Judge In No Fly Case Explains To DOJ That It Can't Claim Publicly Released Info Is Secret

from the that's-not-how-it-works dept

Yesterday, we wrote about the bizarre happenings in the lawsuit filed by Rahinah Ibrahim for placing her on the no fly list without any kind of explanation or due process (and no way to get off). The focus of that post was on the government apparently placing Ibrahim’s daughter — a key witness expected to testify in the case — on the no fly list as well to block her from coming, and then insisting it did no such thing, only to have Malaysia Airlines provide the notice from the US government telling them not to let the daughter board her flight. However, we also mentioned that the DOJ lawyers were trying to insist that all sorts of publicly available information was actually “sensitive security information” (SSI) and Judge William Alsup blew up at them, calling such a claim “ridiculous.”

It appears that the DOJ lawyers didn’t get the message from Alsup on Monday. On Wednesday, it continued its campaign of insisting that publicly available information was secret. While much of the testimony on Wednesday did cover secret matters, leading to the courtroom having to be cleared, Ibrahim’s lawyers were able to have Jeffrey Kahn testify about how the no fly list basically violated every concept of basic due process. Kahn is the author of Mrs. Shipley’s Ghost: The Right to Travel and Terrorist Watchlists and is clearly an expert on the subject. However, the government apparently kept objecting to his testimony, making him explain what public source provided the information he was describing.

As recounted by Edward Hasbrouck at the Identity Project:

At one point, in response to such an objection, Prof. Kahn identified the source for one of his statements as being FBI watchlist guidelines released by the FBI itself to the Electronic Privacy Information Center (EPIC), and posted on the EPIC website. Those documents showed that the mere opening of an investigation was itself deemed to be sufficient grounds for placing a person on a watchlist, without the need to evaluate whether there had been any factual predicate for the opening of the investigation. This contradicted the government’s claims about the existence of threshhold evidentiary criteria for watchlist decisions.

The government’s lawyers tried to argue that despite having been released by the FBI itself in response to a FOIA request, and having been publicly available for years on the EPIC website, these documents couldn’t be discussed publicly.

Judge Alsup overruled their objection. “This is America. You can’t take something that is in the public domain and make it a secret. If you wanted to shut down that website, you should have done so.”

Well, that’s never really stopped the government from trying. Still, you’d think that the DOJ lawyers would have gotten the message by now.

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Comments on “Judge In No Fly Case Explains To DOJ That It Can't Claim Publicly Released Info Is Secret”

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out_of_the_blue says:

Lawyers are immune to common sense. They have a position.

A lawyer groupie like you should know that. But you probably think this is some aberration within lawyers. Nope. Common sense is the item removed from legalistic minds right after the conscience.

Where economist Mike brags of hanging out with the really cool kids: lawyers!

05:09:55[g-82-1] [ This suppresses the kids from fraud of using my screen name. ]

halley (profile) says:

Re: Re: Re:

Need to be careful here about “public domain.”

In this case, Judge Alsop is using the legal phrase to indicate any information that has been exposed to a wide, arbitrary or uninvolved set of parties. This phrase, along with “open source” had definitions long before their use in software. It’s not about ownership, it’s about whether a secret has been breached.

Trade secret law would be more similar than copyright.

In terms of copyright, the phrase is about ownership, not about secrecy or breach. All of society “owns” things in the public domain (viz CC-0 where there is no legal concept of public domain ownership). (Even if you don’t agree that information can be owned, the law has not caught up with this practical truth.) The legal concerns are pretty different, or should be. It should be a civil matter.

Anonymous Coward says:

Re: Re: Re:

That would probably be about the dumbest thing they could do. A federal judge has the ability to issue court orders on lots of things. The judge can order that they declassify practically their entire case if he so decides. Furthermore, given that he has 1. gone through the scrutiny that it takes to become an federal judge in the first place and 2. has had a somewhat distinguished career in that regard for a significant length of time, any such attempt would have to be justified by solid reasoning backed by verifiable evidence that would be very difficult for them to fabricate. That’s a can of worms that I seriously doubt they would be dumb enough to open.

Anonymous Coward says:

Re: Re: Re: Re:

I think what he was trying to say was this is not the America that most of us were raised to believe that it is supposed to be. From our memories America isn’t a country that stomps on the principles set forth in the Constitution, such as due process and fair trials. Our government is supposed to uphold those principles especially to it’s own citizens (and yes I know she isn’t a citizen but her daughter is.) It is the communists (eg. the Stasi) that did those things not America.

Erik Grant says:

Re: Just wait...

I am confused. You are speaking as though the judge is somehow complicit in this. The judge has been scathing to the prosecution regarding this do not fly list. There are other articles around, but he seemed deeply offended an American citizen was not being allowed to return home, and the only apparent reason for it was to prevent testimony.

Judge Alsup does not fuck around.

BernardoVerda says:

The really troubling (even scary) part of all this...

… is that the DOJ lawyers apparently seem to believe that they can get away with this sort of thing — that federal judges (after perhaps a token objection or smack-down) will just compliantly roll over, credulously swallow any blatantly ridiculous, patently self-serving excuse that the government presents under the colours of “national security”.

Perhaps because that is, in their experience, what generally happens?

DB (profile) says:

You would like to think that a federal judge would never end on the do-not-fly list. But these women should never have been on the list either.

The same lack of due process and review that had them on the list could allow an individual agent, on their own initiative, putting the judge’s family members on the list. You can imagine the twisted logic of “close associates of someone that has assisted potential terrorists”. Sure, it seems unlikely, but there is a huge difference between “that would never happen” and “that probably won’t happen”.

I’m hoping the judge sees the parallel between what happened here, and what the overall case is about. I’m guessing that he does, and it’s simply not useful for him to bring it up. But it is appropriate for him to point out that what has apparently happened is effectively witness tampering, no matter how it is spun.

Dan says:

I cant decide if the actions of our Dept of Justice and the Executive branch are those of a 5 year old child who just doesn’t understand things or if this truly is the most nazi-esque administration we have ever seen.

Change the meaning of words to fit the action

Refuse to answer direct questions

Claim something in the public domain is a state secret

Put people on a terror watch-list to prevent them from testifying

Putting buddies and buddies friends into positions of authority

Refuse to acknowledge petitions of hundreds of thousands who say they don’t like what is happening

Using local police forces as para-military units and arming them as such

Revolving door between corporations and government positions

Massive fines for minor offences

A congress that makes exceptions for themselves to the laws they place on the rest of us

Constant spying on citizens (just in case someone gets uppity)

Its just too much.

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