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The Identity Project

Jan 14 2014

Trial judge finds for plaintiff Dr. Ibrahim in no-fly case

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.

Jan 13 2014

TSA thinks Congress can override international treaties

Dismissing formal objections filed by the Identity Project and other organizations, the TSA has decided to go ahead with its “Pre-Check” (Pre-Crime) scheme to collect and use even more comprehensive secret dossiers about travelers as part of the inputs to the TSA “black box” that decides whether you are allowed to fly, and if so, how intrusively you and your luggage will be searched as a condition of exercising your right to travel.

In the TSA’s initial proposal and request for comments, it stated the outcome of its “public consultation” as a fait accompli. The “notice and comment” process was a sham, and  the TSA brushed off our objections.

Most of the analysis accompanying the “final rule” exempting the new data elements in TSA files about travelers from the Privacy Act was devoted to why the TSA isn’t even pretending to consult the public about its procedures for deciding who to search and how intrusively.  “No new substantive burden or impediment for any traveler has been created,” the TSA claims, by requiring submission to more intrusive search as a condition of travel. You don’t find having your genitals groped a burden or your body viewed as though naked a “burden”, do you? If so, you must have deserved the TSA’s suspicion in the first place.  And as long as most people find it a convenience, it’s OK if others’ rights are denied:

Contrary to some commenters’ assertion that the TSA PreCheckTM Application Program infringes upon an individual’s right to travel, this program will provide an added convenience to the majority of the traveling public.

Most disturbingly, the TSA had this to say in response to our objections to the Pre-Check pre-crime scheme based on the First Amendment to the Constitution and the International Covenant on Civil and Political Rights:

Several commenters objected that the TSA PreCheckTM Application Program violates the U.S. Constitution or international treaty. DHS disagrees with the commenters as to the Constitutionality of the program, and notes that the treaty cited by an advocacy group expressly contradicts the position taken by the commenter by excluding requirements provided by law or necessary for national security from the treaty’s proscription.

So the TSA claims that the ICCPR permits exceptions either allowed by national law OR necessary for national security.  The ICCPR says no such thing.  Any exceptions to Article 12 of the ICCPR must be provided by law  necessary for national security (i.e. actually effective and the least restriction such alternative, which the TSA hasn’t shown) AND must be consistent with the other provisions of the treaty (such as Article 17 on the right to privacy).

This is not a new (false) claim by the DHS about the relationship of international treaties to US law. The DHS made the same claims in response to some of our previous complaints of violations of the ICCPR, as we pointed out in an (as yet unanswered) letter requesting review of those responses.

In claiming to believe that Congress can override international treaty obligations, the TSA demonstrates its disregard for the Constitution, which makes treaties as much “the law of the land” as is the Constitution itself, above any power of derogation by statute. In its failure to understand the ICCPR and the basic heirarchy of Constitutional and treaty law, the TSA also evinces its failure to fulfill the orders of the President for it and all other agencies to, “maintain a current awareness of United States international human rights obligations that are relevant to their functions and … perform such functions so as to respect and implement those obligations fully.”

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Jan 07 2014

Where is the Citizens’ Commission to Investigate the DHS?

“Democracy needs whistleblowers. That’s why I broke into the FBI in 1971,” begins an op-ed by Bonnie Raines, one of the members of the previously-anonymous “Citizens’ Commission to Investigate the FBI” who took the spotlight today through public appearances and interviews and the publication of a new book about their 1971 action, The Burglary, by former Washington Post reporter Betty Medsger.

The Citizens’ Commission — Bonnie Raines, her husband John Raines, Keith Forsyth, Bob Williamson, the late William Davidon, the pseudonymous “Ron Durst” and “Sarah Smith”, and their eighth still-unnamed collaborator, referred to in the book as “Janet Fessenden” — broke into a relatively minor but also relatively poorly secured FBI office near Philadelphia, stole “probably about six big suitcases” full of documents, and sent copies of those documents revealing FBI political surveillance and “dirty tricks” to various reporters and publications.

