Decision Awaited in Trial Challenge to 'No-Fly' Terrorist Watch List
SAN FRANCISCO (CN) - The fate of a Malaysian professor's eight-year battle with the U.S. government over the no-fly terrorist watch list rests with the federal judge who heard closing arguments Friday.
Rahinah Ibrahim was arrested at San Francisco International Airport in January 2005 after Transportation Security Administration agents refused to let her board a United Airlines flight to Hawaii, ostensibly because she was on the no-fly list.
Though she later was cleared to fly to Malaysia, the government revoked her student visa before she could return to Stanford to finish her doctoral thesis in April that year.
Ibrahim - now a professor at University Putra Malaysia - sued the federal government in 2006, claiming that her placement on watch lists violated her freedom to travel, deprived her of due process and damaged her reputation as a construction expert and scholar.
The first-ever challenge to the no-fly list to go to trial began Monday without Ibrahim, who continues to be denied entry into the U.S. - even to litigate her own case - for reasons the government repeatedly refused to divulge, citing "sensitive security information."
Much of the trial took place behind closed doors for the same reason, a fact U.S. District Judge William Alsup apologized for each time he removed the public from the courtroom.
"This is not right, not the way it's supposed to be done," Alsup said during the trial. "In the United States of America we're supposed to have open and public trials, but I guess my hands are tied in this case."
Throughout the trial, Ibrahim's pro bono attorneys from the San Jose Firm McManis Faulkner have hammered home that federal agents make arbitrary decisions to blacklist someone with little or no basis in actual fact.
One of their experts, attorney and author Jeffrey Kahn, said the whole purpose of the Terrorist Screening Database is to "put all the hay in the haystack."
"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 testified Wednesday.
"Standards are 'generally followed,' 'where appropriate,'" Kahn said, citing an FBI report found on a public website.
In her closing argument Friday, Ibrahim's attorney Elizabeth Pipkin said the case is about "the right to travel free from government interference."
"The watch list has expanded to affect hundreds of thousands of people and deprived them of their constitutional right to travel," Pipkin said.
"Ibrahim never wanted to take on the government, but she has persevered to stand up for the rights of all."
Pipkin said that even an agent who worked for the Terrorist Screening Center conceded that Ibrahim did not meet watch list standards, which purportedly bar inclusion on the basis of national origin and religion. Ibrahim is Muslim.
"Dr. Ibrahim is not a threat to this country, and there's no national security threat to allow a scholar to travel here for the purpose of enlightening society," Pipkin said.
She also took issue with the fact that there's no way for blacklisted people to clear their names, since the government will not divulge who "nominated" them or why.
"It's like a negative credit rating, except in this case there's no way to challenge it," Pipkin said. "The TSC is a law onto itself. Secret standards and no oversight - and these low standards of proof allow for more subjective tactics later on."
She noted that Ibrahim's own daughter - an attorney and a U.S. citizen who had been listed as a potential witness for her mother's case - had been placed on the no-fly list, and could not leave Malaysia to attend the trial.
Justice Department lawyers originally claimed she missed her flight, but later said it had been an "oversight" and that the Department of Homeland Security cleared her for travel.
However, Kamal said in a declaration filed Friday that she could not afford another $1,700 plane ticket or the risk that she could arrive at the airport and be denied boarding again.
"This watch list system affects every American," Pipkin said. "Ibrahim's daughter has been embroiled in this, and she's an American citizen. Anyone can be blacklisted. It's humiliating, it's a deprivation of rights and it's un-American."
For its part, the government maintained daily that Ibrahim's inclusion on the no-fly list was a mistake that DHS corrected, and that her canceled visa is a separate issue that has no relationship to being watch listed - rather than a case of who is watching the watchers.
"Obtaining a visa is not a fundamental right," said DOJ attorney John K. Theis, adding that Ibrahim has not suffered any harm that the court can relieve.
"Denying her boarding was a mistake and the government fixed that mistake," Theis said. "But has she suffered harms that would give her the relief she seeks, an injunction that would remove her from the watch list? She has not."
He continued: "Dr. Ibrahim flies all over the world and thrives in her career. The reason she can't come here is because she can't get a visa, and being watch listed has no relationship to that. She has suffered no stigma at the hands of the government - it's done all it can to keep her status a secret."
As to whether terror watch lists derail due process rights, Theis said that due process requires weighing the safety of state with the risks to individuals, while providing them with ways to clear their names. He touted the DHS website TRIP, an acronym for Traveler Redress Inquiry Program, which Kahn had testified brings only "a letter written in the most Orwellian terms that tells you nothing."
Theis' remark prompted a retort from Judge Alsup.
"You're trying to convince me that these things satisfy due process," Alsup said. "The allegations could be completely bogus and they're kept secret."
The judge continued: "It bothers me. Your system is a problem and you don't even see the other side. A lot of innocent people are wrongly listed and hurt by your system."
Alsup ordered both parties to submit supplemental briefs on how the government might better handle cases in which innocent people want to clear their names.
"It's all well and good to have this trial," Alsup said. "But we can't just sit back - we have to be active participants in this."
Theis closed by reminding the court that it had no jurisdiction over why or how Ibrahim was put on the no-fly list, or why her visa was denied.
"This is about her constitutional rights, which were not violated," Theis concluded.
Ibrahim's case has already been to the 9th Circuit Court of Appeals twice. That court first reversed Alsup's findings that he had no jurisdiction to hear challenges to watch lists, and later that Ibrahim lacked standing to bring a constitutional challenge as a foreign national who had left the United States voluntarily.
In the second round, the 9th Circuit found that Ibrahim had established sufficient ties to the United States during her years at Stanford to bring the claims.
In a videotaped deposition taken in the United Kingdom this summer, Ibrahim testified that she thinks of the United States as "a second home."
Whatever Alsup decides, Ibrahim's case will surely to go to the 9th Circuit a third time. And it won't be lonely for company: in 2010, the ACLU filed its own challenge to the no-fly list on behalf of 10 U.S. citizens and permanent legal residents, including four U.S. military veterans and two U.S. citizens who had been stranded overseas.
That case, Latif, et al. v. Holder, et al. is pending in U.S. District Court in Portland, Ore.