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."