[Courtroom sketches of Judge Alsup (left, rear), plaintiff’s expert witness Prof. Sinnar (top right), Special Agent Lubman (FBI Terrorist Screening Center, center right), and Mr. Cooper (State Department, lower right) by kind permission of Jackson West, jacksonwest.com. Some rights reserved, CC BY 3.0 US.”]

Day four of the trial in Ibrahim v. DHS — the first lawsuit challenging a U.S. government “no-fly” order to  make it to trial — went forward with both the plaintiff Dr. Rahinah Ibrahim, and her daughter and potential witness Raihan Mustafa Kamal, still absent from the courtroom. Each of them was unexpectedly denied boarding for flights from Kuala Lumpur to San Francisco the last time they tried to fly to the U.S., Dr. Ibrahim in March 2005 and Ms. Mustafa Kamal this past Sunday.

Today was more Kafka than Orwell. The reasons why the two women were denied boarding and were still missing from Judge William Alsup’s courtroom despite their respective roles as plaintiff and potential witness were the main issues today — at least so far as the public could tell from what was said and which exhibits were displayed during those times when the courtroom wasn’t cleared of spectators.

Judge Alsup continued to apologize to the members of the public in attendance each time he ordered the courtroom cleared. While he has provisionally sealed the transcripts of the closed sessions, he is explicitly reserved judgment on whether some or all of those transcripts will eventually be made public.

Before the first witness could be called this morning, one of the government’s lawyers came forward to advise Judge Alsup that her client had provided Dr. Ibrahim’s lawyers with a copy of what was described as a “travel letter” addressed to air carriers, informing airlines that Ms. Mustafa Kamal is a U.S. citizen and is free to travel to the U.S. by air.

This begs the question, of course, of why a U.S. citizen would need such a permission letter, why freedom to travel wouldn’t be the default, or whether someone is “free” if they need a permit from the government.

Part of the answer lies in the fact that, as most Americans don’t realize but as we discussed in relation to the testimony yesterday of expert witness Prof. Jeffrey Kahn, everyone including U.S. citizens now needs U.S. government permission to board any flight to, from, or within the U.S.

“Normally” (if one can consider the current system to have become normal), U.S. government permission is provided, invisibly to the traveler, in the form of a boarding pass printing result transmitted electronically to the airline’s reservation system in response to the transmission to the DHS of the would-be traveler’s reservation details.  But now that the default has been changed from “yes” to “no” (or, more precisely, from “fly” to “no-fly”), and the U.S. government has deemed travel to be a privilege rather than a right, a government permission-to-travel letter might be needed not just to override prior erroneous or superseded no-fly instructions, but to ensure that an individual would be allowed to board in the absence of the usual electronic boarding pass printing instruction from DHS.  Why the normal permission message wasn’t or wouldn’t be forthcoming for Ms. Mustafa Kamal, and a “yes-fly” letter might be needed, we still don’t know.

At the end of today’s court session, the defendants’ lawyers provided Dr. Ibrahim’s lawyers with a  declaration regarding what they described as Ms. Mustafa Kamal’s “travel difficulties”. That’s something of an understatement for being denied boarding on a long-haul flight, without prior notice or any explanation, at the behest of an agency of one’s own national government.  Nothing was revealed as to the substance of that declaration, which Judge Alsup allowed to be filed under seal, at least for the time being.

The declaration concerning Ms. Mustafa Kamal was said to have been executed under penalty of perjury by Maureen Dugan, Acting Director of the National Targeting Center (NTC) operated by U.S. Customs and Border Protection (CBP), a component of the Department of Homeland Security (DHS).

The NTC maintains the CBP Automated Targeting System (ATS), the primary DHS database of individualized lifetime travel history dossiers. Every international traveler to and from the U.S.  has an ATS file, regardless of whether  they are a U.S. citizen and whether they are under any suspicion or listed on any “watchlist”. It is through the NTC that “fly/no-fly” decisions are translated into messages to be passed on to airlines.  [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.]

“I saw that e-mail that definitely suggested that DHS did something,” Judge Alsup said, referring to the “no-fly” order from the DHS to Malaysia Airlines which was shown to him by Dr. Ibrahim’s lawyer on Tuesday. “Will there be a witness here who can explain that?”

