US Has A 'Secret Exception' To Reasonable Suspicion For Putting People On The No Fly List

from the also-known-as-the-'because-we-wanted-to' dept

Over the past few months, we covered the bizarre trial concerning Rahinah Ibrahim and her attempt to get off the no fly list. In January, there was an indication that the court had ordered her removed from the list, but without details. In February, a redacted version of the ruling revealed that the whole mess was because an FBI agent read the instructions wrong on a form and accidentally placed her on the no fly list, though we noted that some of the redactions were quite odd.

However, earlier this week, the court finally released the unredacted version, and we’ll have a few things to say about the choice of redactions in a later post. But first, there were three main “reveals” from the newly unredacted version. The first is that Ibrahim was actually put on multiple lists by mistake (and never for any clear reason) and was actually dropped from the no fly list years ago (though the other lists created the same effective problem in barring her from being allowed to travel to the US). The second is that the US government has a “secret exception” to the requirement that there be “reasonable suspicion” to put someone in various terrorist databases, and that secret exception was later used on Ibrahim. And third, that despite the implications from the redacted versions, the fully unredacted ruling shows that Ibrahim is still likely blocked from coming to the US for separate undisclosed reasons, even though the government fully admits that she is no threat. All of these things were hidden by the redacted version.

Let’s start with the first issue — that Ibrahim was not just on the no fly list, but multiple other lists and databases. This all stemmed (at first) from that initial mistake from FBI Agent Kevin Michael Kelley. The yellow highlighted portions on this form were redacted in the original version, but now they’re public:

As you can see, Agent Kelley was supposed to be checking which lists NOT to put Ibrahim on, and did the reverse of what he intended to do, meaning that she got placed on both the no fly list and the Interagency Border Information System (IBIS). In the redacted version, all mentions of IBIS were redacted. Note that, from this, Kelley did intend to put her on the Selectee list. Later, an unredacted portion reveals that at the time she was removed from that selectee list, she was added to the lists the US gives to Australia and Canada (TACTICS and TUSCAN — though no reason for that was ever provided). The court also notes that all the way back in 2006, a government agent requested that Ibrahim be removed from all lists, and she was removed from some, but not the others.

However — and here’s where it gets really sketchy — the government started putting her back into the terrorist screening database (TSDB). She was added back in 2007… and then removed three months later, for no clear reason. But then, in 2009 she was added back to the TSDB “pursuant to a secret exception to the reasonable suspicion standard.” Let’s repeat that. In order to be put into the TSDB, the government is required to show a “reasonable suspicion” that the person is a terrorist. However, what this court ruling has revealed is that there is an unexplained secret exception that allows people to be placed on the terrorist screening database even if there’s no reasonable suspicion, and the government used that secret exception to put Ibrahim back on the list.

Later in the ruling it notes that the terrorist screening center knows Ibrahim is not a terrorist threat. This line was revealed back in February:

The TSC has determined that Dr. Ibrahim does not currently meet the reasonable suspicion standard for inclusion in the TSDB.

However, the next two sentences were redacted until now:

She, however, remains in the TSDB pursuant to a classified and secret exception to the reasonable suspicion standard. Again, both the reasonable suspicion standard and the secret exception are self-imposed processes and procedures within the Executive Branch.

The ruling also makes it clear that Ibrahim has not been on the actual no fly list (even if she is on other lists) since 2005, and that she should be told this (and, indeed, to comply with the law, the government has now told her solely that she’s not on the “no fly” list and hasn’t been since 2005). It also tells the government to search for all traces of her being on all such lists and correct all of those that are connected to Agent Kelley’s initial mistake. However, it’s not at all clear if this applies to the later additions to the TSDB, which was done for this secret and undisclosed exception, and might not be directly because of Agent Kelley’s mistake (though, potentially is indirectly because of that). In fact, a different unredacted section now says that the reasons why Ibrahim was denied a visa (which were revealed to the court in a classified manner) were valid, and thus it appears that Ibrahim will still be denied visas in the future (unredacted portions underlined) — and, indeed, as we explain below that has already happened:

The Court has read the relevant classified information, under seal and ex parte, that led to the visa denials. That classified information, if accurate, warranted denial of the visa under Section 212(a)(3)(B) of the Immigration and Nationality Act, 8 U.S.C. 1182(a)(3)(B). (That information was different from the 2004 mistaken nomination by Agent Kelley.) Therefore, under the state secrets privilege, any challenge to the visa denials in 2009 and 2013 must be denied

Thus, it appears that while Ibrahim has been told she’s been taken off the no fly list (and has been for nearly ten years), she’s still not going to be able to travel to the US, because she’s still in the TSDB for an unrevealed secret reason — even though everyone admits she’s not a threat. And, indeed, Ibrahim tried to apply for a visa to the US on Monday and was denied (with the apparent reason — if you read between the lines — being that she is related to someone “engaged in a terrorist activity.”)

