Recent events in three legal cases — one decision, one oral argument, and one interim order, each in different federal circuits — demonstrate the Alice-In-Wonderland character of the “reviews” of TSA practices conducted by the Courts of Appeals.

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[Judge Willam Alsup. Courtroom sketch during the trial in Ibrahim v. DHS by Jackson West, JacksonWest.com. Some rights reserved, CC BY 3.0 US, creativecommons.org/licenses/by/3.0/us”]

Several commentators (TechDirt, Lowering The Bar, Discourse.net, FireDiogLake) have noted how unusual it is that we know that Judge William Alsup has ruled in favor of Dr. Rahinah Ibrahim in her lawsuit challenging her placement on the “no-fly” list and treatment when she tried to fly, but we don’t yet know what Judge Alsup actually ruled.

“I’ve never seen one of those before,” observed law professor Michael Froomkin of Judge Alsup’s Public Notice and Summary of Findings of Fact and Conclusions of Law after Bench Trial. Judge Alsup has sealed his own verdict and rulings until April 15, 2014, “so that our court of appeals can rule on the government’s desire to maintain its secrecy.”

But that’s not all: We don’t even know what the parties (Dr. Ibrahim and the government defendants) asked Judge Alsup to find, or why.  Despite repeated orders from the judge that any sealed filings must be accompanied by public summaries or redacted versions, no public versions of either side’s closing arguments and proposed findings of fact and conclusions of law have been made public.

The day after issuing his sealed (for now) verdict and public summary, Judge Alsup followed up with an order to both parties to file public versions (summaries or redacted versions) of their post-trial briefs and  replies by next Friday, January 24, 2014.

This could be seen as no more than judicial housekeeping, in an effort to make sure that the record is complete in the likely event that the government appeals all or part of Judge Alsup’s order (including the “remedies” it orders), and/or Judge Alsup’s failure to seal his order permanently (despite “the government’s desire to maintain its secrecy”), to the 9th Circuit Court of Appeals.

But we also read Judge Alsup’s post-judgment order as a further indication of his dissatisfaction with having been asked by the government to keep his own decision secret. At a minimum, even read acted versions or summaries of the government’s briefs will, presumably, make explicit the government’s demand that the outcome of the trial — which included secret evidence, secret testimony, and secret arguments, all heard in a courtroom from which the public and the press were frequently excluded — itself be kept secret.

We’ll have more to say once we see the public versions of the secret pleadings at the end of next week.

Following a week-long trial in Federal court in San Francisco last month, Judge William Alsup found today that Dr. Rahinah Ibrahim’s due process rights were violated when she was placed on the “no-fly” list.  “Judgment is HEREBY ENTERED in favor of plaintiff to the extent stated in the findings of fact, conclusions of law, and order for relief.”

Only a summary of Judge Alsup’s ruling has been made public. The government wanted the entirety of the verdict (against the government) to be kept secret: “In the Court’s view, all of the separate order should be made public, but it will remain under seal and the parties (and counsel) shall maintain its secrecy until APRIL 15, 2014, so that our court of appeals can rule on the government’s desire to maintain its secrecy.”

Judge Alsup ordered the government to correct Dr. Ibrahim’s status on the no-fly list (and certify under oath that it has done so), and disclose to Dr. Ibrahim whether she is or is not now on the list:

This much, however, can be and will be revealed publicly now by way of summary. All of the government’s standing arguments are overruled…. Our court of appeals … held that plaintiff, even though an alien living overseas, did have standing. The government did not seek higher review of this ruling.

Turning to the merits, some but not all of the relief sought by plaintiff has been granted. In order for the district court to grant relief on a claim that a plaintiff has been wrongly listed in a government terrorist watchlist, that listing must first result in concrete, reviewable adverse government action against the plaintiff, such as refusal of permission to board a plane. This means that a judicial remedy must, by necessity, be a post-deprivation remedy. Once a plaintiff shows concrete, reviewable adverse government action has occurred, and, as here, shows that the action resulted from an error by the government, then the plaintiff is entitled by due process to a post-deprivation remedy that requires the government to cleanse and/or correct its lists and records of the mistaken information and to certify under oath that such correction(s) have been made. The government’s administrative remedies fall short of such relief and do not supply sufficient due process. In light of the confusion caused by the government’s mistake, such cleansing-certification relief is ordered in this case. Also, the government is ordered to disclose to plaintiff her current status on (or off) the no-fly list (without prejudice to future adjustments based on new information). In this connection, the government concedes that plaintiff is not a threat to our national security.

