Archive for the ‘Papers, Please’ Category

Lessons from the first “no-fly” trial

Friday, February 14th, 2014

Information about what happened in Ibrahim v. DHS - the first “no-fly” case to make it to trial — has trickled out gradually, making it hard to get a clear picture of what has happened.

The court was cleared at least ten times during the week-long trial for testimony, introduction of evidence, and legal arguments that the government claimed had to be kept secret.  Many of the documents, exhibits, declarations, legal briefs, and even the judge’s opinion remain sealed, in whole or in part.  Key information has to be pieced together by reading between the redactions, or from passing mentions in open court, the meaning of which only becomes clear in light of other fragmentary revelations.

Most mainstream media didn’t cover the trial, covered it only from the written record, or attended only small portions of the proceedings.  We attended and reported on as much of the trial as was open to the public, but at times, we were the only reporter or member of the public in the courtroom.

The government still has until March 14th to decide whether to appeal, and the remaining sealed portions of the judge’s opinion aren’t scheduled to be released until April 15th. Key portions of Judge Alsup’s findings including what happened to Dr. Ibrahim’s US-citizen daughter are still secret. But in the meantime, what are our key takeaways from this trial?

(1) Congress needs to close the loopholes in the Privacy Act, which was enacted in 1974 to prevent exactly this sort of injustice, and would have done so but for its exemptions, exceptions, and lack of enforcement.

The purpose of the Privacy Act was to prohibit the government from using secret files as the basis for decisions about individuals, without allowing the subjects of those files to inspect and correct them. But agencies are allowed to exempt entire systems of records from these requirements. The DHS and the FBI (keeper of the Terrorist Screening Database which includes the “no-fly” list) have exempted their watchlists and blacklists and the allegedly derogatory information on which watchlisting and blacklisting decisions are based. In addition, although privacy is a human right protected by international treaty, the Privacy Act only protects U.S. citizens and residents. Other foreigners have no rights under this law, even when the U.S. government is using secret files to make decisions about their exercise of their rights.

(2) The watchlisting form and process incorporates presumptions in favor of surveillance and restrictions on travel, rather than presumptions of innocence and of travel as a right.

As was made clear in the latest redacted version of Judge Alsup’s findings, Dr. Ibrahim was placed on the “no-fly” list because FBI Agent Kelley left the box on the “nomination” form for “no-fly list ” blank:

This negative check-off form might look like poor user-interface design, but it actually exposes the real mindset of those who believe that travel is a privilege for which the traveler bears the burden of justification: “Better to restrict the rights of innocent people than to leave anyone off the watchlist.”  Once the threshhold decision to place a name on a “watchlist” is made, the default is a categorical ban on all air travel and the widest possible dissemination of the blacklist information to other agencies and other countries’ governments (TUSCAN to Canada and TACTICS to Australia).

(3) There are no meaningful internal or administrative safeguards on no-fly and watchlist decisions. Administrative agencies cannot police their own secret internal actions. Transparency and independent judicial review are the only way to safeguard rights.

The DHS and FBI have claimed that internal administrative reviews of watchlist “nominations” are adequate safeguards against wrongful agency actions, and make judicial review unnecessary.  In this case, Agent Kelley’s mistake was obvious on inspection, and would have been detected as soon as anyone checked whether the action ordered by the form was supported by the rest of the file.  Nobody did so until after Dr. Ibrahim had been arrested and further mistreated when she tried to check in for her flight.  If anyone “reviewed” or approved Agent Kelley’s nomination of Dr. Ibrahim to the no-fly list, they rubber-stamped the form without ever looking at the rest of the file, much less making an independent assessment of the factual basis for the decisions. This was the essence of Judge Alsup’s due process findings.

(4) The problem is not limited to the “no-fly list”, and there is no clear line between a “watchlist” and a blacklist. You can’t build a system of surveillance and individualized dossiers without it inevitably having consequences for people’s lives. The travel dataveillance system needs to be dismantled, and the whole database needs to be purged.

In the portion of her closing arguments conducted in open court, Dr. Ibrahim’s attorney, Ms. Elizabeth Pipkin, stated that Dr. Ibrahim and her daughter, Ms. Raihan Mustafa Kamal, had “the same status on the no-fly list”.

Presumably that common status was that neither woman was on the no-fly list. The  government claimed that its “mistake” (in placing Dr. Ibrahim on the no-fly list) was corrected the same day as her arrest in 2005, and that it had not prevented Ms. Mustafa Kamal from flying to San Francisco to attend and testify at her mother’s trial.

Neither Dr. Ibrahim nor Ms. Mustafa Kamal are on the “no-fly” list. But when FBI Agent Kelley’s mistake in putting Dr. Ibrahim on the no-fly list was corrected, she was moved to, or left on, one or more watchlists — as Agent Kelley had intended.  At some point Ms. Mustafa Kamal was also placed on one or more watchlists. Agent Kelly’s reasons for his intended decision to place Dr. Ibrahim (and perhaps Ms. Mustafa Kamal — we don’t know if she was watchlisted at the same time or separately, by whom, or why) on one or more watchlists remain secret, and were never disclosed to Dr. Ibrahim or her attorneys or reviewed by the judge. Because the government admitted that the no-fly listing was unwarranted and a mistake, the court never reached the question of what to do if the government claims that a listing was justified.

The “no-fly” list and the government’s other “watchlists” aren’t actually separate lists. Both are contained in the consolidated Terrorist Screening Database (TSDB). The only difference between a “watchlist” entry and “no-fly” entry is a flag associated with an entry on the consolidated list.

According to a post-trial government filing, “Kelley designated Dr. Ibrahim as ‘handling code 3.’… The majority of individuals in the TSDB are assigned the lowest handling codes – codes 3 and 4.”  That same “status” — not flagged as a “no-fly” listing, and with one of the lowest “handling codes” — was sufficient to cause the DHS to send a message to the airline on which Ms. Mustafa Kamal had reservations. That message induced the airline (as it was intended to do) to refuse to fulfill its duty as a common carrier or allow Ms. Mustafa Kamal to exercise her right, as a U.S. citizen, to travel to the US.

