A significant challenge to the constitutionality of the Department of Homeland Security’s “No Fly” list has been ongoing in San Francisco, California, in a trial before a district court judge this week.
The lawsuit alleges Dr. Rahinah Ibrahim, a Malaysian who twice obtained a visa from the United States to study and obtain degrees in architecture, including a Ph. D, had her due process rights violated when she was “falsely imprisoned in an airport, denied boarding on two flights and subjected to enhanced searches before flying.” It also alleges the violation of her rights “impeded” her “professional advancement and prevented her from accepting work or promoting her inventions in the United States despite having a Ph. D. from Stanford.”
Lawyers for Ibrahim further allege that she was “subjected to intentional discriminatory treatment based upon her membership in a suspect class and her free exercise of her religious faith,” because she is a Muslim. They also contend the FBI questioned her about a terrorist organization in Malaysia of which she did not know anything about, asked about her husband’s “ideology,” her involvement in the local Muslim community and religious travel to Saudi Arabia, all a violation of her First Amendment rights.
Dr. Ibrahim has not been in attendance at this trial. Edward Hasbrouck, a consultant for the Identity Project, which advises, assists, publicizes and provides legal defense for those who have their rights infringed upon by demands for identification, has been attending the trial and reported that the State Department would not let her be present on “terrorism grounds.” A witness from the State Department would not elaborate in open court.
Her oldest daughter, Raihan Mustafa Kamal, was not allowed to board a flight on Sunday, December 1, to San Francisco to testify as a witness in the trial. It would seem that someone in government placed Dr. Ibrahim’s daughter on a “No Fly” list so she could not give testimony in the case.
Judge William Alsup demanded an explanation from lawyers representing DHS and other federal agencies, which are defendants in the lawsuit. The Identity Project reported that Alsup said, “We may have to have a separate evidentiary hearing about this,” Judge Alsup said. “I want to know whether the government did something to obstruct a witness, a US citizen.” (A director for the Customs and Border Protection National Targeting Center is now scheduled to testify on Friday, December 5, on what happened to Dr. Ibrahim’s daughter on Sunday.)
Additionally, today the judge denied a government motion to dismiss the case after Dr. Ibrahim’s lawyers rested. Closing arguments will take place after testimony from the CBP National Targeting Center director.
The trial has received virtually no coverage in US media except for local news organizations like the San Francisco Chronicle, which has posted a report on the trial. And Papers, Please!, a blog of The Identity Project has been doing remarkable coverage.
American citizens are probably unfamiliar with what happened to Dr. Ibrahim and have no idea that Dr. Ibrahim’s case against DHS’s “No Fly” list policies, which grant those included on the list no due process to challenge being put on the list, has been before a judge.
On January 2, 2005, Dr. Ibrahim was scheduled to be on board a flight from San Francisco to Kona, Hawaii. San Francisco police claimed she had “overstayed her visa,” according to a filed trial brief. Immigration documents showed this was not correct. Still, police led her away in handcuffs in front of her daughter, Rafeah, and about 50 others who were in line at a United Airlines counter.
Dr. Ibrahim was “publicly humiliated” and then “imprisoned for approximately two hours, searched in a culturally insensitive manner, denied her medication until the paramedics were called and denied the ability to use the restroom in private. She wanted to speak with FBI agent Kevin Kelley, who had interviewed her in 2004, so she could clear her name but this request was denied. Eventually, she was released with no explanation.
The trial brief further recounts:
…Lee Korman, an Aviation Security Inspector with the Department of Homeland Security met Dr. Ibrahim in the holding cell. He told her that her name had been removed from the No-Fly List. Mr. Korman accompanied Dr. Ibrahim and her daughter back to the United counter to get them on a flight to Kona the following day. Although Dr. Ibrahim was allowed to fly the next day, and Mr. Korman again said the new No-Fly List did not have her name on it, certain red flags suggested that her name had not been totally cleared. On January 3, 2005, Dr. Ibrahim was issued a bright red colored boarding pass and was given an “SSSS” status. She saw the ticketing agent making more phone calls before he issued her a boarding pass, and she was subjected to enhanced searches…
In March 2005, she wanted to return to the United States to complete her thesis and meet with a professor she wanted to see who was dying from cancer. She was not allowed to board her flight at Kuala Lumpur and was told her visa had been revoked. She unsuccessfully tried to clear her name with DHS.
