A district court judge has issued an order which grants relief to a woman who was incorrectly included on the United States government’s “No Fly” list and had been denied due process when seeking to correct this mistake. However, the government would like the judge’s order to be kept secret.
The case involves 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. She alleged in the lawsuit that her due process rights were violated when she was “falsely imprisoned in an airport, denied boarding on two flights and subjected to enhanced searches before flying.” She further alleged 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.”
It was a significant challenge to the constitutionality of the Department of Homeland Security’s “No Fly” list and yet the government would prefer citizens do not get to see the judge’s arguments for ruling against the government.
As a result, Judge William Alsup gave public notice that only summarized the essence of what the court had decided. It did not lay out the entirety of how he had come to his decision.
“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,” Alsup stated.
But, “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,” Alsup added.
…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…
After having one’s due process rights violated, then the court can grant a person some kind of relief or remedy for that action.
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.
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.
Notably, the judge appears to have declined to determine whether the government’s “maintenance, management and dissemination of the No-Fly list” is “unconstitutional under the First, Fourth, Fifth and Fourteenth Amendments,” as Ibrahim’s lawyers had requested.
The judge decided not to release his order granting relief to Ibrahim until April 15. In the meantime, he urged the government and Ibrahim’s lawyers to meet and agree on a redacted version that could be released to the public as the court waits for the court of appeals to rule on the “government’s desire to maintain its secrecy.”
It would be healthy for discussion of the “No-Fly” List if the order was released in a redacted form. The public could see how much the government does not want citizens to know about how its government defends violating due process rights of people inappropriately put on watch lists.
During the trial in December, the government sought to retroactively classify information that was already in the public domain so that it could close proceedings. This upset the judge greatly.
“Trials are important. Trials are supposed to be public,” Alsup said. “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.”
Her oldest daughter, Raihan Mustafa Kamal, was not allowed to board a flight on 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. That definitely did not help the government secure a victory in this lawsuit.
Though many of the details of Alsup’s order are unknown, the American Civil Liberties Union is awaiting a decision in a lawsuit on “behalf of 10 US citizens and permanent residents who cannot fly to or from the US or over American airspace because they are on the government’s secretive No Fly List.”
The critical question now becomes: if it is appropriate to award individual persons remedies if they allege violations of their due process rights in the courts, what makes the lack of due process constitutional?
The government must object to opening up the flood gates to cases where people can accuse the government improperly placing them on a No Fly list. It does not like having to make arguments about the secretive No Fly list in public.
Why not protect the government from any future predicaments in the courts and declare that the process violates citizens’ rights?
Force the government to rework its processes and policies so rights are no longer violated.