A watchlist sounds like a list of people who are subject to passive monitoring.  In practice, “watching” or surveillance isn’t aimless. It’s for the purpose of making decisions affecting individuals. In the case of Ms. Mustafa Kamal, some other “watchlist” status had the same negative consequence, denial of boarding by an airline, as “no-fly” status. Dr. Ibrahim’s watchlist status (and perhaps the fact that she had once been on the no-fly list) led to her being unable to obtain a US visa, even lafter she was removed from the no-fly list.

In the future, “watchlist” needs to be understood as a euphemism for a de facto blacklisto that allows a level of deniability: “You’re not on the no-fly list. We just advised the airline not to let you fly.”

There’s no hard line between passive surveillance and active interference with individual’s activities. This lesson is well known to the FBI: Sending the FBI to question your employer can get you fired, even if the FBI is in theory merely collecting information and doesn’t order or explicitly recommend that you be fired.

Surveillance is itself stigmatizing, and stigma has consequences. During the Ibrahim trial, the government argued, verbally and in written pleadings, that it had not stigmatized Dr. Ibrahim because it “never” disclosed Dr. Ibrahim’s status on its lists to “anyone”. But in fact, the government disclosed Dr. Ibrahim’s status on the list, and later that of her daughter, to the airlines. These are precisely the entities to which it would be most damaging to have this stigma (suspicion of  posing a threat to aviation) disclosed.

(5) The US government is willing to lie to the courts to try to hide its mistakes and misconduct.

Before, during, and after the trial, officials including Attorney General Eric Holder and Director of National Intelligence James Clapper and lawyers for the government defendants claimed that to disclose anyone’s status on any watchlist, or the basis (if any) for assigning that status, would “cause significant harm to national security.”

This continued even after Judge Alsup and Dr. Ibrahim’s attorneys knew how Dr. Ibrahim had been placed on the no-fly list and that the government did not consider her to pose any threat to aviation.

Dr. Ibrahim’s lawyers sought to depose Attorney General Holder and DNI Clapper regarding their sworn declarations supporting the assertion of “state secrets” privilege by Holder and the other defendants. On motion of Holder and the defendants, Judge Alsup quashed the subpoenas for those depositions.

On its face, the government’s assertion amounts to a claim that to disclose to the public that Dr. Ibrahim was put on the no-fly list because an FBI agent failed to check a box on a form would harm national security.

Does the government really expect us to believe that would-be terrorists are deterred by their belief that the FBI is infallible, so that disclosing that the FBI once made a mistake would unleash the forces of terror?

We don’t think so. The government lied to cover up its mistakes and to protect itself against deserved criticism, not to protect national security.

Remember that the next time the government claims that something must be kept secret “because terrorism”.

U.S. Embassy in Sana’a seizing U.S. citizens’ passports

Saturday, February 8th, 2014

Imagine that you are a US citizen living or traveling abroad.  Imagine that you go to the US Embassy to avail yourself of its “Consular Services” as a US citizen. Then imagine that embassy staff confiscate your US passport.

That’s what’s been happening to many, perhaps most, Yemeni-American US citizens who make the unwitting mistake (!) of showing their US passports at the entrance to the US Embassy in Sana’a, Yemen.

US citizens who have contacted us from Yemen for assistance have told us they believe that there are 500 or more US citizens now stranded in Sana’a, unable to leave Yemen or to return to the US without their passports.

One Yemeni-American who phoned us from Sana’a described going to the US Embassy to apply for a new US passport for his newborn child.  Any child of a US citizen is entitled by birth and parentage to US citizenship, and passports for children of US citizens born abroad are routinely issued by US embassies.

But instead of leaving the embassy with a new passport for his child, this Yemeni-American US citizen left the US Embassy without his own passport, which was confiscated without warning by embassy staff.  Other Yemeni-Americans have had their US passports seized when they visited the US Embassy in Sana’a for consular services in conjunction with Social Security or veterans’ benefits, visa or immigration applications for non-US citizen relatives, absentee voting in U.S. elections, or authentication of documents for other US government purposes.

A cable to Washington from the U.S. Embassy in Sana’a in 2009 released by Wikileaks (presumably among those leaked  by whistleblower Bradley Manning) revealed that the embassy in Sana’a was already treating all immigrant visa applications as “considered fraudulent until proven otherwise.” The current treatment of US passport holders suggests the embassy has expanded this presumption to US passports in Yemeni-American hands. It’s a clear-cut case of discrimination against certain US citizens on the basis of Yemeni national origin.

The seizure of passports from US citizens at the US Embassy in Sana’a was first reported last year in Yemeni expatriate publications, around the time we were first contacted from Yemen by one of the affected individuals.  But most of those affected were understandably unwilling to be identified publicly, lest it reduce their chances of getting out of limbo. It took some time for the scope of the problem to become apparent,  for the story to be picked up by mainstream media, and for some of those U.S. citizens stranded in Yemen to begin to begin to identify themselves and tell their stories publicly.

A coalition of civil liberties organizations has now launched a bilingual English and Arabic website, MyEmbassyRights.US, including information on legal assistance and a downloadable “Know Your Rights” informational pamphlet for US citizens preparing to deal with the US Embassy in Sana’a.

(more…)

More details of Judge Alsup’s decision in “no-fly” case

Thursday, February 6th, 2014

More details of Judge William Alsup’s decision in Ibrahim v. DHS, the first case challenging the US government’s “no-fly” list to go to trial, were made public today in the form of a redacted version of Judge Alsup’s findings, conclusions, and order.

In deference to the government’s insistence that even his verdict would reveal “secrets“, Judge Alsup originally issued his opinion and order temporarily under seal (to give the government a chance to appeal), accompanied by an unusual Public Notice and Summary.

Judge Alsup ordered the parties to try to agree on a redacted version of his opinion that both would allow to be made public. But after government’s lawyers declined to tell Dr. Ibrahim’s lawyers what, if any, portions of Judge Alsup’s opinion they believed had to be kept secret, or why, Judge Alsup ordered the government to file a minimally redacted version of the judge’s opinion by noon today.

