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The Identity Project

Category Archives: Secret Law

Apr 16 2014

Decision in first “no-fly” trial finally unsealed

The complete unredacted decision in favor of Dr.. Rahinah Ibrahim issued by U.S. District Judge William Alsup in January, following the first trial in any case challenging a US government “no-fly” order, was finally made public today by order of the court.  (Unredacted version as unsealed; version with previously redacted portions highlighted.)   The deadline for any appeal has passed, and this order is now final.

Despite the government’s claims that the redactions were of vital “state secrets”, the formerly-redacted portions of the decision, and the declarations filed yesterday by the government, shed relatively little new light on what happened to Dr. Ibrahim and her family. They do, however, contain a previously-redacted chronicle of her having been placed on and off various “watchlists” (de facto blacklists) while her lawsuit was pending, and of a previously unmentioned exception to the nonbinding “standards” for watchlisting:

45. To repeat, government counsel have conceded at trial and this order finds that Dr. Ibrahim is not a threat to the national security of the United States. She does not pose (and has not posed) a threat of committing an act of international or domestic terrorism with respect to an aircraft, a threat to airline passenger or civil aviation security, or a threat of domestic terrorism.

46. In March 2005, Dr. Ibrahim filed a Passenger Identity Verification Form (PIVF) (TX 76).  [This was a predecessor to the DHS-TRIP form.]

47. In December 2005, Dr. Ibrahim was removed from the selectee list. Around this time, however, she was added to TACTICS (used by Australia) and TUSCAN (used by Canada). No reason was provided for this at trial.

48. On January 27, 2006, this action was filed.

49. In a form dated February 10, 2006, an unidentified government agent requested that Dr. Ibrahim be “Remove[d] From ALL Watchlisting Supported Systems (For terrorist subjects: due to closure of case AND no nexus to terrorism)” (TX 10). For the question “Is the individual qualified for placement on the no fly list,” the “No” box was checked. For the question, “If no, is the individual qualified for placement on the selectee list,” the “No” box was checked.

50. In 2006, the government determined that Dr. Ibrahim did not meet the reasonable suspicion standard. On September 18, 2006, Dr. Ibrahim was removed from the TSDB. The trial record, however, does not show whether she was removed from all of the customer watchlists subscribing to the TSDB.

51. In a letter dated March 1, 2006, the TSA responded to Dr. Ibrahim’s PIVF submission… The response did not indicate Dr. Ibrahim’s status with respect to the TSDB and no-fly and selectee lists.

52. One year later, on March 2, 2007, Dr. Ibrahim was placed back in the TSDB. The trial record does not show why or which customer watchlists were to be notified.

53. Two months later, however, on May 30, 2007, Dr. Ibrahim was again removed from the TSDB. The trial record does not show the extent to which Dr. Ibrahim’s name was then removed from the customer watchlists, nor the reason for the removal.

54. Dr. Ibrahim did not apply for a new visa from 2005 to 2009. In 2009, however, she applied for a visa to attend proceedings in this action. On September 29, 2009, Dr. Ibrahim was interviewed at the American Embassy in Kuala Lumpur for her visa application.

55. On October 20, 2009, Dr. Ibrahim was nominated to the TSDB pursuant to a secret exception to the reasonable suspicion standard. The nature of the exception and the reasons for the nomination are claimed to be state secrets. In Dr. Ibrahim’s circumstance, the effect of the nomination was that Dr. Ibrahim’s information was exported solely to the Department of State’s CLASS database and the United States Customs and Border Patrol’s TECS database.

56. From October 2009 to present, Dr. Ibrahim has been included in the TSDB, CLASS, and TECS. She has been off the no-fly and selectee lists….

60. On December 14, 2009, Dr. Ibrahim’s visa application was denied….

64. The TSC has determined that Dr. Ibrahim does not currently meet the reasonable suspicion standard for inclusion in the TSDB. She, however, remains in the TSDB pursuant to a classified and secret exception to the reasonable suspicion standard. Again, both the reasonable suspicion standard and the secret exception are self-imposed processes and procedures within the Executive Branch.

