Government Secrecy Vexes Judge in Long-Awaited No-Fly List Trial
SAN FRANCISCO (CN) - A Malaysian professor's eight-year battle over the government's no-fly list got underway this week, but "sensitive security" information frequently cleared the courtroom of spectators for a third day Wednesday.
It has been a rocky road to trial for Malaysian citizen Rahinah Ibrahim whose case arose out of her January 2005 detention at San Francisco International Airport because her name was on the no-fly list.
Although the Transportation Security Administration eventually cleared Ibrahim to fly home to Malaysia, the government revoked her student visa before she could return to Stanford to finish her doctoral thesis in April of that year. Ibrahim has since become a professor at the University Putra Malaysia.
The trial began Monday with a bombshell: Ibrahim's star witness - her attorney-daughter Raihan Mustafa Kamal - had also been placed on the no-fly list and was stuck in Malaysia.
Kamal is a U.S. citizen.
Elizabeth Pipkin, one of Ibrahim's pro bono attorneys with the San Jose firm McManis Faulkner, told U.S. District Judge William Alsip that Malaysia Air said it was acting under orders of the Department of Homeland Security - a story Justice Department lawyers vigorously claimed they knew nothing about. Alsup ordered them to get to the truth and make a report by the end of the day.
"You've got 10 lawyers over there," Alsup said. "You can send one of them out to make a phone call and find out what's going on."
At the end of the day, DOJ lawyers told Alsup that Kamal had missed her flight and had been rebooked for the following day. That didn't satisfy Alsup.
"We may have to have a separate evidentiary hearing," he said. "I want to know whether the government did something to obstruct a witness who is a U.S. citizen."
The plot thickened Tuesday, when Pipkin opened the day by reminding the court that Department of Justice attorney Paul Freeborne said the government had done nothing to impede Kamal's trip to the U.S.
"None of that was true," Pipkin told the court. "She didn't miss the flight. She hasn't been rebooked on another flight."
In fact, Malaysia Airlines gave Kamal a copy of the DHS no-fly order - in itself a violation of U.S. policy - which she promptly faxed to Pipkin. And while Alsup didn't accept the document on its face, he again ordered the government to quit blocking the woman from testifying.
"Get her on an airplane and get her here," Alsup raged. "She's a U.S. citizen. She doesn't need a visa."
He continued: "I'm disturbed by this. We'll hear from Kamal when she gets here. If it turns out DHS has sabotaged a witness that will go against the government's case, I want a witness from Homeland Security to testify to what has happened. You will find a witness and get them here."
So far, neither Kamal nor the witness from DHS has shown up. And on Monday and Tuesday, Ibrahim had to testify via videotaped deposition given last summer in the U.K. since she can't even come to the United States to litigate her own case.
On camera, Ibrahim broke down in tears several times - both over her humiliation at the United ticket counter and arrest by San Francisco Airport police and the evaporation of her dreams to get her doctorate from Stanford, where she'd done her undergraduate work and obtained her master's degree.
"The U.S. is a second home," Ibrahim testified.
Her cross-examination played out like the rehearsal for a play, with Justice Department lawyers reading the deposition transcripts while acting out their and her parts. The government highlighted the fact that, since the blacklisting, Ibrahim has flown all over the world to attend conferences, without ever having been denied boarding, detained or arrested, all while achieving a fair amount of success at the Malaysian university where she teaches.
The government also noted that Ibrahim hadn't reapplied for a visa since 2009, the last time the State Department rejected her application. On redirect, Pipkin asked her why.
"I'm afraid of going to the U.S. Embassy in Kuala Lumpur," Ibrahim replied. "It's all tall gray walls. It's like a prison."
Alsup is hearing the case after two 9th Circuit reversals made it clear that Ibrahim had established sufficient ties to the U.S. to assert constitutional claims against the government.
When he refused to dismiss Ibrahim's challenge for lack of standing as a noncitizen last year, Alsup found the government could no longer hide behind its shroud of secrecy, given the statutory changes and the fact it had already cleared Ibrahim's lawyers to see the sensitive security information.
Much of the case has taken place behind closed doors since Alsup reluctantly granted the Justice Department's request to keep SSI - sensitive security information - and all law-enforcement-related testimony out of the public view. That backfired Wednesday, when expert witness Jeffrey Kahn took the stand.
Kahn authored the book "Mrs. Shipley's Ghost: The Right to Travel and Terrorist Watchlists," which links the former head of the U.S. Passport Office - who kept millions of Americans from traveling outside the country during the Cold War - to the current activities of the FBI's Terrorist Screening Center. The problem is the FBI and not the TSA, Kahn said.
"The Terrorist Screening Center is where the action is, not the TSA," Kahn stated. "TSA is a customer of the TSC."
While the government created a no-fly list of sorts in response to increased hijackings in the 1960s, it exploited the idea after Sept. 11, Kahn said. Where the list might contain 15 to 20 names annually before the attacks, it now holds hundreds of thousands in any given year.
And it's easy to end up on the list too, Kahn said.
"It starts with an FBI agent placing someone on the Terrorist Screening Database with just the 'reasonable articulable suspicion' - one level above a hunch," Kahn said. "It allows them to put all the hay in the haystack."
From there, the FBI sends all the information to its "customers," including the TSA, the State Department, and local and state law enforcement agencies. And there's apparently little oversight or review.
"Standards are 'generally followed' 'where appropriate,'" Kahn testified, citing an FBI report found on a public website. But if an agent opens even a preliminary investigation against an individual, he or she is automatically blacklisted.
The DOJ lawyers objected at this remark, again on grounds that the information should be kept secret - regardless of its availability on any websites.
"This is America - you are not going to shut down documents in the public domain," Alsup retorted. "If you wanted to shut down that website, you should have down so. It's too late to do it now."
Kahn continued by noting that no one can currently complain about the Terrorist Screening Center, its database or the watch lists they generate because their locations and originations are secret. And while the Department of Homeland Security website has a way to dispute no-fly list inclusions, little is done with the complaints after they're sent.
"You may get a letter written in the most Orwellian language that tells you nothing," Kahn said. "And that's the final DHS action."
After 9/11, the goal was to get everyone even remotely suspected of terrorism on the no-fly list and handle issues that arose later. And the government's watch lists have been used as investigative tools rather than the end result of thorough vetting, Kahn said.
Tuesday concluded with a deposition of State Department official Sean Cooper, read by Pipkin and Ibrahim's other attorney Christine Peek. Cooper testified about the rejection of Ibrahim's last attempt to obtain a visa in 2009. The application raised a red flag in the U.S. Consulate's database on "security-related grounds," though Cooper said the hit was "not related to terrorism in any way, shape or form."
But Cooper also acknowledged that Ibrahim's State Department file was created in 2005, around the time she was added to the no-fly list and her student visa was revoked. And an email from the consular bureau to the department noted that the revocation of Ibrahim's visa appeared to be directed by the Violent Gang and Terrorist Office of the FBI, with involvement from the Terrorist Screening Center as well.
Cooper also testified that the U.S. Embassy had received a diplomatic communique from the Malaysia's foreign ministry regarding both Ibrahim's detainment at SFO and the revocation of her visa. The State Department suggested answering "potential law enforcement interest," Cooper added, but he could not say whether the embassy transmitted it to Malaysian officials.
The State Department also advised the legal attache at the consulate to "convince the FBI to remove Ibrahim from its database," Cooper said.
Trial resumes Wednesday morning, though Ibrahim's lawyers indicated they may be at a standstill until the daughter arrives from Malaysia - if she is able to come at all.