The version of Judge Alsup’s order that the government has now made public still contains substantial redactions.  Some are surreal, such as the government’s belief that the public cannot be allowed to know Judge Alsup’s reasons for describing the treatment imposed on Dr. Ibrahim as “surreal”. Others are more substantive, such as the redaction of all of Judge Alsup’s finding concerning Dr. Ibrahim’s US-citizen daughter, who was prevented from traveling to the US to attend and testify at her mother’s trial.

But the government has, reluctantly, allowed us to know much more about why Dr. Ibrahim was treated so badly and what remedies Judge Alsup has ordered:

At long last, the government has conceded that plaintiff poses no threat to air safety or national security and should never have been placed on the no-fly list. She got there by human error within the FBI. This too is conceded. 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. That it was human error may seem hard to accept — the FBI agent filled out the nomination form in a way exactly opposite from the instructions on the form, a bureaucratic analogy to a surgeon amputating the wrong digit — human error, yes, but of considerable consequence. Nonetheless, this order accepts the agent’s testimony.

Since her erroneous placement on the no-fly list, plaintiff has endured a litany of troubles in getting back into the United States. Whether true or not, she reasonably suspects that those troubles are traceable to the original wrong that placed her on the no-fly list. Once derogatory information is posted to the TSDB, it can propagate extensively through the government’s interlocking complex of databases, like a bad credit report that will never go away. As a post-deprivation remedy, therefore, due process requires, and this order requires, that the government remediate its wrong by cleansing and/or correcting all of its lists and records of the mistaken 2004 derogatory designation and by certifying that such cleansing and/or correction has been accurately done as to every single government watchlist and database. This will not implicate classified information in any way but will give plaintiff assurance that, going forward, her troubles in returning to the United States, if they continue, are unaffected by the original wrong….

FBI Agent Kelley made a plain, old-fashioned, monumental error in filling out the VGTOF nomination form for Dr. Ibrahim. He checked the boxes in exactly the opposite way from the instructions on the form, thus nominating Dr. Ibrahim to the no-fly list (against his intention). This was the start of all problems in Dr. Ibrahim’s case. Surprisingly, Agent Kelley first learned of this mistake eight years later at his deposition.

Significantly, therefore, our case involves a conceded, proven, undeniable, and serious error by the government — not merely a risk of error. Consequently, this order holds that due process entitles Dr. Ibrahim to a correction in the government’s records to prevent the 2004 error from further propagating through the various agency databases and from causing further injury to Dr. Ibrahim. By this order, all defendants shall specifically and thoroughly query the databases maintained by them, such as the TSDB, TIDE, CLASS, KSTF, TECS, IBIS, TUSCAN, TACTICS, and the no-fly and selectee lists, and to remove all references to the designations made by the defective 2004 nomination form or, if left in place, to add a correction in the same paragraph that the designations were erroneous and should not be relied upon for any purpose. To be clear, no agency should even rely on Agent Kelley’s actual unexpressed intention to nominate to certain lists in 2004, for the form instructions were not properly followed. The designations in the November 2004 form should be disregarded for all purposes…. A deadline will be set for defendants to file declarations under oath attesting to compliance.

This order finds that suspicious adverse effects continued to haunt Dr. Ibrahim in 2005 and 2006, even though the government claims to have learned of and corrected the mistake. For example, after her name was removed from the no-fly list, the next day, Dr. Ibrahim was issued a bright red “SSSS” pass. Less than a month after she was removed from the no-fly list, her visa was “prudentially” revoked. In March 2005, she was not permitted to fly to the United States. Her daughter was not allowed to fly to the United States even to attend this trial despite the fact that her daughter is a United States citizen. After so much gnashing of teeth and so much on-the-list-off-the-list machinations, the government is ordered to provide the foregoing relief to remediate its wrong. If the government has already cleansed its records, then no harm will be done in making sure again and so certifying to the Court.

With respect to the government’s TRIP program, which does provide a measure of post-deprivation relief, this order holds that it is inadequate, at least on this record.

Judge Alsup castigated the government for promising explicitly not to rely on alleged “state secrets” in its defense, and then trying to do so during and after the trial.

In the end, Judge Alsup found it unnecessary to rely on any “secrets” because the government conceded that Dr. Ibrahim did not and does not pose any threat and that her name had been placed on the “no-fly” list by “mistake”.  While Judge Alsup was able to find that Dr. Ibrahim was denied due process of law, his discussion of what due process might require if the government claimed (perhaps on the basis of “secret” information) that a “no-fly” listing was justified was consigned to a footnote:

In the instant case, the nomination in 2004 to the no-fly list was conceded at trial to have been a mistake. In this sense, this is an easier case to resolve. Harder no-fly cases surely exist. For example, the government uses “derogatory” information to place individuals on the no-fly list. When an individual is refused boarding, does he or she have a right to know the specific information that led to the listing? Certainly in some (but not all) cases, providing the specifics would reveal sources and methods used in our counterterrorism defense program and disclosure would unreasonably jeopardize our national security. Possibly, instead, a general summary might provide a degree of due process, allowing the nominee an opportunity to refute the charge. Or, agents might interview the nominee in such a way as to address the points of concern without revealing the specifics. Possibly (or possibly not), even that much process would betray our defense systems to our enemies. This order need not and does not reach this tougher, broader issue, for, again, the listing of Dr. Ibrahim was concededly based on human error. Revealing this error could not and has not betrayed any worthwhile methods or sources.

We think that the proper basis for inclusion of a name on a no-fly list is a no-fly injunction or restraining order, issued by a judge, with its attendant due process. No other no-fly case has yet made it to trial, but sooner or later the courts will have to address the hypothetical situation described by Judge Alsup in this  footnote.

The government has not yet given notice of its intent to appeal Judge Alsup’s decision. (When, as in this case, one of the parties to the case is a federal agency, the deadline for filing a notice of appeal is 60 days after the judgement or order appealed. Judge Alsup’s decision was issued on January 14th, so the government has until March 14th to decide whether to appeal.) Unless the government appeals, the decision will become final and will be made public in its entirety, unredacted, on April 15, 2014.

