Secret Law – Page 14 – Papers, Please!

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:

“I’m a US citizen.” Everyone interviewed on the show is a US citizen.
“I’m not doing anything wrong.” None of those interviewed was charged with any violation of the law.
“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At the same time, it’s critical for the public to understand that while the DHS has (at least for the time being) withdrawn its proposal to pay a contractor use commercial vehicle location logs for DHS purposes, the DHS itself continues to compile and maintain its own secret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.

Feb 18 2014

Blacklists and controls on the movement of goods and money

We’ve focused mostly on the “no-fly” list and other government blacklists and “watchlists” restricting the movement of people. But the latest administrative injustice involving an innocent British philosopher reminds us that government blacklists also restrict the movement of information, goods, and money — sometimes with serious negative effects on innocent people’s lives.

How the US Treasury imposes sanctions on me and every other “Stephen Law” on the planet – my letter to OFAC

My name is “Stephen Law“. The name “Stephen Law” appear on OFAC’s “specially designated nationals” list….

I have discovered that, as a result of this listing, US Customs block shipments of goods to me here in the UK. Also when people try to wire me money from abroad (not just from the US, but from anywhere), for e.g. occasional travel expenses for academic conference attendance, the payment is interrupted and various checks are made before the funds are released. This became so bad during one period (a series of payments every single one of which triggered a block) that I had to switch to a different bank account. At no point was I told why this was happening (i.e. that you, OFAC, are responsible). The banks concerned believe they must keep this information from me (I was told this by my bank branch). Hence it took me many months to figure out what the source of the problem was: OFAC/US Treasury.

It appears any “Stephen Law” anywhere in the world will suffer this same treatment, as indeed will anyone who merely happens to have the same name or alias as one of your “specially designated nationals”. This has proved frustrating, time-consuming and also costly to me personally. E.g. I have paid US$77 postage for goods it turns out I can never receive because they are returned by US customs to the US vendor because my name is listed. As a result of the OFAC listing, I cannot now order goods from – or receive gifts from friends and relatives in – the United States….

OFAC-caused delays to payments to me can run into weeks. On one occasion I ran up overdraft charges as a result of not receiving funds blocked by OFAC….

How could this happen?

Feb 14 2014

Lessons from the first “no-fly” trial

Information about what happened in Ibrahim v. DHS – the first “no-fly” case to make it to trial — has trickled out gradually, making it hard to get a clear picture of what has happened.

The court was cleared at least ten times during the week-long trial for testimony, introduction of evidence, and legal arguments that the government claimed had to be kept secret. Many of the documents, exhibits, declarations, legal briefs, and even the judge’s opinion remain sealed, in whole or in part. Key information has to be pieced together by reading between the redactions, or from passing mentions in open court, the meaning of which only becomes clear in light of other fragmentary revelations.

Most mainstream media didn’t cover the trial, covered it only from the written record, or attended only small portions of the proceedings. We attended and reported on as much of the trial as was open to the public, but at times, we were the only reporter or member of the public in the courtroom.

The government still has until March 14th to decide whether to appeal, and the remaining sealed portions of the judge’s opinion aren’t scheduled to be released until April 15th. Key portions of Judge Alsup’s findings including what happened to Dr. Ibrahim’s US-citizen daughter are still secret. But in the meantime, what are our key takeaways from this trial?

(1) Congress needs to close the loopholes in the Privacy Act, which was enacted in 1974 to prevent exactly this sort of injustice, and would have done so but for its exemptions, exceptions, and lack of enforcement.

The purpose of the Privacy Act was to prohibit the government from using secret files as the basis for decisions about individuals, without allowing the subjects of those files to inspect and correct them. But agencies are allowed to exempt entire systems of records from these requirements. The DHS and the FBI (keeper of the Terrorist Screening Database which includes the “no-fly” list) have exempted their watchlists and blacklists and the allegedly derogatory information on which watchlisting and blacklisting decisions are based. In addition, although privacy is a human right protected by international treaty, the Privacy Act only protects U.S. citizens and residents. Other foreigners have no rights under this law, even when the U.S. government is using secret files to make decisions about their exercise of their rights.

(2) The watchlisting form and process incorporates presumptions in favor of surveillance and restrictions on travel, rather than presumptions of innocence and of travel as a right.

