Giving up essential liberty to purchase temporary safety

A recent court victory for a Muslim scholar who was subjected to shocking mistreatment by the U.S. government has exposed not only the dangers of our emerging national security state, but the shameful efforts of the Obama administration to cover up the government's mistakes.

Dr. Rahinah Ibrahim, a Malaysian scholar, wife and mother of four children, lawfully entered the U.S. in 1983 to study architecture at the University of Washington in Seattle. While living in Seattle, she married Mustafa Kamal Mohammed Zaini and had her first daughter, a U.S. citizen. Ibrahim received her master of architecture in 1990 from the Southern California Institute of Architecture and returned to Malaysia, worked as an architect, and eventually became a lecturer at the Universiti Putra Malaysia.

In 2000, Ibrahim returned to the U.S. under an F-1 student visa to work towards a Ph.D. in construction engineering at Stanford University. While there, she was involved in the Islamic Society of Stanford University and volunteered with the spiritual care services at Stanford Hospital. She also attended prayers. She eventually received a Ph.D from Stanford University.

On Jan. 2, 2005, Ibrahim was scheduled to board a flight from San Francisco to Hawaii, but the police detained her and led her away in handcuffs in front of her 14-year-old daughter and the people who were in line at a United Airlines counter. She was detained for approximately two hours, until an security inspector with the Department of Homeland Security informed her that her name had been removed from the no-fly list. She was put on a flight the next day, but she was given a bright red colored boarding pass with an "SSSS" status that led agents to subject her to "enhanced searches."

Like everyone on a no-fly list, Ibrahim had no idea she was on it until her life was turned upside down. Evidence now shows that in November 2004, FBI Special Agent Kevin Michael Kelley mistakenly "nominated" Ibrahim, who was then at Stanford, to various federal watchlists. As the government would only reluctantly admit in court eight years later, Ibrahim posed no security threat. But Kelley misunderstood the directions, checked the wrong boxes, and filled out a form incorrectly. His error was inexcusable, and given the gravity of this designation, it is appalling that there were no procedures in place to promptly correct such mistakes.

It gets worse. The evidence now reveals that the entire system is deeply flawed, with officials routinely disregarding people's constitutional rights. The day after Ibrahim was detained, an official in the visa office wrote in an email that he was going to revoke a stack of visas (including Ibrahim's) despite the fact that there "is no practical way to determine what the basis of the investigation is for these applicants" without contacting "the case agent for each case individually," but since "we don't have the time to do that (and, in my experience, case agents don't call you back promptly, if at all), we will accept that the opening of an investigation itself is a prima facie indicator of potential ineligibility."

Consequently, Ibrahim's visa was revoked Jan. 31, 2005. The certificate of revocation stated that "information" had come to light indicating that "the alien may be inadmissable to the United States" and should reappear before a U.S. consular officer to establish "his" eligibility for a visa. Of course, the only "information" that had come to light reflected badly on the government, not Ibrahim.

Another email dated Feb. 8, 2005, from the Department of State to the U.S. Embassy in Kuala Lumpur callously stated that 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." Yet, instead of correcting its mistake, the government added injury to injury. In March 2005, when Ibrahim tried to return to the U.S., she was told her visa had been revoked.

In 2006, Ibrahim filed a federal civil rights action alleging that the government had systematically violated her due process rights. Aided by pro bono counsel, her case survived repeated attempts by the government to dismiss it. In 2009, when Ibrahim attempted to obtain a visa to travel to the U.S. for her deposition and to participate in her own trial, she was denied entry. When she asked why, a State Department representative wrote the word "terrorist" on her visa application. On the first day of trial in December 2013, it was learned that Ibrahim's daughter, a U.S. citizen who had been listed on plaintiff's witness list, was not permitted to board her flight from Kuala Lampur to attend the trial.

There are actually at least eight separate watch lists under the umbrella of the Terrorist Screening Database (TSDB). This network of watch lists is managed by the Terrorist Screening Center (TSC), a multi-agency organization administered by the FBI and staffed by officials from the FBI, the Department of Homeland Security, and the Department of State. Information about "known and suspected terrorists" is "exported" to various "customer databases" operated by other agencies and government entities. The National Counterterrorism Center places classified substantive "derogatory" information on the system. These terrorist watchlists, and others, provide information to the U.S. intelligence community, a coalition of 17 agencies and organizations within the executive branch.

The National Counterterrorism Center places classified substantive "derogatory" information on the system. These terrorist watch lists, and others, provide information to the U.S. intelligence community.

Regrettably, Ibrahim's case is not an anomaly. A 2006 Government Accountability Office report revealed that half of the tens of thousands of potential matches on the various watch lists between December 2003 and January 2006 were misidentifications. In September 2007, the Department of Justice published an audit report which revealed that of the records reviewed in the audit, 38 percent contained errors or inconsistencies that were not identified through the TSC's own "quality assurance efforts." TSC data showed that 13 percent of the 388 redress inquiries closed between January 2005 and February 2007 were for complainants who were misidentified and were not actual watch list subjects, and a remarkable 20 percent necessitated removing the complainant's identity from the watch list. The TSC determined that 45 percent of the watch list records related to redress complaints were inaccurate, incomplete, not current, or incorrectly included.

In February, U.S. District Judge William Alsup of the Northern District of California issued a 38-page order ruling finding that Ibrahim's 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." Ibrahim v. Department of Homeland Security, No C 06-00545 WHA (Feb. 6, 2014).

Alsup also condemned the "frustrating efforts by the government to shield its actions from public view." He pointed out that the 9th U.S. Circuit Court of Appeal has consistently upheld "the common law right of the public and the press to examine the work of our courts." San Jose Mercury News Inc. v. U.S. Dist. Ct.Northern Dist., 187 F.3d 1096, 1102 (9th Cir. 1999). "In this circuit, we start with a strong presumption in favor of access to court records." Foltz v. State Farm Mutual Automobile Ins. Co., 331 F.3d 1122, 1135 (9th Cir. 2003). This presumption is strong because the public has an interest in "understanding the judicial process" as well as "keeping a watchful eye on the workings of public agencies." Without such oversight, the government can become an instrument for injustice. Kamakana v. City and County of Honolulu, 447 F.3d 1172, 1178, 1180 (9th Cir. 2006).

The court chastised the government for its "stubborn resistance to letting the public and press see the details of this case," and its "overbroad" motion for complete dismissal based on state secrets. When the government "could not win an outright dismissal, it tried to close the trial from public view via invocation of a statutory privilege for 'sensitive security information' (SSI) ... and the 'law enforcement privilege.' At least ten times the trial was interrupted and the public asked to leave so that such evidence could be presented," despite the fact that "virtually all of the SSI about the workings of the TSDB and its allied complex of databases, including the no-fly list, is publicly known."

Instead of fighting cases like Ibrahim, the Obama administration should get on the right side of the Constitution and reform a system that is applied in a blatantly unconstitutional manner.

The Ibrahim case strikes an important blow in favor of holding the government publicly accountable. One can only imagine how many other innocent people have been caught up in the deeply flawed system the government has created. Benjamin Franklin's cautionary words cannot be repeated enough: "They who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety."