Dr. Rahinah Ibrahim’s lead counsel, Elizabeth Pipkin, opened the second day of trial of Dr. Ibrahim’s lawsuit against the government for putting her on its “no-fly” list without due process with an update on Dr. Ibrahim’s eldest daughter, U.S.-born U.S. citizen Rainan Mustafa Kamal, who was denied permission by the DHS to board a flight to the U.S. on Sunday to attend and testify at the trial in her mother’s lawsuit.

Ms. Pipkin reminded the court of what  government counsel Paul Freeborne of the Department of Justice told the court before the trial recessed on Monday:

Freeborne: Your Honor, we’ve confirmed that the defendants did nothing to deny plaintiff’s daughter boarding. It’s our understanding that she just simply missed her flight. She has been re-booked on a flight tomorrow. She should arrive tomorrow.

“None of that was true,” Ms. Pipkin told the court this morning. “She didn’t miss the flight. She was there in time to check in. She has not been rebooked on another flight.” And most importantly, it was because of actions by the DHS — one of the defendants in Dr. Ibrahim’s lawsuit — that Ms. Mustafa Kamal was not allowed to board her flight to SFO to attend and testify at her mother’s trial.

Ms. Pipkin said that Ms. Mustafa Kamal had sent her a copy of the “no-board” instructions which the DHS gave to Malaysia Airlines, and which the airline gave to Ms. Mustafa Kamal to explain as much as it knew about why it was not being allowed to transport her.  Ms. Pipkin handed Judge William Alsup a copy of the DHS “no-board” instructions to Malaysia Airlines regarding Ms. Mustafa Kamal.

Major props to Malaysia Airlines for providing a copy of the DHS instructions to Ms. Mustafa Kamal. Other airlines receiving similar instructions have acquiesced to DHS orders to keep the instructions from the DHS, and the reasons for the airlines’ actions, secret from the would-be travelers whose rights are affected. So far as we know, this is the first time an actual no-fly order has been disclosed to a would-be traveler or potentially to the public.

International airlines are required to send a complete copy of each Passenger Name Record (PNR) to the CBP division of DHS, which processes PNRs through a black box to which one of the inputs is the set of U.S. government “watchlists”.  [The term used throughout the trial was,  “watchlist”. But these lists aren’t used solely as a “watching” or surveillance tool. They are also used as the basis for “no-board” orders to airlines, and other actions. We think “blocking lists” or “blacklists” would be more accurate labels for these lists.]

If the would-be traveler is “cleared” by this process (the default is, “No”), CBP  responds by sending an individualized permisison message in the form of an electronic “boarding press printing result”.  (Diagrams and video explaining this process.)  Presumably, the page-long DHS message to Malaysia Airlines was some sort of supplement or follow-up to a “not cleared” boarding pass printing result regarding Ms. Mustafa Kamal.

It would have been one thing for the ten government lawyers in Judge Alsup’s courtroom to claim that they “had no knowledge” of any DHS actions to interfere with Ms. Mustafa Kamal’s flight to the U.S. and appearance at the trial. But the government went much further when Mr. Freeborne claimed that the government had “confirmed” that the DHS did nothing to deny Ms. Mustafa Kamal boarding.

But Judge Alsup noted that the document with the DHS instructions to the airline was not supported by any sworn testimony or evidence of its authenticity. “You have to have a sworn record before I can do something dramatic.” Judge Alsup said he would consider the document if and when Ms. Mustafa Kamal arrives in San Francisco and can testify as to its authenticity.

Ms. Pipkin said that Ms. Mustafa Kamal was reluctant to spend the money on another airline ticket to San Francisco without some assurance that this time she would be allowed to board her flight.

“Get her on an airplane and get her here,” Judge Alsup responded. “She’s a U.S. citizen. She doesn’t need a visa. I’m not going to believe that she can’t get on a plane until she tries again. ” And Mr Freeborne, with disingenuous faux-solicitude, claimed that the government is “willing to do whatever we can to facilitate” Ms. Mustafa Kamal’s ability to board a flight to the U.S.

Judge Alsup wasn’t willing to take any action today on unproven allegations or unverified documents. But he made clear that, “I am disturbed by this…. We’ll hear from her [Ms. Mustafa Kamal] when she gets here.  If it turns out that the DHS has sabotaged a witness, that will go against the government’s case.  I want a witness from Homeland Security who can testify to what has happened. You find a witness and get them here.”

Following these and a few other preliminaries, Ms. Ibrahim’s lawyers resumed playing excerpts from her deposition, recorded on video in London (because the defendants won’t allow her to come to the U.S. to testify in person) in July 2013.

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The Federal civil rights trial in Ibrahim v. DHS — the first lawsuit seeking judicial review of a government “no-fly” order to make it to trial — began this morning in San Francisco with a surprise:

When the case was called at 7:30 a.m., Elizabeth Pipkin and Christine Peek, pro bono lawyers for the plaintiff Dr. Rahinah Ibrahim, began by informing U.S. District Judge William Alsup that Dr. Ibrahim’s oldest daughter Raihan Mustafa Kamal was denied boarding in Kuala Lumpur yesterday when she tried to board a flight to San Francisco to observe and testify at the trial in her mother’s lawsuit.

Ms. Mustafa Kamal, an attorney licensed to practice law in Malaysia, was born in the U.S. and is a U.S. citizen. Ms. Mustafa Kamal was with her mother when Dr. Ibrahim was denied boarding on a flight from K.L. to San Francisco in 2005 (after having been told that her name had been removed from the “no-fly” list) under what now seem eerily similar circumstances. The DHS had been given notice that Ms. Mustafa Kamal would testify at the trial as an eyewitness to those events she witnessed in 2005.

According to Ms. Pipkin, airline employees who refused to check Ms. Kamal in for flights to the U.S. told her that they were acting on orders from the DHS.  Airline staff in K.L. gave Ms. Mustafa Kamal a telephone number in Miami to call for further information, saying it was the number of an office of the CBP (the Customs and Border Protection division of DHS).

When Ms. Pipkin learned of this from Ms. Mustafa Kamal on Sunday night at 8 p.m. San Francisco time, she called the number Ms. Mustafa Kamal has been given. It was apparently a CBP office, but the person who answered the phone refused to give his name and refused to provide any information about what had happened to Ms. Mustafa Kamal. When Ms. Pipkin asked to speak with his supervisor, she was given another phone number that went to voicemail. She left a message, but nobody called back.

On hearing this account, Judge Alsup asked the lawyers representing the DHS and the other Federal agency and official defendants (led by Lily Farel of the Department of Justice) to respond.

After consulting with DHS agency counsel, Ms. Farel claimed that this was the first that any of the government’s lawyers in the case had heard about Ms. Mustafa Kamal’s having been prevented (by their client the DHS) from traveling to the U.S. to attend and testify at her mother’s trial.

Judge Alsup ordered the government defendants’ lawyers to investigate and report back. “You’ve got ten lawyers over there on your side of the courtroom. You can send one of them out in the hall to make a phone call and find out what’s going on.”

At the end of the first day’s session of the trial (more on that below), the governments’ lawyers told Judge Alsup that they had made inquiries and had been told that “the plaintiff’s daughter just missed her flight” and was rebooked on a flight tomorrow (Tuesday) afternoon.

Needless to say, that story strains credulity. If Ms. Mustafa Kamal had merely missed her flight, why would she have been given a CBP phone number in Miami to call for information about what had happened?  The governments’ lawyers insisted that, “That’s what we have been told”, but Judge Alsup wasn’t satisfied.

“We may have to have a separate evidentiary hearing about this,” Judge Alsup said, and ordered the defendants to provide further information tomorrow (Tuesday).  “I want to know whether the government did something to obstruct a witness, a U.S. citizen.”

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For the first time ever, a lawsuit challenging a U.S. government “no-fly” order goes to trial on Monday.

The U.S. government issues “no-fly” orders (or “no-board recommendations“, of which there were almost 10,000 last year) to airlines, forbidding common carriers from transporting specified persons.  The administrative decisions to issue these orders are made in secret, on the basis of secret allegedly “derogatory” evidence (or no evidence at all), according to secret criteria (or no criteria at all), at the “discretion” of the agencies that “nominate” individuals for inclusion on the “no-fly” list).

Airlines aren’t told why they have been forbidden to transport any particular person, and are forbidden from telling anyone that they are on the “no-fly” list — although of course that eventually becomes obvious when the airline refuses to issue a boarding pass to an otherwise qualified fare-paying would-be passenger.  The U.S. government’s policy is never to confirm or deny the existence of a no-fly order. That is considered a “state secret”.

Needless to say, all this makes a mockery of due process and has, until now, frustrated judicial review of no-fly decisions and orders.  Despite numerous attempts to challenge the system of “no-fly” lists and orders, Rahinah Ibrahim v. Department of Homeland Security, et al. (docket and more recent documents) is the first such case to make it to trial.

Dr. Ibrahim, a Malaysian citizen, was a doctoral candidate at Stanford University, in the U.S. on a valid student visa, when she tried to fly home to Malaysia with her daughter in 2005.  She was refused passage on a United Airlines flight from San Francisco International Airport, detained, and interrogated by SFO airport police.  Although she was ultimately bound for Malaysia, she had planned to stop over in Hawaii to present a research paper at a conference there. She was denied boarding on a domestic flight from San Francisco to Kona. (Since this was a domestic flight, the no-fly instructions would have been transmitted through the TSA’s “Secure Flight” system.) She was allowed to fly to Kona the next day, and on to Malaysia after the conference a few days late, but her U.S. visa was then revoked (although she wasn’t notified, and didn’t learn this until she was at the airport in K.L. trying to check in for a flight back to SFO a couple of months later). She hasn’t been able to return to the U.S. since, even though she had lived legally in the U.S. for many years, had met and married her husband in the U.S., and one of her children was born in the U.S. and is a U.S. citizen.  She completed her dissertation remotely, received her Stanford Ph.D. in absentia, and is now a professor at a major Malaysian public university, with an extensive list of academic publications.

