Battle Over ‘State Secrets’ in No-Fly Case

"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.

Subscribe to Closing Arguments

Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.

Email *

Submit