Feds Insist It Must Be Kept Secret Whether Or Not Plaintiff In No Fly List Trial Is Actually On The No Fly List

Legal Issues

from the kafkaesque dept

In the latest update in the ongoing trial concerning the legality of the US’s “no fly list” brought by Stanford grad school student Rahinah Ibrahim after what appears to be a series of monumentally stupid actions by the US government, the feds continue to try to play games that Judge William Alsup isn’t interested in playing. Edward Hasbrouck at the Identity Project continues his fine reporting with detailed coverage of Thursday’s events. Apparently, the DOJ lawyers tried to insist that the mere fact of whether or not Ibrahim is on the “no fly list” has to be kept secret, including from Ibrahim herself. Judge Alsup pointed out that the mere status of someone — on the list or off — wasn’t listed anywhere in the list the government provided him of “sensitive security information” (SSI):

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.

Later, as the government presented its case, it included a discussion of how the State Department later pulled Ibrahim’s visa after she was back in Malaysia (it’s not entirely clear how this helps their case, since the no fly issue is separate from the visa). But, even there, the statements from the government didn’t make much sense to Judge Alsup who called out a witness for saying something that didn’t appear to be true — arguing that Ibrahim could have asked for a special waiver on the visa issue, but didn’t. Just one problem: as Judge Alsup noticed, there’s a box on the form saying if you’re eligible to apply for a waiver — and the form sent to Ibrahim did not have that box checked.

It’s possible for someone deemed ineligible for a visa to apply for a waiver of that ineligibility. Had Dr. Ibrahim failed to exhaust her administrative remedies by failing to apply for such a waiver?

It was Judge Alsup who pointed out that the box on the notice given to Dr. Ibrahim marked “You are eligible to apply for a waiver of in eligibility” had not been checked. “If there’s a box for that, and the box isn’t checked, wouldn’t that imply to you that she couldn’t apply for a waiver?” the judge asked Mr. Cooper.

“You could infer that,” Cooper replied from the witness box, with an inflection that suggested, “….but you would be wrong.”

“It would certainly imply that to me,” Judge Alsup shot back.

The trial should be wrapping up today, and it’s not looking good for the US government at this point.

Filed Under: dhs, doj, no fly list, rahinah ibrahim, william aslup