9th Circuit overturns law making hotel guest registry an “open book” for police

Thursday, January 30th, 2014

Airlines and other common carriers aren’t the only travel companies that are sometimes required by governments to keep logs of their customers’ activities and make those records available to police.

Hotels, in particular, are often required or expected to spy on their customers for the (secret) police.

Sometimes, as in many European countries, this is mandated by national law. In the US, these requirements are more often encountered in state, county, and municipal codes.

The US Court of Appeals for the Ninth Circuit, after rehearing en banc, recently overturned one such local ordinance as being, on its face, a violation of the Fourth Amendment prohibition on unreasonable searches and seizures.

The ruling in Patel v. City of Los Angeles is indicative of what sorts of limits courts currently are, and aren’t, willing to put on these outsourced systems of government surveillance, and who has standing to challenge these requirements.

The case concerned Section 41.49 of the Los Angeles Municipal Code, “Hotel Registers and Room Rentals”, which requires that (1) any guest arriving without a reservation or paying for a room in cash must present a government issued identification document, (2) information about each guest including the details of the guest’s ID document and the license number of any vehicle parked on hotel premises by the guest must be recorded by the hotel in a written log book, card file, or electronic database, and (3) this guest register must be kept on the hotel premises, at or near the guest reception or check-in area, and “made available to any officer of the Los Angeles Police Department for inspection” at any time.

It’s only that last detail of the law — the requirement that the guest register be “made available” to any police officer without warrant, without the consent of the hotelier or the guest, without any requirement for suspicion or probable cause, and without any possibility of judicial review of police demands for the guest register — that was overturned by the 9th Circuit.  The ID requirement in the L.A. ordinance was not challenged in this case.

The en banc majority in Patel v. City of Los Angeles starts by taking for granted that information provided by a guest in order to satisfy government conditions on the rental of a place to sleep is being provided “voluntarily”:

To be sure, the guests lack any privacy interest of their own in the hotel’s records. United States v. Cormier, 220 F.3d 1103, 1108 (9th Cir. 2000); see United States v. Miller, 425 U.S. 435, 440 (1976). But that is because the records belong to the hotel, not the guest, and the records contain information that the guests have voluntarily disclosed to the hotel.

Whatever validity this doctrine might have with respect to information provided “voluntarily” to a third party, a disclosure is scarcely “voluntary” when, as in this case, (a) it is required by law as a condition of availing oneself of the services of a place of public accommodation, and (b) the alternative to disclosure is sleeping in the street or on the sidewalk.  (Under another provision of the same LA Municipal Code, it’s illegal to sit, lie, or sleep in the street or on the sidewalk In the City of Angels. But as part of a settlement following an earlier, now voided, ruling by the 9th Circuit, the LAPD has agreed not to enforce that provision of the law.)

People with no other place to sleep have a “choice” of whether to rent a room or walk the streets all night the same way people required to show government-issued ID in order to fly from Hawaii to the US mainland have a “choice” of whether to fly or walk on water.

But the 9th Circuit was able to find the law in violation of the 4th Amendment, despite this fictive “voluntariness”, because the lawsuit was brought by hotel owners, not hotel guests.  It’s the hoteliers’ rights that the court found were violated by (involuntary) warrantless, suspicionless, extrajudicial police inspection of their business records about their guests.

We salute Naranjibhai Patel, Ramilaben Patel, and the Los Angeles Lodging Association for using their legal standing to challenge this law and insist that the police go to a judge and come back with a warrant.

Most travel companies are only too happy to collaborate with government agencies in spying on their customers. They’d prefer that governments pay them for their work as informers and data collectors, of course. But even without cash compensation, they benefit from being able to blame the government for intrusive demands for credentials and personal information, while getting a free ride to monetize this government-coerced informational windfall for their own marketing and other purposes.

We can find no record of any other case in which a travel company has challenged government demands for information about travelers. Nor have we found any travel company that makes public what government requests or demands it has received for data about its customers, how it has responded to those requests or demands, or how much information it has handed over.  (Google publishes a “transparency report” for its Web services, but makes no mention of the exchanges of data between Google’s ITA Software airline reservations and PNR-hosting component and government agencies in the US or abroad.)

Police have plenty of ways to make life hard for the proprietors of mom-and-pop motels on skid row.  If the plaintiffs in Patel v. City of L.A. could say “No” to big-city police demands for information about their customers and guests, and prevail in court, so could major hotel chains and other large travel companies. Travelers should demand that they do so.

Does a US citizen need the government’s permission to return to the US?

Tuesday, January 28th, 2014

Do you think that if you are a U.S. citizen you have a right to return to your country, and don’t need “authorization” from the US government?

Article 12, section 4 of the ICCPR (a treaty ratified by and binding on the US) provides that “No one shall be arbitrarily deprived of the right to enter his own country.” And the right of US citizens to enter the US has long been recognized as one of the most fundamental aspects of the Constitutional right to travel.

But it appears that’s not what the US government thinks:

(Click image for larger version.)

This bizarre “yes-fly” document, first made public today and first published here, was provided to lawyers for Dr. Rahinah Ibrahim on the fourth day of the week-long trial last month of Dr. Ibrahim’s lawsuit challenging her placement on the US government’s “no-fly” list.

The day before the trial began, Dr. Ibrahim’s US-born US-citizen daughter, Ms. Raihan Mustafa Kamal, was denied boarding on the first of a set of connecting flights she had booked from Malaysia to to San Francisco to attend and testify at her mother’s trial.

Lawyers for the government defendants, including US Customs and Border Protection (CBP), claimed that they had “confirmed that the defendants did nothing to deny plaintiff’s daughter boarding…. she just simply missed her flight. She has been re-booked on a flight tomorrow. She should arrive tomorrow.”

As it turned out, none of those claims were true. Ms. Mustafa Kamal hadn’t “missed” her flight. She showed up on time, but , but was denied boarding as a result of an email message from CBP to the airline. She wasn’t booked on any other flight, and she never made it to her mother’s trial.