“The Complete Collection of Political Documents Ripped-Off from the F.B.I. Office in Media, Pa., March 8, 1971” was eventually published in full a year later by the War Resisters League as a special double issue of WIN Magazine. These documents included the first public appearance of the FBI code-word “COINTELPRO“.  The documents, damning the FBI and J. Edgar Hoover in their own words, and the exposure of COINTELPRO, unseated Hoover and the FBI from their “untouchable” pedestals of public respect and secret power, prompted the Church Commission hearings, and led to executive orders and legislation at least purporting to reign in FBI political surveillance and meddling in non-criminal political activities.

Daniel Ellsberg (who praises the new book, The Burglary, as “a masterpiece”) has spoken repeatedly over the years of his desire to learn the identities of the members of the Citizens’ Commission, so that he could thank them personally for their whistleblowing. Today we are finally able to give the members of the Citizens’ Commission, named and unnamed, the credit they have long deserved for their courage and commitment in service to the causes of truth and justice.

But members of the Citizens’ Commission identified themselves publicly today not to claim their rightful place in the pantheon of muckraking heroes who have taken personal risks to expose government misconduct (entitled though they are to do so) but in order to call attention to the continuing need for more actions like theirs, and to the righteousness of whistleblowers like Edward Snowden who have taken such actions more recently.

The Citizens’ Commission weren’t “leakers”.  They were outsiders tapping into the sewage pipe of government secrets from the outside, not insiders “leaking” secrets from within the apparatus of government surveillance and subversion.  It’s important to distinguish them from insiders like Edward Snowden, Chelsea Manning, Dan Ellsberg, and Tony Russo.

As the name of the “Citizens’ Commission to Investigate the FBI” itself quite accurately reflects, its members acted as independent investigators and investigative journalists, not “leakers”.  They were the “hackers” of their time, carrying out their hacks with disguises, crowbars, and photocopiers rather than with code.

That makes the courage and commitment of the Citizens’ Commission all the more noteworthy. Ellsberg, Snowden, and Manning were all in positions of privileged access to closely-held information. The knowledge of that unusual privilege could, for people of conscience, translate itself into a greater sense of obligation to act on one’s knowledge. The members of the Citizens’ Commission, on the other hand, started out with no special knowledge and no special access. They did something that any member of the public could have done.

“But there was absolutely no one in Washington — senators, congressmen, even the president — who dared hold J. Edgar Hoover to accountability,“ John Raines told the New York Times. “It became pretty obvious to us that if we don’t do it, nobody will.”

In their press conference today, members of the Citizens’ Commission reminded reporters that the government made the same claims about the documents they stole from the FBI and gave to journalists as it has made recently about the documents taken from the NSA and passed on to journalists by Edward Snowden. In both cases, the government tried to persuade newspapers not to publish the documents, and justified criminal investigations of the thefts or leaks, on the basis of claims that the documents contained critical information that could jeopardize national security if revealed to the public.

“Within days of our action, the government was spreading stories that the documents included things like locations of missile silos and so forth,” Keith Forsyth of the Citizens’ Commission points out.

“That was a complete fabrication,” Forsyth says, based on his knowledge of documents the Citizens’ Commission eventually burned — pertaining to ordinary criminal matters rather than specifically political activities — as well as the political documents they released to the news media.  Forsyth says he’ll believe Snowden has released information genuinely damaging to national security if the government produces an actual example of such a disclosure in the material Snowden has given to the press.

We should be equally skeptical of contemporary DHS claims about the “sensitivity” and need for secrecy of information about its operations.  One of the lessons we draw from the FBI response to the actions of the Citizens’ Commission is that such claims are typically made primarily to protect government officials against public accountability, not to protect the public against private crime or threats from abroad.

Read More →

Jan 06 2014

Judge in “no-fly” case denies plaintiff & her lawyers access to evidence

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.

Dec 23 2013

Briefing completed following “no-fly” trial

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:

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.

Dec 19 2013

“No-fly” trial: There are secrets, and then there are secrets.

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:

Read More →

Dec 17 2013

Briefs on issues remaining after “no-fly” trial

Now that the “no-fly” trial in Ibrahim v. DHS et al. is over, what’s the verdict?