Although a district court cannot review the decision of a consular officer in denying a visa to a nonimmigrant alien, when a nonimmigrant alien with standing to assert constitutional rights has been denied a visa under Section 212(a)(3)(B) of the Immigration and Nationality Act, 8 U.S.C. 1182(a)(3)(B), the consular officer must specify which of the nine subsections was the basis of the denial. Din v. Kerry, 718 F.3d 856, 862 (9th Cir. 2013). This relief is ordered here.

If, moreover, a consular officer advises a nonimmigrant alien that she is not eligible to seek a discretionary waiver of inadmissibility when, under the law, she is eligible to at least apply for a waiver, that erroneous advisement may be reviewed by a district court to the limited extent of requiring the government to inform the nonimmigrant alien that she is eligible to at least apply for a discretionary waiver. Such relief is ordered here. The subsequent grant or denial of any such application, however, would not be reviewable….

IT IS SO ORDERED.

Dated: January 14, 2014.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

“Justice has finally been done for an innocent woman who was wrongly ensnared in the government’s flawed watch listing system,” said Elizabeth Pipkin, lead trial counsel for Dr. Ibrahim along with Christine Peek, Ruby Kazi, and Jennifer Murakami.

We fear that today’s ruling is, unfortunately, unlikely to be “final” in light of inevitable appeals by the government. But as the first substantive ruling on the government’s system of secret administrative “no-fly” orders, it is a major step toward bringing the DHS and its control of travel within the rule of law.

In a written order on December 30th, Judge William Alsup ruled that neither Dr. Rahinah Ibrahim nor her lawyers will be allowed an opportunity to see the secret classified evidence most recently submitted by the government in its defense against Dr. Ibrahim’s lawsuit challenging her wrongful (the government admits) inclusion on the “no-fly” list.

Judge Alsup found that only if Dr. Ibrahim attended the trial would she have been entitled to remain in the courtroom and hear what was said during the portions of the trial that were closed to the public and the press.  Of course, Dr. Ibrahim was prevented from attending by the government defendants, who twice denied her applications for visas for that purpose)

And it was too late, Judge Alsup also ruled, for any of Dr. Ibrahim’s attorneys to apply for security clearances which might (if the government defendants in their discretion granted any such clearances) allow them to see the government’s secret ex parte, in camera submissions to the judge. Of course, Dr. Ibrahim’s lawyers had not previously anticipated needing clearances, since Judge Alsup had earlier rejected all the government’s proffered classified filings.

Judge Alsup’s order concludes:

The action will proceed without the benefit of classified information provided to plaintiff’s counsel.

That makes clear that Dr. Ibrahim and her lawyers won’t be allowed to see the government’s classified submissions, but seems to leave open the question of whether Judge Alsup himself will consider them in reaching his findings of fact and conclusions of law, or will again refuse to do so.

Today the parties in Ibrahim v. DHS submitted what were scheduled to be their final written responses to questions from the judge following the first trial in any of the cases challenging U.S. government “no-fly” orders:

• Court’s Order re Clearance
• Plaintiff’s Response to the Court’s Order re Clearance
• Defendants’ Response to the Court’s Order Requesting Briefing on Access by Opposing Counsel to Classified Information

The plaintiff’s brief in particular is worth reading in its entirety.

The case is now in the hands of U.S. District Judge William Alsup, who could either issue some sort of ruling deciding some or all of the issues before him, or ask for yet more input from the parties.

Today’s briefs from lawyers for the plaintiff (Dr. Rahinah Ibrahim) and the defendants (Federal agencies and officials responsible for interfering with her right to travel) address the specific questions about secrecy most recently posed by Judge Alsup: Whether the plaintiff’s lawyers could obtain clearances from the government to see the “secret” evidence most recently proffered by the government (1) (2) and if so, whether any of Dr. Ibrahim’s lawyers would be willing to submit to the clearance process and how long it would take.

Dr. Ibrahim’s lawyers point out that the defendants have already said that they “‘oppose any procedure that would provide classified information to Plaintiff’s counsel.’ Plaintiff’s counsel understand this to mean that the executive will not exercise its discretion in favor of granting a security clearance to plaintiff’s counsel.”

