Res Ipsa Loquitur: The Justice Department’s Censored Judicial Opinion Revealed At Last
Dr. Rahinah Ibrahim challenged the constitutionality of her inclusion on the No Fly List and won. She was the first such plaintiff to obtain an actual trial — let alone victory — in federal court. That bench trial took place in December in San Francisco. The Court’s “Findings of Fact, Conclusions of Law, and Order for Relief” was filed under seal in mid-January and accessible to the public in a redacted form in early February. But until Wednesday, when it was completely unsealed, no one but the lawyers in the case could read the entire document. Not even the plaintiff herself. Why?
Until this week, all the public could know were the most visible parameters of the plaintiff’s injury and three-quarters of the Court’s remedy. The Court found in favor of Dr. Ibrahim, who had been handcuffed, jailed, and denied boarding at San Francisco Airport way back in January 2005, when she was a Stanford University graduate student. On January 14, 2014, Judge William Alsup ordered various federal agencies to search, cleanse, and correct all entries on terrorist watchlists and databases that the Court held could contain mistakes resulting from the incompetent conduct of an FBI Special Agent. (Full Disclosure: I testified as an expert witness for the plaintiff in this case.)
But until Wednesday, the details were sealed up in 82 partially or completely blacked out lines of an otherwise public 38-page document. This redaction was at the insistence of the Justice Department. Similarly, the Justice Department demanded at least ten times during the trial (by Judge Alsup’s count) that the courtroom be closed. The press and public were commanded to leave while the trial proceeded in secret session. Dr. Ibrahim wasn’t at the trial. The Government did not permit her return to the United States from her home in Malaysia to take the witness stand and hear the testimony in her own case.
Just what was so sensitive that it had to be censored? What values were served by the insistence on secrecy, so contrary to our expectations for open judicial process? The unsealing of this record shines a rare light on those questions. The answers are revealing, but not very comforting.
It took Dr. Ibrahim eight years and two successful appeals to the Ninth Circuit to get her day in court (at least vicariously through her lawyers, since she was not granted permission to attend). At the trial, FBI Special Agent Kevin Kelley admitted that he had caused Dr. Ibrahim’s trouble by nominating her to the No Fly List completely by mistake. He checked the wrong boxes on a government form, a bureaucratic bungle that Judge Alsup concluded was analogous “to a surgeon amputating the wrong digit.”
Agent Kelley — and, apparently, the rest of the Federal Government’s watchlisting apparatus — only realized his error at his deposition in September 2013, three months before trial. This was at the conclusion of pre-trial discovery long fought by the Justice Department. The long life of this error reveals the low quality of the watchlisting agencies’ own auditing and review procedures. Judge Alsup noted that the Government’s “post-deprivation administrative remedies fall far short” of the relief that due process demanded for its “own admitted inexcusable error”.
So just what did the Justice Department believe was so important to hide from Judge Alsup’s otherwise public order for the quarter-year the Court granted the DOJ to argue its appeal (an opportunity the DOJ declined)? Here are a few of the family jewels that were previously blacked out entirely from the Court’s findings of fact and conclusions of law:
Dr. Ibrahim does not pose (nor ever did pose) “a threat of committing an act of international or domestic terrorism with respect to an aircraft, a threat to airline passenger or civil aviation security, or a threat of domestic terrorism.” (p. 8)
Even after removing Dr. Ibrahim’s name from the No Fly List, her name “remained in the TSDB and on the selectee and CLASS lists.” (p. 16) (The TSDB is the “Terrorist Screening Database,” a central repository akin to a card catalog of intelligence held throughout the Federal Government. Nomination to the TSDB is typically based on a “reasonable suspicion” standard. The TSDB is then used to generate “customer watchlists” for different government agencies, such as the No Fly List, the selectee list — which imposes heightened screening at airports — and the Consular Lookout And Support System (CLASS), a State Department watchlist.)
About a year after Dr. Ibrahim was handcuffed and jailed at San Francisco Airport, an unidentified government agent requested that she be “Remove[d] from ALL Watchlist Supported Systems (For terrorist subjects: due to closure of case AND no nexus to terrorism)” (p. 18) but that between 2006 and 2009 her name was “removed from the TSDB” then “placed back in the TSDB” then “removed from the TSDB” then “nominated to the TSDB pursuant to a secret exception to the reasonable suspicion standard” where her name remains today for reasons deemed state secrets. And that the trial record does not show whether or the extent to which Dr. Ibrahim’s name was ever “removed from all of the customer watchlists subscribing to the TSDB.” (p. 18-19)
There is plenty more, which anyone can now read on the Court’s docket (Civil Action 06-CV-545 (N.D. Cal.)), even the plaintiff herself. But it was what the Court termed this “Kafkaesque on-off-on-list treatment” (a phrase that the Justice Department demanded be partially blacked out) that led the Court to order the Government to “expressly tell Dr. Ibrahim that she is no longer on the no-fly list and has not been on it since 2005” (also blacked out). Meanwhile she remains inexplicably stuck on the TSDB, at least, which follows her “like a bad credit report that won’t go away.” The Justice Department permitted this last quote from Judge Alsup’s opinion (describing the effect of a TSDB nomination) to remain visible to the reader.
Ordinarily, a judicial opinion is not subject to blacked out passages at the behest of one of the parties. That’s the nature of a public court system. Published opinions, equally accessible to all, are central to our conception of the role of a judiciary under the rule of law. But when one of the parties is the Federal Government, and the issue in dispute is a terrorist watchlist, that core value is subject to, well, redaction.