As was made clear in the latest redacted version of Judge Alsup’s findings, Dr. Ibrahim was placed on the “no-fly” list because FBI Agent Kelley left the box on the “nomination” form for “no-fly list ” blank:

This negative check-off form might look like poor user-interface design, but it actually exposes the real mindset of those who believe that travel is a privilege for which the traveler bears the burden of justification: “Better to restrict the rights of innocent people than to leave anyone off the watchlist.” Once the threshhold decision to place a name on a “watchlist” is made, the default is a categorical ban on all air travel and the widest possible dissemination of the blacklist information to other agencies and other countries’ governments (TUSCAN to Canada and TACTICS to Australia).

(3) There are no meaningful internal or administrative safeguards on no-fly and watchlist decisions. Administrative agencies cannot police their own secret internal actions. Transparency and independent judicial review are the only way to safeguard rights.

The DHS and FBI have claimed that internal administrative reviews of watchlist “nominations” are adequate safeguards against wrongful agency actions, and make judicial review unnecessary. In this case, Agent Kelley’s mistake was obvious on inspection, and would have been detected as soon as anyone checked whether the action ordered by the form was supported by the rest of the file. Nobody did so until after Dr. Ibrahim had been arrested and further mistreated when she tried to check in for her flight. If anyone “reviewed” or approved Agent Kelley’s nomination of Dr. Ibrahim to the no-fly list, they rubber-stamped the form without ever looking at the rest of the file, much less making an independent assessment of the factual basis for the decisions. This was the essence of Judge Alsup’s due process findings.

(4) The problem is not limited to the “no-fly list”, and there is no clear line between a “watchlist” and a blacklist. You can’t build a system of surveillance and individualized dossiers without it inevitably having consequences for people’s lives. The travel dataveillance system needs to be dismantled, and the whole database needs to be purged.

In the portion of her closing arguments conducted in open court, Dr. Ibrahim’s attorney, Ms. Elizabeth Pipkin, stated that Dr. Ibrahim and her daughter, Ms. Raihan Mustafa Kamal, had “the same status on the no-fly list”.

Presumably that common status was that neither woman was on the no-fly list. The government claimed that its “mistake” (in placing Dr. Ibrahim on the no-fly list) was corrected the same day as her arrest in 2005, and that it had not prevented Ms. Mustafa Kamal from flying to San Francisco to attend and testify at her mother’s trial.

Neither Dr. Ibrahim nor Ms. Mustafa Kamal are on the “no-fly” list. But when FBI Agent Kelley’s mistake in putting Dr. Ibrahim on the no-fly list was corrected, she was moved to, or left on, one or more watchlists — as Agent Kelley had intended. At some point Ms. Mustafa Kamal was also placed on one or more watchlists. Agent Kelly’s reasons for his intended decision to place Dr. Ibrahim (and perhaps Ms. Mustafa Kamal — we don’t know if she was watchlisted at the same time or separately, by whom, or why) on one or more watchlists remain secret, and were never disclosed to Dr. Ibrahim or her attorneys or reviewed by the judge. Because the government admitted that the no-fly listing was unwarranted and a mistake, the court never reached the question of what to do if the government claims that a listing was justified.

The “no-fly” list and the government’s other “watchlists” aren’t actually separate lists. Both are contained in the consolidated Terrorist Screening Database (TSDB). The only difference between a “watchlist” entry and “no-fly” entry is a flag associated with an entry on the consolidated list.

According to a post-trial government filing, “Kelley designated Dr. Ibrahim as ‘handling code 3.’… The majority of individuals in the TSDB are assigned the lowest handling codes – codes 3 and 4.” That same “status” — not flagged as a “no-fly” listing, and with one of the lowest “handling codes” — was sufficient to cause the DHS to send a message to the airline on which Ms. Mustafa Kamal had reservations. That message induced the airline (as it was intended to do) to refuse to fulfill its duty as a common carrier or allow Ms. Mustafa Kamal to exercise her right, as a U.S. citizen, to travel to the US.

A watchlist sounds like a list of people who are subject to passive monitoring. In practice, “watching” or surveillance isn’t aimless. It’s for the purpose of making decisions affecting individuals. In the case of Ms. Mustafa Kamal, some other “watchlist” status had the same negative consequence, denial of boarding by an airline, as “no-fly” status. Dr. Ibrahim’s watchlist status (and perhaps the fact that she had once been on the no-fly list) led to her being unable to obtain a US visa, even lafter she was removed from the no-fly list.

In the future, “watchlist” needs to be understood as a euphemism for a de facto blacklisto that allows a level of deniability: “You’re not on the no-fly list. We just advised the airline not to let you fly.”

