Case Over No-Fly List Takes Bizarre Turn As Gov't Puts Witness On List, Then Denies Having Done So

from the shameless dept

As you my have heard, there’s a trial going on here in San Francisco about the legality of the complete lack of any sort of due process concerning the US’s “no fly” list. The NY Times has a good background article on the case, which notes that somewhere around 700,000 people appear to be on the list, where there’s basically no oversight of the list and no recourse if you happen to be placed on the list. This lawsuit, by Rahinah Ibrahim (who had been a Stanford PhD student) is challenging that.

In that case, a Stanford University Ph.D. student named Rahinah Ibrahim was prevented from boarding a flight at San Francisco International Airport in 2005, and was handcuffed and detained by the police. Ultimately, she was allowed to fly to Malaysia, her home country, but she has been unable to return to the United States because the State Department revoked her student visa.

According to court filings, two agents from the Federal Bureau of Investigation visited Ms. Ibrahim a week before her trip and asked about her religious activities (she is Muslim), her husband and what she might know of a Southeast Asian terrorist organization. A summary of that interview obtained by Ms. Ibrahim’s lawyer includes a code indicating that the visit was related to an international terrorism investigation, but it is not clear what other evidence — like email or phone records — was part of that inquiry.

The Identity Project blog is covering the trial, which kicked off earlier this week with a ridiculous situation, highlighted by BoingBoing. Apparently, one of the people set to testify in the case, Ibrahim’s oldest daughter, Raihan Mustafa Kamal (an American citizen, born in the US), was blocked from boarding her flight to the US to appear at the trial, and told that she was on the no fly list as well. Kamal, a lawyer, was an eye witness to her mother being blocked from boarding her flight. The US knew that Kamal was set to testify and from all indications, in a move that appears extremely petty, appears to have purposely blocked her from flying to the US. Kamal was directly told by the airline that DHS had ordered them not to let Kamal to board. The airline even gave her a phone number for a Customs and Border Patrol office in Miami, telling her to call that concerning her not being able to board.

Judge William Alsup, who is known for his rather no-nonsense approach in court (and his willingness to dig very deep into understanding the issues), quickly noted that this apparent blocking of Kamal was ridiculous, and demanded that the government explain what happened. When they insisted they knew nothing about it, Alsup wasn’t satisfied. Nor was he satisfied with the story they eventually came back with. As Edward Hasbrouck at the Identity Project reports:

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… “I want to know whether the government did something to obstruct a witness, a U.S. citizen.”

That was Monday. Tuesday morning, Ibrahim’s lawyer proved that the DOJ was flat out lying the day before by presenting the “no-board” instructions that DHS had sent to Malaysia Airlines to the court:

“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.

As Hasbrouck notes, the airline deserves kudos for handing over that info. Many airlines would simply keep it a secret. Judge Alsup, however, will not consider the document yet, noting that there isn’t evidence to its authenticity and it’s not part of a sworn record. Thus, he said that when Kamal arrives in SF to testify, that can be a part of her testimony. While the lawyer pointed out that Kamal was hesitant to buy another ticket if she wouldn’t be able to board again, Judge Alsup made it clear that she needs to come, and also appears to have made it quite clear to the DHS that if she is blocked again, there will be consequences:

“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.”

The report from Monday also describes other ridiculous claims by the DOJ, including trying to argue that information that was publicly available could not be included in the case because it was “sensitive security information” (SSI). Once again, Judge Alsup saw through the DOJ’s bullshit and called them out on it:

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.

It would be an understatement to suggest that Judge Alsup is not impressed with the US government’s actions so far. The notes from day two in the trial provide a lot more background on what happened. It would appear that the lawyers for Ibrahim are making a (rather compelling, from the evidence) case that bumbling US law enforcement officials confused two very different Malaysian organizations with similar names: Jemaah Islamiyah Malaysia, which is a terrorist organization, and Jamaah Islah Malaysia, “a non-profit professional networking group for Muslims who have returned to Malaysia after post-secondary schooling in the U.S. and Europe.” The two organizations are, as you would imagine, quite different. Ibrahim is involved in the latter, and has no connection to the former, but it sounds like the FBI agents who interviewed her were unaware of the difference.

