Court Rules That Woman Wrongfully Placed On No Fly List Should Be Taken Off The List... We Think

from the no-fly dept

We've written a few times about the troubling case of Rahinah Ibrahim, a PhD. student at Stanford who was wrongfully placed on the "no fly" list because (it appears) some clueless law enforcement officials mixed up the names of a networking group of professional Muslims in Malaysia who had returned from work or study in the US and Europe (which she was a part of) and a very, very different terrorist organization. While she had received something of an apology for initially not being allowed to fly to Malaysia (and then allowed to fly), it appeared that her name was then placed on the no fly list, preventing her from ever returning. She was later blocked from even flying back to the US for her lawsuit against the government.

The ruling issued today, and we'd love to tell you what's in it... except for the fact that it's sealed. Judge William Alsup has stated that he believes that the entire order should be made public, but that the US government is fighting that. So, for now, the order is under seal until April 15, while Homeland Security is supposed to agree to what it will allow to be released in a redacted version. However, in the meantime, Judge Alsup has released a "public notice and summary" of the findings of fact -- basically revealing what he can of the order. Many of the important details are still missing, but it certainly sounds like Ibrahim has mostly succeeded in the case. Alsup notes that "some but not all of the relief" sought by Ibrahim has been granted. And this includes having her name scrubbed from the no fly list:
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.
That appears to suggest that the government ought to remove her from the no fly list and let her know that she's now off the list. But it's not entirely clear that's the case. In theory, they could inform her that she's still on the list as well.

On the later decision by the US government to deny her a visa, the court orders DHS to provide an actual reason in the law for the denial. It would appear that the previous denials did not specify one of the "nine subsections" in the law for which a visa can be denied, and Alsup has ordered DHS to "remedy" that. It also hints very, very strongly (as was pretty clear during the trial), that in refusing her visa, she was told that she was not eligible for a waiver when, in fact, she was. Thus, he orders the government to properly let her know that she can apply for a waiver... but notes that the court cannot review the eventual decision as to whether or not she's granted a visa.

Nothing is said in all of this about the later actions by DHS to block Ibrahim's daughter, a US citizen, from flying to the US to testify in the case. Though, perhaps there is something about that in the sealed documents.

All in all, it appears that Ibrahim has mostly prevailed here, but the details could be rather important. And, it also appears that even with all of this, the court may be quite limited in how much it can force the government to take someone who has been falsely placed on the no fly list, off of it. Hopefully, the full decision will provide greater clarity.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
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    JR Price (profile), Jan 14th, 2014 @ 3:42pm

    "In this connection, the government concedes that plaintiff is not a threat to our national security."

    No threat to national security means no national security exemption from releasing the full order. QED.

     

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  2.  
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    That Anonymous Coward (profile), Jan 14th, 2014 @ 3:47pm

    Secret laws are the best kind in the most transparent government systems.

     

    reply to this | link to this | view in thread ]

  3.  
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    Chosen Reject (profile), Jan 14th, 2014 @ 4:13pm

    without prejudice to future adjustments based on new information
    Unfortunately for her, new information has just been obtained. It has recently come to light that she prevailed in a case against the DHS. If we allow that to continue to happen, the DHS will become weaker, allowing terrorists to bomb us fortnightly. Therefore, she is a threat to our national security and is hereby placed on the no-fly list.

    It's truth. It's not retributional at all. We even signed a promise to that, but we can't let you see it for security reasons.

     

    reply to this | link to this | view in thread ]

  4.  
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    Anonymous Coward, Jan 14th, 2014 @ 4:20pm

    Well the DHS really screwed this one up , it'll take an act of congress to fix it.

     

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  5.  
    identicon
    Anonymous Coward, Jan 14th, 2014 @ 4:35pm

    Re:

    And secret rulings on secret laws, where the judge is not allowed by the government to announce his verdict, are shining examples of rule of law, good government, and a healthy justice system.

     

    reply to this | link to this | view in thread ]

  6.  
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    Anonymous Coward, Jan 14th, 2014 @ 6:02pm

    Don't you love how democracy has turned out with our most transparent presidency ever? Not only is the administration being purposely obstinate but it stonewalls at pretty much every opportunity that it can't claim National Security.

    So you come out with lists to ban and block that no one can know who, what, or where, is on them.

    We are too the point that just one more little shove will result in any that criticize how things are run, being picked up for re-education. It won't take much for this to happen. After all Obama is more concerned that his changes for the NSA stop future Snowdens; nothing about changing how the department operates.

    What's wrong with this picture? Does this sound like any other country that might come to your mind?

     

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  7.  
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    Anonymous Coward, Jan 14th, 2014 @ 7:29pm

    Re:

    You can just skip to the Hitler, you know. It would save everyone some time ignoring you.

     

    reply to this | link to this | view in thread ]

  8.  
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    Anonymous Coward, Jan 14th, 2014 @ 7:45pm

    Re: Re:

    Yeah, Nazi Germany would have loved to have had half of the spying capabilities that the NSA does.

    When even Russia is jealous of the American Police State, that tells you that the Traitors in power have gone to far

     

    reply to this | link to this | view in thread ]

  9. This comment has been flagged by the community. Click here to show it
     
    identicon
    Anonymous Coward, Jan 14th, 2014 @ 7:46pm

    Kangaroo judge William Alsup is whoring himself out to prosecutor.

