A federal judge in California has rejected the Obama administration's effort to use secret arguments and evidence to defeat a lawsuit relating to the so-called no-fly list designed to keep suspected terrorists off of airline flights.
U.S. District Court Judge William Alsup turned down a motion by the Justice Department to dismiss former Stanford student Rahinah Ibrahim's lawsuit against various federal government agencies over her reported inclusion on the no-fly list as well as an incident in September 2005 where she was barred from taking a flight from San Francisco and detained for a couple of hours.
Alsup, who sits in San Francisco, also refused the Justice Department's offer to show him affidavits from law enforcement officials which the government would not share with Ibrahim or her attorneys.
"Here the government seeks to affirmatively use allegedly privileged information to dispose of the case entirely without ever revealing to the other side what its secret evidence might be," Alsup wrote in an order filed last week (and posted here). "Only in the rarest of circumstances should a district judge, in his or her discretion, receive ex parte argument and evidence in secret from only one side aimed at winning or ending a case over the objection of the other side. Here, the government has not justified its sweeping proposal."
"It has gone so far as even to redact from its table of authorities some of the reported caselaw on which it relies! This is too hard to swallow," Alsup wrote.
Alsup seemed particularly exercised by what he said was the Justice Department's proposal that it would hang on to the confidential materials, which he added would not be officially filed with the court. If the judge is correctly stating the government's proposal, it would be unusual even for cases involving classified information. A quick glance at the filings in the case suggests the government is following its typical process for cases involving sensitive information. (No-fly list data, which is regularly shared with uncleared airline personnel, is not considered classified but rather "sensitive security information" which the Transportation Security Administration has legal control over.)
The civil case will now proceed to discovery of relevant evidence. The judge did not rule out considering specific evidence later on that the government may wish to submit and keep secret, but he set a high bar for doing so. He also said the government would have to share any SSI relevant to the case with Ibrahim's counsel.
The public accounts of what happened to Ibrahim make it sound like the Maylaysian national may have been on the no-fly list when first denied travel in 2005, but was later moved to a "selectee" list of travelers who get extra security attention but aren't banned outright from traveling. However, the U.S. subsequently revoked her visa and denied her another one in 2009, suggesting some ongoing security concern on the government's part. The revocation cited actual or possible terrorist activity, but was not specific.
The lawsuit, filed in 2006, has already traveled twice to the U.S. Court of Appeals for the 9th Circuit. The most recent ruling, in February of this year, held that Ibrahim had standing to sue even though she's not a U.S. citizen and left the country voluntarily.
If the Obama administration really wanted to drop a bomb on the case, it could invoke the State Secrets Privilege in an effort to make the suit go away, but the courts might frown on an effort to do so at this point in the legal process.
Read more about: Transparency, Terrorism, Federal Courts, No-Fly List, Transportation Security Administration, Secret Evidence, Air Travel
- Bill Meyers · Top Commenter · University of Louisville
If Nixon had these same powers in his day, everyone under thirty would have been deemed a terrorist. If this country is so weak, we have to hide behind secret laws and secret decisions, it is FKed up more than anyone thinks.
David Brockett · Top Commenter · Muenster, Texas
You clearly know nothing about Nixon. Are you mouthing what your polisci professor told you? Compared to Bush and Obama Nixon was a piker in regards to individual rights and he made NO ATTEMPTS to classify anyone as a terrorist....cite your sources if you deem to slander someone dead and unable to defend himself.
Bruce Gregory · Top Commenter
Nixon's long gone and what he did was nothing compared to this administration and that of George W. To think there are people scratching their heads over all of the gun purchases is amazing. This is the administration to fear. Even if everything they do is for the children.
Wayne G Van Scoyoc · Top Commenter · Alexandria, Virginia
Next time I get a traffic ticket I will use Holder's defense that I have damning evidence against the officer, the radar and the rest of it but I can't reveal it because it would bring down the Obama Administration.
Elmo Sherman · Top Commenter
Barack Obama and Eric Holder are destroying this country one law at a time, and Nixon was not even in their league. Thsi Administration thinks they are above the law, Well done judge Alsup, keep them honest.
Darren Dupre · UT Dallas
While I commend this judge, please keep some perspective and understand that Obama is choosing to continue a policy that started under Bush. The problem we have with our Presidents ignoring the Constitution and relying on secret evidence and secret lists goes across party lines.
Milton Hicks
The courts are an irritation to the current administration. I anticipate soon that the courts will be eliminated or bypassed as unnecessary in a police state.
Unreal Uknow · Top Commenter
You are absolutely right. but it is not just the liberty stealing liberals who are trying to nullify the power of the courts. The GOP wants to do it also. In Florida the legislature tried to slip in a Constitutional Amendment that would have basically allowed the legislature to overrule the FLSCOTUS with a simple majority.
If we want to heal as a country, we need to take the politics out of appointing judges. No more appointments by the President of either party. I have a more reasonable approach that would remove the politics from those appointments, but won't get into it here.
Larry Nebel · Realtor at Alain Pinel Realtors
The "most transparent administration in History' actually is the most oppressive and secretive - our Imperial dictator is really scary - when even the California courts will not go along with his secretly trying people you know he is FAR past the line - holder and Big Sis are looking more and more like the SS and SA every day.
Neil J. Hayes · Top Commenter · Villanova University
Put this story in the context of the Government's and media's push to ban guns. We are slowly being placed in the position that the signing of a simple executive order would be enough to put politically disfavored people in secret jails without hearings or evidence. And they said Bush was crazy.
Rick Noakes · Annapolis High School
You might want to read up on the N.D.A.A. The government can already do that.
Chingatch Croute · Top Commenter
Don't ya just love "Secret Government"?
Gee, where has THAT been tried before?
Austin Lowrie · Commercial Manager at Levantina y Asociados de Minerales S.A.U
Unlawful order is an order rendered without jurisdiction. Every erroneous order or judgment of a Court is unlawful and for that reason may be reversed on appeal. [In re Cohen, 5 Cal. 494, 495 (Cal. 1855)].
Walk calmly and quietly from the train to the showers you should not worry they are only going to delouse you, your government knows best.
Scotty Starnes · Top Commenter
But, but, but...this is the self-proclaimed "most transparent administration in history." It truly is the most secretive in history and the best at ignoring/violating the US Constitution.
David Coker · Top Commenter · Dallas, Texas
Obama look to be deteriorating physically. Does he have some incurable illness? With all of the sordid reports of his past sexual deviant behavior, drug usage, his membership in Man's Country. Could it be that his past is catching up with him?
Jeff Carlock · Top Commenter
Two remarks of Lord Acton come to mind:
(1) “Power tends to corrupt and absolute power corrupts absolutely.”.
(2) “Every thing secret degenerates, even the administration of justice; nothing is safe that does not show how it can bear discussion and publicity.”.
However, anyone pretending to believe that government overreach is something new under Obama must have a VERY short memory - the federal government has been eroding civil liberties in the name of "security" for a long, long time (since the Alien & Sedition Acts under John Adams?) -- it has only accelerated since 2001 and shows no sign of slowing down.
Charlie Pluckhahn · Top Commenter
Who was this "Lord Acton," anyway, and most importantly, did he do anything useful like operate a distillery?
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