Feds Insist It Must Be Kept Secret Whether Or Not Plaintiff In No Fly List Trial Is Actually On The No Fly List

from the kafkaesque dept

In the latest update in the ongoing trial concerning the legality of the US's "no fly list" brought by Stanford grad school student Rahinah Ibrahim after what appears to be a series of monumentally stupid actions by the US government, the feds continue to try to play games that Judge William Alsup isn't interested in playing. Edward Hasbrouck at the Identity Project continues his fine reporting with detailed coverage of Thursday's events. Apparently, the DOJ lawyers tried to insist that the mere fact of whether or not Ibrahim is on the "no fly list" has to be kept secret, including from Ibrahim herself. Judge Alsup pointed out that the mere status of someone -- on the list or off -- wasn't listed anywhere in the list the government provided him of "sensitive security information" (SSI):
Why can’t we tell the party [to the lawsuit] what her status is?

This depends on our saying that national security depends on us having this information, but not her having it. I question whether that is true….

Something’s going on in this case that’s strange, and I mean on the part of the government.

I don’t understand why you’re fighting so hard to avoid having this poor plaintiff know what her status [on the no-fly list] is.

It’s easy for anyone to buy a ticket and try to get on an airplane. If they’re allowed to fly, they know they’re not on the no-fly list. If they’re stopped and handcuffed and sent to jail in the back of a police car, they know they’re on the list.

It’s so easy to find out what your status is by trying to get on an airplane — at least for the no-fly list. That’s a lot easier than months of litigation.
Later, as the government presented its case, it included a discussion of how the State Department later pulled Ibrahim's visa after she was back in Malaysia (it's not entirely clear how this helps their case, since the no fly issue is separate from the visa). But, even there, the statements from the government didn't make much sense to Judge Alsup who called out a witness for saying something that didn't appear to be true -- arguing that Ibrahim could have asked for a special waiver on the visa issue, but didn't. Just one problem: as Judge Alsup noticed, there's a box on the form saying if you're eligible to apply for a waiver -- and the form sent to Ibrahim did not have that box checked.
It’s possible for someone deemed ineligible for a visa to apply for a waiver of that ineligibility. Had Dr. Ibrahim failed to exhaust her administrative remedies by failing to apply for such a waiver?

It was Judge Alsup who pointed out that the box on the notice given to Dr. Ibrahim marked “You are eligible to apply for a waiver of in eligibility” had not been checked. “If there’s a box for that, and the box isn’t checked, wouldn’t that imply to you that she couldn’t apply for a waiver?” the judge asked Mr. Cooper.

“You could infer that,” Cooper replied from the witness box, with an inflection that suggested, “….but you would be wrong.”

“It would certainly imply that to me,” Judge Alsup shot back.
The trial should be wrapping up today, and it's not looking good for the US government at this point.

Filed Under: dhs, doj, no fly list, rahinah ibrahim, william aslup


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  1. identicon
    SilenceDogood, 6 Dec 2013 @ 1:09pm

    Re: Testing no fly-list inclusion

    Or, as with the panty bomber your name is on the list, but whatever spook added it misspelled your name and you are allowed to fly anyway.

    The NFL is a joke. All anyone has to do once they have discovered that they are on the list is get married (if female and legally change their surname), enter a different middle initial in the inSecure Flight information on the airline's website than what's on the ID you'll present, enter a birth date different from your own in the inSecure Flight section, or simply fat finger your own name enough that the boob checking documents at TSA won't notice that the ID and boarding pass aren't an exact match. And those are just the free (mostly) ways to do it. Like a real terrorist is going to go through all of this trouble. The NFL isn't going to stop anyone determined to get on a plane for the purpose of using it as a bomb. That DHS doesn't know that is beyond appalling.

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