Because this was a “bench trial” without a jury, Judge Alsup will decide both factual and legal issues.  His decision is not expected for weeks or months. There is no requirement for a speedy verdict in a case like this.

Before issuing his decision, Judge Alsup has asked both sides to submit briefs on a variety of legal issues, including which of the various categories of “secret” evidence he should consider and which he should make public.  Naturally, the government submitted its own brief on this issue in secret.

The current round of briefing is scheduled to conclude this Friday, December 20, 2013. Unless Judge Alsup asks for additional submissions on some question he thinks requires clarification, the next public activity in the docket will be the issuance of Judge Alsup’s next ruling. That could be either a verdict on the case, or a ruling on some or all of the preliminary matters such as which evidence to consider or make public.

Here are the briefs and orders relating to the issues remaining for Judge Alsup to decide:

Dec 10 2013

DHS stonewalls New York Times’ requests for travel records

A lawsuit filed last week by the New York Times shows that even reporters for the  Gray Lady have been targeted by U.S. Customs and Border Protection (CBP) for the same special scrutiny as less-mainstream journalists, and that the Department of Homeland Security (DHS) FOIA and Privacy Office continues to use the same tactics in responding to requests for its files about travelers, even when dealing with the Times, as it has used in response to requests and lawsuits by disfavored requesters such as ourselves:

  • Losing requests and appeals, or claiming to have no record of them;
  • Delaying responses or simply ignoring requests;
  • Failing to refer requests to the DHS components they knew were most likely to have responsive records; and
  • Claiming not to have sufficient information to locate records, or not to have identified responsive records, even when official notices published by the DHS or its components such as CBP have stated that records of this sport are part of a “system of records” retrievable by name or other personal identifier.

According to their complaint, two reporters for the Times, C.J. Chivers and Mac William Bishop, were “subject to segregated questioning by DHS employees at JFK on May 24, 2013, as they prepared to board an international flight for a work assignment as journalists.”

Both reporters subsequently filed requests with the DHS headquarters for “records used or created by DHS employees in respect to the questioning of Plaintiffs at JFK airport” and for “all information and records in the possession of DHS concerning” them.

It appears that the Times’ reporters were unfamiliar with the Privacy Act “System Of Records Notices” that the DHS has published, which are required to describe which agencies keep which types of records about individuals. A SORN must be published, and must disclose the type of information contained in such a systems and how it is used,  even when the records themselves have been exempted from disclosure.

In any event, the Times’ reporters didn’t send their requests to CBP or specifically mention that CBP records should be included in the search for responsive records. And they didn’t specifically refer to the systems of records (including the Automated Targeting System and TECS) that should be searched.

This shouldn’t be necessary, of course, but in our experience, DHS FOIA officers pretend to be even more incompetent than they really are. Unless you spell out which systems of records of which DHS components you want them to search, they will search (if at all) only in places other than those where the responsive records are likely to be found.

The records that enabled the DHS to intercept Messrs. Chivers and Bishop at JFK airport, as well as the records of their questioning (which was probably conducted by CBP officers) are almost certainly part of the CBP “TECS” and/or “Automated Targeting System” (ATS) databases.

We’ve written previously about How airline reservations are used to target illegal searches using TECS records, using examples of DHS records related to searches and questioning of other journalists.  We’ve posted templates to request your own records as well as examples of responses.  Contact us if you’d like help interpreting responses to your requests.

Rather than referring the Times’ reporters requests to CBP or searching for their TECS and ATS files, the DHS headquarters FOIA office:

  1. Lost (or pretended to lose) their requests;
  2. Delayed responses, or failed to respond at all;
  3. Referred the requests to two other DHS components (TSA and ICE) that they knew or reasonably should have known would be unlikely to have the requested records, but not to CBP; and
  4. Claimed not to have enough information to conduct a search, even though TECS and ATS are specifically designed to allow travel records to be searched for by as many criteria as possible: name, passport number, credit card number used to pay for the ticket, telephone number provided to the airline when reconfirming reservations, IP address from which the reservation was made, etc.

All this is depressingly familiar to us from our years of experience in trying to obtain such records.