The government’s lawyer said Ms. Dugan will be available in person in court in San Francisco on Friday to testify concerning why Ms. Mustafa Kamal wasn’t allowed to board her flight in Kuala Lumpur last Sunday. Judge Alsup scheduled Ms. Dugan’s testimony to be the first item of business at 7:30 Friday morning.

The government’s lawyers indicated, however, that they would ask Judge Alsup to clear the courtroom during Ms. Dugan’s testimony, because it might reveal an individual’s current status on, or not on, a watchlist.

The government has moved to prohibit disclosure to the plaintiff herself of her watchlist status, on the grounds that this is “Sensitive Security Information”.  But Judge Alsup said that watchlist status didn’t appear to be one of the 15 categories of information enumerated in the SSI regulations (49 CFR §1520.5).

“You said in your brief that the watchlist status of an individual is in the statute as SSI, but I can’t find it on this list,” Judge Alsup told the government. “Is watchlist status in the penumbra of the statute?… I don’t want there to be this general blather. You’re going to have to tell me which of these 15 factors covers individual status on watchlists,” or document that there’s been a proper designation of this information, “dotting all the i’s and crossing the t’s”, under the 16th catch-all category of SSI.

Judge Alsup noted that Dr. Ibrahim’s lawyers had been cleared to know her watchlist status, but weren’t allowed to tell their client:

Why can’t we tell the party [to the lawsuit] what her status is?

This depends on our saying that national security depends on us having this information, but not her having it. I question whether that is true….

Something’s going on in this case that’s strange, and I mean on the part of the government.

I don’t understand why you’re fighting so hard to avoid having this poor plaintiff know what her status [on the no-fly list] is.

It’s easy for anyone to buy a ticket and try to get on an airplane. If they’re allowed to fly, they know they’re not on the no-fly list. If they’re stopped and handcuffed and sent to jail in the back of a police car, they know they’re on the list.

It’s so easy to find out what your status is by trying to get on an airplane — at least for the no-fly list. That’s a lot easier than months of litigation.

Judge Alsup ordered further briefing on whether watchlist status could be disclosed to the party to the lawsuit (Dr. Ibrahim) herself, directing the government to specify the applicable item on the list of categories of SSI and document exactly how this item included individual watchlist status. [Here is that brief as filed later Thursday by the government, which we recommend reading for the scope of its claims of secrecy.]

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There’s been an argument on Twitter about whether we should have described the treatment of Dr. Rahinah Ibrahim — the plaintiff in the first lawsuit challenging a US government no-fly order to make it to trial — as “Orwellian” or “Kafkaesque”.  We’re inclined to agree with those who say, “But it’s both.”

True to form, day three of the trial began with arguments over whether the court could take judicial notice of statements made by the defendant government agencies on their own “.gov” websites, and of news articles linked to from the government’s own press releases on those websites.

“I would expect that the defendants would not dispute the statements that are made on their own websites,” said Christine Peek, one of Dr. Ibrahim’s attorneys.  Eventually the government’s lawyers agreed to allow their clients’ press releases, and the articles from other sources they had cited and linked to, to be entered into evidence —  but not without first putting up a fight about their admissibility.

While the first two days of the trial focused on what had happened to Dr. Ibrahim (she was denied boarding for a flight from San Francisco to Hawaii, falsely arrested and mistreated at the airport, and subsequently had her U.S. visa revoked), today’s testimony focused on why and how the U.S. government decided to take these actions against Dr. Ibrahim.

Testimony was presented in a variety of formats. Some witnesses appeared in person, others through excerpts from video recordings of depositions, and others through a surreal sort of stage play in which lawyers for the parties enacted portions of the depositions, using the transcripts as their script.

Perhaps the strangest moment came during one of these re-enactments for the record of Dr. Ibrahim’s deposition. The government’s lead counsel took the witness box to read Dr. Ibrahim’s lines from the transcript, while Dr. Ibrahim’s lead counsel played the role of the government’s lawyer cross-examining her client.

