Judge Won’t Reconsider Terror Watch List Case

SAN FRANCISCO (CN) - A Malaysian woman who has spent years disputing her inclusion on various terror watch lists cannot rely on documents from 2013 to prove bad faith by the Justice Department, a federal judge ruled Saturday.

Rahinah Ibrahim, a former Stanford grad student, successfully fought a mistake by an FBI agent that landed her on a terrorist database and the Transportation Security Administration's no-fly list, and got her booted out of the United States in 2005.

Earlier this year, U.S. District Judge William Alsup rebuked the government for its handling of Ibrahim's case and ordered all agencies to remove her from their terror databases and watch lists. He did not, however, side with Ibrahim on her constitutional claims, including First Amendment, substantive due process and equal protection infringements.

Ibrahim then asked Alsup to reconsider both his judgment and her request for $3.9 million in fees for her pro bono lawyers at McManis Faulkner. She filed a third request earlier this month based on documents posted to the Internet that allegedly prove that broken rules - and not a mistake by the FBI agent - landed Ibrahim on terror watch lists and kicked out of the United States.

The Justice Department urged Alsup to deny Ibrahim's request, citing - as it had so often during this case - national security. But in the end Alsup said the "March 2013 Watchlisting Guidelines" appeared on the government's privilege list and so were available to Ibrahim before trial.

"In this case, plaintiff's counsel have not met their burden of proof as to reasonable diligence because the 'March 2013 Watchlisting Guidance' appeared on the government's privilege log and plaintiff's counsel never specifically moved to compel that document," the eight-page ruling filed Saturday states. "This is not a case in which the government concealed that it was withholding under claim of privilege a document sought; rather, it did claim the privilege, identified it on a privilege log, and plaintiff's counsel failed to move to compel that particular document."

While Ibrahim had argued that the document required authorities to apply a higher standard before nominating her to terror databases because she is considered a government official - as a professor at the University of Putra Malaysia - neither side proposed a finding of that fact during the trial, Alsup said.

The judge also declined to reconsider her request for nearly $4 million in attorneys' fees based on the DOJ's "bad faith."

"Counsel for plaintiff's final argument is that the attorney's fees, expenses, and costs orders should be reconsidered because the defendants refused to produce the Watchlisting Guidance and the testimony of the government agents evidenced bad faith. Not so," Alsup wrote. "None of this rises to the level of 'bad faith' warranting 'a full fee based on counsel's actual rates,' especially since plaintiff's counsel never specifically moved to compel the 'March 2013 Watchlisting Guidance' on the government's privilege log during discovery. This order, for the third time, denies leave to seek reconsideration of the fees-and-expenses orders."

The issue of McManis Faulkner's fees is being hashed out before a special master, ordered by Alsup after he called the bill for the eight-year case "grossly broad even to the point of seeking double recovery."

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