We've been covering the case of Rahinah Ibrahim
for a little while now. She's the Stanford PhD student who was wrongfully placed on the no fly list -- something that pretty much everyone admitted early on -- but because of that her student visa to the US was pulled, and every attempt she made to come back was rejected, leaving her unable to come back to this country for nearly 10 years. As we noted last month, it seemed clear that Judge William Alsup had ruled that the feds needed to remove her
from the no fly list and any other terrorist watch lists, but it was a little unclear, since the full ruling remained under seal. That ruling has now been released
in redacted form, and is well worth reading. Not only does it highlight massive bureaucratic bungling over a ten-year period, it also shows how disingenuous and dishonest the DOJ has been in handling the entire case -- even to the point of promising not to argue "state secrets" to kill the case, and then (of course) claiming "state secrets" and trying to kill the case just a few weeks later. Judge Alsup appears somewhat limited in what he can do in response to all of this for procedural reasons, but he makes it clear that he's not pleased about all of this and orders the government to confirm that Ibrahim has been fully removed from the various terrorist databases and lists, as the government has flatly admitted that they don't believe she poses any threat to national security.
In fact, the ruling highlights that this is all due to one FBI agent totally fucking things up back in 2004 -- and not even realizing he had done so until his deposition a few months ago. Alsup makes clear (and it seems everyone agrees) that the FBI agent, Kevin Michael Kelley didn't screw up maliciously, but he simply misunderstood the directions in filling out the form:
Agent Kelley misunderstood the directions on the form and erroneously nominated Dr. Ibrahim to the TSA's no-fly list [redacted]. He did not intend to do so. This was a mistake, he admitted at trial. He intended to nominate her to the [very long redaction]. He checked the wrong boxes, filling out the form exactly the opposite way from the instructions on the form. He made this mistake even though the form stated, "It is recommended the subject NOT be entered into the following selected terrorist screening databases."
And from that one screwup, basically a bureaucratic mess appears to have followed, and even if she was removed from that list (as is suggested elsewhere), once her name got into a series of connected databases, she effectively became toxic, and no one would allow her back into the US. So even though everyone now admits that she posed no threat to national security, when she applied for a visa to come back to the US, not only was it rejected, but the reason for the rejection was given as the code for "terrorist activities" (8 USC 1182 (a)(3)(B)
) -- and to make matters even more insane, someone at the State Department helpfully scribbled "terrorist" on the form that was sent to her
denying her entry.
Judge Alsup notes just how incredibly disruptive this whole situation has been on Ibrahim's life, noting clearly that this has ended up depriving her of the right to travel, the right to be free from incarceration and the right to be free from stigma and humiliation of a public denial of boarding and incarceration. And while he orders the various databases to be cleansed of bogus information about Ibrahim, there's also a weird part of the order that is redacted, in that she's ordered to be told... something.
Given the Kafkaesque
treatment imposed on Dr. Ibrahim, the government is
further ordered expressly to tell Dr. Ibrahim [redacted]
(always subject, of course, to future developments and evidence that might
[redacted]). This relief is appropriate and warranted because of the
confusion generated by the government’s own mistake and the very real misapprehension on her
part that the later visa denials are traceable to her erroneous 2004 placement on the no-fly list,
suggesting (reasonably from her viewpoint) that she somehow remains on the no-fly list.
It is true, as the government asserts as part of its ripeness position, that she cannot fly to the
United States without a visa, but she is entitled to try to solve one hurdle at a time and perhaps the
day will come when all hurdles are cleared and she can fly back to our country. The government’s
legitimate interest in keeping secret the composition of the no-fly list should yield, on the facts of
this case, to a particularized remedy isolated by this order only to someone even the government
concludes poses no threat to the United States. Everyone else in this case knows it. As a matter of
remedy, she should be told that [redacted].
Given that she should be told something, it seems utterly bizarre that what she should be told must be redacted.
The victory here is the first legal success in getting someone off of the no fly list, but it likely has limited use elsewhere, unfortunately. The case specifics are pretty narrow, and Judge Alsup makes it pretty clear that the government has a right to keep secret databases in which it forbids people from boarding airplanes. He notes that other cases will come along to take on those other issues, and we're sure to pay attention to them as they come up.