Dr. Ibrahim, of course, was the one witness who had no option of testifying in person at her own trial. The State Department’s witness today confirmed that Dr. Ibrahim applied for a U.S. visa in 2009 for the specific purpose of coming to San Francisco to be deposed in this case. Knowing that was the purpose for her trip, the State Department denied her application for a visa.

The government’s attorneys objected to questioning about why that visa application was denied, and most of those objections were sustained on the grounds that the reasons for the visa denial, like those for the “nomination” and placement of Dr. Ibrahim on the no-fly list by the FBI and its Terrorist Screening Center, were “state secrets.”

However, the limited State Department testimony that was allowed to be presented in open court suggested that the State Department visa officers who denied Dr. Ibrahim’s application in 2009 did so purely on the basis of the fact that her name had been placed on a so-called “watchlist” in 2004 or 2005, without any review or even knowledge of the “derogatory” information (if there ever was any) which had been alleged by the original “nominating” FBI agent to provide a basis for that watchlist placement.  [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.]

Most of the testimony from government witnesses (the former acting deputy director of the Terrorist Screening Center, the FBI agent who personally “nominated” Dr. Ibrahim for inclusion on the no-fly list, and the State Department’s designated official representative for the officer who revoked Dr. Ibrahim’s visa) was presented in a closed courtroom from which the press and the public were excluded because the testimony included what the government claimed was “Sensitive Security Information.”

“I have to ask you to leave the courtroom for reasons that don’t make much sense sometimes. I’m sorry for that,” Judge William Alsup said when the government insisted that the court be cleared.

In contrast, the plaintiff’s first expert witness, Jeffrey Kahn, was allowed to testify in open court — over the government’s objections — because all of his testimony was based on publicly-available information and interviews he conducted as part of his research as a law professor and author.  The government’s lawyers repeatedly interrupted Professor Kahn’s testimony to demand that he identify  the public-domain sources for his statements, even though he had already done so in his written pre-trial expert report and in the footnotes to the scholarly book and law journal article on which most of his report and testimony was based.

At one point, in response to such an objection, Prof. Kahn identified the source for one of his statements as being FBI watchlist guidelines released by the FBI itself to the Electronic Privacy Information Center (EPIC), and posted on the EPIC website. Those documents showed that the mere opening of an investigation was itself deemed to be presumptively sufficient grounds for placing a person on a watchlist, without the need to evaluate whether there had been any factual predicate for the opening of the investigation. This contradicted the government’s claims about the existence of threshhold evidentiary criteria for watchlist decisions.

The government’s lawyers tried to argue that despite having been released by the FBI itself in response to a FOIA request, and having been publicly available for years on the EPIC website, these documents couldn’t be discussed publicly.

Judge Alsup overruled their objection. “This is America. You can’t take something that is in the public domain and make it a secret. If you wanted to shut down that website, you should have done so. It’s too late now.”

The essence of Prof. Kahn’s testimony was the absence from the watchlist procedures of essential elements of due process: notice, opportunity to be heard, and the ability to have decisions reviewed by an entity independent of the decision-making agency. As Prof. Kahn summarizes this in his book, on the basis of information including interviews with the officials who established and operated the system of watchlists:

The watchlisters are prosecutor, judge, jury, and jailer. Their decisions are made in secret and their rules for decision — like their evidence for deciding — are classified. There is no appeal from the decisions of the watchlisters, except to the watchlisters themselves.

This is key to Dr. Ibrahim’s complaint, which is both (1) that there was no, or no sufficient, factual basis for her placement on the no-fly list and other watchlists, and (2) that the decisions to place her on those watchlists violated due process, regardless of any evidence on which they might have been based, because she was not given notice, an opportunity to rebut any allegations against her, and an opportunity to have the decisions independently reviewed.

As an expert witness relying on public sources, Prof. Kahn couldn’t testify about any of the specific facts of Dr. Ibrahim’s case. But his testimony could establish facts about the decision-making process (which the government says is itself a “secret” even when it is public knowledge) sufficient to show that it lacks essential elements of due process.

