents have no power to arrest anyone.  They call local cops when they want someone arrested.  Mos tlocal cops are stupid enough to arrest someone when TSA tells them to, even though no law has been broken, on some vague and bogus theory about Federal orders trumping state laws.  I am hopeful that cash-strapped San Francisco will decline to stooge for TSA next time.)

    The ID-card-holding public can attend the trial at 450 Golden Gate Avenue, San Francisco, on the 18th floor.  The case docket and some of the filings are publicly available at the Internet Archive via the RECAP system that voluntarily publishes public-domain extracts from the Federal Courts’ restricted pay-per-page docketing system, PACER:<http://ia700500.us.archive.org/17/items/gov.uscourts.cand.175882/gov.uscourts.cand.175882.docket.html&gt;

    John Gilmore […]

  2. Papers, Please! » Blog Archive » “No-fly” trial, day 2: Dr. Ibrahim gets her (virtual) day in court Says:

    […] update on Dr. Ibrahim’s eldest daughter, U.S.-born U.S. citizen Rainan Mustafa Kamal, who was denied permission by the DHS to board a flight to the U.S. on Sunday to attend and testify at the trial in her mother’s […]

  3. Seriously!? Get a grip! | Case Over No-Fly List Takes Bizarre Turn As Gov’t Puts Witness On No Fly List, Then Denies Having Done So Says:

    […] Ibrahim’s oldest daughter, Raihan Mustafa Kamal (an American citizen, born in the US), was blocked from boarding her flight to the US to appear at the trial, and told that she was on the no fly list as well. Kamal, a […]

  4. Papers, Please! » Blog Archive » “No-fly” trial, day 3: Why and how was Dr. Ibrahim barred from the U.S.? Says:

    […] 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.” […]

  5. TECHDIRT: Case Over No-Fly List Takes Bizarre Turn As Gov’t Puts Witness On List, Then Denies Having Done So - Downtrend.com Says:

    […] Ibrahim’s oldest daughter, Raihan Mustafa Kamal (an American citizen, born in the US), was blocked from boarding her flight to the US to appear at the trial, and told that she was on the no fly list as well. Kamal, a […]

  6. Political Irony › A Lie that Won’t Fly Says:

    […] The plaintiff in the case is Dr. Rahinah Ibrahim, a Malaysian citizen who was a PhD student at Stanford University. Ibrahim got married in the, and her daughter, Raihan Mustafa Kamal, was born in the US and is hence a US citizen. Ibrahim, along with her daughter, were denied boarding on a flight from San Francisco to Kuala Lumpur in 2005. […]

  7. The Progressive Mind » First no-fly list case in history, witness can’t make it because… | Peace . Gold . LOVE Says:

    […] Reporter for the case: http://papersplease.org/wp/2013/12/02/witness-in-no-fly-tria&#8230; […]

  8. Any Moment Now, Judge Alsup | Simple Justice Says:

    […] Ibrahim’s oldest daughter, Raihan Mustafa Kamal (an American citizen, born in the US), was blocked from boarding her flight to the US to appear at the trial, and told that she was on the no fly list as well.  Kamal, a […]

  9. Papers, Please! » Blog Archive » “No-fly” trial: What happens now? Says:

    […] Dec. 2, 2013: Witness in “no-fly” trial finds she’s on “no-fly” list too […]

  10. Witness in “no-fly” trial finds she’s on “no-fly” list too | Recent News Says:

    […] trial finds she’s on “no-fly” list too Posted on December 11, 2013 by Jay Fenello Papers, Please!The Federal civil rights trial in Ibrahim v. DHS – the first lawsuit seeking judicial review […]

  11. Papers, Please! » Blog Archive » “No-fly” trial: There are secrets, and then there are secrets. Says:

    […] During the trial, Judge Alsup’s attitude toward the government’s claims that the TSA can designate anything as SSI and then prohibit witnesses or the other party’s lawyers from talking about it, even if it was already public knowledge, and that he had no authority as trial judge to review such a designation, ranged from skeptical to scornful. […]

  12. Judge will not let plaintiff or her lawyer see evidence in ‘no-fly list’ trialNot Exactly The News | Not Exactly The News Says:

    […] denied a visa to come to her own trial and the Department of Homeland Security reportedly blocked Ibrahim’s daughter from entering the U.S. as […]

  13. Judge will not let plaintiff or her lawyer see evidence in ‘no-fly list’ trial | End the Lie – Independent News Says:

    […] denied a visa to come to her own trial and the Department of Homeland Security reportedly blocked Ibrahim’s daughter from entering the U.S. as […]

  14. No Fly List on Trial | Discourse.net Says:

    […] Shocking day one event: TSA allegedly (and, day two suggests, in fact) prevented a key witness (a US citizen) for the complainant to fly to the trial to testify. At present the evidence is only hearsay; if the witness ever makes it to the trial–sounds like a bad thriller doesn’t it?–then we’ll have sworn testimony. This entry was posted in Civil Liberties, Law: Right to Travel. Bookmark the permalink. ← Happy Thanksgiving 2013 ‘American Dream is a Continuous Process’ → […]

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