65. In September 2013, Dr. Ibrahim submitted a visa application so that she could attend the trial on this matter…. Trial in this action began on December 2 and ended on December 6. As of December 6, Dr. Ibrahim had not received a response to her visa application. At trial, however, government counsel stated verbally that the visa had been denied. Plaintiff’s counsel said that they had not been so aware and that Dr. Ibrahim had not been so notified….

70. Since 2005, Dr. Ibrahim has never been permitted to enter the United States.

The other most significant remaining questions concern Dr. Ibrahim’s daughter, Ms. Raihan Mustafa Kamal, who was born in the US and is a US citizen, but was prevented from flying to the US to observe and testify at her mother’s trial. (Previous reporting about Ms. Mustafa Kamal here, here, and here.)

According to a section of Judge Alsup’s decision (pp. 24-25) about Ms. Mustafa Kamal that was previously redacted in its entirety:

On December 1 [2013], the National Targeting Center (“NTC”) within the Department of Homeland Security began vetting passengers for the Philippine Airlines flight. NTC officers determined that Ms. Kamal was matched to a record that was listed in the TSDB in a category which notifies the Department of State and Department of Homeland Security that other government agencies may be in possession of substantive “derogatory” information about the individual that may be relevant to an admissibility determination under the Immigration and Nationality Act. United States citizens, of course, are not subject to the admissibility provisions of the Immigration and Nationality Act….

On December 2, Ms. Kamal’s records were updated in the TSDB to reflect that she was a United States citizen. The request for additional screening was rescinded and it was requested that Ms. Kamal be allowed to board without delay.

Since Ms, Mustafa Kamal was not a party to her mother’s case (although the government had been notified that she was a potential witness), the issues related to her were not pursued or resolved in that case.

So we still don’t know what “derogatory” information would be relevant to the “admissibility” to the US of a US citizen, or why DHS is keeping records of such information or “watchlisting” such individuals.

Also today, Judge Alsup ruled that the government must pay some, but not all, of Dr. Ibrahim’s legal fees and costs. The exact amount remains to be determined by a special master.  Judge Alsup found that the government had been “unreasonable” in many of its actions and arguments, but had not been shown to have acted in bad faith.

As we’ve previously reported, other no-fly cases are moving forward, with that of Gulet Mohamed (currently in the early stages of discovery in Disctrict Court on remand following denial by the 4th Circuit Court of Appeals of the government’s motions to dismiss) likely next in line for trial.

Apr 16 2014

FBI tells Dr. Ibrahim she’s not on the “no-fly” list

Yesterday, in response to a court order, the FBI — the nominal “owner” of the US government’s “no-fly” list — sent the letter above to Dr. Rahinah Ibrahim, informing her that she isn’t on that list.

This is the first time the US government has ever officially disclosed to an individual whether they are on the “no-fly” list, although of course — as the judge noted during the trial in Dr. Ibrahim’s lawsuit challenging her placement on the “no-fly” list — anyone can tell that they are on the list if they are prevented from flying despite having a valid ticket and all other required documents and complying with all of the rules the airline’s tariff.

Attorney General Eric Holder and Director of National Intelligence James Clapper personally signed declarations under penalty of perjury that to disclose exactly this information, to Dr. Ibrahim specifically, would harm national security, and that this information was therefore a “state secret”.

Needless to say, the sky didn’t fall yesterday when the FBI told Dr. Ibrahim the “state secret” that she is not on the “no-fly” list.

The letter from the FBI to Dr. Ibrahim was included in a set of declarations from officials of Orwellian US government organizations like the “Directorate of Terrorist Identities” which were filed with the court by the government yesterday to show that it had complied with the order by U.S. District Judge William Alsup.

These declarations give interesting insights into the structure of the various interlocking databases, but say nothing about the criteria for “no-fly” and other blacklisting and watchlisting decision.

