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.