Was It Really ‘Human Error’ That Had a Malaysian Doctoral Student Put on the No Fly List?
In recent weeks, it has been learned that a Malaysian doctoral student, who was twice granted a visa from the United States to study and obtain degrees architecture, including a Ph. D, had her due process rights violated when she was placed on the no-fly list. She never posed a threat to the US, something the government conceded in a trial in December of last year. Yet, according to the government, her placement on the list was a result of “human error,” not because of the intricate system of putting people on watch lists that has developed since the September 11th attacks.
On January 2, 2005, Dr. Ibrahim was scheduled to be on board a flight from San Francisco to Kona, Hawaii. San Francisco police claimed she had “overstayed her visa,” according to a filed trial brief. Immigration documents showed this was not correct. Still, police led her away in handcuffs in front of her daughter, Rafeah, and about 50 others who were in line at a United Airlines counter. (Rafeah is a US citizen.)
Ibrahim was “publicly humiliated” and “imprisoned for approximately two hours, searched in a culturally insensitive manner, denied her medication until the paramedics were called and denied the ability to use the restroom in private.” She wanted to speak to an FBI agent named Kevin Kelley, the same agent who apparently committed the “human error” in this case that led to her being put on the no-fly list. She thought speaking to him would make it possible to clear her name. She did not get to speak with him and was released without any explanation.
Lee Korman, an Aviation Security Inspector with the Department of Homeland Security met Dr. Ibrahim in the holding cell and informed her that her name had been removed from the no-fly list. She was put on a flight the next day, but it was clear her name was not totally cleared. She was given a “bright red colored boarding pass” and given an “SSSS” status that led agents to subject her to “enhanced searches.”
In March 2005, when she wanted to travel to the US to complete her thesis, she was told her visa had been revoked and could not board her flight from Kuala Lumpur. And, again, in 2009, when she attempted to obtain a visa to travel to the US to be deposed for her case against the US government and to participate in her own trial, she was told she could not travel because of a section of the Immigrant and Nationality Act. When she asked what the section meant, a State Department representative wrote out the word “terrorist” on her visa application, right in front of her.
Ultimately, the judge decided her due process rights had been violated.
“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,” Judge William Alsup concluded.
Judge Alsup also wrote in his order, “FBI Agent Kelley made a plain, old-fashioned, monumental error in filling out the VGTOF [Violent Gang and Terrorist Organization File] nomination form for Dr. Ibrahim. He checked the boxes in exactly the opposite way from the instructions on the form, thus nominating Dr. Ibrahim to the no-fly list (against his intention). This was the start of all problems in Dr. Ibrahim’s case. Surprisingly, Agent Kelley first learned of this mistake eight years later at his deposition.”
Litigation began in 2006. The government initially won a dismissal of the case in August 2006 because the Transportation Security Administration had exclusive jurisdiction over review of orders of the TSA. A court of appeals subsequently reversed that decision in part.
As litigation continued and a court of appeals eventually found Dr. Ibrahim had a “substantial voluntary connection” to the US that would permit her to challenge her placement on the no-fly list, the government decided to invoke “state secrets privilege,” often abused to conceal information, hide embarrassing facts and prevent victims of government abuse from bringing cases. The government also invoked the “law enforcement privilege” and a privilege involving “sensitive security information” (SSI). This was done so the government would not have to inform Dr. Ibrahim of why she had been placed on the no-fly list.
The case moved closer to trial. The government eventually assured the judge that it would not invoke “state secrets” and rely on any information that had not been shared with Dr. Ibrahim and her lawyers. The judge issued a September 2013 order that made it clear, “The Government may not affirmatively seek to prevail in this action based upon information that has been withheld on grounds of privilege.” However, frustrating the judge, the government attempted to have the action dismissed at trial by refusing to “disclose state secrets.”
The government failed to block Dr. Ibrahim’s lawyers from getting an opportunity to challenge the government over her improper listing. “State secrets privilege”—an oft-abused claim that had worked in prior cases involving torture, rendition and warrantless wiretapping—did not work this time.
What was the government to do in order to prevent this case from having some kind of significant ramification for the whole system of placing individuals on the no-fly list?
Again, the question remains: Did the FBI agent really commit a “human error”? Or was this a theory of what happened concocted when the government realized the judge was not going to let them continue to keep information secret from Dr. Ibrahim?