Despite Dr. Ibrahim not being on the “no-fly” list, and despite testimony at the trial that she poses no threat, she has repeatedly been denied a visa to return to the US on the grounds that she “has engaged in terrorist activity” and is the spouse or child (presumably this allegation relates to her husband) of a person who is similarly inadmissible to the US, pursuant to 8 U.S. Code §1182(a)(3)(B)(i)(I) and §1182(a)(3)(B)(i)(IX). Her latest visa application was refused on these grounds just this Monday, April 14, 2014, at the US Embassy in Kuala Lumpur.

The declarations filed by the government say nothing about what happened to Dr. Ibrahim’s daughter, Ms. Raihan Mustafa Kamal, who was born in the US and is a US citizen, but was prevented from flying to the US to observe and testify at her mother’s trial. (Previous reporting about Ms. Mustafa Kamal here, here, and here.)

In accordance with Judge Alsup’s orders, and the government’s decision not to appeal, the unredacted version of Judge Alsup’s findings (including several pages of sealed findings concerning what happened to Ms. Mustafa Kamal) was scheduled to be unsealed yesterday.  The decision is now officially “unsealed”, but is still being processed by the court clerk’s office. We’ll publish it as soon as we receive it.

Apr 05 2014

TSA fines “Naked American Hero” $500

The TSA has assessed a $500 civil penalty against “Naked American Hero” John Brennan, who removed all his clothes at a TSA checkpoint at the Portland, Oregon, airport in 2012 to show that he wasn’t carrying any weapons or explosives and in protest of the TSA’s practices.

Mr. Brennan was arrested at PDX airport by Portland police on April 17, 2012, but he was found not guilty of criminal charges in June 2012 by a county judge on the grounds that, under local Portland ordinances and Oregon state law, nakedness for purposes of political protest is not a crime.

After Mr. Brennan’s acquittal, a TSA investigator proposed that he be penalized $1000 for “interfering” with TSA screening.  In accordance with a memorandum of understanding between the TSA and the Coast Guard, the TSA has delegated its administrative authority to determine whether to assess such a penalty, and if so, the amount of the penalty, to an “Administrative Law Judge” (ALJ) from the U.S. Coast Guard.

(Why the Coast Guard? The TSA doesn’t have any ALJs on its own payroll, so it contracts out their functions with respect to TSA decisions to the Coast Guard as a parallel component of the DHS.)

Coast Guard ALJ George J. Jordan presided over a formal administrative hearing which we attended and reported on in Portland on May 14, 2013.

Almost a year after that hearing and almost two years after the underlying events at the airport, ALJ Jordan has finally issued an initial decision to assess a $500 penalty (reduced from the $1000 proposed by the TSA investigator) along with a set of findings of fact and conclusions of law.

Contrary to some headlines, no court has yet considered, much less upheld, the TSA’s decision, and no independent third party has yet reviewed, much less ruled on, the TSA’s complaint against Mr. Brennan.

Both the terminology and the TSA’s outsourcing of its own internal decision-making to Coast Guard employees make it easy to misunderstand what has happened.

Just as the checkpoint staff the TSA calls “Transportation Security Officers” are not law enforcement officers, so-called “Administrative Law Judges” are not judges or officers of any court. The “formal administrative hearing” was held in a courtroom (rented for the day by the TSA from the U.S. Bankruptcy Court), but it was not a trial and was not a proceeding of any actual court.

ALJ Jordan was acting not as an independent party, but as a DHS employee subcontracted by the TSA (only because the TSA doesn’t have its own ALJs, not because this was required) to make the TSA’s own initial, internal decision.  ALJ Jordan’s decision was issued on behalf of, and under the authority of, the TSA itself, as the TSA’s own initial decision on the complaint of its own investigator.

Almost two years after he was arrested, Mr. Brennan’s only day in any court has been when he was acquitted of all criminal charges in county court. ALJ Jordan’s initial decision on behalf of the TSA will be subjected to further internal review by the head of the TSA or his designee. Only after that review will the TSA’s final internal decision, as made by the head of the agency or his designee, be subject to review by any court or outside body.

