Rebuke Over No-Fly List Fully Unsealed, but Mysteries Remain
SAN FRANCISCO (CN) - An eight-year fight over a Stanford graduate student's mysterious inclusion on various terror watch lists ended Wednesday with the revelation she has been off the no-fly list since 2005.
The disclosure comes in the fully unsealed 38-page opinion by U.S. District Judge William Alsup, which he issued in January and then partly released - with heavy redactions - a month later while the Justice Department mulled over whether to appeal Dr. Rahinah Ibrahim's case to the 9th Circuit.
Ibrahim's pro bono attorneys at McManis Faulkner said that the government typically needs "articulable facts" to put someone on the terror database, but that Ibrahim's case revealed that the executive branch "has created at least one secret exception to the reasonable suspicion standard to watchlist innocent individuals."
"For the executive branch to create secret law, not subject to any legislative or judicial review, runs afoul of everything our founders envisioned for this country," Ibrahim's lead attorney Elizabeth Pipkin said in a statement. "Quite simply, secret laws have no place in a democratic society."
Ibrahim had been placed on the Transportation Security Administration's no-fly list and then had her visa revoked after FBI Special Agent Kevin Kelley interviewed her in 2004. At the time, Ibrahim - a Malaysian national in the United States on a student visa - was working on her doctorate in construction engineering and management at Stanford University.
For reasons never stated publicly - but possibly related to the FBI's "mosque outreach program" involving Bay Area Muslims and Sikhs - Kelley nominated Ibrahim to various terror watch lists. Alsup found that the agent nevertheless "filled out the form wrong" and also added Ibrahim's name to the TSA no-fly list - a fact that the government finally admitted two months ago.
Kelley's mistake spiraled out of control and supposedly led to what the State Department calls a "prudential" revocation of Ibrahim's student visa in 2005, shortly after she had been arrested at San Francisco airport while trying to board a flight for Kona to attend a conference.
While the unsealed judgment reveals for the first time that Ibrahim has been off the no-fly list since the incident in San Francisco, the issue still remains that Ibrahim has popped on and off the FBI's Terror Screening Database since 2009. This, despite the government's acknowledgment that Ibrahim "does not pose and has not posed a threat of committing an act of international or domestic terrorism," Alsup said.
In September 2009, Ibrahim applied for a visa to attend her own trial against the government. A consular officer interviewed her at the U.S. Embassy in Kuala Lumpur, but a month later Ibrahim ended up back on terror watch-list databases for the FBI, State Department, and U.S. Customs and Border Patrol. Her visa was then denied because someone very high up in the government believes she is a terrorist.
"The Terrorist Screening Center has determined that Dr. Ibrahim does not currently meet the reasonable suspicion standard for inclusion on the Terror Screening Database," Alsup wrote. "She, however, remains in the database pursuant to a classified and secret exception to the reasonable suspicion standard. Again, both the reasonable suspicion standard and the secret exception are self-imposed processes and procedures within the executive branch."
As to whether Ibrahim will ever be able to enter the United States again, Alsup acknowledged that he had read the classified reasons for the denial of Ibrahim's visa and said that the information "if accurate warranted denial of the visa." He also said, however, that the law affords Ibrahim a chance to dispute the information that led a consular officer to write "terrorist" on her 2009 application.
"Keeping in mind the government's concession that Dr. Ibrahim herself is not a threat to the United States, this order further holds that the consular officer erred in indicating that Dr. Ibrahim was ineligible to apply for a waiver of the ground(s) for ineligibility," Alsup wrote.
Judicial review of the visa process is nevertheless extremely limited, the judge conceded.
Ibrahim had said in deposition that she is frequently asked to come to the United States for professional reasons, and feels embarrassed when she tells colleagues why she must decline their invitations. She added that "the U.S. is a second home."
On Tuesday, the government confirmed that it had complied with Alsup's orders to completely remove Ibrahim from all terror databases and watch lists.
A final mystery tackled in Alsup's full ruling is the matter of Ibrahim's daughter Raihan Kamal, who was listed as a potential witness but claimed she was barred from boarding a flight in Kuala Lumpur. Kamal is a U.S. citizen.
After a post-trial hearing, Alsup determined that the Department of Homeland Security had initially flagged Kamal after she was matched to a record in the terror database that made her inadmissible under the Immigration and Nationality Act.
"United States citizens, of course, are not subject to the admissibility provisions of the act," Alsup wrote.
But while Customs and Border Patrol made a quick determination that Kamal appeared to be a U.S. citizen, the airline did not submit citizen information for her particular flight. DHS then requested additional screening of Kamal when she arrived for check-in.
Kamal never checked in for her flight, however, and claimed that Malaysia Airlines gave her a copy of a DHS no-fly order. Though the Justice Department had initially told Alsup that Kamal missed her flight, it later admitted to an "oversight" that was fixed a day later and would have allowed Kamal to get on a U.S.-bound airliner.
Alsup gave no indication of which story he believed in the ruling.
Ibrahim was the first to challenge the government's no-fly list, but others remain in the pipeline. 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.