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

Dec 04 2013

“No-fly” trial, day 2: Dr. Ibrahim gets her (virtual) day in court

Dr. Rahinah Ibrahim’s lead counsel, Elizabeth Pipkin, opened the second day of trial of Dr. Ibrahim’s lawsuit against the government for putting her on its “no-fly” list without due process with an 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 lawsuit.

Ms. Pipkin reminded the court of what  government counsel Paul Freeborne of the Department of Justice told the court before the trial recessed on Monday:

Freeborne: 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. She has been re-booked on a flight tomorrow. She should arrive tomorrow.

“None of that was true,” Ms. Pipkin told the court this morning. “She didn’t miss the flight. She was there in time to check in. She has not been rebooked on another flight.” And most importantly, it was because of actions by the DHS — one of the defendants in Dr. Ibrahim’s lawsuit — that Ms. Mustafa Kamal was not allowed to board her flight to SFO to attend and testify at her mother’s trial.

Ms. Pipkin said that Ms. Mustafa Kamal had sent her a copy of the “no-board” instructions which the DHS gave to Malaysia Airlines, and which the airline gave to Ms. Mustafa Kamal to explain as much as it knew about why it was not being allowed to transport her.  Ms. Pipkin handed Judge William Alsup a copy of the DHS “no-board” instructions to Malaysia Airlines regarding Ms. Mustafa Kamal.

Major props to Malaysia Airlines for providing a copy of the DHS instructions to Ms. Mustafa Kamal. Other airlines receiving similar instructions have acquiesced to DHS orders to keep the instructions from the DHS, and the reasons for the airlines’ actions, secret from the would-be travelers whose rights are affected. So far as we know, this is the first time an actual no-fly order has been disclosed to a would-be traveler or potentially to the public.

International airlines are required to send a complete copy of each Passenger Name Record (PNR) to the CBP division of DHS, which processes PNRs through a black box to which one of the inputs is the set of U.S. government “watchlists”.  [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.]

If the would-be traveler is “cleared” by this process (the default is, “No”), CBP  responds by sending an individualized permisison message in the form of an electronic “boarding press printing result”.  (Diagrams and video explaining this process.)  Presumably, the page-long DHS message to Malaysia Airlines was some sort of supplement or follow-up to a “not cleared” boarding pass printing result regarding Ms. Mustafa Kamal.

It would have been one thing for the ten government lawyers in Judge Alsup’s courtroom to claim that they “had no knowledge” of any DHS actions to interfere with Ms. Mustafa Kamal’s flight to the U.S. and appearance at the trial. But the government went much further when Mr. Freeborne claimed that the government had “confirmed” that the DHS did nothing to deny Ms. Mustafa Kamal boarding.

But Judge Alsup noted that the document with the DHS instructions to the airline was not supported by any sworn testimony or evidence of its authenticity. “You have to have a sworn record before I can do something dramatic.” Judge Alsup said he would consider the document if and when Ms. Mustafa Kamal arrives in San Francisco and can testify as to its authenticity.

Ms. Pipkin said that Ms. Mustafa Kamal was reluctant to spend the money on another airline ticket to San Francisco without some assurance that this time she would be allowed to board her flight.

“Get her on an airplane and get her here,” Judge Alsup responded. “She’s a U.S. citizen. She doesn’t need a visa. I’m not going to believe that she can’t get on a plane until she tries again. ” And Mr Freeborne, with disingenuous faux-solicitude, claimed that the government is “willing to do whatever we can to facilitate” Ms. Mustafa Kamal’s ability to board a flight to the U.S.

Judge Alsup wasn’t willing to take any action today on unproven allegations or unverified documents. But he made clear that, “I am disturbed by this…. We’ll hear from her [Ms. Mustafa Kamal] when she gets here.  If it turns out that the DHS has sabotaged a witness, that will go against the government’s case.  I want a witness from Homeland Security who can testify to what has happened. You find a witness and get them here.”

Following these and a few other preliminaries, Ms. Ibrahim’s lawyers resumed playing excerpts from her deposition, recorded on video in London (because the defendants won’t allow her to come to the U.S. to testify in person) in July 2013.

Read More