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Battle Over ‘State Secrets’ in No-Fly Case

SAN FRANCISCO (CN) - Two very different definitions of what constitutes "state secrets" emerged this weekend in a Malaysian woman's battle against the federal government over being placed on the TSA's no-fly list.

Rahinah Ibrahim sued the Department of Homeland Security and several other federal agencies after TSA agents kept her from boarding a flight to Hawaii to attend a conference in 2005. Though officials eventually allowed Ibrahim to return to Malaysia, they revoked her student visa shortly thereafter - keeping her from returning to Stanford to finish her doctoral thesis.

After two 9th Circuit Court of Appeals 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 the case for lack of standing as a noncitizen - the weeklong trial began Dec. 2.

Much of the proceedings took place behind closed doors however, 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.

This included the government's response to why Homeland Security placed Ibrahim's daughter - a potential witness and a U.S. citizen - on the no-fly list just before she boarded a U.S.-bound plane in Malaysia to attend the trial. Though DOJ lawyers originally claimed Raihan Mustafa Kamal missed her flight and had been rebooked, Kamal faxed Ibrahim's attorneys a copy of the DHS no-fly order Malaysia Airlines had given to her.

Like her mother - who was denied entry into the U.S. even to litigate her own case - Kamal never left Malaysia to attend the trial.

Besides expressing discomfort over clearing the courtroom each time the Justice Department invoked SSI, Alsup also frequently bristled at the government's hiding behind its state secrets privilege to deny Ibrahim the opportunity to know how she ended up on the no-fly list and why her visa had been revoked. A day after the trial ended, he ordered both sides to explain the difference between the two subterfuges.

"What more is required to qualify for state secrets treatment than is already required for SSI?" Alsup asked. "If the government's interests could be adequately protected via SSI treatment, which can be disclosed for litigation without public access, why should the government be allowed to classify evidence as state secrets and thereby deny the opponent an opportunity to meet the evidence?"

According to the Justice Department, statutory guidelines dictate the SSI scheme and what could be released to Ibrahim and her lawyers during the trial. But the state secrets privilege is rooted in the President's constitutional powers and absolute when invoked.

But the state secrets doctrine has procedural safeguards built in to prevent abuse, according to Assistant Attorney General Stuart Delery. After the head of a department invokes the privilege, it is first verified by the Attorney General and then independently reviewed by a federal judge.

While state secrets typically involve classified information regarding national security, SSI exists solely by congressional design to protect transportation security issues.


"Unlike classified information, which may not be disseminated publicly and may be excluded from litigation pursuant to the state secrets privilege, SSI is protected under statutory rules and codified regulations that ensure that the information is available to individuals involved in transportation security, and when appropriate, civil litigants," Delery said in the DOJ brief. "Individuals may seek access to SSI in civil proceedings. Those individuals who may access SSI may or may not hold a government security clearance allowing them access to classified information. SSI is meant to be shared with covered parties who have a need to know, and the SSI regulations are intended to facilitate this sharing more easily and efficiently than would be possible under the rules governing classified information."

But the Justice Department dissuaded Alsup from applying the SSI statutes to the government's invocation of state secrets in this case.

"There is no legal authority permitting a court to decide that procedures prescribed to protect SSI may be 'adequate' to protect other information that is not SSI, such as classified national security information," Delery wrote. "There is, therefore, no basis on which to conclude that litigation procedures used to safeguard SSI are appropriate or sufficient for protecting information covered by the government's assertion of the state secrets privilege. To the contrary, attempting to use such procedures would transgress the precedent establishing the procedures governing state secrets material. The treatment of information covered by the state secrets privilege is governed by clear, controlling caselaw, and the treatment of classified information is specifically governed by executive order. Those sources - not the SSI statute and regulations - provide for how to appropriately handle the state secrets and classified information at issue in this case. Indeed, applying procedures intended for SSI to information covered by the state secrets privilege would be clear error."

Predictably, Ibrahim's pro bono attorneys from the San Jose firm of McManis Faulkner see the issue differently. Writing for Ibrahim, attorney Elizabeth Pipkin added a third category - classified information - and urged Alsup to evaluate the government's state secrets claim accordingly.

Pipkin acknowledged in the Ibrahim brief that the state secrets doctrine is absolute if upheld by Alsup. But she noted that information the government claims is secret may in fact be only classified, and therefore subject to the judge's disclosure order under federal law.

"Because the incentives to abuse the state secrets privilege are great, the importance of the court's role in evaluating whether a risk of injurious disclosure truly has been established cannot be emphasized enough," Pipkin wrote.

"Defendants' declarations filed in this action thus far fail to demonstrate that there is a reasonable danger a further response would 'expose military matters which, in the interest of national security, should not be divulged,' or otherwise compromise national security," Pipkin continued, citing U.S. v. Reynolds. "The portions of the supporting declarations that are available to Ibrahim's counsel do not present specific arguments that disclosure in this case would reveal military matters implicating national security. Instead, defendants' declarations rely on abstract, hypothetical, 'what if' scenarios that are not tied to the facts of this dispute. Defendants' generalized arguments that harm would result from disclosure of intelligence-gathering methods or capabilities are not persuasive, because at least some of defendants' terrorist investigation and watchlisting practices have been made known to the general public. Defendants' previous declarations in support of the state secrets privilege inappropriately presume the correctness of their terrorist designations, despite evidence that defendants' databases are replete with errors."

Furthermore, Ibrahim's designation on the Terrorist Screening Center's watchlist led to both her placement on the no-fly list and the chain of events since, including the visa revocation and her subsequent constitutional action against the United States. Hiding the reasons for her designation has made it impossible to both litigate her action and defend herself from the stigma that the government believes she's a terrorist, according to Pipkin.

"To provide constitutionally adequate notice and opportunity to rebut the accusations that led to Ibrahim's blacklisting, defendants must disclose all of the reasons why they took the actions they did. Otherwise, Ibrahim is forced to guess at the reasons for her placement on various different watchlists from 2004 to the present, which necessarily prejudices her ability to rebut defendants' accusations that she is a terrorist or somehow associated with terrorism," Pipkin wrote.

She continued: "Ibrahim objects to defendants' late attempts to rely on state secrets evidence for dismissal of this case. If the court entertains defendants' state secrets arguments, Ibrahim respectfully requests that this court carefully scrutinize defendants' claim that the state secrets privilege applies, and reject any application of the doctrine where state and military secrets are not truly implicated. She also requests that the court order appropriate access to her and her counsel if the court allows defendants to rely on such evidence. Plaintiff further requests the opportunity to rebut any state secrets evidence relied upon by defendants."

But even if Alsup sides with Ibrahim, the public won't learn anything more than it knows now since any hearings would be held behind closed doors and documents filed under seal.

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

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