But even if the defendants are now willing to consider giving one or more of the opposing lawyers their “permission” to see the evidence they want the judge to rely on, “the government historically has contended that classified information can be withheld even from cleared counsel”:

Although at first blush it may seem like a feasible alternative to just get counsel “cleared,” in reality, any order to that effect will only provide defendants the ability (1) to arbitrarily deny plaintiff and her counsel access to classified information; (2) to conduct unfettered investigations into the personal lives of plaintiff’s counsel and their friends and family members; and (3) to hold up the case for months if not years while defendants conduct the investigation. It would cede authority over the progress in this case to an interested party, the defendants. The Executive already has enough of an advantage.

Despite all this, Dr. Ibrahim’s lawyers offer that one of more of them is willing to undergo the process of applying for a clearance to see the “secret” evidence the government wants to use against their client, provided that they are allowed “adequate access and opportunity to be heard regarding the information upon which defendants rely”, including to “discuss the information with their client so that she and they may rebut any allegations contained in the secret information.”

That’s sure to be a deal-breaker for the government defendants, who have been adamant that Dr. Ibrahim not be allowed ot know her status on any “watchlists” or the reasons for it. But this speaks directly to the concerns expressed by Judge Alsup during closing arguments in the trial regarding a person like Robert Oppenheimer who, without knowing the details of the allegations and evidence against him, wouldn’t know what exculpatory or rebuttal evidence to bring forward. It’s not enough for one of Dr. Ibrahim’s lawyers to learn the evidence against her client, if she can’t use that information to defend herself.

Dr. Ibrahim’s lawyers also argue that, regardless of the classification status of the “secret” evidence or the “clearance” status of any of the lawyers, Judge Alsup has the authority to decide the conditions under which the plaintiff and her lawyers can see the evidence:

Ibrahim has argued throughout this case that the supreme law of the land, the United States Constitution, and specifically the due process protection found in the Bill of Rights, requires that defendants provide adequate notice of the purported bases for their decision wrongfully to label her a terrorist and diminish her rights, including any classified information that is required to enable Ibrahim to respond to the accusations against her…. The Bill of Rights trumps defendants’ executive orders and evidentiary privileges….  The Court may overrule the state secrets privilege asserted by defendants and allow plaintiff and her counsel access to the information under appropriate protective orders.

The defendants don’t say whether they would “clear” any of Dr. Ibrahim’s lawyers to see the “secret evidence they want to show only to Judge Alsup (1) (2).  But they argue that the decision on access to information they deem “secret” is solely up to the Executive, i.e. to themselves. That would leave it up to the defendants to decide which evidence the plaintiff or her lawyers could see, since all of the agencies and officials responsible for clearance and classification decisions are defendants in the case. The judge, they say, has no authority to second-guess or overturn their decisions.  The defendants also indicate that they would immediately appeal any decision by Judge Alsup to allow any of Dr. Ibrahim’s lawyers or Dr. Ibrahim herself to see any of the “secret” evidence (1) (2) that they have submitted to the judge in camera and ex parte.

Judge Alsup asked for briefs on whether any of Dr. Ibrahim’s lawyers could or would obtain clearances to enable them to see the government’s latest “secret” (in camera and ex parte) submissions to the court. Most of today’s briefing, however, was devoted to the follow-up question Judge Alsup didn’t ask: What should the judge do if none of Dr. Ibrahim’s lawyers are able and/or willing to obtain such clearances and access to the “secret” evidence on terms acceptable to both sides in the case?

The defendants argue that they can’t “defend” themselves without using one or another sort of “secret” evidence. Since they say the evidence must be kept secret, and their decision on “secrecy” is not subject to review by the trial judge, the case against them must be dismissed.  That seems to beg the question of why, if the case can be decided without the “secret” evidence, the defendants submitted it to the judge in the first place.  (Or, more precisely, in the last place, since they waited to do so until after the trial, after trying to submit secret evidence and arguments earlier in the case but being told by Judge Alsup that he wouldn’t even look at it: “[T]he Court will ignore all of the redacted material … and will rule on the same paperwork made available to both sides.”)  If the defendants have offered Judge Alsup an explanation of that, it’s in the secret briefs (1) (2) that accompanied the secret evidence.