At a hearing held the afternoon after the rest of the trial had concluded, Dr. Ibrahim’s lawyers presented a sworn declaration from Ms. Mustafa Mamal including a copy provided to her by Malaysia Airlines of the email message from CBP that led to her being denied boarding.

In response to Judge Alsup’s demands (”I want a witness from Homeland Security who can testify to what has happened. You find a witness and get them here…. I want to know whether the government did something to obstruct a witness”), the defendants brought the director of the CBP’s National Targeting Center, Ms. Maureen Dugan, to San Francisco to testify and face cross-examination about what had happened to Ms. Mustafa Kamal. At the defendants’ insistence, however, the courtroom was cleared of spectators for all of Ms. Dugan’s testimony and the remainder of that hearing.

The defendants also filed a declaration from Ms. Dugan. That declaration was filed “under seal”, but after his verdict Judge Alsup reiterated his order that a  summary or redacted version of each sealed document, specifically including Ms. Dugan’s declaration, be made public.

Today the government defendants filed a redacted version pf Ms. Dugan’s declaration about what happened to Ms. Mustafa Kamal, including the “AUTHORIZATION TO TRANSPORT UNITED STATES CITIZEN TO THE UNITED STATES” reproduced above.

So now, as a result of this case and specifically as a result of CBP’s misconduct with respect to Ms. Mustafa Kamal, we have seen for the first time both a no-fly message and a yes-fly message.

What can we learn from these strange goings-on and communications?

The US government seems to think that even US citizens need the government’s permission to travel to the US. The CBP didn’t issue a reminder to airlines or other common carriers of their general obligation to transport all qualified would-be passengers, or sanction the airline for denying boarding to Ms. Mustafa Kamal despite her undisputed US birth and US citizenship.

Rather, the CBP issued an individualized, time-limited authorization to airlines to transport Ms. Mustafa Kamal to the US. Such affirmative, individualized “authorization” would make no sense unless the default, even for a US citizen, is, “NO.”

This is a blatant violation of US citizens’ Constitutional rights, and of US obligations as a party to the ICCPR.

(A somewhat similar “Transportation [Authorization] Letter” is discussed on p. 46 of the CBP  Carrier Information Guide for airlines. But the example shown in the Carrier Information Guide is for a non-US citizen whose “Green Card” has been lost, stolen, or damaged while they are abroad, and who needs temporary evidence of permanent US residency to be able to return to the US to get her Green Card replaced.  A Green Card — US permanent residency document — can’t be replaced outside the US, but a passport can. So it’s unclear why a US citizen would need such a document in lieu of an emergency passport, or why it would be considered better evidence of US citizenship than a passport.)

But why did CBP send a “possible no-board request” with respect to Ms. Mustafa Kamal?

Was Ms. Mustafa Kamal, like her mother, “mistakenly” placed on the no-fly list? Dr. Ibrahim’s lawyer — who knows Dr. Ibrahim’s status on or off the no-fly list, but is not allowed to disclose this information to her client or to the public — stated in open court during closing arguments that Ms. Mustafa Kamal’s status on the “no-fly” list was “the same as that of her mother”.  But it seems more likely, from the rest of what has been claimed publicly, that neither of them are currently on the no-fly list.  If Ms. Mustafa Kamal were, in fact, on the no-fly list, it would have been an out-and-out lie for government lawyers to tell Judge Alsup that their client CBP was not responsible for the airline’s denial of boarding to Ms. Mustafa Kamal.

A more likely explanation is that Ms. Mustafa Kamal and her mother are currently both on what was described euphemistically in pleadings made public in redacted form yesterday as a “watchlist”, but which is used in a manner that results in it functioning as a de facto blacklist with the same effect as the “no-fly” list.  The email message sent to the airline didn’t say anything explicit about the no-fly list, but its natural and foreseeable consequence was that Ms. Mustafa Kamal would be denied boarding — as in fact she was.

Perhaps most disturbingly, this suggests that the government could nominally comply with Judge Alsup’s order to remove Dr. Ibrahim from the “no-fly” list, but keep her on a “watchlist” that has the same effect.

Only if Dr. Ibrahim gets a US visa (which seems unlikely) and tries to travel to the US, or if she tries to fly on a US-flag carrier (such as on United Airlines from Singapore to Hong Kong or Tokyo), or if Ms. Mustafa Kamal tries again to travel to the US, are we likely to learn more about what actual US government actions and restrictions either of them is subjected to. That, and not the label placed on any list, is what matters.

Judge orders more disclosure about what happened to daughter of plaintiff in “no-fly” trial

Wednesday, January 22nd, 2014

One of the most disturbing aspects of the trial last month in Dr. Rahinah Ibrahim’s lawsuit challenging her placement on the US government’s “no-fly” list was what happened to Dr. Ibrahim’s daughter, Ms. Raihan binti Mustafa Kamal.

Ms. Mustafa Kamal, a lawyer and member of the Malaysian bar, was born in the US and is a US citizen.  She accompanied her mother to the airport in Kuala Lumpur in March 2005 when, after having been allowed to travel from the US to Malaysia (and after being assured that the “mistake” that led to her arrest when she tried to leave San Francisco had been corrected), Dr. Ibrahim was prevented from board a flight back to the US.

The government defendants had been notified that Ms. Mustafa Kamal might testify at her mother’s trial, as an eyewitness to these events.  But the day before the trial, when Ms. Mustafa Kamal tried to board a flight in K.L. that would connect her to San Francisco, she was denied boarding as a result of a message sent to the airline by US Customs and Border Protection (CBP), one of the defendants in the lawsuit. Ms. Mustafa Kamal never made it to the US for her mother’s trial.

The afternoon following the conclusion of the trial, Judge William Alsup held a hearing behind closed doors at which the government defendants presented a written declaration and in-person testimony about what happened to Ms. Mustafa Kamal from Maureen Dugan, Director of the CBP’s “National Targeting Center”.  That declaration and that testimony are likely to have provided the most detailed explanation yet provided in any US legal proceeding as to the mechanisms by which an entry on a “watchlist” is translated into messages to, and action by, an airline that denies boarding to an individual.

