After seven years, exactly one person gets off the gov’t no-fly list

New report on terrorism "blacklists" suggests it won't be easier the next time.

by Joe Silver

A hearing in federal court Tuesday has apparently marked the conclusion of a drawn-out, costly, and, to use the judge’s own term, “Kafkaesque” legal battle over the government no-fly list. Malaysian college professor Rahinah Ibrahim sued the government back in 2006, after Dr. Ibrahim’s name mistakenly ended up on a federal government no-fly list.

Last month, US District Judge William Alsup ruled that Ibrahim must be removed from the government's various watchlists. At Tuesday's hearing, a Department of Justice lawyer said that the government did not intend to appeal the ruling. The ruling in Ibrahim v. DHS calls into question the government's administration of its controversial no-fly list as well as other terrorist watch lists, but it leaves no clear roadmap for other people wrongly placed on such lists.

Ibrahim's pro bono attorney, Elizabeth Pipkin, has asked for the government to pay more than $3.5 million to cover her legal fees and costs. Alsup didn't rule on that motion, but said that the issue was "not easy," while indicating that Pipkin is unlikely to be entitled to such a large payout.

No recourse

The Ibrahim case marks the first and only successful challenge to the terrorist watch-listing program, which arose following the 9/11 attacks. But Ibrahim's case, as just one of hundreds of thousands of individuals who have been placed on such lists, shows the system's opacity. First, the only surefire way to even determine if one is on such a list in the US is to attempt to board a flight and be denied. Even after that happens, when a denied person inquires about his or her status, the likely response will be that the government “can neither confirm nor deny” the placement on such lists.

The government's surrender in Ibrahim comes on the heels of a new report by the American Civil Liberties Union that shows just how insanely difficult it is to contest one's status on the government blacklists. The ACLU explains:

The 'redress' procedures the US government provides for those who have been wrongly or mistakenly included on a watchlist are wholly inadequate. Even after people know the government has placed them on a watchlist... the government's official policy is to refuse to confirm or deny watchlist status. Nor is there any meaningful way to contest one's designation as a potential terrorist and ensure that the US government... removes or corrects inadequate records. The result is that innocent people can languish on the watchlists indefinitely, without real recourse.

The report also includes several examples of people challenging no-fly determinations, and it's a very murky procedure. Litigation is typically subject to sealed filings and a closed proceeding.

One of the secrets of the government's watchlists is how big they are. No one outside of the intelligence community seems to know for sure. The ACLU report cites a National Counterterrorism Center Fact Sheet, which notes that the "consolidated terrorist watchlist" contained about 875,000 names in December 2011. It also described how the Terrorist Screening Center's watchlist has grown significantly over time, from approximately 158,000 records in June 2004 to over 1.1 million records in May 2009. It cites an AP report from February 2012 documenting that there were approximately 21,000 people on the no-fly list (including about 500 US citizens and permanent residents) and saying that the list had more than doubled in the previous year.

Even after the drawn-out Ibrahim case, there's still no good way to question the government's determination besides going to court. The next person who wants to challenge a no-fly decision is probably going to have to retread the same path as Ibrahim. Taking a look back at her ordeal is instructive, if not inspiring.

The Ibrahim saga

Rahinah Ibrahim was admitted to the US on a student visa to study at Stanford’s graduate school in 2000. Five years later, when attempting to fly from San Francisco to Hawaii, she was denied entry onto the plane, was handcuffed—despite being wheelchair-bound at the time—and was placed in a holding cell, detained for two hours, and then questioned. During questioning, a police officer attempted to remove her hijab. Eventually, she was released and told that her name had been stricken from the no-fly list.

After flying back to Hawaii and then to Malaysia a few days later, her student visa was revoked, and she was denied reentry into the US. That was the beginning of a nine-year fight over whether she could travel back to the US, which Ibrahim said she considered her "second home."

As explained in Alsup’s opinion, the whole dispute stemmed from an errant check placed on a form filled out by FBI agent Kevin Kelly. At trial, Agent Kelly admitted his mistake, and government lawyers actually conceded that Ibrahim doesn't pose a threat to national security and never has. The mistake was not a small thing, Alsup wrote.

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… 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.

Much of the litigation took place even while Ibrahim was unable to get much information about the government's case against her. In December, Alsup denied Ibrahim’s request to see the classified evidence submitted by the government in its defense against her lawsuit.

Kafka today

Ben Wizner, Edward Snowden’s attorney at the ACLU, remarked at SXSW that problems with the no-fly list aren't going away; the world we're facing will look more like Kafka than Orwell. It will be a place where we simply can't get answers. Wizner said:

We already have watch lists that say that some people can fly and some people can’t, or that they can go in this lane or they can go in that lane. But that’s only going to proliferate as there’s more and more data and faster and faster computers and more confidence that they can make these predictions about us. I worry about due process. I worry about basic fairness. And I worry about a world—not a world that looks like Orwell. The law professor Daniel Solove has said that maybe the better analogy for this, or metaphor, is not Orwell, but Kafka, where a big data state makes judgments that can be permanent and irreversible, and don’t seem fair, and we don’t have a chance to speak back.

In Kafka’s famous novel, “The Trial,” the protagonist, Josef K. awakens one morning to be arrested for an offense that is never explained and for which he is subsequently to be tried without ever learning of the nature of the charges.

The sense that it's impossible to know what one is up against runs through the Ibrahim opinion. In one section, shown below, Judge Alsup orders the government “expressly to tell Dr. Ibrahim”—and then the remainder of the sentence is redacted.