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Giving Up Essential Liberty to Purchase a Little Temporary Safety

Like everyone on a no-fly list, Dr. Rahinah Ibrahim had no idea she was on it until her life was turned upside down.

(Photo: Shai Barzilay/Flickr)

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Dr. Rahinah Ibrahim, a Malaysian scholar, wife and mother of four children, lawfully entered the United States in 1983 to study architecture at the University of Washington in Seattle, where she graduated in 1987. While living in Seattle, she married Mustafa Kamal Mohammed Zaini and had her first daughter, Raihan Binti Mustafa Kamal, a US citizen. Dr. Ibrahim received her master’s degree in architecture in 1990 from the Southern California Institute of Architecture and returned to Malaysia, worked as an architect, and eventually became a lecturer at the Universiti Putra Malaysia.

In 2000, Dr. Ibrahim returned to the United States under an F-1 student visa to work toward a Ph.D. in construction engineering at California’s Stanford University. While there, Dr. Ibrahim, a Muslim, was involved in the Islamic Society of Stanford University and volunteered with the spiritual care services at Stanford Hospital. She also attended prayers at a Muslim place of worship in nearby Santa Clara. She eventually received a Ph.D. from Stanford University.

On January 2, 2005, Dr. Ibrahim was scheduled to board a flight from San Francisco to attend an academic conference in Hawaii. But the police detained her and led her away in handcuffs in front of her 14-year-old daughter, Rafeah, and about 50 people who were in line at a United Airlines counter. She was detained for approximately two hours, until an aviation security inspector with the Department of Homeland Security informed her that her name had been removed from the no-fly list. She was put on a flight the next day, but she was given a bright red boarding pass with an “SSSS” status that led agents to subject her to “enhanced searches.”

Like everyone on a no-fly list, Dr. Ibrahim had no idea she was on it until her life was turned upside down. Evidence now shows that in November 2004, FBI Special Agent Kevin Michael Kelley mistakenly “nominated” Dr. Ibrahim, who was then at Stanford, to various federal watch lists. As the government would only reluctantly admit in court eight years later, Dr. Ibrahim posed no threat to our national security. But Agent Kelley misunderstood the directions, checked the wrong boxes, and filled out the form exactly the opposite way from the instructions. His error was inexcusable, but given the gravity of this designation, it is appalling that there were no procedures in place to promptly correct such mistakes.

But it gets worse. The evidence now reveals that the entire system is deeply flawed, with officials routinely acting in blatant disregard of people’s constitutional rights. The day after Dr. Ibrahim was wrongfully detained and humiliated, in a January 3, 2005, email, an official in the visa office wrote that he was going to revoke a stack of visas (including Dr. Ibrahim’s) despite the fact that there “is no practical way to determine what the basis of the investigation is for these applicants,” without contacting “the case agent for each case individually” but since “we don’t have the time to do that (and, in my experience, case agents don’t call you back promptly, if at all), we will accept that the opening of an investigation itself is a prima facie indicator of potential ineligibility.” So much for innocent until proven guilty.

Consequently, Dr. Ibrahim’s F-1 student visa was revoked on January 31, 2005. The certificate of revocation stated that “information” had come to light indicating that “the alien may be inadmissable to the United States” and should reappear before a US Consular Officer to establish “his” eligibility for a visa. Of course, the only “information” that had come to light reflected badly on the government, not Dr. Ibrahim.

Another email dated February 8, 2005, from the Department of State to the US Embassy in Kuala Lumpur callously stated that the “idea is to revoke first and resolve the issues later in the context of a new visa application . . . My guess based on past experience is that she’s probably issuable.” Yet, instead of correcting its egregious mistake, the government added injury to injury. In March 2005, when Dr. Ibrahim tried to return to the United States to complete her thesis, she was told her visa had been revoked.

In 2006, Dr. Ibrahim filed a federal civil rights action alleging that the government had systematically violated her due process rights. Her case was twice appealed, but aided by her valiant pro bono counsel, Elizabeth Pipkin, it survived repeated attempts by the government to dismiss it. In 2009, when Dr. Ibrahim attempted to obtain a visa to travel to the United States for her deposition and to participate in her own trial, she was denied entry. When she asked why, a State Department representative wrote the word “terrorist” on her visa application. On the first day of trial in December 2013, it was learned that Dr. Ibrahim’s daughter, Raihan, a US citizen who had been listed on plaintiff’s witness list, was not permitted to board her flight from Kuala Lampur to attend the trial.

