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secrets privilege to deny Ibrahim the opportunity to know how she ended up on the no-fly list and why her visa had been revoked.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.