Dr. Ibrahim attempted to obtain another visa in 2009 so she could travel to the US and be deposed for this lawsuit and participate in her own trial. At a consular post in Kuala Lumpur, she was told she had been denied under a section of the Immigrant and Nationality Act. When she wanted to know what the section meant, a State Department representative wrote out the word “terrorist” on her visa application, right in front of her.
It came out in court today that Dr. Ibrahim applied for a visa again in September of this year. She was once more denied on “terrorism grounds.”
The San Francisco Chronicle reported during “long-distance testimony” aired on December 3 a “hint of how she might have landed” on the “No Fly” list was given: “her organization of progressive, job-seeking Malaysian professionals has a name somewhat similar to that of a terrorist group.”
In 2004, Dr. Ibrahim was interviewed by FBI agent Kevin Kelley, who asked what she knew about a militant Islamic group in Malaysia known as Jemaah Islamiyah. She had no knowledge of this group. But, months later, when she was denied a US visa in Malaysia, she was asked about her organization, which is called Jamaah Islah Malaysia.
Lawyers point out in their trial brief that, in the process of data mining while investigating targets, a computer scanning emails would not “necessarily be able to tell that the letters ‘JIM’” stood for “Jamaah Islah Malaysia” and not “Jemaah Islamiyah Malaysia.” Her listing could, therefore, have been the result of this kind of an error.
The secrecy in this case has occurred at the stunning levels one might expect from government agencies conspiring to fully preserve a national security state power that infringes upon the rights of citizens from legal challenge.
According to The Identity Project, “Dr. Ibrahim’s lawyers were provided with some information under protective orders or restrictions including those applicable to “covered persons” receiving documents defined by the TSA as ‘Sensitive Security Information’ (SSI). Dr. Ibrahim’s lawyers have, for example, been given some information about why Dr. Ibrahim was put in the ‘Terrorist Screening Database’ (TSDB), but are forbidden to share this information with their client Dr. Ibrahim herself.”
There is information on her placement on the list that the government has restricted her own lawyers from sharing with her.
Government attorneys have sought to retroactively make information a state secret, even though it is available to the public. Judge Alsup has not approved.
That’s ridiculous. Are you saying that if the president makes a speech, TSA can retroactively make it a secret what he said? It cannot be the law that something that is publicly known later becomes hidden…
Here’s my ruling: If it’s in a document that’s SSI, but it’s also available from some other publicly available source, it’s public information, and cannot be withheld from the public in this courtroom…. The government is taking such an unreasonable position on how to run a trial. If it’s been in the public domain for years, you’re barred from making the argument that the plaintiff’s counsel cannot “disclose” it….
Trials are important. Trials are supposed to be public.
I want to categorically reject one thing: If information is publicly available in some other way, the government does not have the right to retroactively clamp it down and remove it from the public record. Even if it could have been protected as SSI within the government, if the plaintiff obtains this information independently, the government can’t clamp that down.
The plaintiff has the right to prove her case. If she can prove it through publicly available admissible evidence, she can do so even if that information is also included in internal government documents designated as SSI.
That’s the way I feel. That’s the law, that ought to be the law, and that’s the only way to run this country. That’s my ruling, and if the government disagrees, I invite you to take an emergency writ to the Ninth Circuit Court of Appeals.
In fact, during today’s proceedings, when the judge had to clear the room, he reportedly said, “If this is the law, why isn’t the public allowed to know what the law is?”
The conduct of the government is truly brazen. It deprives citizens or individuals with visas, who have rights, any recourse when their due process rights are deprived while simultaneously obstructing the process when a district court judge has agreed to hear allegations of rights violations in a case.
The way in which people in federal agencies are conspiring to protect the power to include whomever they please on watchlists, whether they are confirmed terrorists or not, says a lot about the administration of President Barack Obama and the wider US government. The freedom to travel is a fundamental right, and it should not be permissible for the government to so openly violate it and, in the process, chill other freedoms as well.