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:

“Classified Information”

“Classified Information” is the familiar hierarchy of government documents and government information which the government has classified as “Sensitive”, “Secret, or “Top Secret”.

Classification decisions are made by delegated executive (Presidential) authority. But there are statutory standards for these decisions, and Federal courts can and routinely do review classified documents and classification decisions and order previously classified information to be released, either unconditionally in FOIA cases or subject to varied sorts of “protective orders” in other civil cases.  (Violating a protective order is punishable as contempt of court.)

In some cases involving classified evidence, these protective orders may require lawyers to obtain security clearances, which may force a party to find new a new lawyer (or force the court to find her a new lawyer, if she is unable to find one) if her current lawyers are denied clearances or are unwilling to apply for them. Protective orders routinely prohibit lawyers from disclosing classified evidence to their own clients, if the clients don’t have security clearances.

The Classified Information Procedures Act (CIPA) governs the use of classified information in criminal cases. A criminal defendant has the right to a public trial, to confront the witnesses against her, to speak freely in her defense, and to compulsory process for obtaining witnesses and evidence. It’s unclear whether CIPA purports to allow classified information to be used against a pro se defendant in a criminal trial without being made available to that defendant, whether a pro se defendant is entitled to obtain and use classified information in her defense in a public trial, or whether CIPA would be Constitutional as applied to a pro se criminal defendant.  But these are issues for another (criminal) case. CIPA does not apply to civil cases such as Ibrahim v. DHS.

The Supreme Court just this month declined to review a decision (Hegab v. Long, 716 F.3d 790, 4th Cir. 2013, cert. den’d. Dec. 9, 2013) that the denial of a security clearance is not subject to judicial review.  But that issue hasn’t yet arisen in Ibrahim v. DHS, since neither the plaintiff, Dr. Ibrahim (who would, presumably, be denied a security clearance) nor any of her lawyers have yet applied for security clearances.

Dr. Ibrahim’s lawyers originally sought discovery of classified evidence in the government’s possession. If that request had been granted, Dr. Ibrahim’s lawyers presumably would have been required to apply for and obtain security clearances before they could see this evidence. Before the issuance of security clearances could become an issue, however, the defendants declared all of the classified information sought by the plaintiff to be a “state secret”, as discussed below, and therefore privileged from disclosure.

In order to obtain a security clearance, an applicant must promise not to disclose information obtained from classified documents except in accordance with specified rules and procedures. Unauthorized disclosure of classified information by a person holding a security clearance is treated essentially as a breach of that person’s promise.  There is no prohibition, restriction, or penalty for any use, discussion, or publication of classified information by anyone who does not hold a security clearance.

So, for example, Daniel Ellsberg, who had a security clearance to work on the (classified) Pentagon Papers, could be prosecuted for making them public. The newspapers that published them were violating no law, however, even if the newspapers knew that these documents were classified and had been copied and given to them illegally.

Even a person who does have a security clearance is allowed to speak, write, or testify in court to information contained in classified documents, or conclusions drawn from them, as long as that person has obtained or confirmed that information, or drawn those conclusions, from some independent unclassified source(s).

The bottom line on classified information? Surprising though this may seem to the uninitiated, “classified” information is the least restricted of the three main categories of government “secrets” at issue in Ibrahim v. DHS and other lawsuits related to government restrictions on travel and travelers.

“State Secrets”

“State Secrets” are evidence and information which the head of a Cabinet-level executive department declares, under penalty of perjury and after personal review, would expose military or other matters that would harm national security if disclosed.

The “state secrets” privilege has been widely abused and expanded since 9/11. Both the extent of judicial authority and the procedures to be followed for judicial review of claims that particular information is a “state secret” are the subject of ongoing litigation in other cases as well as in Ibrahim v. DHS.

In Ibrahim v. DHS, the “state secrets” privilege was invoked by Attorney General Eric Holder. Holder is one of the named defendants in the case in his official capacity as as the head of the Department of Justice, which includes the FBI and its “Terrorist Screening Center” (TSC).  Yes, there is something suspect about allowing one party to a lawsuit to define which evidence against himself must be excluded.

