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In No Fly List Case, Judge Questions Government’s ‘State Secrets’ Claims & Orders Documents Be Produced

Gulet Mohamed

In a lawsuit in which a US citizens has alleged that his constitutional rights were violated when he was placed on the No Fly List, a federal judge has ordered the government to produce documents so he can review them and determine whether the government should be allowed to invoke the state secrets privilege. The government has invoked the privilege and moved to dismiss the case.

Gulet Mohamed left the US in March 2009 to study Arabic and also connect with family members who were living abroad. He traveled to Yemen and Somalia. Around August 2009, he moved to Kuwait, where he continued his studies. And, according to a court filing [PDF], when he went to renew his Kuwaiti visitor’s visa on December 20, 2010, he was handcuffed and blindfolded by men in civilian clothes, who took him to a location approximately fifteen minutes from the airport.

Mohamed was held in detention for more than a week and was tortured. His interrogators transferred him to a deportation facility on December 28. There he found out he had been placed on the No Fly List when Kuwaiti officials tried to deport him. He remained in the deportation facility for a couple weeks and FBI agents visited him twice. And Mohamed believes agents did this to “pressure him to forgo his right to counsel, submit to invasive questioning and become an informant for the FBI upon returning to the United States.”

US District Court Judge Anthony Trenga, in the Eastern District of Virginia, argued in his order [PDF]:

This case involves the extraordinary exercise of executive branch authority to operate a program that results in the deprivation of basic liberties according to secret executive branch decision making, without pre-deprivation judicial review, based on criteria that require, at a minimum, nothing more than a suspicion of future dangerousness, and without the opportunity for an affected citizen to learn of, and respond to, the information relied upon for the government’s decision, either before or after the deprivation.

He also stated that the “government’s assertion of the state secrets privilege in certain cases has been less than reassuring.” For example, in the precedent-setting case of United States v. Reynolds, where the United States government refused to tell victims’ families how their loved ones had died in a military plane crash because they contended “secrets” would be revealed, the judge noted that it “became apparent years later, after the claimed state secrets document was declassified, that it did not implicate state secrets.”

Trenga also cited the case of Ibrahim v. Department of Homeland Security, in which the government had sought the “dismissal of similar No Fly List claims based on alleged state secrets. It involved a Malaysian doctorate student named Rahinah Ibrahim and at trial, after a motion to dismiss was denied, she was able to learn that she had been “mistakenly placed on the No Fly List.” The government also invoked the privilege in a Freedom of Information Act case known as Islamic Shura Council of S. Cal. v. FBI, where it “justified in the name of national security falsely representing to the court that only a limited number of responsive documents had been located.”

Attorney General Eric Holder submitted a public declaration [PDF] where he listed three categories of documents that supposedly “implicate state secrets, all of which pertain to the identification of particular terrorist suspects.” But the judge said he could not actually tell whether the documents fell into those three categories.

Furthermore, one of the documents is an unclassified document, the Watchlisting Guidance, which since Holder filed his declaration appears to have been disclosed and published by The Intercept.

“There are many other documents already in the public domain that describe in detail the procedures and criteria used for placement on the No Fly List, including the defendants’ own voluminous public declarations, filed in this and other lawsuits.”

“The court therefore cannot accept, without further inquiry and review, that all of the documents as to which the state secrets privilege has been invoked in fact contain state secrets, or that any state secrets that might be contained in the listed documents would preclude the litigation of the plaintiffs claims, particularly his procedural due process claim, which is substantially the same as that litigated in Latif v. Holder, without any apparent compromise to national security.”

The case Trenga was referring to resulted in a federal district court in Oregon ruling in June that US citizens placed on the No Fly List had their rights to “procedural due process” violated. The court found the process unconstitutional and instructed the government to “provide a new process” to satisfy “constitutional requirements for due process.”

This development comes in the same week that the Justice Department took the unprecedented move of invoking state secrets privilege to protect the anti-Iran advocacy group, United Against a Nuclear Iran (UANI), which is facing a defamation lawsuit. The lawsuit involves no government activity yet, somehow, the group has “state secrets” that the government must protect from becoming public through this lawsuit.

Holder responded to criticism and established new policies and procedures for invoking the state secrets privilege in 2009. The new rules have not had any discernible impact.