ALJ Jordan explicitly recognized that he had no authority to consider whether Mr. Brennan’s conduct was protected by the First Amendment or whether the TSA’s regulations or actions were otherwise invalid. Only after the ALJ’s initial decision is reviewed internally within the TSA, and the TSA issues its final order, will Mr. Brennan be entitled to petition a Circuit Court of Appeals to review and make initial rulings on those issues.

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Apr 04 2014

District Court dismisses complaint in Mocek v. Albuquerque

Judge James O. Browning of the U.S. District Court for the District of New Mexico has dismissed Phillip Mocek’s complaints against the city of Albuquerque, the Albuquerque Police Department, and the individual Albuquerque police officers who falsely arrested him (at the behest of the TSA) in 2009 at a TSA checkpoint at the Albuquerque Sunport, improperly seized and tried to delete his digital recordings that provided the best evidence of their misconduct, and filed false reports about what had happened.

Mr. Mocek had arrived at the airport with a valid ticket but without any government-issued ID credentials. He was trying to exercise his right to travel through a public facility and by common carrier, and to document the process of flying without showing government-issued ID credentials. (More about Mocek v. Albuquerque et al.)

Mr. Mocek has until April 29, 2014, to decide whether to appeal any or all of the District Court’s rulings to the U.S. Court of Appeals for the 10th Circuit.

We’ll have more to say about the District Court’s latest decision once Mr. Mocek decides whether to appeal.

Apr 01 2014

More no-fly and “watchlist” cases on track (slowly) toward trial

The decision last week by the 9th Circuit Court of Appeals in Arjmand v. DHS sets another challenge to a DHS “watchlist” on track toward a trial on the merits in Federal District Court, this time in Los Angeles.

Equally or more importantly, this decision reaffirms and extends the rejection by the Courts of Appeals, perhaps especially the 9th Circuit, of the government’s attempt to avoid a trial on the merits of “watchlisting” decisions or the Constitutionality of the system of extrajudicial administrative “watchlists” that includes the “no-fly” list.

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Mar 28 2014

UN Human Rights Committee calls on US to effectuate the ICCPR

Following two days of face-to-face public questioning (Day 1, Day 2) of a US government delegation earlier this month, the UN Human Rights Committee (UNHRC) has published its concluding observations on US implementation of the International Covenant on Civil and Political Rights (ICCPR).

The UNHRC’s concluding observations include a strong endorsement of our call for Congress to enact legislation to “effectuate” the ICCPR by making the treaty enforceable by US courts, particularly where violations of the ICCPR do not constitute violations of any other US law.  As one of its key recommendations, the UNHRC says that:

The State party [i.e. the US] should … Taking into account its declaration that provisions of the Covenant are non-self-executing, ensure that effective remedies are available for violations of the Covenant, including those that do not, at the same time, constitute violations of U.S. domestic law, and undertake a review of such areas with a view to proposing to the Congress implementing legislation to fill any legislative gaps.

At the end of a press conference announcing the UNHRC’s concluding observations concerning the US, UNHRC Chairperson Nigel Rodley had this to say about the need for judicial enforcement and accountability for human rights violations:

Of course they [the US government’s representatives] stressed the improvements they’ve made, so that people wouldn’t be doing the same things in the future. But absolutely not — there was no suggestion that any of those responsible for any of the past criminal violations of our Covenant [i.e. the ICCPR] would be brought to justice or that its victims would have access to their day in court.

The UNHRC’s concluding observations recommend that, “The responsibility of those who provided legal pretexts for manifestly illegal behavior should also be established.”

We won’t hold our breath for Congress to act, but we hope that this recommendation from the only independent body officially empowered to review the state of human rights treaty compliance by the US will prompt members of Congress to consider sponsoring legislation to create a cause of action for violations of the ICCPR and give US courts jurisdiction to hear such complaints.