There’s no hard line between passive surveillance and active interference with individual’s activities. This lesson is well known to the FBI: Sending the FBI to question your employer can get you fired, even if the FBI is in theory merely collecting information and doesn’t order or explicitly recommend that you be fired.

Surveillance is itself stigmatizing, and stigma has consequences. During the Ibrahim trial, the government argued, verbally and in written pleadings, that it had not stigmatized Dr. Ibrahim because it “never” disclosed Dr. Ibrahim’s status on its lists to “anyone”. But in fact, the government disclosed Dr. Ibrahim’s status on the list, and later that of her daughter, to the airlines. These are precisely the entities to which it would be most damaging to have this stigma (suspicion of posing a threat to aviation) disclosed.

(5) The US government is willing to lie to the courts to try to hide its mistakes and misconduct.

Before, during, and after the trial, officials including Attorney General Eric Holder and Director of National Intelligence James Clapper and lawyers for the government defendants claimed that to disclose anyone’s status on any watchlist, or the basis (if any) for assigning that status, would “cause significant harm to national security.”

This continued even after Judge Alsup and Dr. Ibrahim’s attorneys knew how Dr. Ibrahim had been placed on the no-fly list and that the government did not consider her to pose any threat to aviation.

Dr. Ibrahim’s lawyers sought to depose Attorney General Holder and DNI Clapper regarding their sworn declarations supporting the assertion of “state secrets” privilege by Holder and the other defendants. On motion of Holder and the defendants, Judge Alsup quashed the subpoenas for those depositions.

On its face, the government’s assertion amounts to a claim that to disclose to the public that Dr. Ibrahim was put on the no-fly list because an FBI agent failed to check a box on a form would harm national security.

Does the government really expect us to believe that would-be terrorists are deterred by their belief that the FBI is infallible, so that disclosing that the FBI once made a mistake would unleash the forces of terror?

We don’t think so. The government lied to cover up its mistakes and to protect itself against deserved criticism, not to protect national security.

Remember that the next time the government claims that something must be kept secret “because terrorism”.

Feb 13 2014

What’s it like to be a TSA checkpoint “officer”?

For more than a year, an anonymous blog called Taking Sense Away has been reporting on what it’s like to work at a TSA checkpoint as a “Transportation Screening Officer”.

Now that he is no longer a TSA employee, the author of the blog has revealed himself in an article in Politico (“Dear America, I Saw You Naked”) as Jason E. Harrington, a graduate student (currently working on a novel based on his time at the TSA) who worked for the TSA at O’Hare Airport in Chicago from 2007 until May 2013.

Thank you, Mr. Harrington. The TSA needs more whistleblowers, leakers, and honest story-tellers.

Sadly, there’s nothing really surprising in the Politico article, and we’ve been following the blog since its launch. We already knew this stuff was happening behind the scenes, such as TSA staff who know that what they are doing is security theater, and enjoy that theater by necking in the back room that’s deliberately designed to enable them to watch the naked images of passengers in private, assured that nobody can see them or catch them on camera while they are fooling around or laughing as passengers’ body-scans.

What we have now that’s different is someone with years of inside experience who who is prepared to put his name and stake his reputation on this testimony (and to provide a publication outlet for other TSA whistleblowers). Read it all and weep, and keep following for more revelations.

Feb 06 2014

More details of Judge Alsup’s decision in “no-fly” case

More details of Judge William Alsup’s decision in Ibrahim v. DHS, the first case challenging the US government’s “no-fly” list to go to trial, were made public today in the form of a redacted version of Judge Alsup’s findings, conclusions, and order.

In deference to the government’s insistence that even his verdict would reveal “secrets“, Judge Alsup originally issued his opinion and order temporarily under seal (to give the government a chance to appeal), accompanied by an unusual Public Notice and Summary.

Judge Alsup ordered the parties to try to agree on a redacted version of his opinion that both would allow to be made public. But after government’s lawyers declined to tell Dr. Ibrahim’s lawyers what, if any, portions of Judge Alsup’s opinion they believed had to be kept secret, or why, Judge Alsup ordered the government to file a minimally redacted version of the judge’s opinion by noon today.

The version of Judge Alsup’s order that the government has now made public still contains substantial redactions. Some are surreal, such as the government’s belief that the public cannot be allowed to know Judge Alsup’s reasons for describing the treatment imposed on Dr. Ibrahim as “surreal”. Others are more substantive, such as the redaction of all of Judge Alsup’s finding concerning Dr. Ibrahim’s US-citizen daughter, who was prevented from traveling to the US to attend and testify at her mother’s trial.