The further details of Ibrahim’s life, her arrest and treatment, all suggest a situation where US law enforcement totally screwed up, and seriously mucked up someone’s life — and now they seem to be doing everything possible to avoid taking responsibility for it.

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Comments on “Case Over No-Fly List Takes Bizarre Turn As Gov't Puts Witness On List, Then Denies Having Done So”

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David says:

Re: Re: Very different

If anything, encouraging piracy does more to destroy the arts than any kind of government censorship.

Nice try, but take a look at the life time of media. Old films are rotting away and will be literally destroyed by the time you are permitted to copy them. This art will be gone since the “copyright holders” (the creators having died long ago) do not want to have the old material compete with new ones.

For similar reasons, artists with exclusive contracts are shut down and not permitted to create any more records so that new stars can be pushed through the machinery and become obsolete again.

The copyright system is actively employed for destroying art since planned obsolescence is a money maker.

Pragmatic says:

Re: Re: Re:

That’s why rejecting STEM subjects and critical thinking is so damn stupid!

Education gives knowledge, and knowledge is power. By making proper education harder to get, they’re trying to deny our kids knowledge and power. Remember when we walked on the moon? That’s all going away now. Let’s not let the false promises of free market economics sweep the rest of it away. We can only really thrive in a mixed economy.

Back on topic, we need a proper due process for dealing with people on no-fly lists. How easy is it to get your money back for that ticket you can’t use?

Chris in Utah (profile) says:

Re: Re:

Norway might be an option, even keep dual citizen ship given these requirements.

1. The legislation in the applicant?s former home country does not permit citizens to be released from their citizenship, or such release is deemed to be practically impossible.

2. The authorities in the former home country have rejected an application for release.

ltlw0lf (profile) says:

Re: Re: Re:

I agree, but she isn’t a citizen.

Doesn’t matter. The 14th Amendment to the Constitution applies to all individuals on US soil, regardless to whether they are citizens or not. Now, she wasn’t on US soil when she was prohibited from returning, but she was on US soil when she was prevented from boarding a flight at SFO and arrested/handcuffed for being on the no-fly list.

JackOfShadows (profile) says:

Re: Re: Re: Re:

Agreed. I used to wear the uniform and wherever I went, I was treated extremely well. I always treated everyone as well as I would treat ‘my own’ especially with an eye to the Constitution whose enumerated rights were natural rights, not something that only applied to ‘Americans.’

Now? I’m not sure how I would be received, in uniform or out. And the way that we’ve treated fellow human beings speaks ill toward what treatment our fellow citizens can expect elsewhere. We were better than that.

Anonymous Coward says:

Re: Re: Re: And for the Godwin Award

There was a certain political faction in control of a fair whack of Europe & north Africa in the early-mid part of the twentieth century, their view saw similar, if you were not from the right country you were not even human, you were sub-human

Didn’t the some other countries have some difference of opinion with them? Wasn’t the US very reluctant and want to let those guys go on with their cleansing of Europe.

ltlw0lf (profile) says:

Re: Re:

Any government employee who is found to be willfully obstructing justice or willfully violating the constitutional rights of a citizen should be banned from working in the public sector ever again.

Government employees in many cases (including all law enforcement ones) are sworn into their positions, and must swear to protect and defend the Constitution of the United States against all enemies, foreign or domestic. Sadly, it seems like breaking this oath seems to be the “in-thing” at the moment.

It is sad that there has to be an “Oath-Keepers” organization, and that membership in said organization can deny you security clearance, employment, or result in legal or disciplinary action.

ltlw0lf (profile) says:

Re: Re: Re: Re:

Unfortunately, Government employees, in most cases, aren’t subject to the Constitutional Oath. Would that they were…

They may not remember taking an oath, but I am willing to bet “in most cases” they did. U.S. Office of Personnel Management – Constitutional Initiative.

The oath is required for most sensitive positions in the Executive Branch, and I believe Congressional staff are required to take a similar oath.

Contractors, and shills/lobbyists/friends, not so much.

David says:

Re: Re:

Any government employee who is found to be willfully obstructing justice or willfully violating the constitutional rights of a citizen should be banned from working in the public sector ever again.

And what are you going to do once every American had his run as a government employee? You are probably going to run out of presidential candidates in the first month.

Anonymous Coward says:

Re: Re:

? should be banned from working in the public sector ever again.

