Sep 02 2014

Government asks for “do-overs” and delays in no-fly lawsuits

Faced with a series of Federal court rulings upholding challenges to “no-fly” orders, or allowing them to proceed toward trial, the US government agencies responsible for “no-fly” orders have responded by pretending that they don’t understand what the courts have ordered them to do.

Instead of complying with court orders, the responsible agencies are asking for months of additional time.

In one case, the request for delay is to get “clarification” of a straightforward court order — and to prepare and submit a different set of pleadings than the exhibits and summaries of testimony the court had demanded.

In another case, the government has asked the court — which has already found that the defendants’ secret no-fly decision-making process unconstitutionally denied the plaintiffs due process of law — to remand the case to the defendants themselves, and give them six months to devise and subject the plaintiffs to yet another extra-judicial “review” of the no-fly list by the defendants, before the court even considers whether that (yet to be devised) new-and-improved administrative no-fly listing and internal kangaroo-court “review” system would be Constitutional.

The first court ruling that the no-fly system or a specific no-fly decision was unconstitutional came in January 2014, following the trial last December in San Francisco in Ibrahim v. DHS.  But Dr. Rahinah Ibrahim is not a US citizen, the US government won’t give her a visa to return to the US, and under US law visa denials are generally not subject to judicial review.  So Judge William Alsup’s ruling in that case has had little practical effect either on Dr. Ibrahim or on no-fly listing and decision-making practices affecting other would-be travelers.

Two other pending cases, however, involve US citizens (and in one of the cases some permanent residents or  green-card holders as well) who would be able to travel freely if they weren’t on the no-fly list.

In Latif v. Holder, Judge Anna J. Brown in Portland, OR, ruled in June 2014 that the current no-fly decision-making system is unconstitutional.  Judge Brown found that:

[T]he Defendants must provide a new process that satisfies the constitutional requirements for due process.… Because due process requires Defendants to provide Plaintiffs (who have all been denied boarding flights and who have submitted DHS TRIP inquiries without success) with notice regarding their status on the No-Fly List and the reasons for placement on that List, it follows that such notice must be reasonably calculated to permit each Plaintiff to submit evidence relevant to the reasons for their respective inclusions on the No-Fly List. In addition, Defendants must include any responsive evidence that Plaintiffs submit in the record to be considered at both the administrative and judicial stages of review.

Judge Brown ordered lawyers for the defendant government agencies and the plaintiffs to confer and report back on how they proposed to do this.

But rather than making any proposal to Judge Brown as to how they plan to comply with her order, the defendants have proposed in their latest status report that the judge should postpone, for at least six months, any judicial consideration of remedies for the actions the court has found to be unconstitutional.

Instead, the government suggests that Judge Brown should “remand” the case to them, and allow them to come up with some new system for internal administrative “review” of their no-fly list.  Only after the defendants have been subjected to this new “review” should the court consider whether the new review process satisfies the criteria set by the court in its June order.

We’re supposed to be pleased that the government has “agreed” — under Federal court order — to revise its no-fly decision-making procedures. But we’re outraged that despite its record of unconstitutional interference with our right to travel, the government thinks it deserves a do-over rather than a spanking.

Judge Brown has taken the government’s request for “remand” and postponement of a ruling on remedies under advisement, and asked both parties for another status report.

Judge Brown recognized in her June order that, “Defendants (and not the Court) must fashion new procedures that provide Plaintiffs with the requisite due process described herein.”  The government has failed to do so, and the damage from the unlawful no-fly orders is ongoing.

Judge Brown should countenance no further delay, and should order remedies — now.

Having already concluded that the no-fly orders were issued as the outcome of an unconstitutional process, Judge Brown should enjoin the government from taking action or inducing others (such as airlines) to take action to restrict the plaintiffs’ exercise of their rights on the basis of those unlawful and hence invalid orders.

The other no-fly lawsuit the government is trying to stall or evade is Mohamed v. Holder in Virgina.

After Gulet Mohamed’s complaint survived the government’s attempts to have it dismissed on jurisdictional grounds, and his attorney began making discovery requests, the government moved to dismiss the case on the grounds that it could not be litigated without revealing “state secrets”.

In support of that motion to dismmiss, the government introduced a self-serving declaration from one of the defendants, Attorney General Eric Holder, swearing under penalty of perjury and purportedly after “careful and personal consideration” that to reveal information about no-fly and watchlist procedures “could reasonably be expected to cause significant harm to the national security”.  Holder specifically included the government’s “Watchlisting Guidance” as among these “state secrets”.

Holder also specifically claimed in his declaration to the court in Mohamed v. Holder that he was not invoking the “state secrets” claim to conceal government misconduct. This is the same claim Holder made in a similar sworn declaration in Ibrahim v. DHS, in which the government eventually admitted that the reason Dr. Ibrahim has been added to the no-fly list — which Holder had claimed was a “state secret” —  was that an FBI agent had mistakenly checked the boxes he was supposed to un-check on a watchlist “nomination” form.  Unfortunately, Judge Alsup granted Holder’s motion to quash the subpoena for him to be deposed concerning his declaration. So we don’t know if Holder knew that what he was signing was false, or if he was misinformed or misled, and if so, by whom.

While Judge Anthony Trenga was considering that motion, the “Watchlisting Guidance” was published by The Intercept.  Not surprisingly, the sky didn’t fall.  On its face, the claim that it would harm the national security for would-be attackers to know what procedures would be followed in making “watchlisting” decisions is absurd. Would-be criminals, for example, know exactly what judicial procedures will be followed in making decisions of whether to subject them to criminal sanctions. Does that harm the national security? And does anyone suggest that those criminal procedures should be kept a “state secret”?

