When government bungling becomes ‘sensitive security information’

Last month I wrote about an important ruling handed down on January 14, 2014 by US District Judge William Alsup in San Francisco where he slapped down the government for placing a Malaysian architect Rahinah Ibrahim on the no-fly list in 2005 and not telling her why. The trial lasted five days from December 6-10, 2013 during which at least on ten occasions the judge reluctantly closed the court to the public and the press at the request of the government because the case supposedly involved ‘sensitive security information’ or SSI.

The government also asked the judge to not issue his ruling publicly so he issued a brief summary statement, saying that he would release the ruling on April 15, 2014 unless a higher court ordered him not to. He has now released a redacted version of his ruling.

So what caused Ibrahim to be viewed as a threat so that since 2005 she has not been allowed to fly to the US even though much of her work involves collaboration with US scientists, such as her doctoral thesis advisors at Stanford? And what was so important to national security that the government tried its best to keep as much of the trial and verdict as secret as possible?

It turns out that in 2004 Ibrahim was placed on the list by mistake because a FBI agent bungled the way he filled out a form that resulted in her being entered into something called the Terrorist Screening Database or TSDB. But instead of simply acknowledging the error and correcting it, the government repeatedly invoked its state secrets privilege and even sent ten lawyers to the trial to prevent the public from learning about this blunder.

The judge, who has a reputation for being a no-nonsense type who does not hesitate to dig deep into issues, was clearly ticked off. In his ruling, he said:

Defendants invoked these as bases for withholding classified and otherwise allegedly sensitive government information from plaintiff and her counsel. (p.3)

Agent Kelley misunderstood the directions on the form and erroneously nominated Dr. Ibrahim to the TSA’s no-fly list [redacted] He did not intend to do so. This was a mistake, he admitted at trial. He intended to nominate her to the [redacted] He checked the wrong boxes, filling out the form exactly the opposite way from the instructions on the form. He made this mistake even though the form stated, “It is recommended the subject NOT be entered into the following selected terrorist screening databases.” (p.9)

He said that while the error may have been trivial, it had serious consequences for Ibrahim.

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. This too is conceded. This was no minor human error but an error with palpable impact, leading to the humiliation, cuffing, and incarceration of an innocent and incapacitated air traveler. That it was human error may seem hard to accept — 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. (p.26)

Since her erroneous placement on the no-fly list, plaintiff has endured a litany of troubles in getting back into the United States. Whether true or not, she reasonably suspects that those troubles are traceable to the original wrong that placed her on the no-fly list. Once derogatory information is posted to the TSDB, it can propagate extensively through the government’s interlocking complex of databases, like a bad credit report that will never go away. As a postdeprivation remedy, therefore, due process requires, and this order requires, that the government remediate its wrong by cleansing and/or correcting all of its lists and records of the mistaken 2004 derogatory designation and by certifying that such cleansing and/or correction has been accurately done as to every single government watchlist and database. This will not implicate classified information in any way but will give plaintiff assurance that, going forward, her troubles in returning to the United States, if they continue, are unaffected by the original wrong. The basic issue is what due process of law requires in these circumstances. (p.26)

He was also annoyed at the extent the government went to in order to keep the public from becoming aware of its bungling.

In stubborn resistance 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”. (p.36)

The arguments that the government tried to make were extraordinary, such as claiming that even publicly available information was SSI and could not be used at the trial. The judge was having none of that either, saying during the trial:

That’s ridiculous. Are you saying that if the president makes a speech, TSA can retroactively make it a secret what he said? It cannot be the law that something that is publicly known later becomes hidden…

Trials are important. Trials are supposed to be public.

I want to categorically reject one thing: If information is publicly available in some other way, the government does not have the right to retroactively clamp it down and remove it from the public record. Even if it could have been protected as SSI within the government, if the plaintiff obtains this information independently, the government can’t clamp that down.

The plaintiff has the right to prove her case. If she can prove it through publicly available admissible evidence, she can do so even if that information is also included in internal government documents designated as SSI.

That’s the way I feel. That’s the law, that ought to be the law, and that’s the only way to run this country. That’s my ruling, and if the government disagrees, I invite you to take an emergency writ to the Ninth Circuit Court of Appeals.

During the trial, the judge was also incensed to discover that Ibrahim’s daughter (born in the US and thus a US citizen) had been stopped from boarding a plane in Malaysia to come to the US to testify at the trial. The government said that she had simply missed her flight and that they had nothing to do with it and knew nothing more about it. The judge wasn’t buying their claims of ignorance or innocence, saying “You’ve got ten lawyers over there on your side of the courtroom. You can send one of them out in the hall to make a phone call and find out what’s going on.” It turned out that the airline said that she had arrived on time but they had been told by the Department of Homeland Security to stop her from boarding.

The lesson to be drawn from this case? If the government goes to this extent of invoking ‘sensitive security information’, closing trials to the public, stopping US citizens from boarding planes to prevent them from testifying at trials, and demanding that the verdict be not released, all just to cover up an easily correctable bungle by one of its agents, can you imagine how far they will go and what they will stoop to when they commit actual crimes?


  1. DsylexicHippo says

    Wow! Just wow. The extent to which they would stoop low is mind-boggling even to someone as jaded as me.

    Props to the judge though.

  2. AsqJames says

    {remove her name from all databases]. This will not implicate classified information in any way

    I’d go further. Having entirely innocent people included on these lists is counterproductive. There’s enough hay in the stack already, adding more makes the needles even harder to identify, locate and track. Surely that makes sense even to the most alarmist scaremonger.

  3. richardrobinson says

    I expect the government fears if their system is be fallible in any way, then they will lose the faith of the people or, more importantly, become subject to greater scrutiny. Never mind that said scrutiny and transparency are specifically how we maintain faith in government. Like you, I worry about what else they are hiding that they can’t bear any level of transparency on so trivial a matter.

  4. karmacat says

    It is human behavior to instantly to hide one’s mistakes. But this is ridiculous. All they had to do was quietly tell Ibrahim that someone made a mistake on the form and they have corrected it. People usually will forgive those kind of errors and will forget it if the problem is corrected quickly. But these people dug themselves deeper and deeper to the point that they now look like Keystone cops

  5. colnago80 says

    This is what is required, a federal judge doing his job. It’s the job of the judiciary to rein in the other two branches of government when they step over the line and so far, we have seen precious little of the required reining. This is particularly true when the legislative branch has neglected its responsibilities to oversee the executive branch.

  6. Greg says

    The entire government is over-classifying data that is available to the public. Several times during Iraqi invasion, I reviewed classified information that was on CNN.com a few days later.

    Another example was when Chelsea Manning gave all her classified data to Wikileaks. We could not use unclassified government computers to view this information on Wikileaks, because it was still considered classified.

Leave a Reply

Your email address will not be published. Required fields are marked *