But the government has, reluctantly, allowed us to know much more about why Dr. Ibrahim was treated so badly and what remedies Judge Alsup has ordered:

At long last, the government has conceded that plaintiff poses no threat to air safety or national security and should never have been placed on the no-fly list. She got there by human error within the FBI. This too is conceded. This was no minor human error but an error with palpable impact, leading to the humiliation, cuffing, and incarceration of an innocent and incapacitated air traveler. That it was human error may seem hard to accept — the FBI agent filled out the nomination form in a way exactly opposite from the instructions on the form, a bureaucratic analogy to a surgeon amputating the wrong digit — human error, yes, but of considerable consequence. Nonetheless, this order accepts the agent’s testimony.

Since her erroneous placement on the no-fly list, plaintiff has endured a litany of troubles in getting back into the United States. Whether true or not, she reasonably suspects that those troubles are traceable to the original wrong that placed her on the no-fly list. Once derogatory information is posted to the TSDB, it can propagate extensively through the government’s interlocking complex of databases, like a bad credit report that will never go away. As a post-deprivation remedy, therefore, due process requires, and this order requires, that the government remediate its wrong by cleansing and/or correcting all of its lists and records of the mistaken 2004 derogatory designation and by certifying that such cleansing and/or correction has been accurately done as to every single government watchlist and database. This will not implicate classified information in any way but will give plaintiff assurance that, going forward, her troubles in returning to the United States, if they continue, are unaffected by the original wrong….

FBI Agent Kelley made a plain, old-fashioned, monumental error in filling out the VGTOF nomination form for Dr. Ibrahim. He checked the boxes in exactly the opposite way from the instructions on the form, thus nominating Dr. Ibrahim to the no-fly list (against his intention). This was the start of all problems in Dr. Ibrahim’s case. Surprisingly, Agent Kelley first learned of this mistake eight years later at his deposition.

Significantly, therefore, our case involves a conceded, proven, undeniable, and serious error by the government — not merely a risk of error. Consequently, this order holds that due process entitles Dr. Ibrahim to a correction in the government’s records to prevent the 2004 error from further propagating through the various agency databases and from causing further injury to Dr. Ibrahim. By this order, all defendants shall specifically and thoroughly query the databases maintained by them, such as the TSDB, TIDE, CLASS, KSTF, TECS, IBIS, TUSCAN, TACTICS, and the no-fly and selectee lists, and to remove all references to the designations made by the defective 2004 nomination form or, if left in place, to add a correction in the same paragraph that the designations were erroneous and should not be relied upon for any purpose. To be clear, no agency should even rely on Agent Kelley’s actual unexpressed intention to nominate to certain lists in 2004, for the form instructions were not properly followed. The designations in the November 2004 form should be disregarded for all purposes…. A deadline will be set for defendants to file declarations under oath attesting to compliance.

This order finds that suspicious adverse effects continued to haunt Dr. Ibrahim in 2005 and 2006, even though the government claims to have learned of and corrected the mistake. For example, after her name was removed from the no-fly list, the next day, Dr. Ibrahim was issued a bright red “SSSS” pass. Less than a month after she was removed from the no-fly list, her visa was “prudentially” revoked. In March 2005, she was not permitted to fly to the United States. Her daughter was not allowed to fly to the United States even to attend this trial despite the fact that her daughter is a United States citizen. After so much gnashing of teeth and so much on-the-list-off-the-list machinations, the government is ordered to provide the foregoing relief to remediate its wrong. If the government has already cleansed its records, then no harm will be done in making sure again and so certifying to the Court.

With respect to the government’s TRIP program, which does provide a measure of post-deprivation relief, this order holds that it is inadequate, at least on this record.

Judge Alsup castigated the government for promising explicitly not to rely on alleged “state secrets” in its defense, and then trying to do so during and after the trial.

In the end, Judge Alsup found it unnecessary to rely on any “secrets” because the government conceded that Dr. Ibrahim did not and does not pose any threat and that her name had been placed on the “no-fly” list by “mistake”. While Judge Alsup was able to find that Dr. Ibrahim was denied due process of law, his discussion of what due process might require if the government claimed (perhaps on the basis of “secret” information) that a “no-fly” listing was justified was consigned to a footnote:

In the instant case, the nomination in 2004 to the no-fly list was conceded at trial to have been a mistake. In this sense, this is an easier case to resolve. Harder no-fly cases surely exist. For example, the government uses “derogatory” information to place individuals on the no-fly list. When an individual is refused boarding, does he or she have a right to know the specific information that led to the listing? Certainly in some (but not all) cases, providing the specifics would reveal sources and methods used in our counterterrorism defense program and disclosure would unreasonably jeopardize our national security. Possibly, instead, a general summary might provide a degree of due process, allowing the nominee an opportunity to refute the charge. Or, agents might interview the nominee in such a way as to address the points of concern without revealing the specifics. Possibly (or possibly not), even that much process would betray our defense systems to our enemies. This order need not and does not reach this tougher, broader issue, for, again, the listing of Dr. Ibrahim was concededly based on human error. Revealing this error could not and has not betrayed any worthwhile methods or sources.

