TSA Must Release Some ‘No-Fly List’ Evidence

(CN) - A federal judge in San Francisco ordered the Transportation Security Administration to release some evidence relating to a Muslim woman's inclusion on the government's "no-fly list," breaking what the judge called a "potential jurisdictional impasse."

Rahinah Ibrahim, a Malaysian Muslim, said she was illegally detained at the San Francisco International Airport because her name appeared on the "no-fly list," which had been implemented after the Sept. 11, 2001, terrorist attacks.

Ibrahim said airport police handcuffed her in front of her 14-year-old daughter and detained her for two hours. She was getting her doctorate at Stanford University at the time, and had no criminal record or link to terrorists.

Agents later released her and told her that her name had been removed from the no-fly list. But when she tried to return to the United States to finish her degree, she learned that her student visa had been revoked.

She sued, claiming she'd been wrongfully included on the no-fly list.

U.S. District Judge William Alsup dismissed for lack of jurisdiction, but the 9th Circuit reversed on a 2-1 vote.

Chief Judge Alex Kozinski said passengers have a right to demand information and present evidence on why they should not be on the list.

"Just how would an appellate court review the agency's decision to put a particular name on the list?" Kozinski asked. "There was no hearing before an administrative law judge; there was no notice-and-comment procedure. For all we know, there is no administrative record of any sort for us to review. So if any court is going to review the government's decision to put Ibrahim's name on the No-Fly List, it makes sense that it be a court with the ability to take evidence."

But the case faced a second jurisdictional hurdle on remand.

"[I]t turns out that important evidence at the heart of the case is still under lock and key by TSA," Judge Alsup wrote. "The federal government asserts that this Court again lacks subject-matter jurisdiction, this time lacking jurisdiction to compel TSA to release the evidence. Fortunately, a portion of the jurisdictional impasse can be broken - a recent statutory amendment allows district courts to compel the production of at least some of the sensitive information" (original emphasis).

The judge ordered the TSA to produce FBI phone logs related to Ibrahim; TSA employee logs; documents discussing the incident, instructing police to detain or arrest Ibrahim, and discussing those instructions; and airport video recordings.

Judge Alsup said Ibrahim is not entitled to access the no-fly list and documents identifying Ibrahim as someone who needed special screening; and documents considered when placing her name on the no-fly list and in the terrorist screening database.

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