Mr. Mohamed’s lawyers filed a copy of the Watchlisting Guidance with the court, “to show how objectionable and evidence-free Defendants’ watch listing process is,” although the government would neither confirm nor deny the authenticity of the published version of the document.

Meanwhile, Judge Trenga has ordered the government to submit the following to him, in camera (i.e kept secret from Mr. Mohamed and his lawyers) and under seal (i.e. kept secret from the public):

… all documents, and a summary of any testimony, expert or otherwise, that the United States would present at an evidentiary hearing or trial to establish that inclusion on the No Fly List, as applied to United States citizens who are not under indictment or otherwise charged with a crime and who have not been previously convicted of a crime of violence, is necessary, and the least restrictive method available, to ensure the safety of commercial aircraft from threats of terrorism, and that no level of enhanced screening would be adequate for that purpose.

In effect, Judge Trenga called the bluff in the government’s “state secrets” claim. If the government wants Judge Trenga to rule that he can’t reach a decision in this case without considering the information the government claims is “secret”, it needs to show the judge that it has some such evidence that might (if admitted in court) actually be sufficient to justify its actions.  Judge Trenga gave no indication that he is trying to second-guess any of the claims in Holder’s declaration. Rather, the judge appears to be trying to assess whether — if that evidence is excluded as “secret” — that exclusion would actually have any effect on his decision, or prejudice the government’s ability to present genuinely exculpatory evidence.

Implicit in Judge Trenga’s order is the suggestion that air travel is a fundamental right, such that restrictions on travel must be shown to be “necessary” and the “least restrictive” available means of achieving a lawful government purpose.  This is the standard established by the Supreme Court for restrictions on rights protected by the First Amendment (“the right of the people… peacably to assemble”). This is also the standard established by the UN Human Rights Committee for restrictions on the right to freedom of movement as protected by the International Covenant on Civil and Political Rights.

The government has responded to Judge Trenga’s order by asking for clarification of what the judge means by “evidence”. The implication, of course, is that the government agencies responsible for no-fly decisons don’t understand the meaning of the word, “evidence”, much less the menaing of evidence-based decision making.

In addition, the government’s response to Judge Trenga’s order seems to repudiate both the First Amendment right to assemble and the right to freedom of movement guaranteed by the ICCPR:

Plaintiff has not alleged the deprivation of a fundamental right. There is no fundamental right to international travel. “[T]he freedom to travel outside the United States must be distinguished from the right to travel within the United States.” Haig v. Agee, 453 U.S. 280, 306 (1981). “[T]he freedom to travel abroad … is subordinate to national security and foreign policy considerations; as such, it is subject to reasonable governmental regulation.” Id. 7 Moreover, insofar as Plaintiff alleges an inability to travel interstate by commercial aircraft, courts have held that there is no fundamental right to a particular mode of transportation, so allegations regarding an inability to fly domestically do not constitute an infringement upon the fundamental right to interstate travel.… Thus, in the absence of a fundamental right, rational-basis review would apply, and not the “least restrictive method” review suggested in its Order. Defendants therefore request that the Court reconsider its August 6 Order because the Order identifies an incorrect standard…. In the alternative, Defendants move for clarification and an extension of time….

On its face, the current system of extrajudicial administrative no-fly orders restricting the fundamental rights of US citizens who have not been convicted of any crime violates both the First Amendment to the US Constitution and US obligations pursuant to ratified and binding international human rights treaties.

If the government is unable or unwilling to show the judge — even in camera — any evidence that would justify such a system under the applicable “least restrictive alternative” standard of “necessity”, then there is no need to consider whether that evidence might be excludable as a “state secret”.  We look forward to a finding by Judge Trenga that a no-fly order based on such a system is invalid on its face, and enjoining any interference by the government with Mr. Mohamed’s movements on the basis of such an order.

9 thoughts on “Government asks for “do-overs” and delays in no-fly lawsuits

  1. The six month thing is cute. I would bet (not vast sums of money, but still) that the government will take the defendants off the no-fly list and then argue that they no longer have standing to bring the case.

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  3. Judge Trenga has reconsidered — and on reconsideration, reaffirmed — his order, giving the government defendants in Gulet Mohamed’s lawsuit until October 15, 2014, to produce the evidence alleged to constitute “state secrets”.

    Judge Trenga specifically noted that the government’s credibility is in doubt:

    “The government’s assertion of the state secrets privilege in certain cases has been less than reassuring. See Reynolds v. United States, 345 U.S. 1 (1953), in which it became apparent years later, after the claimed state secrets document was declassified, that it did not implicate state secrets after the claimed state secrets document was declassified, that it did not implicate state secrets; and Ibrahim v. Dep’t of Homeland Security, 3:06-cv-545, in which the government sought dismissal of similar No Fly List claims based on alleged state secrets, only to concede at trial, after the motion to dismiss was denied, that the plaintiff in that case was mistakenly placed on the No Fly List. See also Islamic Shura Council of S. Cal. v. F.B.I, 779 F.Supp.2d 1114 (CD. Cal. 2011), a Freedom of Information Act case in which the government justified in the name of national security falsely representing to the court that only a limited number of responsive documents had been located.”

    “Court Requires Review of State Secrets Documents” (by Steven Aftergood, Federation of American Scientists, September 16, 2014):

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  5. The government continues to argue that the courts have no authority to review its “state secrets” claims, but has filed the evidence Judge Trenga demanded, ex parte and under seal, for him to review. The government also filed a public summary of its argument and a heavily-redacted version of a declaration supporting its claims:

    “Govt Rebuts Criticism of State Secrets Privilege” (by Steven Aftergood, Federation of American Scientists, October 20, 2014):

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