The UNHRC also criticized US mass surveillance, but mentioned only communication surveillance and metadata and not the closely related issue of NSA and DHS mass surveillance of travel metadata.

Mar 14 2014

UN Human Rights Committee review of US implementation of the ICCPR: Day 2

[US government delegation listens to questions from the UN Human Rights Committee. (Click image for larger version.) At the head table, left to right: Scott Shuchart (Senior Adviser, Office of Civil Rights & Civil Liberties, DHS),  Megan Mack (Officer for Civil Rights & Civil Liberties, DHS), Bruce Swartz (Deputy Assistant Attorney General, DOJ), Roy Austin, Jr. (Deputy Assistant Attorney General, Civil Rights Division, DOJ), Mary McLeod (head of the US delegation and Principal Deputy Legal Adviser, Department of State). US Army Brigadier General Richard Gross (Legal Counsel to the Chairman of the Joint Chiefs of Staff, Department of Defense) in profile at left in front of Ms. Mack.]

Questioning of a US government delegation by the UN Human Rights Committee (UNHRC) concerning US implementation of the International Covenant on Civil and Political Rights (ICCPR) continued today in Geneva.

Many of the same issues as were raised in yesterday’s first round of questions from members of the Human Rights Committee continued to be pursued in today’s follow-up questioning, along with other concerns including NSA surveillance and collection of communications metadata.

But as the day went on, there was an increasing focus on the “meta-issues” of applicability, enforceability, and remedies and redress for violations of the rights guaranteed by the ICCPR:

  • Does the US accept that everyone subject to US jurisdiction is entitled to human rights, as the Human Rights Committee and almost every other party to the ICCPR (except Israel) interprets the treaty to mean?  Or does the treaty only apply to US actions within its borders, allowing the US to violate human rights abroad with impunity?
  • In light of the US interpretation of the ICCPR as not being “self-executing”, and the failure of Congress to enact effectuating legislation to enable the treaty to be invoked in US courts, what “effective” means of judicial redress (as required by the ICCPR itself) are available to those whose human rights are violated, especially if those violations of the ICCPR don’t also constitute violations of domestic US law?

This latter point, raised today by at least four members of the UNHRC, was one that we had taken the lead in asking the UNHRC to address, through both an initial and a supplemental submission to the UNHRC in advance of this week’s session.

The head of the US government delegation, Mary McLeod of the State Department, responded to these questions today by telling the UNHRC that the US “sees no need” to allow the ICCPR to be invoked in US courts.

Her implicit message, and that of the other members of the US delegation in their responses to questions about specific issues, was that internal administrative measures provide an adequate substitute for judicial oversight or enforcement of human rights obligations.

But many of those claims about administrative “remedies” rang hollow:

  • DHS Officer for Civil Rights & Civil Liberties Megan Mack, who has been officially designated as responsible for implementation of the ICCPR by the DHS, said that her office “enforces” DHS administrative standards for use of deadly force by US Customs and Border Protection officers.  But she didn’t mention that her office is purely advisory, and has no authority to order any sanctions against CBP officers or any other DHS employees or contractors.
  • Ms. Mack told the UNHRC that her office “receives complaints” of violations of the ICCPR by DHS components, which is true. But she didn’t tell the UNHRC that  some of those  complaints, including some of ours, have been pending with her office for years without any response.  Nor did she mention that her office has claimed that violations of the ICCPR were “authorized” by US law, suggesting a profoundly mistaken belief that the US can derogate from its treaty obligations by enacting domestic statutes.
  • Roy Austin, Jr., Deputy Assistant Attorney General and head of the Civil Rights Division of the Department of Justice, told the UNHRC how important it is to ensure that people who believe their human rights have been violated have a place to complain, and receive a response to their complaint.  But he didn’t disclose to the UNHRC that — as we learned in response to one of our FOIA requests — his Department has no record of ever having designated a point of contact for such complaints, or of ever having responded to any of them.
  • Deputy Assistant Attorney General Bruce Swartz talked about Attorney General Holder’s policy that his “Department will not defend an invocation of the [state secrets] privilege to conceal … administrative error”, but didn’t mention that A.G. Holder personally signed a sworn declaration to the court in the first “no-fly” trial, explicitly quoting that policy while invoking the state secrets privilege to try to prevent the plaintiff, who the government admitted posed no danger, from learning or obtaining redress for her having been placed on the “no-fly” list as a result of what the government admits was a mistake by an FBI agent who checked the boxes on a form he was supposed to un-check and un-chekked the boxes he was supposed to check.