Prof. Kahn testified that his interviews and research led him to the conclusion that the real decisions about entries on watchlists are made by the Terrorist Screening Center. The TSC was established in 2003 by a purely executive act, Homeland Security Presidential Directive 6. The Terrorist Screening Database (TSDB), which includes the “no-fly” list, is maintained by the TSC.

What’s the standard for inclusion of an individual on the TSDB? “It’s one level above a hunch,” Prof. Kahn testified. “It’s the lowest level known to the law, a so-called reasonable articulable suspicion.” Not proof beyond reasonable doubt, not a preponderance of the evidence, not probable cause.

There is no statutory basis for the actions or authority of the TSC. There have never been any publicly promulgated regulations or notice and comment regarding the actions of the TSC.  There are “criteria” for TSC actions, but there  are exceptions to those criteria . According to Prof. Kahn, “The TSDB is not limited in its use by any logic, or by any statute. It’s limited only by the imagination of those who created it.”

Is there any external review of the process? “No, no,” Prof. Kahn testified. “If an individual is nominated for the TSDB, there’s no one you can appeal to, and the individual probably won’t even know. Certainly there’s no notice to the individual. There’s no way for an individual to contact the TSC,” and its location is officially “secret” although it has been publicly revealed.

The only way to “appeal” a TSC decision or TSDB placement, Prof. Kahn continued, is the DHS TRIP program. That’s an appeal to the same agency that may have made the decision. “You can fill out the form on the TRIP website, push send, and it goes into a black box. At some later time you might get a letter in the most Orwellian terms” from which you can’t tell what action, if any, has been taken, or if so, by whom. “The only way to tell if you have been taken off the no-fly list is to try to fly again,” and see what happens.

Most of the facts and opinions in Prof. Kahn’s testimony today and the written expert report he submitted to the court in this case are developed in much greater detail in his recent book, Mrs. Shipley’s Ghost: The Right to Travel and Terrorist Watchlists.  While his testimony and expert report were confined to a narrower set of issues, it’s worth considering the larger thesis within which he places them in his book:

All travelers now require the federal government’s express prior permission to board any aircraft (or maritime vessel) that will enter, leave, or travel within the United States. Of course, no one realizes that permission is required — or has even been sought — until it has been refused….

Although the government permits the airline to sell [a] ticket right away, that reservation cannot be redeemed for a boarding pass without the government’s assent… In other words, each time you travel by airplane in American airspace, it is by the grace of the U.S. Government….  [E]very time a citizen wishes to fly somewhere, the state must approve the itinerary….

I reject the premise that puts a citizen’s right to travel into conflict with national security. The premise is that the state has a right to restrict any citizen’s travel that frustrates the state’s foreign policy or national security objectives. This premise naturally suggests a balancing test: when national security outweighs a citizen’s interest in travel (and, so characterized, it nearly always can be made to seem to do so), the state should prohibit this travel. But… [c]itizens of a republic… should be no more obliged to abridge their travel to serve the state’s interests than they are obliged to curtail their speech when it conflicts with the state’s preferences…. It is rarely constitutionally appropriate to weigh a citizen’s travel interest against how that itinerary will affect foreign policy. Travel restriction in the service of the state is the hallmark of authoritarian regimes, not democratic republics….

The right to travel should be curtailed only to the extent that strict judicial scrutiny determines it is necessary to achieve a compelling government interest. A secret, summary, executive decision to curtail all air travel for an indeterminate time and without meaningful procedures to contest the decision would not pass such review. The No Fly List must be adapted to our liberty rich society, not the other way around.

These are, of course, the arguments that we’ve been making for many years, and we’ve been the only organization to testify and file formal objections on these grounds at each stage of the implementation of this permission-based travel control regime. We hope Dr. Kahn’s research and writing draws more attention to the unconstitutionality of this system, and the need to base travel restrictions on judicial orders.

The plaintiff’s lawyers plan to present their final witnesses on Thursday, after which the defendants are expected to move (again) for exclusion of most of the evidence and dismissal of the complaint on the grounds that the remaining evidence is insufficient to satisfy the plaintiff’s burden of proof. Unless that motion is immediately granted, the defendants will present their case on Thursday and Friday.

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.