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Judge Rejects Government’s Effort to Have No Fly List Lawsuit Dismissed by Invoking ‘State Secrets’

Judge Anthony Trenga is judge for the US District Court of the Eastern District of Virginia

A federal judge has denied a motion by the United States government to dismiss a lawsuit brought by a US citizen alleging his constitutional rights were violated when he was placed on the No Fly List. The government had attempted to have the lawsuit dismissed by invoking the state secrets privilege.

The case involves Gulet Mohamed, who left the US in March 2009 to study Arabic and 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. 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.”

Judge Anthony Trenga had ordered the government to produce documents, which Mohamed’s lawyers had requested for the purposes of the lawsuit. He argued it was critical for him to be able to review whether the government’s “state secrets” claims were valid.

In his latest order [PDF], Trenga indicates that the information presented by the government “in support of the state secrets privilege as to these documents is insufficient to allow the court to conclude that ‘there is reasonable danger’ that disclosure of these documents to at least the plaintiff’s counsel, under the protections of an adequate protective order, would disclose information that would ‘expose military matters which, in the interest of national security, should not be divulged.'”

But Trenga adds that he does not believe that any of these documents, “which describe in detail the procedures in connection with the placement of an individual on the No Fly List, appear to be necessary for Mohamed to make a case against the government that his due process rights were violated. They also are not necessary to the government’s arguments that Mohamed was treated lawfully.

“The state secrets privilege is a judicially created rule of evidence, not a doctrine of sovereign immunity or non-justiciability,” Trenga states. It would be best to allow Mohamed to have his claims against the government heard in court and then, as necessary, the government can make its arguments about the need to protect alleged state secrets.

The judge had already expressed skepticism toward the government. He declared Mohamed’s claims “raise issues concerning the extent to which and the methods by which a citizen’s freedom of travel and associated liberties can be curtailed in the name of national security, given the fundamental interest of all citizens in being protected from terrorist violence. One central issue is the extent to which the War on Terrorism way expand the ability of the executive branch to act in ways that cannot otherwise be justified.”

He had recognized the “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.”

Additionally, Trenga suggested that in the past 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, 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.”

That case 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.”

Victims of alleged rendition, torture and warrantless surveillance have struggled to overcome the state secrets privilege for the past years, but now it appears the pendulum might be shifting ever so slightly.

To the extent that the global security state’s War on Terrorism has become more and more permanent, federal judges are slowly recognizing that there are incidents of abuse so egregious that they can no longer justify dismissing such cases and denying victims their day in court.

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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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