Big Win in No-Fly Case — But You Can’t Read the Decision, It’s Secret

Dr. Rahinah Ibrahim won her case against the DHS for erroneously putting her on the no-fly list (see No Fly List on Trial for background). The case was characterized by plausible allegations of various government shenanigans designed to keep Dr. Ibrahim’s US citizen daughter from attending the trial. 1 And of course Dr. Ibrahim herself couldn’t come either since she couldn’t fly there.

Rather than issue a public decision, the court issued a “public notice” stating that “findings of fact and conclusions of law” have been issued but would not be published. I’ve never seen one of those before. Usually courts that feel a need to redact things issue decisions with the secret parts whited out – even if they go for pages.

In any case, the short notice tells us the outcome: a win on the key aspects of the merits.

Interstingly, publication of the full opinion is stayed until April 15, 2014, pending a ruling by the Court of Appeals on the secrecy. If, as I assume, this is a CIPA case, I think this date means the trial judge wanted to publish the opinion and the government objected. That would give the government the right to an urgent interlocutory appeal on the issue — the only way I can see the Court of Appeals ruling on anything relating to this matter anywhere near that quickly.

  1. Note that I exclude from the category of shenanigans the denial of access to plaintiff’s counsel of classified info. If the court’s account of the conditions the lawyers demanded, which included discussing the material with their client, was accurate, the court had no choice but to deny the request since the law simply does not allow that.[]
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4 Responses to Big Win in No-Fly Case — But You Can’t Read the Decision, It’s Secret

  1. Perhaps surprisingly, the Classified Information Procedures Act (CIPA) was never invoked in this case.

    Some of plaintiff’s counsel and one of her expert witnesses applied for and received clearances from the TSA to receive Sensitive Security Information (SSI) for purposes of the case, although they were forbidden to share that information with the plaintiff. SSI was introduced in documents and testimony, and discussed in arguments, although whenever this happened the courtroom was cleared. There was argument about whether restrictions on SSI applied only to discovery, or also to evidence and testimony at trial. Judge Alsup has still reserved, so far as I can tell, his decision on whether he will unseal exhibits and transcripts of closed-court trial sessions containing SSI.

    The government defendants only sought to introduce *classified* evidence and arguments after the trial had concluded. That’s why, as discussed in this brief, plaintiff’s counsel had not previously sought clearances.

    While CIPA never became an issue in this case, I think this brief implicitly raises good questions about whether the conditions on use of classified information that would have been required by CIOPA are consistent with due process. What good is it for counsel to have access to evidence if, for example, counsel are unable to show the evidence to potential witnesses who might, if they knew what the evidence said, be able to rebut it?

    The question of how one would know what evidence to bring forward to rebut unknown evidence appeared, from what was said in open court (particularly during closing arguments) and the public pleadings, to be central to Judge Alsup’s decision with respect to the lack of due process in current “no-fly” procedures.

  2. Michael says:

    CIPA, by its express terms, applies only to criminal cases. In civil cases (even cases, here, challenging executive action), there is not a governing statutory scheme.

  3. Pingback: Papers, Please! » Blog Archive » Judge orders parties to “no-fly” lawsuit to make their arguments public

  4. Barry says:

    I’m trying to figure out what valid purpose there is putting a person on the ‘no-fly’ list in a case like this.

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