In light of the involvement and intimate familiarity of the DHS headquarters FOIA and Privacy Office with the ongoing, high-level controversy over usage of, and access to, PNR data included in the TECS and ATS systems operate by CBP, the failure to refer the request to CBP is unambiguous evidence of either bad faith or gross incompetence in processing the requests from the Times’ reporters.

We wish the Times and its reporters all success in their lawsuit.

Dec 09 2013

“No-fly” trial: What happens now?

Today lawyers representing Dr. Rahinah Ibrahim in the first lawsuit challenging a no-fly order to make it to trial filed a notice with the court in San Francisco that they would not seek to re-open the case to present more evidence from and/or regarding Dr. Ibrahim’s daughter, Raihan Mustafa Kamal.

Ms. Mustafa Kamal, who unlike her mother is a U.S. citizen, was with her mother on one of the occasions when she was denied boarding, and was to have been a witness in her mother’s case. But Ms. Mustafa Kamal was herself denied boarding at the behest of the CBP (one of the defendants in the case) when she tried to fly from Malaysia, where she lives, to San Francisco for the trial last week.

In today’s filing, Dr. Ibrahim’s lawyers said that

At the closed hearing on Friday, December 6, 2013, regarding the travel difficulties of plaintiff’s daughter, Raihan Mustafa Kamal, the Court allowed plaintiff the opportunity to consider whether to re-open evidence for Ms. Mustafa Kamal to testify. Because of concerns about the safety and liberty of Ms. Mustafa Kamal were she to attempt to travel to the United States, plaintiff elects to proceed on the evidence presented at the trial, with one caveat that plaintiff mentioned at the hearing on Friday. [emphasis added]

The most obvious potential concern for Ms. Mustafa Kamal is that she might be allowed to fly to the U.S., but then not allowed to return to Malaysia, where she lives and works.

The “caveat” mentioned in today’s filing is that Dr. Ibrahim’s lawyers want to be allowed to refer to the evidence about what happened to Ms. Mustafa Kamal as evidence relevant to what happened to her mother:

Ms. Mustafa Kamal’s status and the effects of [it] are relevant to Dr. Ibrahim’s right to travel. The government has denied the very adverse effects for Dr. Ibrahim that Ms. Dugan’s testimony proves in fact occur.

We are extremely grateful to the anonymous reader who came forward with an offer to pay for a ticket for Ms. Mustafa Kamal — who said in her declaration that she could not afford another one — if she wanted to make another attempt to fly to San Francisco to testify in person. We were able to communicate that offer to Dr. Ibrahim’s payers before they filed their notice with the court today.

Friday’s hearing with respect to Ms. Mustafaf Kamal was closed to the press and public, and no orders from the court have been made public with respect to any of the issues it might have raised.

[Update: On Tuesday, Dec. 10, 2013, Judge Alsup requested further briefing, to be completed by December 20th, on whether the evidence concerning what happened to M.s Mustafa Kamal can be considered by him in reaching his decision in Dr. Ibrahim’s case.]

Judge William Alsup has ordered each side to file proposed findings of fact and law by this Friday, December 13, 2013. He has also requested additional briefing on which categories of information claimed by the government to be “secret” can be accepted as evidence, and which of that evidence can be made public. The brief on this issue from Dr. Ibrahim’s lawyers is especially interesting.

Judge Alsup reserved judgment on many of these issues related to government claims of “secrecy”. He could still decide to exclude some evidence previously admitted provisionally, or to make public some exhibits filed under seal and/or transcripts of some portions of the trial for which the courtroom was cleared.

Judge Alsup could schedule additional oral argument on any of these issues, but normally a judge who has heard such a bench trial would issue a written opinion, without further hearing, some weeks or months later.  There is no deadline or standard schedule for the issuance of such an opinion.

Reports on the trial in Ibrahim v. DHS:

Court records:

Updates and other articles:

Dec 07 2013

“No-fly” trial, day 5, part 2: What happened to the plaintiff’s daughter?

“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.”

