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The Identity Project

Daily Archives: December 7, 2013

Dec 07 2013

“No-fly” trial, day 5, part 2: What happened to the plaintiff’s daughter?

“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.”

Neither the public, nor Dr. Rahinah Ibrahim, nor her daughter, Seattle-born U.S. citizen Raihan binti Mustafa Kamal, yet know why a U.S. Customs and Border Protection Officer sent the email message excerpted above  to the airline on which Ms. Mustafa Kamal was scheduled to fly to San Francisco last Sunday to testify at the trial in Dr. Ibrahim’s lawsuit challenging her placement on the U.S. no-fly list. (Click the image for a larger version or here for the complete e-mail forwarding thread.)

We do know, however, that whatever happened when Ms. Mustafa Kamal showed up at Kuala Lumpur International Airport (KUL)  two hours and 45 minutes before the scheduled departure of her flight and tried to check in, it certainly wasn’t (and CBP’s lawyers in San Francisco certainly couldn’t later have “confirmed”, as they claimed to the court on Monday), that Ms. Mustafa Kamal “just simply missed her flight”.

Friday afternoon, after what was to have been the conclusion of the trial in Ibrahim v. DHS, Judge William Alsup held an evidentiary hearing and heard argument from lawyers for Dr. Ibrahim and the government regarding what happened to Ms. Mustafa Kamal and what (if anything) he should do about it.

(See our separate article about the morning session, including the possibility of bar complaints against some of the government’s lawyers and a history lecture from Judge Alsup to the government about the blacklisting of Robert Oppenheimer on the basis of secret, false, allegations that he was a Communist: “No-fly” trial, day 5, part 1: Closing arguments.)

At the insistence of the government and on the basis of a declaration submitted in advance by the one witness, and over objections by Dr. Ibrahim’s lawyers, the courtroom was cleared for almost the entirety of both the hearing and the argument.  The only in-person witness, Ms. Maureen Dugan, Director of the “National Targeting Center” operated by the Customs and Border Protection (CBP) division of DHS in Reston, Virginia, was questioned only behind closed doors, and her additional written declaration was filed with the court under seal.

Dr. Ibrahim’s lawyers were unable to present her side of the story through in-person testimony, of course, since the U.S. government agencies which are the defendants in the case have prevented both Dr. Ibrahim and Ms. Mustafa Kamal from coming to the U.S. for the trial. But a sworn written declaration by Ms. Mustafa Kamal, including the email message from CBP  that led to her being denied boarding when she tried to fly to San Francisco last Sunday for the trial, was filed in the public court docket.

Following the hearing, Dr. Ibrahim’s lead counsel, Elizabeth Pipkin, said that at the conclusion of the closed court session Judge Alsup ruled:

  1. That the parties could refer to the events, exhibits, and testimony related to Ms. Mustafa Kamal in their proposed findings of fact and conclusions of law in Dr. Ibrahim’s case, and
  2. That Dr. Ibrahim and her lawyers would be allowed until noon Monday, December 9th, to decide whether to move to re-open the case.

If the case is re-opened, the parties would be able to present new evidence, call new witnesses, and/or re-call witnesses including government witnesses whose original testimony might be contradicted and whose credibility might be impeached by what happened to Ms. Mustafa Kamal and what statements they made about it.  Ms. Mustafa Kamal could even be called as a witness, if she could find the money for another airline ticket and make it to the U.S. (In her declaration, she says that her original ticket cost MYR5751, equivalent to US$1782, and she can’t afford another ticket at that price.  It’s already peak season for trans-Pacific travel to and from SFO, and on many airlines seats are unavailable at any price until after New Years.)

Aside from seeing Ms. Dugan enter and leave the closed courtroom, and what Ms. Pipkin said afterward about Judge Alsup’s rulings, we don’t know what the government may have claimed to Judge Alsup.

But when read closely, the public filings from Ms. Mustafa Kamal raise extraordinary questions of whether CBP and DHS have:

  1. Misrepresented their operations in official statements including their most recent formal report to the European Union on how they use airline reservation data,
  2. Tried to secretly strip a person born in the U.S. of her citizenship through some secret administrative action or deem her “inadmissible” to the U.S. despite her U.S. citizenship, and/or
  3. Misled the airline about the basis for their no-board request, and manipulated the airline through those false pretenses into wrongly denying boarding to Ms. Mustafa Kamal despite the fact that she is a native-born U.S. citizen with an absolute, unconditional, and irrevocable entitlement to admission to the U.S.

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Dec 07 2013

“No-fly” trial, day 5, part 1: Closing arguments

Judge William Alsup convened day five of the trial in Ibrahim v. DHS — the first lawsuit challenging a U.S. government “no-fly” order to  make it to trial — on Friday morning with the announcement that, “I received this additional material about the [plaintiff’s] daughter and her attempts to come here.”

But as he said this, Judge Alsup noticed that lead counsel for both parties were still conferring in the corridor outside the courtroom.  When they were brought in a moment later, Dr. Ibrahim’s lead attorney Elizabeth Pipkin came forward with an even more unexpected announcement: “We have told opposing counsel that we are considering the possibility of bar complaints against some of the attorneys on their team for their conduct during this trial.”

“There is some concern that on our team there have been some blatant misrepresentations made to the court,” one of the supervising attorneys for the Department of Justice team representing the government explained.

“I don’t know what you’re talking about,” Judge Alsup said. What exactly was he supposed to do?

Ms. Pipkin said she wasn’t asking Judge Alsup to do anything, and further volunteered that she had assured the government’s legal team that no such complaints would be made until after the conclusion of the trial.

But one of the government’s supervising attorneys told Judge Alsup she was concerned about compliance with internal rules of  her agency that require that in cases where a supervising attorney is aware of the potential for bar complaints against a government lawyer, the supervisor is required to reassign that lawyer from the case while the possible complaint is pending.

That appeared to be an internal matter within the government’s legal team, and there didn’t seem to be anything for Judge Alsup to do.  No announcement was made as to the departure of any of the government’s lawyers, but with a team one observer counted as ten lawyers and three paralegals before the bar on the defendants’ side, it was hard to keep track of whether one of them might have gone missing for the rest of the day.

Ms. Pipkin told the judge that, “We would prefer to take up the issue of the daughter first,” before closing arguments. “It’s integral to the case, and shows exactly what the issues are.” But Judge Alsup decided he wanted to get the closing arguments over with first, and scheduled a separate hearing regarding Dr. Ibrahim’s daughter after lunch. (See our separate report on that later hearing, which produced even more shocking revelations: “No-fly” trial, day 5, part 2: What happened to the plaintiff’s daughter? )

Each side to was allowed to make a 30-minute closing statement in open court, after which the courtroom was cleared and each side was allowed an additional 15 minutes to make arguments behind closed doors based on, or referring to, evidence that the government contends cannot be disclosed to the public.

“This case is about the right to travel freely, without government interference,” Ms. Pipkin began the public portion of her closing.

“Dr. Ibrahim is not able to be here because the government has not issued a visa for her to do so. She wants to maintain and enrich her ties to colleagues and institutions in the U.S. She has substantial ties to the U.S. But she has been unable to travel to the U.S. since 2005.”

Ms. Pipkin predicted — correctly —  that, “The government will say that there’s been no real harm” to Dr. Ibrahim from the defendants’ actions because she’s been incredibly successful in her career and has been able to travel to other places. “But she has been denied access to the most important country in the world for research and scholarship. She wants to commercialize the patented inventions that she had made in her research, but she has been denied access to the most important center of entrepreneurship and investment in the world. She has been denied permission to travel to the U.S. to petition for redress of her grievances.”

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