After this hearing, Judge Alsup offered Dr. Ibrahim opportunities to request that he re-open the case the presentation of evidence to allow Ms. Mustafa Kamal time to make another attempt to travel to the US to testify. But Dr. Ibrahim’s lawyers declined that offer:

At the closed hearing on Friday, December 6, 2013, regarding the travel difficulties of plaintiff’s daughter, Raihan Mustafa Kamal, the Court allowed plaintiff the opportunity to consider whether to re-open evidence for Ms. Mustafa Kamal to testify. Because of concerns about the safety and liberty of Ms. Mustafa Kamal were she to attempt to travel to the United States, plaintiff elects to proceed on the evidence presented at the trial.

As we noted at the time, the most obvious potential concern for Ms. Mustafa Kamal is that she might be allowed to fly to the US, but then not allowed to return to Malaysia, where she lives and works.

The transcript of the December 6, 2013 hearing, along with the rest of the transcripts of closed portions of the trial, remains sealed, at least for now, pending the possibility of government appeals. In addition, despite Judge Alsup’s orders that any sealed written filings in the case musty be accompanied by versions redacted for publication or public summaries, no public summary or redacted version of Ms. Dugan’s declaration has been filed.

Judge Alsup has now ordered the government defendants to file a public version of Ms. Dugan’s declaration about what happened to Ms. Mustafa Kamal by January 28, 2013.  We expect that the government’s redactions will, as usual, be excessive and unjustified. But at a minimum, this will compel the government to further refine exactly what about this case it thinks need to be kept secret from the public, and why.

“No-fly” trial: What happens now?

Monday, December 9th, 2013

Today lawyers representing Dr. Rahinah Ibrahim in the first lawsuit challenging a no-fly order to make it to trial filed a notice with the court in San Francisco that they would not seek to re-open the case to present more evidence from and/or regarding Dr. Ibrahim’s daughter, Raihan Mustafa Kamal.

Ms. Mustafa Kamal, who unlike her mother is a U.S. citizen, was with her mother on one of the occasions when she was denied boarding, and was to have been a witness in her mother’s case. But Ms. Mustafa Kamal was herself denied boarding at the behest of the CBP (one of the defendants in the case) when she tried to fly from Malaysia, where she lives, to San Francisco for the trial last week.

In today’s filing, Dr. Ibrahim’s lawyers said that

At the closed hearing on Friday, December 6, 2013, regarding the travel difficulties of plaintiff’s daughter, Raihan Mustafa Kamal, the Court allowed plaintiff the opportunity to consider whether to re-open evidence for Ms. Mustafa Kamal to testify. Because of concerns about the safety and liberty of Ms. Mustafa Kamal were she to attempt to travel to the United States, plaintiff elects to proceed on the evidence presented at the trial, with one caveat that plaintiff mentioned at the hearing on Friday. [emphasis added]

The most obvious potential concern for Ms. Mustafa Kamal is that she might be allowed to fly to the U.S., but then not allowed to return to Malaysia, where she lives and works.

The “caveat” mentioned in today’s filing is that Dr. Ibrahim’s lawyers want to be allowed to refer to the evidence about what happened to Ms. Mustafa Kamal as evidence relevant to what happened to her mother:

Ms. Mustafa Kamal’s status and the effects of [it] are relevant to Dr. Ibrahim’s right to travel. The government has denied the very adverse effects for Dr. Ibrahim that Ms. Dugan’s testimony proves in fact occur.

We are extremely grateful to the anonymous reader who came forward with an offer to pay for a ticket for Ms. Mustafa Kamal — who said in her declaration that she could not afford another one — if she wanted to make another attempt to fly to San Francisco to testify in person. We were able to communicate that offer to Dr. Ibrahim’s payers before they filed their notice with the court today.

Friday’s hearing with respect to Ms. Mustafaf Kamal was closed to the press and public, and no orders from the court have been made public with respect to any of the issues it might have raised.

[Update: On Tuesday, Dec. 10, 2013, Judge Alsup requested further briefing, to be completed by December 20th, on whether the evidence concerning what happened to M.s Mustafa Kamal can be considered by him in reaching his decision in Dr. Ibrahim's case.]

Judge William Alsup has ordered each side to file proposed findings of fact and law by this Friday, December 13, 2013. He has also requested additional briefing on which categories of information claimed by the government to be “secret” can be accepted as evidence, and which of that evidence can be made public. The brief on this issue from Dr. Ibrahim’s lawyers is especially interesting.

Judge Alsup reserved judgement on many of these issues related to government claims of “secrecy”. He could still decide to exclude some evidence previously admitted provisionally, or to make public some exhibits filed under seal and/or transcripts of some portions of the trial for which the courtroom was cleared.

Judge Alsup could schedule additional oral argument on any of these issues, but normally a judge who has heard such a bench trial would issue a written opinion, without further hearing, some weeks or months later.  There is no deadline or standard schedule for the issuance of such an opinion.

Reports on the trial in Ibrahim v. DHS:

    Court records:

    Updates and other articles:

    “No-fly” trial, day 5, part 2: What happened to the plaintiff’s daughter?

    Saturday, December 7th, 2013

    “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.”

    Neither the public, nor Dr. Rahinah Ibrahim, nor her daughter, Seattle-born U.S. citizen Raihan binti Mustafa Kamal, yet know why a U.S. Customs and Border Protection Officer sent the email message excerpted above  to the airline on which Ms. Mustafa Kamal was scheduled to fly to San Francisco last Sunday to testify at the trial in Dr. Ibrahim’s lawsuit challenging her placement on the U.S. no-fly list. (Click the image for a larger version or here for the complete e-mail forwarding thread.)

