What’s been most noteworthy in DHS legal arguments in “no-fly” and other related  cases isn’t that the government has tried to argue in defense of intrusive and repressive surveillance and control of travel.

Instead, the consistent strategy of the DHS has been to argue (1) that it doesn’t have to give any arguments or evidence in support of these practices, because they are exempt from judicial review, and (2) that if it does have to give the courts any evidence or arguments, it can do so in secret, so that opposing parties and their lawyers are unable to know, or respond to, the government’s secret arguments and secret evidence.

Fortunately, some judges seem to be running out of patience with these claims that the executive branch of government is above the law.

We’re particularly encouraged by the latest order issued December 20, 2012 in the case of Ibrahim v. DHS, which continues to appear likely to result in the first review of a no-fly order, on its merits, by any court.

Since 2005, when she was refused boarding and detained by police when she tried to board a flight at San Francisco International Airport, Rahinah Ibrahim has been trying to find out who put her on the “no-fly” list and why, get off the “no-fly” lost, and obtain damages from the government agencies, contractors, and individuals responsible for her false arrest and the interference with her right to travel.

The city and county of San Francisco (responsible for the airport police) eventually paid Dr. Ibrahim $225,000 to settle her claims against them.  But the federal government defendants have continued to try to get the case dismissed before any discovery, fact finding, or trial on the merits of Dr. Ibrahim’s claims.

The 9th Circuit Court of Appeals has twice rejected the government’s appeals of preliminary rulings allowing the case to go forward and allowing Dr. Ibrahim’s lawyers to proceed with discovery.  But even after the federal defendants’ latest appeal was rejected, the government again moved the District Court to stay any discovery and dismiss the complaint.

In support of their latest motion to dismiss, the government went beyond filing evidence and legal arguments with the court “under seal” for in camera review by the judge (but not Dr. Ibrahim or her lawyers).

Instead, the government called the judge’s chambers to advise that a courier was on his way from Washington to the courthouse in San Francisco with some secret documents, which he proposed to show the judge, alone in chambers, and then take back to Washington so that there would be no record with the court, even in a “sealed” file, that would enable the court of appeals to review the basis for the judge’s decision.

Judge William Alsup of the U.S. District Court for the Northern District of California told the courier not to darken his door, and refused to look at any of the secret evidence, even in camera. Then he delivered a smackdown to the government in his ruling dismissing its motions.

First, Judge Alsup completely rejected the government’s attempt to rely on secret evidence:

This order holds that the 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…. If it does not wish to make such affirmative use, then it may withhold it subject only to the possibility that plaintiff’s counsel may eventually seek discovery of it, in which case it may or may not be kept under wraps depending on the strength of the competing discovery consideration at that time and the strength of the privilege asserted.

Second, Judge Alsup refused to consider any of the “redacted” legal arguments which had not been disclosed to Dr. Ibrahim or her lawyers, and to which she had therefor been unable to respond:

[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, which is totally redacted as to the standing issue.  The government’s latest motion based on lack of standing, being a complete mystery, is DENIED.

Third, Judge Alsup reaffirmed that travel is a right:

The right to travel here and abroad is an important constitutional right.  To deny this right to a citizen or to a lawfully present alien … based on inaccurate information without an effective means of redress would unconstitutionally burden the right to travel.

As a District Court judge within the 9th Circuit, Judge Alsup couldn’t overturn or ignore the precedent of the Court of Appeals in Gilmore v. Golzales. But by carefully distinguishing Dr. Ibrahim’s case in two key respects, Judge Alsup significantly limited the damage done by the bad decision in Gilmore v. Gonzales.

Judge Alsup ruled that, despite the 9th Circuit’s decision that the Constitution doesn’t provide a right to any particular mode of domestic travel (and thus that John Gilmore could, perhaps, have walked from San Francisco to Washington if he wasn’t allowed to fly), international travel is in practice impossible except by air:

While the Constitution does not ordinarily guarantee the right to travel by any particular form of transportation, given that other forms of travel usually remain possible, the fact remains that for international travel, air transport in these modern times is practically the only form of transportation, travel by ship being prohibitively expensive or so it will be presumed at the pleading stage.  Decisions involving domestic air travel, such as the Gilmore case, are not on point.

Judge Alsup also found that the 9th Circuit had relied on secret evidence in Gilmore v. Gonzalez only to determine which court (district or circuit) had jurisdiction over the case, and not to dispose of the case. That’s arguable, but if it is adopted by other judges,  Judge Alsup’s interpretation substantially narrows the extent to which the Gilmore decision can be used as precedent to legitimate the use of secret evidence as a basis for decisions that are dispositive of a case:

If the TSA Security Directive [in Gilmore] was a “final order,” then the district court lacked subject-matter jurisdiction and only the court of appeals could hear a petition for review.  After reviewing the Security Directive in camera and ex parte, our court of appeals described the directive sufficiently in its ruling to demonstrate that it was indeed a “final order” and then transferred the matter to itself under its own original review jurisdiction.  Nothing in this ex parte procedure was used to make a ruling on the merits…. By contrast, here the government seeks to use ex parte communications to defeat plaintiff’s case altogether.

Judge Alsup concluded his latest order by setting the case for discovery and trial:

After six years and two unsuccessful appeals by the government, it is time to resolve this case on the merits.  The Court needs the cooperation and assistance of counsel to do so. The motion to dismiss is DENIED.  The motion to stay discovery is DENIED.  A separate case management order will set a timetable through trial.

We look forward to seeing a “no-fly” order finally reviewed on its merits by a federal court, and to seeing the agencies and individuals responsible for extrajudicial interference with the right to travel held accountable.