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Secrets Revealed: The Government’s No Fly List Arguments Aren’t Flying

Last week Judge William Alsup (N.D. Cal.) released the unredacted version of his ruling in the first-ever challenge to the no-fly list to be decided on the merits – a case that I and others have discussed on this blog here, here, and here.  Jeffrey Kahn has already catalogued most of the newly revealed information over at Concurring Opinions.  My goal here is to step back a little, examine the especially noteworthy revelations (of which there are several), and put the case in the context of the broader debates about the appropriate balance between secrecy and transparency.   While the unredacted opinion provides yet another example of the executive branch’s over-insistence on secrecy in national security-related matters, it also represents part of a welcome, albeit still very tentative, trend of judicial resistance in the face of the government’s asserted need for concealment.

I.               Revelation #1:  A Secret Process For Adding Non-Terrorists to the Terrorism Watchlist

The most notable revelation in the now-unsealed ruling is the existence of a “secret exception” to the reasonable suspicion standard for placing an individual in the Terrorist Screening Database (TSDB).  To understand the significance of this, we need look no further than the otherwise applicable (non-secret) standard for placement in the TSDB – namely reasonable suspicion that the individual is “known or suspected to be or has been engaged in conduct constituting, in preparation for, in aid of, or related to terrorism and terrorist activities.”

In other words, to place someone in the TSDB under the ordinarily applicable standards, the government need not have a reasonable suspicion that the individual is actually engaged in terrorist activities; all that is needed is a reasonable suspicion that the person is suspected of engaging in such activities.  In fact, even a reasonable suspicion that the person is suspected of involvement in terrorism-related activities suffices.   And lest you think that the reasonable suspicion standard is unduly burdensome, earlier this week the Supreme Court made clear just how malleable it really is – concluding in Navarette v. California that an anonymous 911 call reporting a single, and uncorroborated, instance of reckless driving provided reasonable suspicion of intoxication to justify a traffic stop.

It is therefore hard to conceive of a situation in which reasonable suspicion that a person is suspected of engaging in terrorism-related activity would be insufficient to designate of a person of appropriate concern.  Moreover, by insisting that the additional standards be kept secret, the government contributes to the perception that the watch lists are being used pretextually and/or arbitrarily, irrespective of the target’s’ actual links to terrorism.  In fact, just this Tuesday, yet another citizen and two legal permanent residents – all Muslims – joined an ongoing No Fly List challenge, claiming that they were placed and kept on the No Fly List in order to coerce them into being government informants.   NPR has the story (in which I’m quoted) here.

Based on the newly unredacted information, we now know that Ms. Ibrahim was removed from the TSDB in 2006 once it was determined that she did not meet the reasonable suspicion standard for placement on the list.  But she was then placed back in the TSDB in 2009 pursuant to the secret exception to the reasonable suspicion standard, and, according to Judge Alsup, remains on the list today. This is so despite the court’s finding – and government’s concession – that she does not pose a national security threat and does not pose a threat of domestic terrorism.  Moreover, her information did not stay solely within the TSDB; it was further exported to the State Department’s CLASS database, as well as a separate watchlist maintained by the U.S. Bureau of Customs and Border Protection, and may be contributing to her ongoing visa problems today.

II.             Revelation #2:  Grounds for Her Visa Denial

We also learned from the un-redacted version of Judge Alsup’s opinion two additional facts about the repeated denial of a visa to Ms. Ibrahim (the most recent of which occurred just last week).

First, Judge Alsup reports that he himself reviewed the classified information in support of the denials, determined that it has an independent source (not tied to the initial error that led to Ms. Ibrahim’s No Fly List placement), and supports a finding of inadmissibility, assuming the information is accurate.

Second, we’ve now been provided – thanks to Judge Alsup’s demand for more transparency – with the specific statutory grounds for the finding of inadmissibility:  (i) she is deemed to have “engaged in a terrorism activity” (see 8 U.S.C. Sec. 1182(a)(3)(B)(I)) and (ii) she is deemed to be a child or spouse of someone who engaged in terrorism activity or is otherwise caught up in the broad terrorism-related bars on admission (see 8 U.S. C. Sec. 1182 (a)(3)(B)(IX)).

But how can this be?

How can Ms. Ibrahim be deemed to have “engaged in a terrorism activity” despite the government’s concession that she is not a threat to national security; the court’s finding that she does not pose (and has not posed) a threat of domestic terrorism; and the executive branch’s failure to muster up enough information to even support a reasonable suspicion that she is suspected of engaging in terrorism-related activity?

