After seven years of litigation, two trips to a federal appeals court and $3.8 million worth of lawyer time, the public has finally learned why a wheelchair-bound Stanford University scholar was cuffed, detained and denied a flight from San Francisco to Hawaii: FBI human error.
FBI agent Kevin Kelley was investigating Muslims in the San Francisco Bay Area in 2004 when he checked the wrong box on a terrorism form, erroneously placing Rahinah Ibrahim on the no-fly list.
“He checked the wrong boxes, filling out the form exactly the opposite way from the instructions on the form,” U.S. District Judge William Alsup wrote in his opinion.
“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.”
“In stubborn resistence to letting the public and press see the details of this case, the government has made numerous motions to dismiss on various grounds, including an overbroad complete dismissal request based on state secrets. When it 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”), 49 U.S.C. 114(r) and 49 C.F.R. 1520.5, and the “law enforcement privilege.” Roviaro v. United States, 353 U.S. 53, 59 (1957). At least ten times the trial was interrupted and the public asked to leave so that such evidence could be presented.”
Instead of admitting to the error, high-ranking President Barack Obama administration officials spent years covering it up. Attorney General Eric Holder, Director of National Intelligence James Clapper, and a litany of other government officials claimed repeatedly that disclosing the reason Ibrahim was detained, or even acknowledging that she’d been placed on a watch list, would cause serious damage to the U.S. national security. Again and again they asserted the so-called “state secrets privilege” to block the 48-year-old woman’s lawsuit, which sought only to clear her name.
Here are selected quotations, gleaned from the public court docket, of government officials who sought to have Ibrahim’s case dismissed over a span of two presidential administrations:
“My assertion of the state secret and statutory privileges in this case precludes defendant or any other agency from making any response, including through document production or deposition testimony, that would serve to disclose classified information regarding plaintiff or any other individual; the sources, methods, and means by which classified information is collected; and information which would confirm or deny whether information regarding plaintiff or any other individual is in NCTC’s TIDE database.” — James Clapper, director of national intelligence, April 23, 2013.
“Second, I agree with the FBI that disclosure that an individual is not a subject of an FBI counterterrorism investigation could likewise reasonably be expected to cause significant harm to national security. As the declaration explains, if the fact that some persons are not subject to investigation is disclosed, while the status of others is left unconfirmed, the disclosure would reveal that the FBI has had an investigative interest as to those other particular persons. Allowing such disclosures would enable individuals and terrorist groups alike to manipulate the system to discover whether they or their members are subject to investigation. Further, individuals who desire to commit terrorist acts could be motivated to do so upon discovering that they are not being monitored.” — Eric Holder, attorney general, April 23, 2013.
“But a trial on the central harm identified by Plaintiff and the Court — the alleged inability to travel internationally, including to the United States — cannot fully be adjudicated without the information subject to the state secrets privilege.” — *Paul G. Freeborne, Department of Justice senior trial counsel, Nov. 12, 2013.
“Public disclosure of the identity of individuals on the No Fly List or Selectee List would compromise the safety and security of passengers by providing terrorists with information that may reveal which of their members have been compromised, and which of their members may board an aircraft without any form of enhanced security. For these reasons, TSA’s regulations expressly prohibit the disclosure of the contents of Security Directives and Emergency Amendment…” –Joseph C. Salvator, Transportation Security Administration then-deputy assistant administrator for intelligence, May 22, 2006.
“Plaintiff directly challenges the No Fly list, arguing that her alleged placement on this list violated her First and Fifth Amendment rights, and caused her to be arrested by local law enforcement personnel allegedly in violation of her Fourth Amendment rights. These claims are inescapably intertwined with the procedures and merits of the No Fly list itself and must, therefore, be dismissed. —John R. Tyler, Department of Justice trial attorney, May 22, 2006.
Judge Alsup’s decision makes Ibrahim, 48, the first person to successfully challenge placement on a government watch list.
Gotta love this passage from the Judge’s ruling in that no-fly list case: “given the Kafkaesque ██████████████” pic.twitter.com/UcfBZbjmX1
— Ryan Gallagher (@rj_gallagher) February 7, 2014