We think that the proper basis for inclusion of a name on a no-fly list is a no-fly injunction or restraining order, issued by a judge, with its attendant due process. No other no-fly case has yet made it to trial, but sooner or later the courts will have to address the hypothetical situation described by Judge Alsup in this footnote.

The government has not yet given notice of its intent to appeal Judge Alsup’s decision. (When, as in this case, one of the parties to the case is a federal agency, the deadline for filing a notice of appeal is 60 days after the judgment or order appealed. Judge Alsup’s decision was issued on January 14th, so the government has until March 14th to decide whether to appeal.) Unless the government appeals, the decision will become final and will be made public in its entirety, unredacted, on April 15, 2014.

Jan 28 2014

Does a US citizen need the government’s permission to return to the US?

Do you think that if you are a U.S. citizen you have a right to return to your country, and don’t need “authorization” from the US government?

Article 12, section 4 of the ICCPR (a treaty ratified by and binding on the US) provides that “No one shall be arbitrarily deprived of the right to enter his own country.” And the right of US citizens to enter the US has long been recognized as one of the most fundamental aspects of the Constitutional right to travel.

But it appears that’s not what the US government thinks:

[Click image for larger version.]

This bizarre “yes-fly” document, first made public today and first published here, was provided to lawyers for Dr. Rahinah Ibrahim on the fourth day of the week-long trial last month of Dr. Ibrahim’s lawsuit challenging her placement on the US government’s “no-fly” list.

The day before the trial began, Dr. Ibrahim’s US-born US-citizen daughter, Ms. Raihan Mustafa Kamal, was denied boarding on the first of a set of connecting flights she had booked from Malaysia to to San Francisco to attend and testify at her mother’s trial.

Lawyers for the government defendants, including US Customs and Border Protection (CBP), claimed that they had “confirmed that the defendants did nothing to deny plaintiff’s daughter boarding…. she just simply missed her flight. She has been re-booked on a flight tomorrow. She should arrive tomorrow.”

As it turned out, none of those claims were true. Ms. Mustafa Kamal hadn’t “missed” her flight. She showed up on time, but , but was denied boarding as a result of an email message from CBP to the airline. She wasn’t booked on any other flight, and she never made it to her mother’s trial.

At a hearing held the afternoon after the rest of the trial had concluded, Dr. Ibrahim’s lawyers presented a sworn declaration from Ms. Mustafa Mamal including a copy provided to her by Malaysia Airlines of the email message from CBP that led to her being denied boarding.

In response to Judge Alsup’s demands (“I want a witness from Homeland Security who can testify to what has happened. You find a witness and get them here…. I want to know whether the government did something to obstruct a witness”), the defendants brought the director of the CBP’s National Targeting Center, Ms. Maureen Dugan, to San Francisco to testify and face cross-examination about what had happened to Ms. Mustafa Kamal. At the defendants’ insistence, however, the courtroom was cleared of spectators for all of Ms. Dugan’s testimony and the remainder of that hearing.

The defendants also filed a declaration from Ms. Dugan. That declaration was filed “under seal”, but after his verdict Judge Alsup reiterated his order that a summary or redacted version of each sealed document, specifically including Ms. Dugan’s declaration, be made public.

Today the government defendants filed a redacted version pf Ms. Dugan’s declaration about what happened to Ms. Mustafa Kamal, including the “AUTHORIZATION TO TRANSPORT UNITED STATES CITIZEN TO THE UNITED STATES” reproduced above.

So now, as a result of this case and specifically as a result of CBP’s misconduct with respect to Ms. Mustafa Kamal, we have seen for the first time both a no-fly message and a yes-fly message.

What can we learn from these strange goings-on and communications?

The US government seems to think that even US citizens need the government’s permission to travel to the US. The CBP didn’t issue a reminder to airlines or other common carriers of their general obligation to transport all qualified would-be passengers, or sanction the airline for denying boarding to Ms. Mustafa Kamal despite her undisputed US birth and US citizenship.