“There has been no known case in which assertion of the privilege was “narrowly tailored” to permit an affected lawsuit to proceed, as the revision proposed. Nor is there any known case in which a privileged matter has been referred to an agency Inspector General for adjudication, as had been suggested,” according to Steven Aftergood of Secrecy News.

Moreover, it is important to recognize that by invoking “state secrets” in this case the government is, again, seeking to block a torture victim from being able to obtain some kind of justice for the treatment he experienced.

Mohamed alleges that his interrogators “struck him in the face with their hands regularly” and “more than a hundred times.” They “whipped his feet and other parts of his body with sticks.” They “forced” him to “stand for prolonged periods of time.”

“At one point, the interrogators threatened to run currents of electricity through [Mohamed’s] genitals.” He also alleges that they tied him to a “ceiling beam” and left him in “that position until he lost consciousness.” He was blindfolded and handcuffed during most of the time that he was held in detention.

When FBI agents visited him, he allegedly was told that “they could expeditiously procure his release from detention” if he spoke to them. However, he “would remain in detention indefinitely if he did not speak to them.” He was questioned for hours. He asked that they stop. The agents threatened him with “future interrogations and criminal charges.”

This is the type of conduct the government has sought to excuse and shield from judicial review by invoking the state secrets privilege.

CommunityFDL Main BlogThe Dissenter

In No Fly List Case, Judge Questions Government’s ‘State Secrets’ Claims & Orders Documents Be Produced

Gulet Mohamed

In a lawsuit in which a US citizens has alleged that his constitutional rights were violated when he was placed on the No Fly List, a federal judge has ordered the government to produce documents so he can review them and determine whether the government should be allowed to invoke the state secrets privilege. The government has invoked the privilege and moved to dismiss the case.

Gulet Mohamed left the US in March 2009 to study Arabic and also connect with family members who were living abroad. He traveled to Yemen and Somalia. Around August 2009, he moved to Kuwait, where he continued his studies. And, according to a court filing [PDF], when he went to renew his Kuwaiti visitor’s visa on December 20, 2010, he was handcuffed and blindfolded by men in civilian clothes, who took him to a location approximately fifteen minutes from the airport.

Mohamed was held in detention for more than a week and was tortured. His interrogators transferred him to a deportation facility on December 28. There he found out he had been placed on the No Fly List when Kuwaiti officials tried to deport him. He remained in the deportation facility for a couple weeks and FBI agents visited him twice. And Mohamed believes agents did this to “pressure him to forgo his right to counsel, submit to invasive questioning and become an informant for the FBI upon returning to the United States.”

US District Court Judge Anthony Trenga, in the Eastern District of Virginia, argued in his order [PDF]:

This case involves the extraordinary exercise of executive branch authority to operate a program that results in the deprivation of basic liberties according to secret executive branch decision making, without pre-deprivation judicial review, based on criteria that require, at a minimum, nothing more than a suspicion of future dangerousness, and without the opportunity for an affected citizen to learn of, and respond to, the information relied upon for the government’s decision, either before or after the deprivation.

He also stated that the “government’s assertion of the state secrets privilege in certain cases has been less than reassuring.” For example, in the precedent-setting case of United States v. Reynolds, where the United States government refused to tell victims’ families how their loved ones had died in a military plane crash because they contended “secrets” would be revealed, the judge noted that it “became apparent years later, after the claimed state secrets document was declassified, that it did not implicate state secrets.”

Trenga also cited the case of Ibrahim v. Department of Homeland Security, in which the government had sought the “dismissal of similar No Fly List claims based on alleged state secrets. It involved a Malaysian doctorate student named Rahinah Ibrahim and at trial, after a motion to dismiss was denied, she was able to learn that she had been “mistakenly placed on the No Fly List.” The government also invoked the privilege in a Freedom of Information Act case known as Islamic Shura Council of S. Cal. v. FBI, where it “justified in the name of national security falsely representing to the court that only a limited number of responsive documents had been located.”

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Kevin Gosztola

Kevin Gosztola

Kevin Gosztola is managing editor of Shadowproof Press. He also produces and co-hosts the weekly podcast, "Unauthorized Disclosure."

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