J. D. Heyes
January 9, 2013
Never much on transparency, the Obama administration has been smacked down by a federal judge in California for attempting to use secret arguments and evidence to beat a lawsuit pertaining to a so-called no-fly list that is designed to keep suspected terrorists off airline flights.
U.S. District Court Judge William Alsup rejected a motion by the Justice Department to dismiss former Stanford student Rahinah Ibrahim’s lawsuit against a number of federal agencies after she was added to a no-fly list, as well an incident in September 2005 where she was prevented from boarding a flight from San Francisco and then detained for a few hours, Politico reported.
Alsup, who sits in the Ninth Circuit in San Francisco, also turned down Justice’s offer to show him affidavits from law enforcement agents that the government refused to share with Ibrahim or her lawyers.
Too hard to swallow
“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. “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.”
Continuing, he wrote: “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.”
The judge seemed especially upset regarding what he said was the department’s plan to retain possession of the confidential materials, which he noted would not be filed officially with the court.
“If the judge is correctly stating the government’s proposal,” writes Politico‘s Josh Gerstein, “it would be unusual even for cases involving classified information.”
No-fly list data is regularly shared with non-cleared airline personnel; it is not considered classified but instead is considered “sensitive security information” that the Transportation Security Administration has legal authority and control over.
Gerstein said the civil case is now slated to proceed to the discovery phase, adding that Alsup did not rule out consideration of specific evidence later on that the government could want to submit and keep under wraps, though he appeared to set a high standard for doing so. The judge said that the Justice Department would have to share any SSI that was relevant to the case with the plaintiff’s attorney.
According to other public accounts of the case, Ibrahim – a Malaysian national – may have been placed on the no-fly list when she was first denied access to a flight in 2005, though she was later moved to a “selectee” list of air travelers who are allowed to fly but are given extra security attention before boarding.
The U.S. ultimately revoked her visa, then denied her another one in 2009, “suggesting some ongoing security concern on the government’s part,” said Politico. When the government revoked her visa it cited possible terrorist activity, though specifics weren’t provided.
Not so much on transparency
Filed in 2006 the suit has twice been heard before panels of the U.S. Court of Appeals for the 9th Circuit. The most recent of those cases, in February 2012, held that Ibrahim indeed had standing to sue though she’s not a U.S. citizen and decided to voluntarily leave the country.
You may recall that the argument Justice Department lawyers used in order to “convince” the U.S. Supreme Court to sign off on the most controversial provision of the healthcare reform law – the individual mandate – was that it was a tax and, under Congress’ authority to tax, was therefore legal, though for months prior to the case President Obama and his administration vehemently resisted calling the mandate a tax.
The point is, the more this administration has claimed transparency, the less transparent – and honest – it has been.