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.