The answer is that the definition of “terrorism activity” in our immigration statutes includes conduct that has no relation whatsoever to terrorism activity as ordinarily understood.   It includes, for example, any unlawful use of a weapon other than for personal monetary gain, as well as the provision of material support, regardless of the circumstances, to any group of two or more people that have engaged in such unlawful use of weapons. These terrorism bars have been used to block the admission of Iraqi interpreters who worked alongside the U.S. military because they supported the Kurdish uprising against Saddam Hussein, African National Congress leaders formerly engaged in an anti-apartheid struggle in South Africa, and women forced into domestic servitude by the Lord’s Resistance Army in Uganda on the grounds that they, albeit involuntarily, provided support to a terrorist organization.  While the executive branch has since used its discretionary waiver authority to admit or grant asylum in many such cases, many other seemingly deserving applicants for admission continue to be labeled as terrorist and caught up in these exceedingly broad bars on admission.

We of course have no way of knowing what Ms. Ibrahim has allegedly done to trigger the application of these bars.  (That part of Ms. Ibrahim’s case remains secret.)  It may be that there are very good reasons for the State Department to continue to deny her a visa.  But given the now unredacted factual findings in her case, her suspected involvement in terrorism does not seem to be one.   And this points to what I consider a separate, and pressing, need to reconsider legal standards that keep people out of the United States based on a label of terrorist even when they have not actually engaged in terrorist activity (appropriately defined) or pose a threat of doing so – an issue about which I intend to have more to say later.

III.           Revelation #3: International Data Proliferation

One other interesting tidbit revealed by the unredacted ruling is that even after Ms. Ibrahim was removed from the No Fly List (in Jan. 2005) and the related selectee list (Dec. 2005), her name was exported to Canadian and Australian watchlists.  Perhaps this should not come as a surprise.   But while I, for one, had considered the ways in which the information included in the TSDB often percolates through an array of domestic databases, I had not yet focused on the spread of such information beyond our borders.   It would be worth finding out whether the U.S. notifies its foreign partners when it corrects errors in its own databases, and, if so, whether those foreign partners update their information accordingly – or whether (as I suspect) once exported elsewhere, the information just sticks.

IV.            The Beginning of a Trend? – Increased Push Back on the Government’s Need for Secrecy

In many ways, Judge Alsup was handed an easy case in which to take a stand on executive branch secrecy.  The government conceded error in Ms. Ibrahim’s initial placement on the No Fly List; it had long ago taken her off the list; and the government acknowledged that Ms. Ibrahim does not pose a threat to national security.  It is thus hard to conceive of any plausible reason as to why the government should continue to withhold Ms. Ibrahim’s No Fly List status.  Cases like this seem to cry out for judicial intervention.

But the court’s push back went broader than merely ordering No Fly List disclosure.  It rejected all of the government’s proposed redactions of its findings of fact and conclusions of law – thereby disclosing, among other things, the existence of a “secret exception” to the standard for placement in the TSDB, details about when Ms. Ibrahim was added to and taken off various watchlists, and disconcerting information about a glitch in the watchlist systems that resulted in Ms. Ibrahim’s daughter being prevented from boarding a plane in Malaysia in time to make it to her mother’s trial.

Whether this case is aberrational or part of a broader trend is yet to be seen.  But it is worth noting just that this week, the Second Circuit ordered the government to release a redacted version of the OLC-DOD memo purportedly justifying the killing of Anwar al-Aulaqi.  And this followed a March 2013 D.C. Circuit court ruling that called the CIA to task for refusing to confirm or deny the existence of any records pertaining to the use of drones.   These two were arguably easy cases as well, given the number of high-level officials, official statements and documents that have now acknowledged and sought to justify the targeted killing of Anwar al-Aulaqi and the use of drones.  But together these cases tentatively suggest a new court willingness to push back against the sky-will-fall arguments often made in support of the claimed need for secrecy in national security-related cases.  Or at the very least, they ought to serve a reminder to the government that when it makes claims of secrecy that are so patently excessive, it may be inviting courts to call its bluff — and ultimately undermining its ability to keep real secrets secret.

Going forward, it’s worth keeping an eye on the other No Fly List cases percolating through the courts.  Despite the ruling in Ms. Ibrahim’s case, the government continues to insist that ex parte court review of an individual’s No Fly List status satisfies due process and that even revealing to plaintiffs that they are (or are not) on the No Fly list  will seriously jeopardize national security.  It is an argument that I hope the courts will reject.

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About the Author

is a professor at American University Washington College of Law. Follow her on twitter @jendaskal.