Throughout the day, there was much talk of “guidelines” and “policies”, but little talk of laws or of whether practices conform to aspirational administrative “guidance”.

The UNHRC is expected to issue its report on US implementation of the ICCPR , in the form of “concluding observations” from its review, on March 27th.

Mar 13 2014

Public questioning of US government on human rights

Today and tomorrow in Geneva (early Thursday and  Friday morning in the USA), a delegation from the US government will be questioned publicly by members of the UN Human Rights Committee about US implementation of the International Covenant on Civil and Political Rights (ICCPR).

Here’s the schedule of the webcast public questioning:

  • Thursday, March 13, 15:00-18:30 Geneva time (7 am-10:30 am PDT, 10 am-1:30 pm EDT)
  • Friday, March 14, 10:00-13:00 Geneva time (2 am-5 am PDT, 5 am-8 am EDT)
  • tentative additional session Friday, March 14, 14:00-17:00 Geneva time (6 am-9 am PDT, 9 am-noon EDT)

This is neither the first nor the last step, but a critical step, in the review conducted by the Human Rights Committee every five years (as with each other country that is a party to the treaty) of US implementation of this international human rights treaty.

We’ll have more details after the sessions, but here are some quick links for those tuning in to the webcast:

Updates:

Mar 04 2014

How CBP abuses US citizens at (and near) borders

NPR’s “On The Media” has been reporting on a variety of abuses of US citizens by U.S. Customs and Border Protection, “one of the least transparent federal agencies.” This week’s show, “Secrecy At The Border,” is a particularly moving hour-long compilation of personal stories from the CBP’s victims and their families.

You should listen to these interviews if you think you have nothing to fear from the CBP because:

  1. “I’m a US citizen.” Everyone interviewed on the show is a US citizen.
  2. “I’m not doing anything wrong.” None of those interviewed was charged with any violation of the law.
  3. “I don’t travel abroad, and I’m not trying to cross the US border.” Those interviewed include people detained while traveling within the US, up to 100 miles away form any border or coastline, and families of US citizens killed by CBP on the US side of the border.

The litany of CBP abuses includes warrantless hours-long detention and interrogation (if anything like this has happened to you, here’s how to request CBP’s files about your international travel and border crossings), intrusive searches of electronic devices and data, forcible body-cavity searches amounting to rape, and use of deadly force. A members of Congress who tried to find out when CBP claims the authority to kill US citizens on US soil describes being told that if there are any CBP guidelines for use of deadly force against citizens, they are a secret that the agency won’t divulge even to Congress.

Feb 20 2014

DHS use of license-plate readers and vehicle location data

Secretary of Homeland Security Jeh Johnson has cancelled a request for proposals for a contract for the DHS to get access to vehicle location logs compiled by a commercial data aggregator from automated (optical character recognition) license-plate readers. The solicitation for bids was cancelled less than 24 hours after the first reports on the plan by mainstream news media, which prompted immediate public outrage.  The DHS now claims that the RFP was issued without the awareness of agency “leadership”.

We’re pleased to see the DHS forced by public pressure to suspend, at least for now, even this small part of its plans to expand the suspicionless surveillance and logging of of our movements throughout the country.

At the same time, it’s critical for the public to understand that while the DHS has (at least for the time being) withdrawn its proposal to pay a contractor use commercial vehicle location logs for DHS purposes, the DHS itself continues to compile and maintain its own secret database of vehicle location logs compiled from its own license-plate scanners.

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