DOJ Pretends No Fly Guidelines Haven't Been Leaked, Claims 'State Secrets' To Avoid Revealing Them To The Judge

from the hiding-in-shame dept

Back in July, we wrote about the Intercept releasing a leaked copy of the US law enforcement guidelines for putting someone on the no fly list. There have been a series of lawsuits recently concerning the no fly list, and the government has basically done everything possible, practically to the point of begging judges, to avoid having those cases move forward. So far, that's failed miserably. The Rahinah Ibrahim case, for example, showed how a Stanford PhD student with no terrorist connections was put on the list by someone checking the wrong box on a form (and then was kept on a separate terrorist watchlist under a secret exception to the rule that there be "reasonable suspicion.") In that case, like every other, the DOJ claimed "state secrets" in trying to get the case dismissed. There have also been cases about the feds using the threat of being put on the no fly list to force unwilling people to "become informants." An important ruling back in July said that the process for getting off the list is unconstitutional.

In another case involving the list, Gulet Mohamed is challenging the fact that he's on the list, and the DOJ has done its usual "state secrets, throw out the case" claim. The judge, so far, isn't buying it, and has asked the DOJ to reveal how it puts people on the list. Specifically, Judge Anthony Trenga asked the DOJ to provide:
[A]ll documents, and a summary of any testimony, expert or otherwise, that the United States would present at an evidentiary hearing or trial to establish that inclusion on the No Fly List, as applied to United States citizens who are not under indictment or otherwise charged with a crime and who have not been previously convicted of a crime of violence, is necessary, and the least restrictive method available, to ensure the safety of commercial aircraft from threats of terrorism, and that no level of enhanced screening would be adequate for that purpose.
In a filing last week, Mohamed's lawyers pointed to the leaked guidelines, and the DOJ responded by saying, "Huh? Document? What document? We don't know of any such document, and deny its existence." Or something to that effect:
With respect to Plaintiff’s points, Defendants do not acknowledge the authenticity of the purportedly leaked documents, and will respond to the proposed Notice in due course.
The DOJ has now gone further and said it still doesn't think it should have to produce the information because it's still claiming state secrets, and it doesn't think the judge should have to look at the documents in question to determine if the state secrets demand is appropriate. Yes, they're arguing that the judge should determine if something can properly be called a state secret without revealing what the information is. Actually, the DOJ is going even further, arguing that it's inappropriate to look at the alleged state secrets to determine if the state secrets privilege applies.
The requested submission would not assist the Court in deciding the pending Motion to Dismiss because it is not an appropriate means to test the scope of the assertion of the State Secrets privilege, does not pertain to the claims in the Complaint, and does not address the appropriate legal standard for substantive due process.
Got that? The Court should just agree that it's a state secret and shut down the entire case. The DOJ pretends first that the necessary documents haven't already been leaked to the world, and second acts like it's crazy for a judge to want to actually see the documents before determining if it's really a "state secret" they're protecting.

Of course, as we noted, when the document leaked it seemed pretty clear that the DOJ was lying when it said it wouldn't reveal them because of state secrets. It doesn't want to reveal them, because they reveal how the process almost certainly violates the 4th Amendment. Rather than protecting "national security," the attempts to hide the details of the list are very much about protecting "DOJ security."

Reader Comments (rss)

(Flattened / Threaded)

  1. icon
    That One Guy (profile), Aug 29th, 2014 @ 4:01pm

    Call the bluff

    If the DOJ is saying that the judge has to determine whether or not State Secrets applies, without being able to judge based upon the facts, the judge should just decide that no, they don't, and act accordingly.

    reply to this | link to this | view in thread ]

  2. identicon
    Anonymous Anonymous Coward, Aug 29th, 2014 @ 4:53pm

    Depending on your definition of 'is'...

    I have decided to name my farts. The names of my farts will be classified as state secrets. Since the farts themselves are ephemeral, like the DOJ's definition of state secrets, there will be no questioning of my fart naming regime. There is no other course.

    reply to this | link to this | view in thread ]

  3. identicon
    Anonymous Coward, Aug 29th, 2014 @ 4:56pm

    Why don't they just wave their hands at the judge and say:

    "These are not the documents you are looking for."

    That might be more effective.

    reply to this | link to this | view in thread ]

  4. identicon
    Anonymous Coward, Aug 29th, 2014 @ 6:32pm


    The DOJ hardly needs any changes at all to fit right into Orwell's Eurasia.

    reply to this | link to this | view in thread ]

  5. icon
    That Anonymous Coward (profile), Aug 29th, 2014 @ 10:54pm

    Is this like how they pretend they uphold the Constitution?
    like they pretend the little people have the same rights as corporations?
    like they pretend they are upholding the law, while ignoring obvious fraud then take a job with those they should have taken to trial?

