Dec 02 2013

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.

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

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