The TSC is an inter-departmental body, and the various government defendants have each claimed that whoever is responsible for no-fly decisions, it it somebody else or some other agency. But the FBI has been officially designated as the “owner”, for at least some purposes, of the TSC and the “Terrorist Screening Database” (TSDB) of which the No-Fly List is a derivative subset.

Invocation of the “state secrets” privilege, if upheld by the court, prevents the “secret” evidence from being introduced in court or relied on as the basis for any legal decision or factual finding by the court. But it does not otherwise restrict disclosure, publication, or discussion of the “secret” information. As Ben Wizner of the ACLU famously told one panel of judges, “The only place in the world where these claims can’t be discussed is in this courtroom.”

In some cases, the government has argued that not just specific evidence, but the entire subject matter of the case, was a “state secret”.  But courts have allowed other cases to proceed, despite such claims by the government, if plaintiffs could show that the so-called “state secret” was already publicly known from sources independent of the purportedly “secret” evidence the government sought to withhold.

In Ibrahim v. DHS, it wasn’t necessary for Dr. Ibrahim to rely on any evidence from the government to establish that the government had prevented her from boarding her flight. During the trial, Judge Alsup scoffed at the idea that there is anything “secret” about whether an individual is on the no-fly list:

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.

In addition, as we have noted several times during the years-long course of this case, Dr. Ibrahim doesn’t need to be a U.S. citizen, have a U.S. visa, or try to travel to the U.S. in order to find out whether she is on the U.S. no-fly list. Dr. Ibrahim lives in Malaysia, and United Airlines has daily nonstop flights, with local traffic rights, from nearby Singapore to both Hong Kong and Tokyo. We’ve been on United Airlines flights on both these routes as a local passenger not continuing or connecting to or from the U.S.  All passengers on these and all other flights on U.S.-flagged airlines, even between points outside the U.S., are vetted by U.S. Customs and Border Protection and denied boarding if they are on the the U.S. no-fly list.

After invoking the “state secrets” privilege, the government argued that Dr. Ibrahim would necessarily be unable to satisfy her burden of proof without relying on the excluded evidence. Judge Alsup rejected that argument, and allowed Dr. Ibrahim to attempt to prove her case from other evidence. But Judge Alsup has reserved judgment on whether Dr. Ibrahim satisfied her burden of proof.

“Sensitive Security Information” (SSI)

“Sensitive Security Information” (SSI) is the easiest category of “secrecy”for the government to impose, the hardest to have reviewed by any court, and — according to the government’s arguments in this and other cases — the most restrictive in how information in this category may be used, disclosed, or discussed.

We’re pleased to report that this sounds as fishy to Judge Alsup as it does to us.

Information is only supposed to be designated as SSI if it falls within specified categories of information related to transportation security, “the disclosure of which TSA has determined would  — (1) Constitute an unwarranted invasion of privacy… ; (2) Reveal trade secrets or privileged or confidential information obtained from any person; or (3) Be detrimental to the security of transportation.”

However, the “determination” by the TSA that some information — any information — constitutes SSI is considered by the TSA to be a “final order” of the TSA concerning transportation security. Under a law designed to frustrate judicial review of TSA decisions, such a “final order” can only be reviewed by a Circuit Court of Appeals, not by a District Court.

The Courts of Appeals are not trial courts, and have no procedures for fact-finding. The TSA’s position in every legal case challenging a TSA order has been that the Court of Appeals is limited to a review of the “administrative record” as that record is defined by, and submitted to the Court of Appeals by, the TSA itself. That means that as long as the TSA has filled out its own internal paperwork correctly (or at least that portion or version of it that it chooses to submit to the Court of Appeals), and its decision isn’t self-contradictory or otherwise invalid on its face, the TSA can designate anything as SSI. No court can review the underlying facts or second-guess the TSA’s internal decision-making process.

The law defines SSI as a category of “sensitive but unclassified” (SBU) information.  That means that almost the only information the TSA is prohibited by law from designating as SSI is classified information.  A document that was SSI automatically loses its status as SSI if it is classified. This means that a decision to classify a particular SSI document would, in many cases, make it easier for for a trial court to review whether that document should be usable in open court or releasable in response to a FOIA request.

