Jul 14 2014

Is it a “state secret” that the no-fly list is unfair?

Faced with a series of decisions by federal District Court judges that the procedures for putting names on the “no-fly” list lack the due process of law required by the Constitution, and with more no-fly and “watchlist” (blacklist) cases on track toward trial, the government is trying to claim that the basis (if any) for putting a US citizen on the no-fly list is a “state secret” exempt from judicial review.

The case of Gulet Mohamed, a Virginia teenager who was placed on the US no-fly list while he was visiting family members overseas, is one of the most egregious examples of the FBI’s systematic abuse of the no-fly list. It appears that Mr. Mohamed was placed on the no-fly list in order to pressure him to become an FBI informer, as was done with many other US citizens. When Mr. Mohamed’s visa expired and he couldn’t fly home to the USA, he was taken into immigration detention in Kuwait, where he “was repeatedly beaten and tortured by his interrogators,” one of whom spoke “perfect American English.”

After a series of government attempts to get Mr. Mohamed’s complaint dismissed for on jurisdictional and other grounds were rejected, the case was set for the first trial ever on the merits of a no-fly order. (The government had avoided such a trial in the case of Dr. Rahinah Ibrahim by conceding, on the eve of trial, that her initial placement on the no-fly list had been an FBI mistake.)

At this point, however, the government has invoked the “nuclear option” by moving to dismiss Mr. Mohamed’s complaint on the basis of a declaration by Attorney General Eric Holder that the reason (if any) why Mr. Mohamed is on the no-fly list is a “state secret” and that it would endanger national security to allow the court to review the no-fly decision or the evidence (if any) supporting it.

Attorney General Holder made similar claims in a declaration in Ibrahim v. DHS et al. In that case, it turned out that Dr. Ibrahim placed on the no-fly list because an FBI agent left blank a box he should have filled in on a “negative check-off” no-fly and watchlist nomination form.  Atty. Genl. Holder’s previous claim that disclosing this mistake would gravely endanger national security casts severe doubt on the credibility and reliability of his subsequent similar claims in other cases such as that of Mr. Mohamed.

Attorney General Holder is among the named defendants in Mohamed v. Holder, as he was in Ibrahim v. DHS et al. Granting his and the government’s motion to dismiss the case on the basis of his unverified (and by its own terms unverifiable) declaration would give him de facto immunity from any civil lawsuit he, in his sole discretion and without judicial review, chooses to ask to have dismissed on this basis.

The government has attached a policy statement issued by Holder in 2009 to his latest declaration in Mohamed v. Holder.  According to that policy, claims of “state secrets” won’t be used to conceal government misconduct. But that is exactly what Holder himself did in Ibrahim v. DHS.

In Mr. Mohamed’s response to the government’s latest motion to dismiss his complaint, he points out that the court doesn’t need to disclose or consider the evidence (if any) against him in order to determine whether the ex parte administrative procedure for putting his name on the no-fly list is unfair.

If someone is locked up without a trial, that’s a violation of their Constitutional right to due process of law. It’s irrelevant what evidence might be presented against them, or whether they might be found guilty if they were given a fair trial and a chance to present a defense.

The same goes for no-fly orders. The proper way to propose that someone be prevented from exercising their right to travel by common carrier is to petition a court for a no-fly order in the form of an injunction or a temporary restraining order, in accordance with established legal procedures for such orders.

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