Several other “no-fly” lawsuits have been dismissed without getting far enough to have a judge, much less a jury, review the challenged “no-fly” orders on their merits. Others that haven’t yet made it to trial, but haven’t yet been dismissed, include that of Gulet Mohamed in Northern Virgina and Latif et al. v. Holder in Portland, OR.  Both of these cases involve U.S. citizens who were effectively banished from the U.S. by having their names being placed on the “no-fly” list while they were abroad, preventing them from coming home.

The city and county of San Francisco paid Dr. Ibrahim $225,000 to settle her claims against the airport police, but the Federal government agencies and employees have opposed Dr. Ibrahim’s right to even have the court review the legality of their actions.

The Federal defendants being sued by Dr. Ibrahim have twice appealed to the 9th Circuit Court of Appeals, but twice failed to get the case dismissed before trial.  Next, they tried to get Judge Alsup to follow the DHS’s own original decision-making procedure and dismiss the case on the basis of secret evidence they proposed to submit in camera and under seal (so that neither Dr. Ibrahim nor her lawyers could see or contested the allegations against her).   At that point, Judge Alsup refused even to look at the profferred secret evidence, declaring that travel is a right that cannot be denied without “an effective means of redress”.

Next the government invoked the “state secrets” privilege against disclosing certain information about whether, and if so, why and how, it had ordered airlines not to transport Dr. Ibrahim. Judge Alsup allowed the government to withhold much of this information, but again refused to dismiss the complaint entirely, ordering the parties to prepare for trial and allowing Dr. Ibrahim a chance to try to prove her case on the basis of other evidence.

Since that ruling in April of this year, ordering the parties to proceed, there have been continuing disputes over discovery and depositions. Judge Alsup has issued rulings denying Dr. Ibrahim’s requests to amend her complaint and for additional discovery related to whether she was the subject of NSA surveillance or this formed part of the basis for the no-fly order against her; prohibiting the government from using any evidence to defend itself that wasn’t disclosed to Dr. Ibrahim and her lawyers; and setting the case for trial on the remaining issues.

Judge Alsup himself has already seen the secret evidence that he has forbidden the government to introduce or rely on in the trial, as part of his in camera review of whether it had to be disclosed to DR. Ibrahim and her lawyers. But Judge Alsup refused to recuse himself or assign the case for trial by a judge who hasn’t seen the secret evidence that isn’t supposed to be considered in reaching a verdict.  Judge Alsup claims to believe that unlike a jury, he can pretend that he never saw this secret evidence, and reach an impartial verdict that disregards it. This sort of pretense is bizarre and unrealistic but routine in bench trials.

The trial in Dr. Ibrahim’s case is scheduled to start Monday, December 2nd, and continue through Monday, December 10th, before Judge William Alsup of the U.S. District Court for the Northern District of California, Courtroom 8  (19th Floor), Phillip Burton Federal Building & U.S. Courthouse, 450 Golden Gate Ave, San Francisco. The trial will begin each weekday at 7:30 a.m. and recess at 1:30-2:30 p.m. depending on the day.

No immediate decision on the facts or the law is expected. The judge in a Federal trial like this will typically issue a written verdict some weeks or months after the end of the trial.

Despite the Constitutional right to a “public” trial, government-issued ID credentials are required for admission to the Federal Building.  Under the court’s General Order 58 (“Regulating Possession and Use of Electronic Devices in the Courthouse”), cell phones, laptop computers, and other electronic devices are allowed in the courthouse (subject to being inspected and deemed not to be dangerous by the guards at the entrance), and can be used in the lobby,  hallways, etc., but can’t be used in courtrooms without special permission. Cameras and recording devices are also allowed in the building, but can’t be used anywhere inside.  Photography and recording, long prohibited in Federal courts, are permitted in the Northern District of California only as part of a pilot project and only in cases selected by the court in its discretion.

At the end of the day, the U.S. government is likely to claim that Dr. Ibrahim was allowed her day in court. But that will be a day in court in which the allegedly derogatory allegations against her, and any evidence purportedly supporting them, will remain secret from her  but will have been provided to the deciding judge.

In a preliminary ruling in a lawsuit brought by the ACLU three years ago on behalf of a group of people who have been prevented by the U.S. government from traveling by air, a Federal judge in Oregon has found (1) that international air travel is a Constitutional right, and (2) that a categorical ban by the government on the exercise of that right can only be issued in accordance with due process.

Those shouldn’t be surprising findings. But given that the U.S. government has never sought to follow normal legal procedures by asking a court to issue a no-fly injunction against an individual, and that none of the goverment’s extrajudicial administrative no-fly orders has ever been reviewed on its merits by any court, the latest ruling by District Judge Judge Anna Brown in the case of Latif et al. v. Holder is an important step toward bringing DHS controls on travel within the rule of law.

The ruling is the latest in a series of decisions which have finally begun to uphold the right of travelers to due process and juducial review of the restrictins on their movements. The decison in the Oregon no-fly case echoes similar findings in the past year by the 4th Circuit Court of Appeals in the case of Gulet Mohamed and by the 9th Circuit and the District Court for the Northern District of California in the case of Rahinah Ibrahim.

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