    So the DoJ have decided that are above the law they are charged with upholding. A Judge is being told no, denied access to material at the heart of a case because the secrets are to secret to be seen by a court that doesn;t just rubber stamp things?

    reply to this | link to this | view in thread ]

  6. icon
    Matthew Cline (profile), Aug 29th, 2014 @ 11:36pm

    They seem to be implicitly admitting that they think the State Secrets privilege depends only upon their say-so, and that the contents of the document are completely irrelevant.

    reply to this | link to this | view in thread ]

  7. identicon
    Anonymous Coward, Aug 30th, 2014 @ 3:27am

    the whole American government is acting unconstitutionally this last decade. This article is nothing new, same old stuff.

    reply to this | link to this | view in thread ]

  8. icon
    Padpaw (profile), Aug 30th, 2014 @ 3:30am

    meanwhile in North Korea, dictator for life Kim Jong-un realizes his country and America are very much alike at the government administration level.

    reply to this | link to this | view in thread ]

  9. identicon
    rapnel, Aug 30th, 2014 @ 6:55am


    It doesn't appear to be an act.

    citizen 1: m r ducks
    citizen 2: m r not
    citizen 1: m r 2 c m wings
    citizen 2: l i b m r ducks

    reply to this | link to this | view in thread ]

  10. identicon
    Quiet Lurcker, Aug 30th, 2014 @ 8:36am


    True. It might get someone in the court or maybe even the judge to at least smile.

    reply to this | link to this | view in thread ]

  11. identicon
    Anonymous Coward, Aug 30th, 2014 @ 11:53am

    IMHO, this government has secretly declared war on it's own citizens. I'm just waiting for the mountain boys to teach them a few lessons.

    reply to this | link to this | view in thread ]

  12. identicon
    ThomasD, Aug 30th, 2014 @ 12:42pm

    hope and change

    Anyone reading this article who also voted for Obama (either time) really needs to give themselves a full cavity search.

    reply to this | link to this | view in thread ]

  13. icon
    1st Dread Pirate Roberts (profile), Aug 30th, 2014 @ 12:48pm

    Relax guys

    Relax. This is going to be the most transparent administration ever. Too bad it's only their words and actions we can see through.

    reply to this | link to this | view in thread ]

  14. identicon
    Tard, Aug 30th, 2014 @ 1:35pm

    Oh, it's coming

    Wait until they start using that logic to imprison 1 million Americans without the slightest probable cause or due process.

    Because, you know that's legal now.

    reply to this | link to this | view in thread ]

  15. identicon
    Anonymous Coward, Aug 30th, 2014 @ 1:52pm


    I hope your prepared for a long wait. Most Americans seem content to wait for someone to start a movement against their criminal leaders, but very few seem to be trying to start one. Those that do tend to be harassed by SWAT teams kicking in their doors or charging them with protesting without a license or violating special freedom of speech zones.

    Obama has declared war 3-4 separate times now without congress. Just once used to be grounds for impeachment. Then look at all the crimes he has openly done. No Americans are for a lack of a better word, cowards waiting for someone else to get things going.

    reply to this | link to this | view in thread ]

  16. identicon
    Anonymous Coward, Aug 30th, 2014 @ 1:55pm

    Re: Oh, it's coming

    those FEMA camps that don't exist save when the government admits they exist. Rounding up the homeless into those camps. detention camps by any other name, and there are hundreds of them across America.

    With barbed wire fences,walls, and armed guards patrolling the perimeter. Of course according to those in charge that's for the camp enrollees safety to have armed guards restricting them from leaving the FEMA camp. Its fun for the whole family.

    reply to this | link to this | view in thread ]

  17. identicon
    Reality bites, Aug 30th, 2014 @ 7:09pm

    Even Eric Holder's mother thinks he is a cretin

    Poor ole holders mother, what a true embarrassment, now that bush has retired holder is now the clown cretin king of the universe.

    DOJ = Dept of Jackasses, not even one employee at the entire rogue agency that should be preserved... every one of them a true parasitic ignorant traitor.

    reply to this | link to this | view in thread ]

  18. identicon
    Cowardly Anonymous, Aug 31st, 2014 @ 6:21pm

    But that was the old one!

    Well, you know they released a new revision. The old one was ID10S, the new one is ID10T. Since the old one is no longer used, you should not base any court proceedings off of it, even though it was the one used to put many people on the No-Fly list, and since ID10T is a "State Secret" and is not in the public domain like ID10S, they should not be required to release it to the court under any circumstances. Thusly the whole proceeding to should be dismissed with perjury, I mean with prejudice.

    I want a cookie

    reply to this | link to this | view in thread ]

  19. icon
    M. Alan Thomas II (profile), Aug 31st, 2014 @ 8:02pm

    "Least restrictive method" screams "strict scrutiny" to me, which suggests the judge is setting the bar fatally high for the government.

    reply to this | link to this | view in thread ]

  20. icon
    Niall (profile), Sep 1st, 2014 @ 6:54am

    Re: Re: Oh, it's coming

    That's enough with the Rethuglican fantasies...

    reply to this | link to this | view in thread ]

  21. identicon
    Avantare, Sep 1st, 2014 @ 9:29am


    And this is bad? How?

    reply to this | link to this | view in thread ]

  22. icon
    KevinEHayden (profile), Sep 5th, 2014 @ 9:13am

    Time for false leaks/redactions

    Maybe it's time for folks to start releasing false 'confidential' documents, or unredacting already released ones with phony redactions that paint the US government in the worst possible light. Then, it will be up to the government to show the true contents or live with an even worse reputation than they already have. When they start getting accused of some really terrible stuff, maybe the backlash from the public will be able to sweep all these corrupt assholes out of power.

    reply to this | link to this | view in thread ]

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