Dr. Ibrahim’s lawyers argue that Judge Alsup can reach the opposite conclusion, and find that Dr. Ibrahim has been denied the due process to which she is entitled, without needing to consider the “secret” evidence proffered by the defendants (“The government’s attempts now to use secret evidence to deprive plaintiff of a remedy serve as further evidence they have deprived plaintiff of due process”), and (2) the “secret” evidence is, at this point, inadmissible, for numerous reasons:

1. Secret evidence violates plaintiff’s Fifth Amendment right to due process, her right to a trial, and her right to confront her accuser.
2. Just because something is classified does not make it true. Before the Iraq war in 2003, a number of classified reports said that Saddam Hussein had weapons of mass destruction. We all know how that turned out. See, e.g., http://www.foreignpolicy.com/articles/2012/09/05/a_classified_CIA_mea_culpa_on_iraq%20#sthash.UyoTPxlR.dpbs.
3. To the extent the government’s secret submissions rely on documents, reports, or declarations of witnesses to prove the truth of matters asserted, they are inadmissible hearsay.
4. The government waived its right to use the secret evidence because it repeatedly represented to the Court that the effect of its privilege assertion was to “exclude the evidence from the case,” waiting until after trial to offer the alleged evidence that allegedly requires dismissal. For the same reason, the government is estopped from arguing for dismissal on these grounds.
5. The secret evidence is also late because the government submitted it only after witnesses were excused and after the matter was submitted.

So far as we can tell, the case now stands submitted to Judge Alsup for his decision.

Post-trial briefing was to be completed this week in Ibrahim v. DHS, the first challenge to a “no-fly” order to make it to trial. After that, the case would have been in the hands of U.S. District Judge William Alsup, who conducted the week-long trial without a jury earlier this month in San Francisco, for his verdict and findings of both fact and law.

But Judge William Alsup has now asked lawyers for both sides — plaintiff Dr. Rahinah Ibrahim and the array of Federal government agency and official defendants involved in or responsible for “watchlisting” and “no-fly” decisions — to submit additional information by Monday, December 23rd, about whether any of Dr. Ibrahim]s lawyers could obtain security clearances to allow them to view the classified evidence and arguments submitted by the government, whether any of them are willing to do so, and if so, how long the process of obtaining clearances might take.

Understanding what this means, and why Judge Alsup might have asked for additional briefing on this question, requires some understanding of the government’s Alice-in-Wonderland array of “secrets” — something which has perplexed commentators on the trial as well as Judge Alsup.

The short version is that the people and government agencies responsible for preventing Dr. Ibrahim from exercising her right to travel are claiming the right to define for themselves which evidence she is allowed to used to try prove her case against them, while also picking and choosing which of that evidence they are allowed to use themselves. The trial judge, they claim, is bound by the defendants’ own decisions in these matters. And the defendants are trying again, after being repeatedly rebuffed, to get the judge to base his ruling on evidence and arguments that are being kept secret from the plaintiff and her lawyers.

The government defendants have claimed that portions of the evidence or potential evidence in the trial, and the arguments and inferences that might be made on the basis of that evidence, falls within one or more of three different partially-overlapping categories of “secret” information: classified information, “state secrets”, and “Sensitive Security Information” (SSI).

There are different rules for which information falls within each of these categories, who is allowed to see or talk about it, who makes these determinations, and whether or how these determinations can be reviewed by which courts.

This led to some of the more bizarre interludes during the trial in Ibrahim v. DHS. Before clearing the courtroom so that “secret” testimony could be heard or “secret” evidence could be argued about, Judge Alsup would have to find out which sorts of “secrets were about to be presented or discussed, and then query the spectators individually about their clearances to determine which of them would have to leave and which could stay.

The colloquy with the audience would go something like this:

Judge Alsup: Which privilege applies to the testimony this witnesses is about to give?

Government Lawyer: This will be SSI [Sensitive Security Information].

Judge Alsup: OK. I apologize to the members of the public, but I’m going to have to clear the courtroom.

Audience Member 1: I have a “secret” security clearance. Am I allowed to stay?

Judge Alsup: No, that’s different. You have to leave unless you’re cleared for SSI.

Audience Member 2 (Prof. Jeffrey Kahn, who had already completed his testimony and been discharged as a witness): I’ve been approved as a “covered person” authorized to receive SSI for purposes of this trial, as a consultant to plaintiff’s counsel. May I stay?

Judge Alsup: Yes, you can stay. Everyone else has to leave.

Here’s an introduction to the players and the ground rules in the government’s game of secrets:

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