The allegations and/or evidence (if any) purportedly providing a basis for “nominating” someone for inclusion in the Terrorist Screening Database (TSDB), or for “accepting” such a nomination, are classified. So they can’t be SSI.  But the presence or absence of a particular entry on a TSDB “watchlist” (including a blacklist or blocklist like the No-Fly List), and the status of any individual on any such watchlist, are SSI.

Once information is designated by the TSA as SSI, “covered persons” may only disclose that SSI to other “covered persons who have a need to know,” in accordance with TSA regulations. Anyone who receives SSI through any official channel, including a lawyer who receives SSI from the government in the course of challenges to TSA actions, becomes a “covered person”. The TSA “may make an individual’s access to .. SSI contingent upon satisfactory completion of a security background check or other procedures and requirements.”  But an individual can become a “covered person” merely by receiving SSI, without being aware that it is SSI and without any affirmative agreement to restrictions on use or disclosure of SSI.

The real kicker is that the TSA argues that a “covered person” is forbidden from disclosing, discussing, or publishing information that has been designated as SSI, regardless of whether that information is public knowledge or is available or deducible from sources outside the government or that the government itself has previously made public. The TSA’s position is that if the TSA says some well-known fact is SSI, it immediately becomes illegal for any “covered person” to mention that fact to anyone else who isn’t also a “covered person” or who doesn’t, in the determination of the TSA, have a “need to know”.

According to statements made during the trial, Dr. Ibrahim’s two lead lawyers, Elizabeth Pipkin and Christine Peek, and her principal expert witness, Prof. Jeffrey Kahn, have all completed TSA background checks and been designated as “covered persons with a need to know” certain SSI relevant to Dr. Ibrahim’s lawsuit.

Dr. Ibrahim’s lawyers have been told whether she is on the No-Fly List or some other “watchlist”, and if so, what is her “status” on that watchlist. The government knows this information, of course, and it has been disclosed to Judge Alsup in sealed filings. But because the TSA has designated this information as SSI and has determined that Dr. Ibrahim herself does not have a “need to know” anything about her status (beyond what she can determine empirically by buying a ticket and trying to board a flight on a U.S.-flagged carrier), neither Judge Alsup nor Dr. Ibrahim’s own lawyers are allowed to share this information with her.

Or at least that’s what the TSA’s lawyers say.

During the trial, the defendants’ lawyers argued that as “covered persons”, Dr. Ibrahim’s lawyers and her expert witness are forbidden to disclose any SSI, either in legal arguments or testimony, regardless of whether they learned this information entirely independently of any disclosure by the TSA. Moreover, the TSA argued that as “covered persons” Dr. Ibrahim’s lawyers had an affirmative duty to prevent witnesses from disclosing any facts designated as SSI by the TSA, regardless of how those witnesses learned this information. In effect, the TSA — a defendant in the lawsuit — claimed the authority to forbid the introduction of any evidence whatsoever, from whatever source, tending to prove facts that the TSA had labeled SSI.

The SSI regulations have explicit provisions for the disclosure of SSI during pre-trial discovery in civil lawsuits.  But the regulations are silent on the disclosure of SSI during actual trials. The government seems to think that the same restrictions on SSI should apply to evidence at trial as apply to pre-trial discovery, but has been unable to provide any basis for that argument in the language of the SSI statutes or regulations.

So far as we can tell, Ibrahim v. DHS is the first case in which a trial court has been asked to rule on what happens when testimony or exhibits in a trial contain SSI. Is the court required to seal these exhibits and the transcripts of this testimony? Is the court required to make these exhibits and transcripts part of the public record of the trial? Or is the trial court allowed to decide, and if so on what basis, whether or not to make these trial records public?

During the trial, Judge Alsup’s attitude toward the government’s claims that the TSA can designate anything as SSI and then prohibit witnesses or the other party’s lawyers from talking about it, even if it was already public knowledge, and that he had no authority as trial judge to review such a designation, ranged from skeptical to scornful.