Rather, the CBP issued an individualized, time-limited authorization to airlines to transport Ms. Mustafa Kamal to the US. Such affirmative, individualized “authorization” would make no sense unless the default, even for a US citizen, is, “NO.”

This is a blatant violation of US citizens’ Constitutional rights, and of US obligations as a party to the ICCPR.

(A somewhat similar “Transportation [Authorization] Letter” is discussed on p. 46 of the CBP Carrier Information Guide for airlines. But the example shown in the Carrier Information Guide is for a non-US citizen whose “Green Card” has been lost, stolen, or damaged while they are abroad, and who needs temporary evidence of permanent US residency to be able to return to the US to get her Green Card replaced. A Green Card — US permanent residency document — can’t be replaced outside the US, but a passport can. So it’s unclear why a US citizen would need such a document in lieu of an emergency passport, or why it would be considered better evidence of US citizenship than a passport.)

But why did CBP send a “possible no-board request” with respect to Ms. Mustafa Kamal?

Was Ms. Mustafa Kamal, like her mother, “mistakenly” placed on the no-fly list? Dr. Ibrahim’s lawyer — who knows Dr. Ibrahim’s status on or off the no-fly list, but is not allowed to disclose this information to her client or to the public — stated in open court during closing arguments that Ms. Mustafa Kamal’s status on the “no-fly” list was “the same as that of her mother”. But it seems more likely, from the rest of what has been claimed publicly, that neither of them are currently on the no-fly list. If Ms. Mustafa Kamal were, in fact, on the no-fly list, it would have been an out-and-out lie for government lawyers to tell Judge Alsup that their client CBP was not responsible for the airline’s denial of boarding to Ms. Mustafa Kamal.

A more likely explanation is that Ms. Mustafa Kamal and her mother are currently both on what was described euphemistically in pleadings made public in redacted form yesterday as a “watchlist”, but which is used in a manner that results in it functioning as a de facto blacklist with the same effect as the “no-fly” list. The email message sent to the airline didn’t say anything explicit about the no-fly list, but its natural and foreseeable consequence was that Ms. Mustafa Kamal would be denied boarding — as in fact she was.

Perhaps most disturbingly, this suggests that the government could nominally comply with Judge Alsup’s order to remove Dr. Ibrahim from the “no-fly” list, but keep her on a “watchlist” that has the same effect.

Only if Dr. Ibrahim gets a US visa (which seems unlikely) and tries to travel to the US, or if she tries to fly on a US-flag carrier (such as on United Airlines from Singapore to Hong Kong or Tokyo), or if Ms. Mustafa Kamal tries again to travel to the US, are we likely to learn more about what actual US government actions and restrictions either of them is subjected to. That, and not the label placed on any list, is what matters.

Jan 27 2014

Government finally admits plaintiff was on the “no-fly” list

A month and half after the conclusion of the first trial in any case challenging the US government’s “no-fly” list, and more than a week after Judge William Alsup’s decision that the rights of the plaintiff in the case, Dr. Rahinah Ibrahim, were violated, the government has finally admitted explicitly and publicly that:

Dr. Ibrahim was, in fact, on the US government’s “no-fly” list, which was shared with, among other entities, the Canadian and Australian governments. (There’s no mention of sharing of these lists with the UK or other European Union countries, perhaps because vetting against watchlists and blacklists of passengers on flights to, from, and within the EU is carried out by DHS employees posted in the EU, rather than by European governments.)
After being removed from the “no-fly” blacklist or blocklist, Dr. Ibrahim was placed on a government watchlist (included in the same database with the no-fly list) with a “handling code… allowing law enforcement officers to ask the individual probing but non-alerting questions, and search[] the individual’s passport.” While the “no-fly” list has often been incorrectly and euphemistically described as a “watchlist”, the treatment of Dr. Ibrahim, and these detailed admissions in particular, makes clear that the government itself distinguishes blacklisting/blocking (travel control) and watchlisting (travel surveillance) as different, although related, functions.
The watchlist entry for Dr. Ibrahim included “entry criteria codes” signifying “Corroborated identification as a group member by an informant or individual of unknown reliability” and “Frequents a documented group’s area, associates with known group members, and/or affects group dress, hand signals, tattoos, or symbols.” There’s still no public indication of the basis for these (false) conclusions. The FBI agent who “nominated” Dr. Ibrahim for inclusion on the “no-fly” list did so “mistakenly”. From the latest redacted filings and prior statements in open court, it appears that the agent thought he was filling out the form to nominate Dr. Ibrahim for mere watchlisting rather than inclusion on the “no-fly” blacklist/blocklist.
In closed court, “Agent Kelley testified that until his deposition on September 12, 2013 he had never had a watchlist nomination rejected and that in answer to the question ‘you had also never heard of anyone else having a watchlist nomination rejected?’ he answered ‘no.'” This belies the government’s claims that the basis for each such “nomination” is carefully reviewed before a name is added to a blacklist or watchlist.