    May I ask, which exactly statute allows him to make himself subject to the will of one party of a lawsuit?

    Either we are equal under the law, or not. But that requires independent judges.

    Let me guess: NSA knows which gay bar Mr Alsub frequents?

     

    reply to this | link to this | view in thread ]

  10.  
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    Rekrul, Jan 14th, 2014 @ 9:48pm

    Re:

    Well the DHS really screwed this one up , it'll take an act of congress to fix it.

    So you're saying that it will never be fixed...

     

    reply to this | link to this | view in thread ]

  11.  
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    Rekrul, Jan 14th, 2014 @ 9:53pm

    I don't understand why schools are still teaching children that there are "checks and balances" to keep the government honest and that people have rights.

    There are no checks or balances anymore, the government does whatever it likes with no accountability, and people no longer have "rights", they have government granted privileges that can be withdrawn on a whim.

     

    reply to this | link to this | view in thread ]

  12.  
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    That One Guy (profile), Jan 15th, 2014 @ 12:43am

    Re:

    Social control. Keeps the masses quiet when they think that those in powerful positions are beholden to the laws just like everyone else, and that 'anyone can become a politician and help shape and guide the country', rather than what it actually is, a club exclusively for the rich.

     

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  13.  
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    Anonymous Coward, Jan 15th, 2014 @ 5:09am

    and the USA isn't a 'Police State'? you are joking!!

    this sort of behavior is done simply because DHS can do it! there is no grounds to deny her or her daughter anything, let alone have them on 'no fly lists'! no one should be put on any list by anyone, let alone the government, that is detrimental to the person(s) unless the true reasons are made available and the proof that goes with those reasons given as long with the chance to rebuff the reasons. what is the point of having someone on a list that disallows them from going anywhere, just because someone has a weed up their arse on that particular day!

     

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  14.  
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    David, Jan 15th, 2014 @ 6:25am

    Re: Re:

    Well, if the terrists are winning, the least we can do is not letting anybody know about it.

     

    reply to this | link to this | view in thread ]

  15.  
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    JWW (profile), Jan 15th, 2014 @ 6:43am

    Re:

    There are still checks and balances.

    The Executive Branch has checks on the Judicial branch (see the FISA court and this story).

    The Executive Branch has checks on the Legislative branch (see the selective interpretation and wholesale changing of laws passed by congress).

    There's still checks and balances, except now they only exist for one branch and not for the others.

     

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  16.  
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    Erik Grant, Jan 15th, 2014 @ 8:24am

    I'm not sure why there are so many complaints about a "police state" and a lack of checks and balances. Reality check folks: this case is an extremely straightforward example of checks and balances actually working.

    Sure, the order has been sealed for now. But given how doggedly the judge has pursued the government, do you really think he isn't going to release a version in April? I would venture a guess he'll argue with any unnecessary redactions? (that isn't a word but what is the right one....)

    And to the person that said there is no valid reason to seal it if she poses no threat to national security - that's not necessarily true. If the government's original mistake was "We think she met with the leader of a terrorist group at XYZ" it would reveal they were watching the city or tracking the group. Now, I don't actually believe they need to seal the order, mostly based on what the judge (who has shown excellent judgement in the case) says about it, but that there isn't a scenario where sealing the order would be valid.

    I am not supporting the government in this case. They have created a system in which innocents can be unjustly punished without any defense or recourse. That is WRONG, and unconstitutional in spirit and in law. But don't take this case as some kind of cause for concern - this is the first step in the right direction.

     

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  17.  
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    Ninja (profile), Jan 15th, 2014 @ 9:04am

    Re:

    And it would not prevent her from entering US soil. You know, ships still exist.

     

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  18.  
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    DogBreath, Jan 15th, 2014 @ 9:51am

    Ruling still doesn't change the underlying problem...

    as evident by the statement made as the DHS lawyer was leaving the courtroom:

    http://i.imgur.com/G5eGh.jpg

     

    reply to this | link to this | view in thread ]

  19.  
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    Eldakka (profile), Jan 15th, 2014 @ 3:32pm

    Re: Re:

    Or flying to Canada/Mexico and walking/driving across the border...

     

    reply to this | link to this | view in thread ]

  20.  
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    Anonymous Coward, Jan 15th, 2014 @ 3:39pm

    "In light of the confusion caused by the government’s mistake, such cleansing-certification relief is ordered in this case."

    If I made a mistake and broke the law (say I didn't pay my fair share of taxes) I don't think the government will be nearly this lenient. but when the government makes a mistake and makes people's lives much more difficult there is almost no punishment against those mistaken officials.

     

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  21.  
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    Anonymous Coward, Jan 15th, 2014 @ 3:40pm

    Re:

    peoples *

     

    reply to this | link to this | view in thread ]

  22.  
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    The Wanderer (profile), Feb 1st, 2014 @ 11:00am

    Re:

    I suspect the counterargument to that would be something like:

    "The criteria used to determine whether or not someone is a threat to our national security are sensitive information, because if those criteria were publicly known, the people who are classified as threats would realize it, and would be able to avoid placing themselves at risk of capture."

    There are counters to that argument as well, of course - I can think of at least three possible angles to take, just off the top of my head. But it is sufficiently plausible to at least make as an argument against releasing the information.

     

    reply to this | link to this | view in thread ]


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