Judge Alsup allowed all those exhibits which the government claimed contained SSI to be introduced provisionally under seal, and cleared the courtroom during all testimony which the government claimed might reveal SSI. But he reserved judgment on whether he will unseal those portions of the record. And that decision will only affect public access to the record of the trial. What evidence Judge Alsup considers in reaching his findings of fact and conclusions of law is a separate question on which he has also reserved judgement.

Now that the trial is over, each side was supposed to submit its “proposed findings of fact and conclusions of law”, the defendants last Friday (Dec. 13th) and Dr. Ibrahim this Friday (Dec. 20th).

But instead of submitting legal arguments and conclusions based on the evidence that was submitted during the trial, to be responded to by the plaintiff, the defendants filed their filed their post-trial brief with proposed findings, and their subsequent rebuttal to the plaintiff’s proposed findings, in camera and ex parte — for Judge Alsup’s eyes only, not to be disclosed to Dr. Ibrahim or her lawyers —  and accompanied  by new, classified declarations, also in camera and ex parte.

In a notice disclosing this secret filing, the defendants refer to “their proposed findings of fact and conclusions of law based on the classified evidence excluded under this Court’s ruling on the state secrets privilege.”

Come again? “Based on the evidence excluded…”?

So far as we can tell, this means the defendants are now claiming that while the plaintiff is forbidden from referring to anything the defendants have declared is a “state secret”, the defendants and the judge are allowed to discuss these “secrets” behind the plaintiff’s back, and rely on them as the basis for deciding the case.

This is, course, exactly what happened in Gilmore v. Gonzales, in which the DHS used secret in camera, ex parte evidence, which Mr. Gilmore never saw and never had a chance to rebut, as the basis for drawing the (erroneous) factual conclusion that Mr. Gilmore could have boarded a flight without showing government-issued ID, although in fact he was prevented from doing so.  That (false) finding of fact, made without any fact-finding proceeding, gave the 9th Circuit Court of Appeals an excuse to avoid a decision on the validity of the de facto prohibition on flying without showing government-issued ID.

The defendants already tried this tactic almost a year ago in Ibrahim v. DHS, but it didn’t go over so well.  Judge Alsup turned away a courier sent to his chambers to show him a cache of secret evidence the defendants hoped would persuade him to dismiss Dr. Ibrahim’s lawsuit. And he refused to look at anything that Dr. Ibrahim’s lawyers hadn’t seen and had a chance to respond to:

[T]he government has not justified and may not affirmatively seek to dismiss this civil action based upon proposed secret ex parte communications with the district judge.  If the government seeks to make affirmative use of evidence to end the case, then it must disclose that information… [T]he Court will ignore all of the redacted material in the government briefs on this set of motions and will rule on the same paperwork made available to both sides.

It’s not clear why, having already been so bluntly rebuffed, the government is trying again on the same issue with the same judge — especially after a trial in which Judge Alsup made clear that what troubled him most was the impossibility of defending oneself against secret accusations allegedly supported by secret evidence.

Up to this point, all classified evidence has been excluded from consideration, at the defendants’ insistence, as “state secrets”. So the plaintiff’s lawyers’ lack of security clearances was of no consequence.

Now that the defendants have, after the trial, changed their tune and asked Judge Alsup to base his decision on “secret” evidence rather than excluding it from consideration, Judge Alsup wants to know whether it can be shown to Dr. Ibrahim’s lawyers — as they have requested — so that they can have a chance to respond to it.

Since this evidence is classified, this would require (aside from the issue of whether the evidence is a “state secret” and can be withheld from plaintiff’s counsel on that basis) that Dr. Ibrahim’s lawyers apply, be approved, and agree to the conditions of security clearances.  Judge Alsup wants to know “whether and how one or more of plaintiff’s counsel could obtain a clearance to review the classified submissions, including how long it would take and whether plaintiff’s counsel is willing to undertake the process.”

Judge Alsup’s questions suggest that he may be considering ordering the government defendants to allow Dr. Ibrahim’s lawyers a chance to apply for security clearances to see whatever classified evidence the defendants want to use against their client. Or he may be considering refusing (as he has done before) to consider any evidence or arguments that the plaintiff’s lawyers can’t see.

Answers to those questions from both sides are due Monday, December 23rd.  After that, it will be up to Judge Alsup to decide what happens next.