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US Government Grows Increasingly Frustrated with Judge Challenging State Secrets Claims in No Fly List Case

Eric Holder

In a case where a US citizen is alleging his constitutional rights were violated when he was placed on the No Fly List, Attorney General Eric Holder and the United States Justice Department claim a federal judge is not interpreting the state secrets privilege correctly. The judge denied a motion to dismiss in October of last year, and the judge has been reviewing documents relevant to the case to determine whether the government’s state secrets claims are valid.

In March 2009, Gulet Mohamed left the US to study Arabic and connect with family members who were living abroad. He traveled to Yemen and Somalia. Then, in August, 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. 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.”

Remarkably, the government’s response to one of the court’s latest orders [PDF] makes it very clear that the Justice Department does not care if a US citizen has had their rights violated by being placed on the No Fly List inappropriately.

A rather sanctimonious section explains:

…[A]s the Government has attempted to explain previously, a challenge to the constitutionality of alleged placement on the No Fly List necessarily requires consideration of the particular means and reasons by which such a placement occurred. And in order to address such allegations, it should be apparent that documents and information properly protected from disclosure by the state secrets privilege are squarely at issue because any procedural due process challenge demands an analysis of the specific processes provided to a person, the specific information about a person that was considered as part of those processes, and the particular information underlying the Government’s concerns about a person that would be at issue when considering proposed substitute procedures. Indeed, the disclosure of any such information concerning Plaintiff is precisely what this lawsuit seeks… [emphasis added]

In other words, the documents that would show that Mohamed had his rights violated are “state secrets.” Mohamed cannot bring a challenge against the role the US government played in his treatment because the documents he needs to win at trial are classified. So, the US government can keep all the relevant records highly classified so it can operate a Kafkaesque bureaucratic No Fly List and, when that process infringes upon a citizen’s liberty to travel, citizens have little to no recourse outside of requesting redress from the very opaque bureaucracy that placed them on the list in the first place.

Last year, in June, Judge Anna J. Brown of the US District Court for the District of Oregon, ruled in favor of thirteen US citizens, who had their rights violated when the government failed to provide them notice on their placement on the No Fly List and “the reasons for their placement on that List.”

The government’s failure “to provide any notice of the reasons for plaintiffs’ placement on the No-Fly List is especially important in light of the low evidentiary standard required to place an individual in the [Terrorist Screening Database] in the first place,” Brown argued. “When only an ex parte showing of reasonable suspicion supported by ‘articulable facts taken together with rational inferences’ is necessary to place an individual in the TSDB, it is certainly possible, and probably likely, that ‘simple factual errors’ with ‘potentially easy, ready, and persuasive explanations’ could go uncorrected.”

In another lawsuit, the government’s attempts to invoke state secrets failed and a district court ruled that a Malaysian, Dr. Rahinah Ibrahim, had her due process rights violated when the government made an error and improperly placed her on the No-Fly List. If “state secrets” claims had been accepted by the court, the government would have escaped accountability and been allowed to keep its misconduct concealed.

The government insolently argues that the “risk of erroneous deprivation,” the “governmental interest” and the “issue of harmless error would be impossible to fully assess absent the information” it seeks to exclude by invoking the “state secrets privilege.”

Apparently, it has no issue with presenting information about “general policies and procedures governing nomination to and placement on the No Fly List.” What the government refuses to do is allow records related to whether Mohamed was “appropriately considered and whether such information reasonably led” to Mohamed’s placement on the No Fly List to be produced in the lawsuit.

On top of that, the government adds, “Even if [Mohamed] could demonstrate that he was deprived of due process in connection with his alleged placement on the No Fly List, he would not be entitled to relief unless he could show that the violation affected the outcome of his alleged No Fly List determination. But the court could not determine whether Plaintiff would have benefited from the additional process he seeks without examining the derogatory information, if any, underlying his alleged placement on the No Fly List.”

The government is not even willing to concede Mohamed was on the No Fly List let alone challenge whether the government improperly put him on the List. It also argues that Mohamed might be able to show he was deprived of due process but then he would have to show that abuse influenced the “alleged No Fly List determination.” (This could be called the “We May Have Abused Him But He’s Still a Terrorist to Us” defense.)

Thus far, Judge Anthony Trenga has refused to submit to these kind of lectures intended to prevent Mohamed from bringing a legal challenge.

He previously 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.”

Trenga 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.”

And, in the past the “government’s assertion of the state secrets privilege in certain cases has been less than reassuring,” Trenga asserted. 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.”

Creative Commons Licensed Photo by Douglas Palmer (Diacritical on Flickr) 

CommunityFDL Main BlogThe Dissenter

US Government Grows Increasingly Frustrated with Judge Challenging State Secrets Claims in No Fly List Case

Eric Holder

In a case where a US citizen is alleging his constitutional rights were violated when he was placed on the No Fly List, Attorney General Eric Holder and the United States Justice Department claim a federal judge is not interpreting the state secrets privilege correctly. The judge denied a motion to dismiss in October of last year, and the judge has been reviewing documents relevant to the case to determine whether the government’s state secrets claims are valid.

In March 2009, Gulet Mohamed left the US to study Arabic and connect with family members who were living abroad. He traveled to Yemen and Somalia. Then, in August, 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. 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.”

Remarkably, the government’s response to one of the court’s latest order [PDF] makes it very clear that the Justice Department does not care if a US citizen has had their rights violated by being placed on the No Fly List inappropriately.

A rather sanctimonious section explains:

…[A]s the Government has attempted to explain previously, a challenge to the constitutionality of alleged placement on the No Fly List necessarily requires consideration of the particular means and reasons by which such a placement occurred. And in order to address such allegations, it should be apparent that documents and information properly protected from disclosure by the state secrets privilege are squarely at issue because any procedural due process challenge demands an analysis of the specific processes provided to a person, the specific information about a person that was considered as part of those processes, and the particular information underlying the Government’s concerns about a person that would be at issue when considering proposed substitute procedures. Indeed, the disclosure of any such information concerning Plaintiff is precisely what this lawsuit seeks… [emphasis added]

In other words, the documents that would show that Mohamed had his rights violated are “state secrets.” Mohamed cannot bring a challenge against the role the US government played in his treatment because the documents he needs to win at trial are classified. So, the US government can keep all the relevant records highly classified so it can operate a Kafkaesque bureaucratic No Fly List and, when that process infringes upon a citizen’s liberty to travel, citizens have little to no recourse outside of requesting redress from the very opaque bureaucracy that placed them on the list in the first place.
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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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