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, jacksonwest.com. 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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