05 December 2013

The Department of Homeland Security Outdoes Orwell And Kafka

In the first case to make it to court over the no-fly list, DHS has taken abuse of power to a whole new level.

The case, Rahinah Ibrahim v. Department of Homeland Security.

The claim of DHS is that the list is a state secret, so they won't even acknowledge that there is a list, much less if someone is on the list, until of course the airlines refuse you a boarding pass, but even then they cannot tell you why they are:
Airlines aren’t told why they have been forbidden to transport any particular person, and are forbidden from telling anyone that they are on the “no-fly” list — although of course that eventually becomes obvious when the airline refuses to issue a boarding pass to an otherwise qualified fare-paying would-be passenger.  The U.S. government’s policy is never to confirm or deny the existence of a no-fly order. That is considered a “state secret”.

Needless to say, all this makes a mockery of due process and has, until now, frustrated judicial review of no-fly decisions and orders.  Despite numerous attempts to challenge the system of “no-fly” lists and orders, Rahinah Ibrahim v. Department of Homeland Security, et al. (docket and more recent documents) is the first such case to make it to trial.

Dr. Ibrahim, a Malaysian citizen, was a doctoral candidate at Stanford University, in the U.S. on a valid student visa, when she tried to fly home to Malaysia with her daughter in 2005.  She was refused passage on a United Airlines flight from San Francisco International Airport, detained, and interrogated by SFO airport police.  Although she was ultimately bound for Malaysia, she had planned to stop over in Hawaii to present a research paper at a conference there. She was denied boarding on a domestic flight from San Francisco to Kona. She was allowed to fly to Kona the next day, and on to Malaysia after the conference a few days late, but her U.S. visa was then revoked (although she wasn’t notified, and didn’t learn this until she was at the airport in K.L. trying to check in for a flight back to SFO a couple of months later). She hasn’t been able to return to the U.S. since, even though she had lived legally in the U.S. for many years, had met and married her husband in the U.S., and one of children was born in the U.S. and is a U.S. citizen.  She completed her dissertation remotely, received her Stanford Ph.D. in absentia, and is now a professor at a major Malaysian public university, with an extensive list of academic publications.

Several other “no-fly” lawsuits have been dismissed without getting far enough to have a judge, much less a jury, review the challenged “no-fly” orders on their merits. Others that haven’t yet made it to trial, but haven’t yet been dismissed, include that of Gulet Mohamed in Northern Virgina and Latif et al. v. Holder in Portland, OR.  Both of these cases involve U.S. citizens who were effectively banished from the U.S. by having their names being placed on the “no-fly” list while they were abroad, preventing them from coming home.

The city and county of San Francisco paid Dr. Ibrahim $225,000 to settle her claims against the airport police, but the Federal government agencies and employees have opposed Dr. Ibrahim’s right to even have the court review the legality of their actions.
But wait there's more.

You see, after the lawyers for Dr. Ibrahim put her daughter on the witness list, DHS put that daughter on their no fly list:
The Federal civil rights trial in Ibrahim v. DHS — the first lawsuit seeking judicial review of a government “no-fly” order to make it to trial — began this morning in San Francisco with a surprise:

When the case was called at 7:30 a.m., Elizabeth Pipkin and Christine Peek, pro bono lawyers for the plaintiff Dr. Rahinah Ibrahim, began by informing U.S. District Judge William Alsup that Dr. Ibrahim’s oldest daughter Raihan Mustafa Kamal was denied boarding in Kuala Lumpur yesterday when she tried to board a flight to San Francisco to observe and testify at the trial in her mother’s lawsuit.

Ms. Mustafa Kamal, an attorney licensed to practice law in Malaysia, was born in the U.S. and is a U.S. citizen. Ms. Mustafa Kamal was with her mother when Dr. Ibrahim was denied boarding on a flight from K.L. to San Francisco in 2005 (after having been told that her name had been removed from the “no-fly” list) under what now seem eerily similar circumstances. The DHS had been given notice that Ms. Mustafa Kamal would testify at the trial as an eyewitness to those events she witnessed in 2005.


“We may have to have a separate evidentiary hearing about this,” Judge Alsup said, and ordered the defendants to provide further information tomorrow (Tuesday). “I want to know whether the government did something to obstruct a witness, a U.S. citizen.”
(emphasis original)

So, they put a witness, and an American citizen at that, on the no fly list in order to prevent them from testifying, and then, they lied to the judge about it:
Ms. Pipkin reminded the court of what government counsel Paul Freeborne of the Department of Justice told the court before the trial recessed on Monday:
Freeborne: Your Honor, we’ve confirmed that the defendants did nothing to deny plaintiff’s daughter boarding. It’s our understanding that she just simply missed her flight. She has been re-booked on a flight tomorrow. She should arrive tomorrow.
“None of that was true,” Ms. Pipkin told the court this morning. “She didn’t miss the flight. She was there in time to check in. She has not been rebooked on another flight.” And most importantly, it was because of actions by the DHS — one of the defendants in Dr. Ibrahim’s lawsuit — that Ms. Mustafa Kamal was not allowed to board her flight to SFO to attend and testify at her mother’s trial.

Ms. Pipkin said that Ms. Mustafa Kamal had sent her a copy of the “no-board” instructions which the DHS gave to Malaysia Airlines, and which the airline gave to Ms. Mustafa Kamal to explain as much as it knew about why it was not being allowed to transport her. Ms. Pipkin handed Judge William Alsup a copy of the DHS “no-board” instructions to Malaysia Airlines regarding Ms. Mustafa Kamal.
At least now, we may have a reason as to why she is on the no fly list:
The FBI agents also asked about whether Dr. Ibrahim was familiar with Jemaah Islamiyyah in Malaysia. She said she had heard of it only from reading online newspapers, but that from what she had read, it was an un-Muslim terrorist organization.

Later in her deposition, Dr. Ibrahim noted that since returning to Malaysia in 2005, she has become active in Jamaah Islah Malaysia, a non-profit professional networking group for Muslims who have returned to Malaysia after post-secondary schooling in the U.S. and Europe. The two groups have names that could easily be confused by non-Malays, and are sometimes referred to by the same acronym, “JIM”. But both are well-known and readily distinguishable to Malaysians. And the FBI agents who visited her in 2004 didn’t ask about “Jamaah Isla Malaysia”, the entirely innocent organization with which Dr. Ibrahim is now involved. This potential confusion is the only hint in the public record to date about any possible explanation, legitimate or not, for FBI “Special Agent” Kelly’s nomination of Dr. Ibrahim for inclusion on the “no-fly” list.
I fully expect the US Attorney to f%$#ing turn into a f%$#ing cockroach at this point.

The full sordid story, over the past few years is here.

There are a whole bunch of people at DHS, the FBI, and the DoJ who really need to have their security clearances pulled as arbitrarily as Dr. Ibrahim's right to travel was.

Here is a suggestion for Barack "Worst Constitutional Law Professor ever" Obama.  Realize that your state security apparatus has as much interest in fairness, or civil rights, or basic American values as much as Richard Bruce Cheney is interested in discussing who authorized the leaking Valerie Plame's CIA covert operative status.


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