    We do know, however, that whatever happened when Ms. Mustafa Kamal showed up at Kuala Lumpur International Airport (KUL)  two hours and 45 minutes before the scheduled departure of her flight and tried to check in, it certainly wasn’t (and CBP’s lawyers in San Francisco certainly couldn’t later have “confirmed”, as they claimed to the court on Monday), that Ms. Mustafa Kamal “just simply missed her flight”.

    Friday afternoon, after what was to have been the conclusion of the trial in Ibrahim v. DHS, Judge William Alsup held an evidentiary hearing and heard argument from lawyers for Dr. Ibrahim and the government regarding what happened to Ms. Mustafa Kamal and what (if anything) he should do about it.

    (See our separate article about the morning session, including the possibility of bar complaints against some of the government’s lawyers and a history lecture from Judge Alsup to the government about the blacklisting of Robert Oppenheimer on the basis of secret, false, allegations that he was a Communist: “No-fly” trial, day 5, part 1: Closing arguments.)

    At the insistence of the government and on the basis of a declaration submitted in advance by the one witness, and over objections by Dr. Ibrahim’s lawyers, the courtroom was cleared for almost the entirety of both the hearing and the argument.  The only in-person witness, Ms. Maureen Dugan, Director of the “National Targeting Center” operated by the Customs and Border Protection (CBP) division of DHS, was questioned only behind closed doors, and her additional written declaration was filed with the court under seal.

    Dr. Ibrahim’s lawyers were unable to present her side of the story through in-person testimony, of course, since the U.S. government agencies which are the defendants in the case have prevented both Dr. Ibrahim and Ms. Mustafa Kamal from coming to the U.S. for the trial. But a sworn written declaration by Ms. Mustafa Kamal, including the email message from CBP  that led to her being denied boarding when she tried to fly to San Francisco last Sunday for the trial, was filed in the public court docket.

    Following the hearing, Dr. Ibrahim’s lead counsel, Elizabeth Pipkin, said that at the conclusion of the closed court session Judge Alsup ruled:

    1. That the parties could refer to the events, exhibits, and testimony related to Ms. Mustafa Kamal in their proposed findings of fact and conclusions of law in Dr. Ibrahim’s case, and
    2. That Dr. Ibrahim and her lawyers would be allowed until noon Monday, December 9th, to decide whether to move to re-open the case.

    If the case is re-opened, the parties would be able to present new evidence, call new witnesses, and/or re-call witnesses including government witnesses whose original testimony might be contradicted and whose credibility might be impeached by what happened to Ms. Mustafa Kamal and what statements they made about it.  Ms. Mustafa Kamal could even be called as a witness, if she could find the money for another airline ticket and make it to the U.S. (In her declaration, she says that her original ticket cost MYR5751, equivalent to US$1782, and she can’t afford another ticket at that price.  It’s already peak season for trans-Pacific travel to and from SFO, and on many airlines seats are unavailable at any price until after New Years.)

    Aside from seeing Ms. Dugan enter and leave the closed courtroom, and what Ms. Pipkin said afterward about Judge Alsup’s rulings, we don’t know what the government may have claimed to Judge Alsup.

    But when read closely, the public filings from Ms. Mustafa Kamal raise extraordinary questions of whether CBP and DHS have:

    1. Misrepresented their operations in official statements including their most recent formal report to the European Union on how they use airline reservation data,
    2. Tried to secretly strip a person born in the U.S. of her citizenship through some secret administrative action or deem her “inadmissible” to the U.S. despite her U.S. citizenship, and/or
    3. Misled the airline about the basis for their no-board request, and manipulated the airline through those false pretenses into wrongly denying boarding to Ms. Mustafa Kamal despite the fact that she is a native-born U.S. citizen with an absolute, unconditional, and irrevocable entitlement to admission to the U.S.

    (more…)

    “No-fly” trial, day 5, part 1: Closing arguments

    Saturday, December 7th, 2013

    Judge William Alsup convened day five of the trial in Ibrahim v. DHSthe first lawsuit challenging a U.S. government “no-fly” order to  make it to trial — on Friday morning with the announcement that, “I received this additional material about the [plaintiff's] daughter and her attempts to come here.”

    But as he said this, Judge Alsup noticed that lead counsel for both parties were still conferring in the corridor outside the courtroom.  When they were brought in a moment later, Dr. Ibrahim’s lead attorney Elizabeth Pipkin came forward with an even more unexpected announcement: “We have told opposing counsel that we are considering the possibility of bar complaints against some of the attorneys on their team for their conduct during this trial.”

    “There is some concern that on our team there have been some blatant misrepresentations made to the court,” one of the supervising attorneys for the Department of Justice team representing the government explained.

    “I don’t know what you’re talking about,” Judge Alsup said. What exactly was he supposed to do?

    Ms. Pipkin said she wasn’t asking Judge Alsup to do anything, and further volunteered that she had assured the government’s legal team that no such complaints would be made until after the conclusion of the trial.

    But one of the government’s supervising attorneys told Judge Alsup she was concerned about compliance with internal rules of  her agency that require that in cases where a supervising attorney is aware of the potential for bar complaints against a government lawyer, the supervisor is required to reassign that lawyer from the case while the possible complaint is pending.

    That appeared to be an internal matter within the government’s legal team, and there didn’t seem to be anything for Judge Alsup to do.  No announcement was made as to the departure of any of the government’s lawyers, but with a team one observer counted as ten lawyers and three paralegals before the bar on the defendants’ side, it was hard to keep track of whether one of them might have gone missing for the rest of the day.

    Ms. Pipkin told the judge that, “We would prefer to take up the issue of the daughter first,” before closing arguments. “It’s integral to the case, and shows exactly what the issues are.” But Judge Alsup decided he wanted to get the closing arguments over with first, and scheduled a separate hearing regarding Dr. Ibrahim’s daughter after lunch. (See our separate report on that later hearing, which produced even more shocking revelations: “No-fly” trial, day 5, part 2: What happened to the plaintiff’s daughter? )

    Each side to was allowed to make a 30-minute closing statement in open court, after which the courtroom was cleared and each side was allowed an additional 15 minutes to make arguments behind closed doors based on, or referring to, evidence that the government contends cannot be disclosed to the public.