Either way, what sort of country is this where there’s a secret exception to “reasonable suspicion” that will put you on a set of secret lists that get you treated like a terrorist for wanting to travel?

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Comments on “US Has A 'Secret Exception' To Reasonable Suspicion For Putting People On The No Fly List”

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Oathbreaker in Chief says:

Re: Damn you Eric Holder!

I had ordered you not to leak the Secret Exemption!

Now you need your people to investigate you for violating the States Secret Act.

I’ll expect your resignation on my desk by noon today, and I already have your ticket arranged to Diego Garcia where you will be greeted by the open arms of CIA interrogators who will help you work out your “issues”.

And by the way STOP POSTING ON TECHDIRT as “Just Another Anonymous Troll” or any other name for that matter or I’ll declare you are an “Enemy Combatant” because of your “Domestic Terrorist” acts and drone strike your ass.

Respectfully submitted,

Oathbreaker in Chief

Chronno S. Trigger (profile) says:

Re: Re:

“Who makes a form where you check what you DON’T want to add a person to? That’s insanity.”

This is what bothers me most about this story. A check list to say what lists someone shouldn’t be on just shows how deeply “guilty until proven innocent” is engrained. Everyone is guilty until that checkbox is checked, everyone is a threat, everyone is the enemy.

Anon. says:

Re: Re:

It’s quite obvious that the “classified information” is not only inaccurate, but actually completely fraudulent.

The “state secrets privilege” is of course a whole-cloth invention of the courts and entirely unconstitutional. It was invented in a case where “state secrets” was being used to conceal criminal activity, as we now know (since the facts were finally revealed).

Perhaps a judge should notice this minor fact and declare this entire pile of criminal bullshit to be the criminal bullshit which it is. Alternatively, we could overthrow the illegitimate government. Take your pick; I prefer #1.

Matthew Cline (profile) says:

even though the government fully admits that she is no threat

Ah, but you see, implicit in that was the “reasonable suspicion”. That is, the government fully admits that there is no reasonable suspicion that she is a threat. But the government has met a burden of proof besides “reasonable suspicion” to put her on the list. Of course, I wouldn’t be so churlish as to say that they have an unreasonable suspicion. No, it must be that the government has come up with a new form of reasoning which transcends usual logic; they have a “transreasonable suspicion”. Of course, they have to keep this new system of logic secret, lest the terrorists use it, so it’s covered under the “secret exception”.

Coyne Tibbets (profile) says:

Fingers crossed

The government has written an exception for everything; in secret laws. In effect, despite what they say, there is no public law anymore.

Between the exceptions that allow rich people to escape jail “because they won’t do well there” (poor dears); the laws that companies ignore while government enforce[less]ers wink and look the other way; and the laws that the government passed but says it doesn’t have to follow because, “Oh, we had our fingers crossed…”

…Well, it’s only us peons who have to follow laws these days; and good luck figuring out what the laws are.

BTW, I expected this: When the court ordered the government to take Rahinah Ibrahim off the no fly list, I knew that somehow they would ensure that she still could not fly. It’s like sparring with a shadow; even if she should overcome this new list, there’ll just be another and another and another. She can spend all the rest of her life on this, but she’ll never fly here again.

Anonymous Coward says:

Ok so the court admits in their statement that they don’t know for sure if the classified information in the later visa denials is accurate or not but then denies any attempt to challenge them? Isn’t that the point of having a court decide whether the denial is valid or not. Before you can decide if the action is valid, don’t you have to first determine if the evidence is accurate? That is basically saying that if the government fabricates evidence to support a good enough reason, the court will basically stick it’s fingers in it’s ears and say,”la, la, la… we can’t hear you.”

Andy says:

I can think of such a secret reason - Chaos theory

It’s the likelyness of a terrorist attack to happen.

If she is aboard such an airplane, she isn’t even the terrorist or in anyway aquianted to them, she is just the catalyst that let’s the butterfly flap it’s wings.

But actually I think insanity describes the situation pretty well.

Anonymous Coward says:

So can we have another "Secret Exception" then?

Namely that anyone who tries to claim power from a secret law in court shall suffer summary execution by being hung by the neck from the top of the flag-pole outside.

Secret laws are such bullshit it is tempting to start arguing that there is a more secret law that they don’t know about whenever they cite one. That they don’t know about it proof that they weren’t authorized to know about it before. Have fun trying to make them prove a negative. Of course that would involve more logic than our legal system would ever allowed. Good god, isn’t siting secret laws supposed to be for the lunatic fringe like Sovereign citizens?

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