It is little known that there are actually at least eight separate watch lists under the umbrella of the Terrorist Screening Database (TSDB), namely the no-fly list (TSA); the selectee list (TSA); Known and Suspected Terrorist File (previously known as the Violent Gang and Terrorist Organizations File); the State Department’s Consular Lookout and Support System (CLASS); TECS and Interagency Border Inspection System (Department of Homeland Security); TUSCAN (used by Canada); and TACTICS (used by Australia).

This vast network of watch lists is managed by the Terrorist Screening Center (TSC), a multi-agency organization administered by the FBI and staffed by officials from the FBI, the Department of Homeland Security, and the Department of State. Information about “known and suspected terrorists” is “exported” to various “customer databases” operated by other agencies and government entities. The National Counterterrorism Center places classified substantive “derogatory” information on the system. These terrorist watch lists, and others, provide information to the United States intelligence community, a coalition of 17 agencies and organizations within the executive branch.

Regrettably, Dr. Ibrahim’s case is not a freak accident. A 2006 GAO report revealed that half of the tens of thousands of potential matches on the various watch lists between December 2003 and January 2006 were misidentifications. The Department of Justice published a September 2007 audit report that revealed that of the 105 records reviewed in the audit, 38 percent contained errors or inconsistencies that were not identified through the TSC’s own “quality assurance efforts.” TSC redress complaint data showed that 13 percent of the 388 redress inquiries closed between January 2005 and February 2007 were for complainants who were misidentified and were not actual watch list subjects, and a remarkable 20 percent necessitated removing the complainant’s identity from the watch list. The TSC determined that 45 percent of the watch list records related to redress complaints were inaccurate, incomplete, not current or incorrectly included.

Last February, Judge William Alsup in the US District Court for the Northern District of California issued a 38-page ruling finding that Dr. Ibrahim’s’s due process rights had been violated. “This was no minor human error but an error with palpable impact, leading to the humiliation, cuffing and incarceration of an innocent and incapacitated air traveler.” Ibrahim v. Department of Homeland Security, No C 06-00545 WHA (Feb. 6, 2014).

As important as the Ibrahim case is for revealing how the government’s reckless use of no-fly lists is damaging the lives of innocent people, it is equally important for exposing the lengths to which the government, in this case the Obama administration, is willing to go to hide wrongdoing and avoid public accountability.

Judge Alsup also condemned the “frustrating efforts by the government to shield its actions from public view.” He pointed out that the Ninth Circuit Court of Appeal has consistently upheld “the common law right of the public and the press to examine the work of our courts. San Jose Mercury News, Inc. v. U.S. Dist. Ct.-Northern Dist., 187 F.3d 1096, 1102 (9th Cir. 1999). “In this circuit, we start with a strong presumption in favor of access to court records.” Foltz v. State Farm Mutual Automobile Ins. Co., 331 F.3d 1122, 1135 (9th Cir. 2003). The public has a well-recognized right to access its courts. “[Judicial] records are public documents almost by definition, and the public is entitled to access by default.” This presumption is strong because the public has an interest in “understanding the judicial process” as well as “keeping a watchful eye on the workings of public agencies.” Public oversight of courts and therefore public access to judicial operation is foundational to the functioning of government. Without such oversight, the government can become an instrument for injustice. Kamakana v. City and County of Honolulu, 447 F.3d 1172, 1178, 1180 (9th Cir. 2006).

The court chastised the government for its “stubborn resistance to letting the public and press see the details of this case,” and its “overbroad” motion for complete dismissal based on state secrets. When the government “could not win an outright dismissal, it tried to close the trial from public view via invocation of a statutory privilege for ‘sensitive security information’ (SSI) . . . and the ‘law enforcement privilege.’ At least 10 times the trial was interrupted and the public asked to leave so that such evidence could be presented,” despite the fact that “virtually all of the SSI about the workings of the TSDB and its allied complex of databases, including the no-fly list, is publicly known.”

The Ibrahim case strikes an important blow in favor of holding the government publicly accountable for its violations of the Constitution. One can only imagine how many innocent people have been caught up in the deeply flawed Kafkaesque system the government has created and refuses to correct. Benjamin Franklin’s cautionary words cannot be repeated enough. “They who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.”

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