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Monday, June 17, 2024 | Back issues
Courthouse News Service Courthouse News Service

Barred Professor Can’t See Secret Documents

SAN FRANCISCO (CN) - Attorneys for a Malaysian professor fighting her inclusion on the U.S. no-fly list overplayed their hand in a bid to look at classified government documents, by demanding "unreasonable conditions," a federal judge ruled.

Rahinah Ibrahim sued the Department of Homeland Security and other federal agencies after the Transportation Security Agency kept her from boarding a flight to Hawaii to attend a conference in 2005.

Officials eventually cleared Ibrahim to return to her native Malaysia, then revoked her student visa, preventing her from returning to Stanford to finish her doctoral thesis.

After two 9th Circuit reversals made it clear that Ibrahim had established sufficient ties to the U.S. to make her constitutional claims - and U.S. District Judge William Alsup's refusal to dismiss for lack of standing - the weeklong trial began Dec. 2.

It took place without Ibrahim, as the government refused to allow let her enter the country.

Much of the proceedings took place behind closed doors, since Alsup reluctantly granted the Justice Department's request to keep sensitive security information (SSI) and law enforcement-related testimony out of the public view.

After trial, Ibrahim's pro bono lawyers from the San Jose firm of McManis Faulkner demanded the right to view classified documents that presumably address why the FBI added Ibrahim to a terror watch list in the first place - leading to the chain of events that included her no-fly status at the TSA and the revocation of her visa.

The Justice Department claimed that the state secrets privilege excludes classified information from being used in litigation. It claimed that though Ibrahim's attorneys had been granted security clearances to view SSI information in the case, those clearances did not extend to classified documents protected by the state secrets doctrine.

On Monday this week, Alsup said Ibrahim's attorneys had never before asked for clearance to view classified information - despite battling the government for nearly eight years - and the condition-filled, post-trial request came too late to help Ibrahim now.

"Plaintiff's conditions are unreasonable," Alsup wrote in a terse, 2-page order. "For example, plaintiff's counsel wants to be able to 'discuss the classified information with their client so that she and they may rebut any allegations contained in the secret information.' Plaintiff, herself, has never sought or obtained access to classified information. Plaintiff's counsel also wants to have 'full access to the information at any time, without restrictions on their use of the information for the case.' This condition is unduly broad. Plaintiff's counsel also seeks to reopen discovery after trial has concluded in this action. Plaintiff's counsel could have sought clearance to view classified information well in advance of trial. Plaintiff's counsel did not. Instead, plaintiff's counsel waited until after trial to request an order for access to classified information. This order will not permit plaintiff's counsel to circumvent the usual classified clearance process at this late date when such unreasonable conditions are requested."

The fate of Ibrahim's case rests in Alsup's hands, as the parties stipulated to a bench trial months ago because of the sensitive nature of the evidence.

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