    “This case is about the right to travel freely, without government interference,” Ms. Pipkin began the public portion of her closing.

    “Dr. Ibrahim is not able to be here because the government has not issued a visa for her to do so. She wants to maintain and enrich her ties to colleagues and institutions in the U.S. She has substantial ties to the U.S. But she has been unable to travel to the U.S. since 2005.”

    Ms. Pipkin predicted — correctly –  that, “The government will say that there’s been no real harm” to Dr. Ibrahim from the defendants’ actions because she’s been incredibly successful in her career and has been able to travel to other places. “But she has been denied access to the most important country in the world for research and scholarship. She wants to commercialize the patented inventions that she had made in her research, but she has been denied access to the most important center of entrepreneurship and investment in the world. She has been denied permission to travel to the U.S. to petition for redress of her grievances.”

    (more…)

    TSA’s lying “response” to today’s story in the New York Times

    Tuesday, October 22nd, 2013

    TSA-Pre-Crime

    We’re quoted on the front page of today’s New York Times in a story by Susan Stellin, “Security Check Now Starts Long Before You Fly”:

    The Transportation Security Administration is expanding its screening of passengers before they arrive at the airport by searching a wide array of government and private databases that can include records like car registrations and employment information….

    “I think the best way to look at it is as a pre-crime assessment every time you fly,” said Edward Hasbrouck, a consultant to the Identity Project, one of the groups that oppose the prescreening initiatives. “The default will be the highest, most intrusive level of search, and anything less will be conditioned on providing some additional information in some fashion.”

    More:

    The TSA refused to say anything to the Times on the record, but published a blog post today (with the misleading title “Expediting Screening for the Traveling Public”) responding to the Times’ story with a succession of lies and prevarications.

    We call “bullshit” on the TSA:

    • “We are not using “private databases.”" This is an out-and-out lie, as “Blogger Bob” and the TSA surely know. All TSA pre-secreening systems relie primarily on information from private commercial databases of airline reservations (PNRs). Since there is no requirement for a U.S. citizen to notify the government directly before taking a trip by common carrier, “pre-screening” would be impossible without access to, and reliance on, these private commercial databases. The US government has gone to great effort, through the APIS,  PNR, and Secure Flight regulations and through lobbying for changes to Canadian privacy law and exceptions to European privacy law, to implement requirements for DHS access to this data.  If these databases are no longer “private”, that is only because the TSA and other DHS components have compelled airlines and reservation hosting companies to make this data available to government agencies.
    • “TSA does not monitor a passenger’s length of stay in any location.” The TSA doesn’t always retain the travel itinerary information it compels airlines to provide for domestic travel, but it claims the right to do so for anyone deemed (arbitrarily or according to secret criteria) to be “suspicious” or to “match” an entry on any of the government’s (arbitrary, secret) “watchlists”.  And for international travel, CBP (another DHS component agency) does retain complete PNR data, including travel itineraries, and comprehensive border crossing and entry/exit logs, for all travelers, in its Automated Targeting System (ATS) — and claims the right to “share” all this data with the TSA. (And that doesn’t even begin to consider the NSA’s apparently independent hacking of airlines and reservation systems and potential sharing of PNR and other travel data with DHS.)
    • “We are not using car registrations.” Again, it’s CBP rather than the TSA that is logging license plates and vehicle movements (using cameras near borders and optical character recognition software), linking them to individual ATS records, and using them to generate “risk” scores and watchlist messages — which are then passed on to the TSA.  TSA is using this data, just (slightly) indirectly. According to the latest System Of Records Notice for ATS, published in the Federal Register in 2012, “ATS maintains the official record for … the combination of license plate, Department of Motor Vehicle (DMV) registration data and biographical data associated with a border crossing”.
    • “[W]e rely on the same security information passengers have been required to submit at time of booking for many years…. [T]he info we rely on is the same info that passengers have provided for years when they book their flight.” Actually, we didn’t used to have to provide our ID number, date of birth, or gender in order to make an airline (or Amtrak train, or Greyhound bus) reservation. It used to be possible to hold airline reservations in “dummy” names, or with no names at all. The TSA relies on information that has only been required since the creation of the TSA. And in the past, we “provided” that information, if at all, only to airlines and travel companies. Prior to the creation of the TSA, we never had to provide any information to the government to book a flight.  (Unless we were traveling in a foreign country where a foreign government agency like the Stasi required us to show our ID cards or permission papers to book a flight.)
    • “Anyone who has never traveled outside the United States would not have a passport number on file and would therefore not be subject to the rules that the agency uses to determine risk.” Nonsense. Many people have our passport numbers on file with the TSA because we’ve used our passports as ID for domestic flights.  Many people have no government-issued ID except a passport.  Despite the State Department’s moves to make it more difficult to get a passport, the REAL-ID  law sometimes makes it even more difficult to get a drivers license or other state-issued ID than to get a passport.
    • “We are not expanding the type of information we use.” If that were true, why would the TSA have published formal notices in the Federal Register of new systems of records and new uses for existing systems of records?  They don’t publish these legal notices just for fun. Either (a) the TSA has already been illegally collecting and/or using this data without proper notice, in violation of the Privacy Act (as DHS did for years with the Automated Targeting System), (b) the TSA is doing what is says in the notices it is doing, and collecting and using new information in new ways, or (c) the TSA plans to do so in the future, and wants to be able to say, if someone later complains, “But we gave you fair notice that this was what we were going to do. If you wanted to object, you should have done so back in 2013 when we published that notice.”
    • “[W]e are not using any new data to determine low risk passengers.” Applicants for the TSA’s Pre-Check program — i.e. people who want to be relieved of suspicion-by-default and the associated more intrusive search each time they travel — are being required to provide information that the TSA has never before requested, including fingerprints, other biometric information, and authorization for checks of criminal, financial, and other government and commercial records.  If the TSA isn’t using any of this new data, why is it compiling it? More than likely, this new data is being or will soon be used — and retained for possible additional future uses for an unknown range of purposes.

    [TSA Pre-Crime graphic from Leaksource]