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The most important judicial opinion to date concerning the U.S. Government’s terrorist watchlisting programs was issued on Tuesday, in the case of Ibrahim v. Department of Homeland Security, by Judge William Alsup of the United States District Court for the Northern District of California. But he handed down the ruling in a highly unusual fashion, one that makes its full implications difficult to discern---at least for now. In December, Judge Alsup presided over Ibrahim, the first trial to be held concerning the constitutionality of the Terrorist Screening Database and its “downstream” watchlists, the most widely known of which is the No Fly List. Lawfare posted my summary description of that trial in late December. (Full disclosure: I testified as an expert witness for the plaintiff.) Plaintiff, a Malaysian national then a graduate student at Stanford, was first denied boarding on a flight departing the continental United States, then found her student visa revoked when she sought to return. Her suit for declaratory and injunctive relief sought to clear her name and uncover what she alleged to be the U.S.Government’s mistake. Judge Alsup appears to have agreed. In a three-page “Public Notice and Summary of Findings of Fact and Conclusions of Law after Bench Trial,” he grants “some but not all of the relief sought” by Dr. Ibrahim. His key finding appears to be: “In order for the district court to grant relief on a claim that a plaintiff has been wrongly listed in a government terrorist watchlist, that listing must first result in concrete, reviewable adverse government action against the plaintiff, such as refusal of permission to board a plane.” If a plaintiff can make such a showing “and, as here, shows that the action resulted from an error by the government, then the plaintiff is entitled by due process to a post-deprivation remedy that requires the government to cleanse and/or correct its lists and records of the mistaken information and to certify under oath that such correction(s) have been made.” Judge Alsup’s ruling is a game-changer for the Government, the latest in a series of reversals resulting directly from this litigation. The Government’s previous positions, that the district court lacked subject matter jurisdiction over the No Fly List and that a foreign national such as the plaintiff was not entitled to make claims of constitutional injuries, were both rejected by the Ninth Circuit Court of Appeals in 2008 and 2012. The Government has now also lost its core position that internal agency oversight, whether by the FBI (whose Terrorist Screening Center creates these lists) or by the Department of Homeland Security’s “TRIP” redress program, provides sufficient protection against erroneous deprivation of a variety of liberty interests. According to Judge Alsup, “The government’s administrative remedies fall short of such relief and do not supply sufficient due process.” A judicially enforced remedy is therefore required. This “Public Notice and Summary” is nevertheless highly unusual. As its name implies, and the document itself concludes, “This notice itself is merely a brief summary and does not constitute the order.” That document will remain under seal at least until April 15, 2014, “so that our court of appeals can rule on the government’s desire to maintain its secrecy.” The trial itself was pockmarked with Judge Alsup’s (sometimes reluctant) commands to clear the courtroom for closed-door sessions at the insistence of Justice Department counsel. Now, although Judge Alsup expressed his view that his full order should be made public, the Government has the opportunity to petition the Ninth Circuit for an extraordinary writ to cap a partially secret trial with a secret opinion. Regardless of the Government’s decision whether to seek that writ, it is very likely that the Ibrahim case will be appealed to the Ninth Circuit for a third time. If history is a guide, both this instinct for secrecy and the desire to insulate the watchlists from judicial scrutiny are misplaced. As I argued in my recent book and in public testimony at trial, it was the unwelcome task of a few brave district court judges to deny the secrecy upon which the State Department insisted in administering its own program of travel controls at the height of the Red Scare. That system was managed by Mrs. Ruth Shipley, chief of the Passport Office. As one district court judge concluded at the time, in Boudin v. Dulles (the plaintiff, a prominent lawyer, was denied a passport after having previously sparred with Mrs. Shipley regarding his clients’ passport applications): How can an applicant refute charges which arise from sources, or are based upon evidence, which is closed to him? What good does it do him to be apprised that a passport is denied him due to associations or activities disclosed or inferred from State Department files even if he is told of the associations and activities in a general way? What files? What evidence? Who made the inferences? From what materials were those inferences made? Rahinah Ibrahim’s case asks the same questions of Mrs. Shipley’s ghost. The courts should reach the same conclusions that their judicial predecessors did. This case may be the start of that process of increasing judicial review. Jeffrey Kahn is Associate Professor of Law at SMU Dedman School of Law, and author of Ms. Shipley's Ghost: The Right to Travel and Terrorist Watchlists.
Jeffrey Kahn is a Professor of Law at Southern Methodist University Dedman School of Law where he teaches and writes on American constitutional law, Russian law, human rights, and national security law. He is currently a Fulbright Research Scholar in residence at PluriCourts, a Centre of Excellence in the Faculty of Law at the University of Oslo.
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