Neither the public, nor Dr. Rahinah Ibrahim, nor her daughter, Seattle-born U.S. citizen Raihan binti Mustafa Kamal, yet know why a U.S. Customs and Border Protection Officer sent the email message excerpted above  to the airline on which Ms. Mustafa Kamal was scheduled to fly to San Francisco last Sunday to testify at the trial in Dr. Ibrahim’s lawsuit challenging her placement on the U.S. no-fly list. (Click the image for a larger version or here for the complete e-mail forwarding thread.)

We do know, however, that whatever happened when Ms. Mustafa Kamal showed up at Kuala Lumpur International Airport (KUL)  two hours and 45 minutes before the scheduled departure of her flight and tried to check in, it certainly wasn’t (and CBP’s lawyers in San Francisco certainly couldn’t later have “confirmed”, as they claimed to the court on Monday), that Ms. Mustafa Kamal “just simply missed her flight”.

Friday afternoon, after what was to have been the conclusion of the trial in Ibrahim v. DHS, Judge William Alsup held an evidentiary hearing and heard argument from lawyers for Dr. Ibrahim and the government regarding what happened to Ms. Mustafa Kamal and what (if anything) he should do about it.

(See our separate article about the morning session, including the possibility of bar complaints against some of the government’s lawyers and a history lecture from Judge Alsup to the government about the blacklisting of Robert Oppenheimer on the basis of secret, false, allegations that he was a Communist: “No-fly” trial, day 5, part 1: Closing arguments.)

At the insistence of the government and on the basis of a declaration submitted in advance by the one witness, and over objections by Dr. Ibrahim’s lawyers, the courtroom was cleared for almost the entirety of both the hearing and the argument.  The only in-person witness, Ms. Maureen Dugan, Director of the “National Targeting Center” operated by the Customs and Border Protection (CBP) division of DHS in Reston, Virginia, was questioned only behind closed doors, and her additional written declaration was filed with the court under seal.

Dr. Ibrahim’s lawyers were unable to present her side of the story through in-person testimony, of course, since the U.S. government agencies which are the defendants in the case have prevented both Dr. Ibrahim and Ms. Mustafa Kamal from coming to the U.S. for the trial. But a sworn written declaration by Ms. Mustafa Kamal, including the email message from CBP  that led to her being denied boarding when she tried to fly to San Francisco last Sunday for the trial, was filed in the public court docket.

Following the hearing, Dr. Ibrahim’s lead counsel, Elizabeth Pipkin, said that at the conclusion of the closed court session Judge Alsup ruled:

  1. That the parties could refer to the events, exhibits, and testimony related to Ms. Mustafa Kamal in their proposed findings of fact and conclusions of law in Dr. Ibrahim’s case, and
  2. That Dr. Ibrahim and her lawyers would be allowed until noon Monday, December 9th, to decide whether to move to re-open the case.

If the case is re-opened, the parties would be able to present new evidence, call new witnesses, and/or re-call witnesses including government witnesses whose original testimony might be contradicted and whose credibility might be impeached by what happened to Ms. Mustafa Kamal and what statements they made about it.  Ms. Mustafa Kamal could even be called as a witness, if she could find the money for another airline ticket and make it to the U.S. (In her declaration, she says that her original ticket cost MYR5751, equivalent to US$1782, and she can’t afford another ticket at that price.  It’s already peak season for trans-Pacific travel to and from SFO, and on many airlines seats are unavailable at any price until after New Years.)

Aside from seeing Ms. Dugan enter and leave the closed courtroom, and what Ms. Pipkin said afterward about Judge Alsup’s rulings, we don’t know what the government may have claimed to Judge Alsup.

But when read closely, the public filings from Ms. Mustafa Kamal raise extraordinary questions of whether CBP and DHS have:

  1. Misrepresented their operations in official statements including their most recent formal report to the European Union on how they use airline reservation data,
  2. Tried to secretly strip a person born in the U.S. of her citizenship through some secret administrative action or deem her “inadmissible” to the U.S. despite her U.S. citizenship, and/or
  3. Misled the airline about the basis for their no-board request, and manipulated the airline through those false pretenses into wrongly denying boarding to Ms. Mustafa Kamal despite the fact that she is a native-born U.S. citizen with an absolute, unconditional, and irrevocable entitlement to admission to the U.S.

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