Pretty much need to get Congress in on the action for that one.

Article I, section 3:

Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust or profit under the United States: but ?

The Congress has never been real keen on impeaching and convicting lower-level civil officers of the United States.

Sunhawk (profile) says:

Re: Nothing to hide

Hey it’s a good thing she’s got nothing to hide, and therefore nothing to fear!

You laugh, but what if she were in the closet and afraid of family/friends/community’s reaction? Wanna bet that the DHS would find a way to out her? Or if she were on drugs for HIV? “It was a false alarm; we thought her Stribild was actually pills hiding cocaine.”

Anonymous Coward says:

Re: Shouldn't this be everywhere?

The fact that Fox and CNN aren’t jumping all over this has nothing to do with the fact that she is Muslim and everything to do with the fact that they are part of the same right wing ideology as the government. And for those who would say “but the current administration is Democratic not Republican,” right vs. left wing is has nothing to do with Republican vs. Democrat.

Beta (profile) says:

cruel horns

This puts the government in an interesting dilemma: to allow her to fly or not?

If they don’t allow her to fly, then they will have to admit that they put her on the list and then lied about it. They can claim that the decision to put her on the list had nothing to do with the trial, but not many people will believe that. And then the judge might order them to allow her to fly, which would be a wonderful show in itself.

If they do allow her to fly, they either admit that they put her on the list and then took her off (which is about as bad as the first option), or else claim that they never barred her, which would expose them to the terrible risk that the plaintiff might come up with a crowd of witnesses and a paper trail to prove that oh yes they sure as hell did!

And the best part is that they have to decide in a hurry! Oh, this is going to be good.

Anonymous Coward says:

“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.”—
OMFG!!! OMFG!!! Send SHIVERS!! I, mean, SHIVERS!!! down my spine. OMFG!!! This just lit up a glimmer of hope that THERE MIGHT BE ACTUALLY JUSTICE IN THE JUSTICE SYSTEM.

james e boy says:

Judge Alsup for President

Keep up the good work, Judge. Then run for president. Please!

This case sums up everything that is wrong with this country.

My guess for replies from the 10 govt attorneys (10? Seriously?):

A) We have no record of her being on the no fly list, therefore we have no way of knowing why that happened or that it did indeed happen.

B) Somebody pressed the wrong button in her mother’s file.

At this point I’d be surprised if all traces of this action weren’t completely erased from computer records. (If there were any to begin with. Probably just phone calls directly to the airport).

Sadly, nothing will come of it since the only evidence will be the piece of paper the airport gave her but no evidence of it’s original order.

I can’t wait to move out of this country. That is if they’ll let me.

Anonymous Coward says:

Re: Judge Alsup for President

I can’t wait to move out of this country. That is if they’ll let me.

Well, apparently they will make it difficult to leave (hold you for hours for no legal reason, arrest you in front of your children and all the other passengers, keep you away from your medicine, and then subject you to random searches,) and impossible to come back.

DB (profile) says:

Extra-judicial punishment demonstrated

If this turns out to be true, it’s an ideal example of the extra-judicial punishment that this case is about.

Without a trial, any due process, and with no notification or review, people summarily have their right to travel curtailed.

It’s unconstitutional and un-American.

In this case it’s directly opposed to the constitutionally established judicial system.

So what’s the answer? “It’s a mistake” and “It was intentional, but we won’t tell you why” points out why extra-judicial punishments are unjust. As does the many variations of the same.

The only answer that works is “it didn’t happen”. It seems that’s the way the government is trying to spin it. But if the evidence shows that it did happen, the governments doubling down by asserting that it didn’t happen looks to be near-criminal.

Anonymous Coward says:

No fly list? I voluntarily placed myself on my own no fly list. How about finding some sap that wants to spend several hours of their day in an airport. There simply isn’t any reason for me to want to put myself through that so sorry airlines, when we changed our life style as Americans to suite existence of terrorism, the terrorists won, you lose.

Rekrul says:

While the lawyer pointed out that Kamal was hesitant to buy another ticket if she wouldn’t be able to board again, Judge Alsup made it clear that she needs to come, and also appears to have made it quite clear to the DHS that if she is blocked again, there will be consequences:

Ahh, how cute! He thinks the government actually cares what the courts say…

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