Here is what Judge Alsup wrote in his order in the case:
…In the instant case, the nomination in 2004 to the no-fly list was conceded at trial to have been a mistake. In this sense, this is an easier case to resolve. Harder no-fly cases surely exist. For example, the government uses “derogatory” information to place individuals on the no-fly list. When an individual is refused boarding, does he or she have a right to know the specific information that led to the listing? Certainly in some (but not all) cases, providing the specifics would reveal sources and methods used in our counterterrorism defense program and disclosure would unreasonably jeopardize our national security. Possibly, instead, a general summary might provide a degree of due process, allowing the nominee an opportunity to refute the charge. Or, agents might interview the nominee in such a way as to address the points of concern without revealing the specifics. Possibly (or possibly not), even that much process would betray our defense systems to our enemies. This order need not and does not reach this tougher, broader issue, for, again, the listing of Dr. Ibrahim was concededly based on human error. Revealing this error could not and has not betrayed any worthwhile methods or sources…
By claiming in court that an FBI agent did not understand what he was doing in his job, the government was ultimately able to avoid a decision that would touch upon the broader question of whether the government should be required to provide more information to individuals placed on the no-fly list so they can refute allegations leading to their designation as a security threat.
As highlighted by First Look’s Murtaza Hussain on February 14, Attorney General Eric Holder had indicated in an April 2013 declaration that the Justice Department would not “defend an invocation of the [state secrets] privilege in order to: (i) conceal violations of the law, inefficiency, or administrative error; (ii) prevent embarrassment to a person, organization, or agency of the United States Government.”
Either Holder and the government attorneys involved in this case did exactly what they told a court they would not do, or they realized this was a case where claiming “state secrets” was not going to convince the judge to dismiss the case. They would have to try something else, like blaming the ordeal which Dr. Ibrahim had suffered on a single FBI agent who had actively been involved in investigating Dr. Ibrahim. (In fact, he even interviewed her in 2004 and asked her what she knew about a militant Islamic group in Malaysia known as Jemaah Islamiyah. She had no knowledge of this group. But, months later, when she was denied a US visa in Malaysia, she was asked about her organization, which is called Jamaah Islah Malaysia.)
“Human error” does not account for this episode, which is described in the court order—
In an e-mail dated February 8, 2005, between the chief of the consular section at the United States Embassy in Kuala Lumpur and an official in the coordination division of the visa office of the Department of State, the chief asked about a prudential visa revocation cable he had received concerning the events Dr. Ibrahim experienced in January 2005. The Department of State employee replied in e-mail stating (TX 17):
Paul asked me to respond to you on this case, as I handle revocations in VO/L/C. The short version is that this person’s visa was revoked because there is law enforcement interest in her as a potential terrorist. This is sufficient to prudentially revoke a visa but doesn’t constitute a finding of ineligibility. The idea is to revoke first and resolve the issues later in the context of a new visa application . . . .My guess based on past experience is that she’s probably issuable. However, there’s no way to be sure without putting her through the interagency process. I’ll gin up the revocation. [emphasis added]
Anyone who understands the English language will know that “gin up” means to “exaggerate.” They could have approved Dr. Ibrahim for a visa, but this employee decided to exaggerate a justification for revocation and keep her from traveling to the US.
“Human error” aside, the abuse of power in this case was utterly contemptible. Dr. Ibrahim was denied a visa to attend the trial in San Francisco. Her daughter, a US citizen, was blocked from coming to the US to testify in her mother’s case because she was put on a watchlist.
The courtroom was closed during the trial at least ten times so the government could share information protected by “law enforcement privilege” and information that was “sensitive security information,” something which deeply bothered the judge.
The government had information that is in the public domain on the “workings” of America’s “watchlists” concealed. The judge adamantly insisted this information is not classified and should not be redacted in his order, but the government has filed an appeal to keep parts of the order secret. It blacked out almost the entire section on why Ibrahim’s daughter was not able to fly to the US for the trial, and the government blacked out what it has been ordered to inform Ibrahim about her listing.
Dr. Ibrahim plans to return to the US to collaborate on research with American colleagues. She said in January, “I hope no more people are mistreated and have their names placed on the no-fly list and face what I have gone through.”
Unfortunately, the conduct of the government in this case ensures that the US government will be able to continue to mistreat individuals and wrongfully designate people as terrorists by placing them on watchlists without regard for the impact this could have on their lives because, if you believe the government, it was all just a “human error.”
The sheer extent of secrecy around placing people on watchlists and the denial of information to people claiming their rights have been violated make it hard to prove otherwise. As was made clear in this case, even when the government is not explicitly invoking the “state secrets privilege,” it is still exploiting secret information through its manipulative actions and asserting some privilege.