Did government lawyers lie to the judge and the plaintiff in the first “no-fly” case to go to trial?
Since the government chose not to appeal the decision by District Judge William Alsup, the only remaining issues are:
- Whether the government defendants should be required to pay Dr. Ibrahim’s legal fees and costs.
- Whether the government has complied with Judge Alsup’s judgment and order, which requires the government to (a) inform Dr. Ibrahim of her status on the no-fly list and (b) expunge, correct, and prevent andy future adverse consequences for Dr. Ibrahim form the FBI agent’s mistake in checking the wrong box on a form to put her on the “no-fly” list despite the fact that she posed and poses no threat.
This week, as we noted earlier, Judge Alsup ruled that, because many of the government’s legal arguments and tactics were “unreasonable”, the government must pay some but not all of Dr. Ibrahim’s legal fees and costs. But Judge Alsup also found that the government has not acted in “bad faith”, and therefore that Dr. Ibrahim’s lawyers were entitled only to government-standard rates that are a fraction of their usual rates.
The next day, the government submitted a set of declarations purporting to show that the defendants have complied with Judge Alsup’s orders.
The day after that, Dr. Ibrahim’s lawyers filed a motion for reconsideration of Judge Alsup’s decision with respect to legal fees and costs, on the basis of the government’s new declarations as new evidence of government “bad faith” justifying assessment of legal fees at full market rates.
The new declarations show that Dr. Ibrahim was on many watchlists, blacklists, and databases that the government previously failed to disclose, even in response to Judge Alsup’s previous orders granting motions to compel responses to an interrogatory to “identify any other lists or government databases into which plaintiff’s name has been placed.”
The new declarations show that, despite a letter sent to Dr. Ibrahim that “Where it has been determined that a correction to records is warranted, these records have been modified,” this had not in fact been done.
And the new declarations reveal that the government denied Dr. Ibrahim’s latest visa application, purportedly on the basis of a threat of terrorism, despite having admitted in court that it does not in fact believe that she poses any such threat, and despite Judge Alsup having found it uncontested that she poses no such threat.
There’s also more in the motion for reconsideration about the injustice and bad faith implicit in the newly-revealed but still classified and “state secret” (“state secret” like the fact that the FBI agent had checked the wrong box on the form was a “state secret”) exception to the non-binding “standards” for no-fly decisions that the government claims allows it to put people on the no-fly list and deny their right to travel even if it admits there is no reasonable basis to suspect them of anything illegal.