It has been a few years since I’ve posted stories about the Department of Homeland Security’s “No Fly” list. Remember, the list that prevented Senator Ted Kennedy from flying, and countless other innocent people, with no way for them to contest being on the list. Things did eventually ease up a bit for a while, but suddenly they are back in the news.
Why? The first legal challenge to the no-fly list to actually make it to trial has started, and things have already turned decidedly Orwellian.
The plaintiff in the case is Dr. Rahinah Ibrahim, a Malaysian citizen who was a PhD student at Stanford University. Ibrahim got married in the US, and her daughter, Raihan Mustafa Kamal, was born here and is hence a US citizen. Ibrahim, along with her daughter, were denied boarding on a flight from San Francisco to Kuala Lumpur in 2005.
Ironically, Ibrahim herself is not allowed to attend the trial. She applied for a visa specifically to attend the trial, but it was denied … by the DHS, the plaintiff in the case.
The trial was supposed to start Monday in San Francisco, despite DHS lawyers attempts to get the case dismissed several times by invoking “state secrets”. But on the first day of trial, one of the plaintiff’s main witnesses — the daughter Kamal — was also unable to attend the trial. She was denied boarding Sunday night on a flight from Kuala Lumpur to San Francisco because she is now on the government no-fly list! Not only is the daughter a witness to the original incident, she is an attorney licensed to practice law in Malaysia.
Interestingly, Kamal was told by the airline that she was on the no-fly list, and was even given a phone number for DHS in the US to call. Normally, airlines are prohibited from telling the passenger why they are being denied boarding, or giving them any other information, putting them in a very strange situation.
When hearing this, the trial judge ordered the government lawyers representing the DHS to investigate what happened. Later that day, the lawyers reported back that they had been told (and confirmed) by DHS that “the plaintiff’s daughter just missed her flight”, and that she was rebooked on a flight on Tuesday.
But the DHS response is a lie. Kamal did not miss her flight, and she was not rebooked on another flight. Kamal even sent a copy of the “no-board” instructions which DHS gave to Malaysia Airlines. Again, normally the airline is not allowed to disclose this information to the passenger, but for some reason they gave this information to Kamal to explain why they were not letting her fly. As far as anyone knows, this is the first time an actual no-fly order has been disclosed to the passenger.
Ironically, the government is still trying to get the trial dismissed. Their reasoning? Because the evidence against them is secret, it is not allowed in court, so the plaintiffs cannot present evidence against the government. Initially, the government tried to claim that even evidence against the government that was public could not be used in the trial. For example, the government claimed that the 2005 SFO police report on the original incident (and which had always been publicly available) was inadmissible in court because the TSA “had subsequently determined that some of the information it contained was secret”.
That’s right, the government was claiming that they could retroactively declare public knowledge to be secret, and thus inadmissible in court. Luckily, the judge rejected this claim, saying:
That’s ridiculous. Are you saying that if the president makes a speech, TSA can retroactively make it a secret what he said? It cannot be the law that something that is publicly known later becomes hidden…
There are lots of interesting notes on this trial, which you can read on The Identity Project website.
But I warn you. If you start reading them, you might think you had fallen down a rabbit hole.
UPDATE: Coincidentally, Nelson Mandela was on the US no-fly list, and was not allowed to fly to the US, nor even fly on a US airline outside the US.
6 Comments
Sounds Stalinesque to me. For me i think it’s ridiculous. What I presumed was that in the beginning people with names of interest would be added to the no fly list until they could be adjuducated and either made permanent or removed. I don’t think even the goverment knows how many people are on the no-fly list. But the bigest take away is the inablility to challenge a governamnt ruling and that they can make up and change rules and laws as they go so as to never lose.
What happened to “a government of the people, by the people and for the people”. I think Mr. Linclon would not approve of this century’s regimes.
Well, Lincoln was the first President to seriously remove citizens’ rights, so he may not be the best example, but, PatriotSgt, I surely get your point and agree. There are many things wrong with the DHS and the type of jurisprudence exhibited here is just one example. This really makes my blood boil.
On the brighter side – it is snowing nicely here in northern California. That’s a good thing.
So I’m reading through the Papers Please posts on this trial and come across the following that came up in court yesterday (Thursday):
“FBI Special Agent Lubman of the Terrorist Screening Center (TSC) described the legal basis (such as it is) for the TSC and the Terrorist Screening Database (TSDB). “I apologize to the reader of the transcript for all these acronyms,” Judge Alsup interjected at one point. The TSC and TSDB were established by a series of executive orders, “Homeland Security Presidential Directives” HSPD6, HSPD11, and HSPD24.
That may sound like a legal nicety of no real significance, but it’s actually indicative of something significant: the usurpation by the executive of legislative and judicial functions that’s implicit in having decisions to restrict the exercise of rights be made by executive or administrative fiat. There was no mention in Ms. Lubman’s testimony or that of any of the other government witnesses of any accountability to legislative constraints or judicial review.
In fact, when Ms. Lubman was cross-examined as to whether there is any statutory basis for the actions of the TSC, she seemed genuinely puzzled, as though the need for statutory authorization for executive action had never occurred to her. “I’m not certain if there is any statutory authorization…. I believe it’s based on executive order. That’s the only way to make the system work,” she said. Watchlist guidance for the TSC comes directly from the White House national security staff, not even from the FBI or DHS.”
Now, this was set up under Bush. I know presidents don’t like to give up power once it has been seized by their predecessors, but the failure of the incumbent to seek to legalize this program through properly processed legislation is a tough pill to swallow.
It’s long, but the discussion of the trial on the Papers Please site is worth reading if this is an issue you care about.
I agree with Don that failure to dismantle this type of stuff (and even escalating it in some cases!) has been one of the worst aspects of the Obama administration. However, history should never forget that all of this is rightfully the legacy of George W. Bush. It was his administration that created the No Fly List without due process provisions. It was his administration that eliminated habeas corpus in terrorism cases. It was his administration that pushed for a “robust executive.” It was his VP that claimed the office of the VP was not part of the executive branch and was, therefore, exempt from Constitutional restrictions.
Don’t get me wrong. I’m not letting Obama off the hook, because he has done things that are fairly comparable. However, he did not set the precedent. That is the legacy of his predecessor.
Michael, I agree with you — I’m disappointed that Obama has not fought harder to reverse these constitutional abuses that were put in place by the previous occupant.
But I also want to point out that the presidency (by design, because the US is not a presidential dictatorship) has limited abilities to arbitrarily change stuff like this. It requires cooperation from the other branches of government.
It would make more sense to blame the Supreme Court for not declaring this stuff unconstitutional. After all, Federal courts have declared some parts of the Patriot act unconstitutional.
My guess is that after trying to shut down Guantanamo and getting fierce opposition from Congress, plus political fallout that he was “soft on terrorism”, Obama realized that he couldn’t win this fight, and that just fighting it would spend valuable political capital and cause other political problems, so he gave up. Sad, but a reflection of the sorry state of our politics.
Personally, I’ve always thought that any searches performed by the government as a condition of flying are pretty clearly unconstitutional (violation of the 4th amendment), but people put up with them in the name of fighting terrorism (although there is little evidence that the TSA searches actually accomplish that goal — it would save more lives to stop everyone driving and test whether they had been drinking, but we would never submit to that).
I agree with all of that. I think the actions of the Obama administration regarding terrorism, surveillance, assassinations, etc., are all done based on political calculations. It reminds me of Clinton’s triangulation strategy, or the old “Only Nixon could go to China” idea. I just think he took it a bit farther than he needed to.