Witness In No Fly List Trial, Who Was Blocked From Flying To The Trial, Shows That DOJ Flat Out Lied In Court

Tech Dirt – by Mike Masnick

On Friday the case against the US government, brought by Rahinah Ibrahim over her being placed on the “no fly list,” officially concluded with closing arguments, but that may have been the least interesting part of everything. Apparently, the day got off to a rocky start, after Ibrahim’s lawyers informed the DOJ that they intended to file bar complaints against some of the DOJ legal team for their actions in court, specifically concerning “misrepresentations” made to the court.  

It seems clear that this was mainly about the DOJ denying that the US government (mainly DHS) had done anything to prevent Ibrahim’s daughter, Raihan Mustafa Kamal, an American citizen, from coming to the US to be a witness in the trial. As you may recall, on Monday it had come out that she had been denied in her attempt to board her flight in Malaysia, and the DOJ claimed, flat out, that Kamal had merely missed her flight and rebooked on another flight.

It appears that none of that was true.

Instead, while Kamal had been rebooked by her travel agent earlier in the week to a different flight (because Expedia informed her that her original flight was full and she wouldn’t be able to travel on it), she arrived at the airport with nearly 3 hours to spare for her own flight, and was then denied the ability to board. There was a lot of back and forth, but eventually she obtained the email that had first been sent to Philippines Airlines (she was flying from Malaysia to the Philippines and then on to San Francisco), warning that Kamal was “a possible no board request.”

While that’s not a full on “denial” it was enough to have the airline deny her passage, and clearly shows that, contrary to the DOJ’s claims, DHS specifically had targeted Kamal and was hinting very strongly to airlines not to let her fly. It seems unlikely that they ever expected that email to get out. Either way, Kamal had spent nearly $2,000 of her own money on the original flight, and noted in her own deposition that she was unable to afford another immediate flight to the US (especially given that it’s holiday travel season).

Judge Alsup held a closed hearing about all of this, so it’s not entirely clear what he’s going to do, though from the public statements he has made to date, he did not appear to be happy about all of this. During the closing arguments — some of which involved kicking the public out — he even noted how ridiculous it was that they had to have a closed session since he didn’t think any of the “sensitive security information” was really that sensitive. He also challenged the government’s argument that they can properly review people who “appeal” their status without ever letting anyone know if or why they’re on the list. From Edward Hasbrouck’s transcript of the exchange:

JUDGE ALSUP: That’s just going back to the same sources that were wrong in the first place, and of course they are going to say, “We were right the first time.”

That troubles me.

Do you know what happened to Robert Oppenheimer?

He was denied his clearance. It was totally unjust. The information was bogus. They suspected him of being a Communist, but that was wrong.

It was a low point for America, to do that wrongly to an American hero.

You’re not seeing the other side of what can happen.

DEFENDANTS’ COUNSEL: TRIP is a continually improving process…

JUDGE ALSUP: We know that there’s going to be mistakes in your system, in any system, and people are going to get hurt.

What do we need? Should there be some sort of follow-up FBI interview to find out if there is contrary evidence?

DEFENDANTS’ COUNSEL: When a TRIP letter is sent, the recipient is offered the possibility of review by a Court of Appeals. Review by a Court of Appeals would reveal any improper basis for the decision.

JUDGE ALSUP: How could the Court of Appeals tell that from the file it is handed up by the agency?

Even if it includes the derogatory information, how is the Court of Appeals going to know from looking at the face of the document whether it’s true?

Couldn’t there be some process where you tell the person the nature of the allegations (”You contributed money to Al Qaeda”) without revealing the specific sources or methods for the information containing those allegations?

DEFENDANTS’ COUNSEL: We can say more in closed session, but we can’t do that.

The government also appeared to admit in its closing that the original no fly determination on Dr. Ibrahim was a mistake, but then seems to bend over backwards not to take responsibility for all the additional fallout from that incorrect designation — including the repeated denial of a visa to go back to the US (even for this very trial).

http://www.techdirt.com/articles/20131208/00164525497/witness-no-fly-list-trial-who-was-blocked-flying-to-trial-shows-that-doj-flat-out-lied-court.shtml