Dec 19 2013

“No-fly” trial: There are secrets, and then there are secrets.

Post-trial briefing was to be completed this week in Ibrahim v. DHS, the first challenge to a “no-fly” order to make it to trial. After that, the case would have been in the hands of U.S. District Judge William Alsup, who conducted the week-long trial without a jury earlier this month in San Francisco, for his verdict and findings of both fact and law.

But Judge William Alsup has now asked lawyers for both sides — plaintiff Dr. Rahinah Ibrahim and the array of Federal government agency and official defendants involved in or responsible for “watchlisting” and “no-fly” decisions — to submit additional information by Monday, December 23rd, about whether any of Dr. Ibrahim]s lawyers could obtain security clearances to allow them to view the classified evidence and arguments submitted by the government, whether any of them are willing to do so, and if so, how long the process of obtaining clearances might take.

Understanding what this means, and why Judge Alsup might have asked for additional briefing on this question, requires some understanding of the government’s Alice-in-Wonderland array of “secrets” — something which has perplexed commentators on the trial as well as Judge Alsup.

The short version is that the people and government agencies responsible for preventing Dr. Ibrahim from exercising her right to travel are claiming the right to define for themselves which evidence she is allowed to used to try prove her case against them, while also picking and choosing which of that evidence they are allowed to use themselves. The trial judge, they claim, is bound by the defendants’ own decisions in these matters. And the defendants are trying again, after being repeatedly rebuffed, to get the judge to base his ruling on evidence and arguments that are being kept secret from the plaintiff and her lawyers.

The government defendants have claimed that portions of the evidence or potential evidence in the trial, and the arguments and inferences that might be made on the basis of that evidence, falls within one or more of three different partially-overlapping categories of “secret” information: classified information, “state secrets”, and “Sensitive Security Information” (SSI).

There are different rules for which information falls within each of these categories, who is allowed to see or talk about it, who makes these determinations, and whether or how these determinations can be reviewed by which courts.

This led to some of the more bizarre interludes during the trial in Ibrahim v. DHS. Before clearing the courtroom so that “secret” testimony could be heard or “secret” evidence could be argued about, Judge Alsup would have to find out which sorts of “secrets were about to be presented or discussed, and then query the spectators individually about their clearances to determine which of them would have to leave and which could stay.

The colloquy with the audience would go something like this:

Judge Alsup: Which privilege applies to the testimony this witnesses is about to give?

Government Lawyer: This will be SSI [Sensitive Security Information].

Judge Alsup: OK. I apologize to the members of the public, but I’m going to have to clear the courtroom.

Audience Member 1: I have a “secret” security clearance. Am I allowed to stay?

Judge Alsup: No, that’s different. You have to leave unless you’re cleared for SSI.

Audience Member 2 (Prof. Jeffrey Kahn, who had already completed his testimony and been discharged as a witness): I’ve been approved as a “covered person” authorized to receive SSI for purposes of this trial, as a consultant to plaintiff’s counsel. May I stay?

Judge Alsup: Yes, you can stay. Everyone else has to leave.

Here’s an introduction to the players and the ground rules in the government’s game of secrets:

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