Of course, Dr. Ibrahim already knew she was on the “no-fly” list, since but for her listing on this US government blacklist she wouldn’t have been denied boarding on her flight and arrested at SFO in 2005. But until now, both before and throughout the trial, the government refused to confirm this fact publicly, and claimed that it could not do so (or tell Dr. Ibrahim her current status on any blacklist or watchlist) without jeopardizing national security.

These admissions came in snippets between redacted passages in government briefs belatedly filed today in response to Judge Alsup’s latest reiteration of his standing orders for filing of public summaries or redacted versions of all pleadings and declarations filed “under seal” in the case.

The briefs filed today by the government defendants were due this past Friday, but were filed today with a declaration that the government’s lawyers (despite being located in the same building as the clerk’s office, where they could have filed them over the counter) were unable to file them on Friday due to technical problems with the court’s electronic document handling system:

A public redacted version of one more document previously filed only under seal, a declaration from the Director of the CBP National Targeting Center concerning what happened to Dr. Ibrahim’s daughter, a US citizen who was denied boarding when she tried to fly to the US to attend and testify at her mother’s trial, is due to be filed by the government tomorrow. There’s still been no public explanation of what, if any, valid basis US Customs and Border Protection (CBP) could have had for telling airlines that a US citizen might not be admitted to the US.

Jan 24 2014

Defendants in “no-fly” case ignore judge’s deadline to make their arguments public

Last week Judge William Alsup ordered the parties to Dr. Rahinah Ibrahim’s lawsuit challenging her placement on the US government’s no-fly list to file redacted public versions, by noon today, of the “sealed” briefs and replies they submitted following the trial in the case last month. These briefs included each side’s proposals of what factual and legal findings they believed the judge should make.

Shortly before noon today, Dr. Ibrahim’s lawyers filed redacted (but nonetheless interesting) versions of their sealed post-trial briefs:

More than an hour after the deadline, nothing had been filed by the defendants, and no explanation had been given. (See the comments below and follow-up articles for updates.) It remains to be seen if the defendants are merely late, if they are ignoring Judge Alsup’s order, or if they are on their way to the 9th Circuit Court of Appeals to seek an emergency writ or stay pending appeal.

Additional information about why Dr. Ibrahim’s daughter Ms. Raihan binti Mustafa Kamal, a US-born citizen, was prevented from flying to the US to testify at her mother’s trial, is due to be made public next Tuesaday, Jan. 28th. Judge Alsup has ordered the government defendants to file a redacted public version of the sworn declaration submitted by Ms. Maureen Dugan, the director of the CBP National Targeting Center and the sole witness at the post-trial hearing concerning what happened to Ms. Mustafa Kamal.

Jan 22 2014

Second judge finds “no-fly” orders may violate due process and right to travel

In another victory for due process and the right to travel, Judge Anthony J. Trenga of the US District Court for the Eastern District of Virginia in Alexandria, today rejected another government motion to dismiss a complaint challenging the US “no-fly” list. At least as long as Judge Alsup’s decision in Ibrahim v. DHS remains secret, today’s ruling in the case of Mohamed v. Holder contains the strongest and clearest affirmation of the right to travel in any judicial opinion in the US since 9/11, and clears the way for what would be only the second trial (despite many years of litigation) in a no-fly case.

Gulet Mohamed is a poster-child for everything that’s wrong with the system of “no-fly” orders, and one of dozens of victims of similar mistreatment and extrajudicial exile from the US. Raised in the US, and a US citizen, Mr. Mohamed was a teenager visiting family abroad in 2011 when he was placed on the US no-fly list, apparently in an effort to induce him to become an FBI informer on the Somali-American community. Unable to return home to the US, he was arrested and imprisoned in Kuwait for overstaying his visa. While being held incommunicado and blindfolded in Kuwait, he “was repeatedly beaten and tortured by his interrogators,” one of whom spoke “perfect American English.”

