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.
Reading between the deletions, they suggest that whenever DHS merely investigated anyone, if they were a Muslim, their name got put into the No-Fly list. One theory seems to be that by discriminating against Muslims, it gave the government a bargaining chip to say, “If you will secretly spy on other Muslims for us, then we’ll let you, a patriotic honest Muslim, fly again.” This is the same kind of tactic that prosecutors use to hold a 20-year sentence over a minor player’s head to get them to testify or spy on a more senior alleged lawbreaker. Ugly, particularly because these are ordinary citizens, not criminal suspects.
A second theory is that anyone at all who is investigated gets put onto the list (page 35, “The government watchlists everyone for whom it has ever opened a counterterrorism investigation, even if the purported basis for the investigation was flimsy or influenced by prejudice.”), but due to incompetence, they are never removed unless they are definitively cleared of all possible connections to terrorism (even things like “goes to same cafe as a suspected terrorist”). FBI and DHS training materials for years claimed that Muslims are enemies of the state (page 28), so a lot of Muslims got investigated for that reason alone, and were therefore put on the list. They were never removed because, well, DHS and FBI are very busy and they have better things to do than to remove potential terrorists from their unaccountable secret blacklists. If we investigated you, you’re probably guilty, right? This second theory ascribes to incompetence and indifference what theory 1 explains as malice.
The fundamental thing that DHS did wrong, in these legal theories (page 27-), is to deprive Dr. Ibrahim (and other Muslims) of their right to travel, to associate, to work, and to be free from religious discrimination, unwarranted official condemnation, and confiscation of airplane ticket costs, without a hearing. There are many circumstances in which government can restrict an individual’s civil rights or privileges, but not without “due process of law” which means a hearing, a chance for the affected individual to see the evidence against them and to speak to a neutral decision maker, to sort out and correct errors, mistakes, miscommunications, official misconduct, etc. DHS policy has been to eliminate all forms of due process of law, such as notice to the affected person that they’ve been watchlisted or banned, a list of what they are alleged to have done wrong, a chance for the affected person to explain errors or misinterpretations, and an effective redress procedure that actually fixes mistakes when found. Ms. Ibrahim’s lawyers say this “shocks the conscience” (page 39):
Under the “shocks the conscience” test, when officials with the luxury to make unhurried judgments and “extended opportunities to do better” nevertheless exhibit “protracted failure even to care, indifference is truly shocking.” Here, the government’s conduct violates Ibrahim’s right to substantive due process, even under the “shocks the conscience” test. (citations omitted)
DHS has labored mightily to prevent both the public and its victims from ever getting any notice, any documentation of even what their super secret rules or policies are (let alone their actual records about each of us), or any opportunity to contest the charges against us or have mistakes in our records actually fixed. They have explicitly “exempted themselves” from each Congressional requirement that their records be truthful, relevant or accurate, yet they use those records constantly to make decisions about restricting fundamental rights of travel, association and assembly. That’s their fundamental mistake, say Dr. Ibrahim’s lawyers. That has shocked our conscience for a long, long time. We’re glad that others are catching on — perhaps even a District Court judge with the power to do something about it.