Eventually — either because Mr. Mohamed’s Kuwaiti captors decided he was telling the truth when he said he knew nothing about terrorists, or because he had smuggled out a message to his family in the US, who had gotten him a lawyer — they let him buy a plane ticket home, and tried to deport him. But the airline wouldn’t let him on the plane to the US, saying that they were acting on orders from the US government.

Mr. Mohamed was allowed to come home only after his lawyer in the US, Gadeir Abbas of the Council on American-Islamic Relations (CAIR), filed a federal lawsuit on his behalf.

Once Mr. Mohamed was home, of course, the US government tried to argue that the case was “moot”, notwithstanding the fact that Mr. Mohamed couldn’t tell whether he would ever again be allowed to fly.

After three years of technical arguments about standing, jurisdictions, and so forth were rejected by the trial judge and finally last year by the 4th Circuit Court of Appeals, the government made a new round of objections as to whether Mr. Mohamed’s compliant, even if true, stated a claim that would entitle him to any judicial relief.

That motion by the government was denied today. While Judge Trenga didn’t rule on the truth of the allegations in Mr. Mohamed’s complaint, the judge found that, if true, these allegations could provide a sufficient basis for findings of violations of Mr. Mohamed’s Constitutional rights.

Today’s ruling is worth reading in its entirety. Here are some excerpts:

The impact on a citizen who cannot use a commercial aircraft is profound. He is restricted in his practical ability to travel substantial distances within a short period of time, and the inability to fly to a significant extent defines the geographical area in which he may live his life. As a practical matter, an affected person is restricted in his ability to visit family and friends located in relatively distant areas of the country or abroad, which through flight can be reached within a matter of hours but would otherwise take days, if not weeks, to access. See Latifv. Holder, No. 3:10-cv-750,2013 WL 4592515, at ¶8 (D. Or. Aug. 28, 2013) (noting that flight is often the only feasible form of international travel); Ibrahim v. Dep ‘t of Homeland Sec, No. C 06-00545 WHA, 2012 WL 6652362, at ¶7 (N.D. Cal. Dec. 20, 2012) (same). An inability to travel by air also restricts one’s ability to associate more generally, and effectively limits educational, employment and professional opportunities. It is difficult to think of many job categories of any substance where an inability to fly would not affect the prospects for employment or advancement; one need only reflect on how an employer would view the desirability of an employee who could not travel by air. An inability to fly likewise affects the possibility of recreational and religious travel, given the time periods usually available to people, particularly those who are employed.

Inclusion on the No Fly List also labels an American citizen a disloyal American who is capable of, and disposed toward committing, war crimes, and one can easily imagine the broad range of consequences that might be visited upon such a person if that stigmatizing designation were known by the general public. In effect, placement on the No Fly List is life defining and life restricting across a broad range of constitutionally protected activities and aspirations; and a No Fly List designation transforms a person into a second class citizen, or worse. The issue, then, is whether and under what circumstances the government should have the ability to impose such a disability on an American citizen, who should make any such decision, according to what process, and by what standard of proof.

After a review of the legal history of the right to travel and its importance, Judge Trenga turns to the Constitutional aspects of the specific right to travel by air and the functioning of the “no-fly” list:

[W]hen the basic principles discussed in Kent and Aptheker are applied to the No Fly List, substantial constitutional issues are immediately apparent.

First, the No Fly List, once distributed, clearly infringes upon a citizen’s right to travel; and the Court cannot conclude based on the present record that there are no means less restrictive than an unqualified flight ban to adequately assure flight security, such as comprehensive pre-flight screening and searches. Second, the current record is inadequate to explain why judicial involvement before a person is placed on the No Fly List is either unnecessary or impractical, other than perhaps within the context of an emergency based on a specific, imminent threat that requires immediate action. Nor does the record conclusively establish that there cannot be any opportunity, either before or after an American citizen is placed on the No Fly List, to know of or challenge any of the information used to list him, even where such information could be summarized in a way that does not compromise sources or methods.

We’ve always believed that no-fly orders should come from the courts, through existing routine legal procedures (which the DHS has never attempted to use) for the issuance of temporary restraining orders or permanent injunctions. So far as we know, however, this is the first time any judge has suggested the possibility of judicial no-fly orders rather than judicial review of extrajudicial administrative no-fly orders. And this also the first time, so far as we know, that any judge has questioned not just how a no-fly list should work, but whether such a total ban on travel (by people who the police do not have grounds to arrest) is necessary at all.

The ruling continues: Read More →

Papers, Please!

The Identity Project