Ms. Ibrahim was on the federal no-fly list, identified as a possible terrorist. She sued the federal government for damages and injunctive and declaratory relief. Her lawsuit has gone on for eight years. It was dismissed and appealed to the 9th Circuit Court of Appeals twice. Along the way, Ms. Ibrahim settled her claim for damages, so that the only issues that remained related to her requests for equitable relief. Essentially, Ibrahim wanted to know why she had been put on the no-fly list, and wanted to be cleared of the imputation of being a terrorist or aider and abettor of terrorists.
The early phases of the litigation revolved around questions of standing: can an alien who does not reside in the United States maintain a cause of action for equitable relief in the federal courts? That is a very legitimate question, but a panel of the 9th Circuit eventually answered the question “Yes” by a 2-1 vote, clearing the way for Ibrahim to pursue her claim on the merits.
This is where matters went seriously astray. The Obama administration fought tooth and nail to prevent Ibrahim from learning the facts surrounding her classification as a possible terrorist. The administration asserted the state secrets privilege to prevent Ibrahim’s lawyers from doing discovery into the facts surrounding Ibrahim’s case. The administration’s assertion of the state secrets privilege was supported by a declaration from Eric Holder. The state secrets issue led to a series of discovery motions before the presiding trial judge, William Alsup.
Despite the state secrets issue, which limited the discovery that Ibrahim’s lawyers could undertake, the truth eventually came out. Ms. Ibrahim was put on the no-fly list by an FBI agent named Kevin Kelley. When Kelley was deposed, he testified that the whole thing was a mistake: he had inadvertently checked the wrong box when filling out a form on Ms. Ibrahim; in fact, he had filled out the form in exactly the opposite manner from that prescribed by the instructions. So Ibrahim’s presence on the no-fly list was a matter of clerical error. Astonishingly, Kelley himself had no idea that he had filled out the form incorrectly, nor any knowledge of what had happened to Ibrahim as a result, until his deposition was taken in September 2013, nine years after he mistakenly filled out the form.
Wired.com sums up the facts this way:
Judge Alsup ruled in Ibrahim’s favor after a five-day trial. Because Ibrahim was claiming only declaratory and injunctive relief, the case was resolved by the court without a jury. You can read Judge Alsup’s decision here. This is how he describes Ibrahim’s detention:
What happened next was the real shame. Instead of admitting to the error, high-ranking President Barack Obama administration officials spent years covering it up. Attorney General Eric Holder, Director of National Intelligence James Clapper, and a litany of other government officials claimed repeatedly that disclosing the reason Ibrahim was detained, or even acknowledging that she’d been placed on a watch list, would cause serious damage to the U.S. national security. Again and again they asserted the so-called “state secrets privilege” to block the 48-year-old woman’s lawsuit, which sought only to clear her name.
Holder went so far as to tell the judge presiding over the case that this assertion of the state secrets privilege was fully in keeping with Obama’s much-ballyhooed 2009 executive branch reforms of the privilege, which stated the administration would invoke state secrets sparingly.
11. In early January 2005, Dr. Ibrahim planned to fly from San Francisco to Hawaii and then to Los Angeles and thence to Kuala Lumpur. Her plans were to attend a conference in Hawaii (sponsored by Stanford University) from January 3 to January 6 and to present her research findings at the conference.
12. On January 2, 2005, Dr. Ibrahim arrived at the San Francisco airport with her daughter, Rafeah, then fourteen. At the time, Dr. Ibrahim was still recovering from her hysterectomy surgery performed three months earlier and thus requested wheelchair assistance to the airport gate.
13. The trouble started when Dr. Ibrahim arrived at the United Airlines counter. The police were called by airline staff. She was handcuffed and arrested. She was escorted to a police car (while handcuffed) and transported to a holding cell by male police officers. There, a female police officer asked her if she had any weapons and attempted to remove her hijab.
14. She was held for approximately two hours. Paramedics were called so that medication related to her hysterectomy surgery could be administered.
15. Eventually, an aviation security inspector with the Department of Homeland Security informed Dr. Ibrahim that she was released and her name had been removed from the no-fly list. The police were satisfied that there were insufficient grounds for making a criminal complaint against her (TX 31). The trial record shows no evidence that would have justified a detention or arrest.
Judge Alsup described the genesis of Ibrahim’s placement on the no-fly list:
At long last, the government has conceded that plaintiff poses no threat to air safety or national security and should never have been placed on the no-fly list. She got there by human error within the FBI. This too is conceded. 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. That it was human error may seem hard to accept — the FBI agent filled out the nomination form in a way exactly opposite from the instructions on the form, a bureaucratic analogy to a surgeon amputating the wrong digit — human error, yes, but of considerable consequence. Nonetheless, this order accepts the agent’s testimony.
Judge Alsup ordered the Obama administration to take measures to ensure that all wrongful references to Ms. Ibrahim are scrubbed from the various terrorist databases. He noted that nothing in this procedure compromises any legitimate national security concerns:
No relief granted herein implicates state secrets. The foregoing relief does nothing more than order the government to delete or to correct in all its agency systems any ongoing effects of its own admitted inexcusable error and reconfirm what she was told in 2005, [redacted]. The government has no defense, classified or not, against their conceded error in 2004. In complying with this relief, the government will not have to reveal any classified information. It merely has to certify that it has cleansed its record of its own error and reveal to plaintiff her current no-fly list status, a non-classified item that the Department of Homeland Security itself revealed to Dr. Ibrahim in 2005.
It seems plain that Judge Alsup, no left-wing flake–he dismissed Ibrahim’s case and said on the record that he does not believe standing should have been extended to her by the Court of Appeals–views the Obama administration’s assertion of the state secrets privilege as a disgrace. In a pretrial hearing, he said, “I feel that I have been had by the government.” (This was when the government moved to have Ibrahim’s case dismissed with prejudice because it could not be tried without delving into state secrets.)
That brings us to Holder’s declaration, which was filed in April 2013 in support of the government’s effort to limit discovery in the case. Holder immediately invoked national security:
I am advised that the Government has informed Plaintiff’s counsel of unclassified information concerning whether or not Plaintiff’s name appears on any terrorist watchlists pursuant to an attorney’s eyes only protective order. I understand that, following this disclosure, Plaintiff has moved to compel the production of classified information. As described below, the disclosure of the classified information sought by Plaintiff through her discovery could reasonably be expected to cause significant harm to the national security.
Of course it would not have harmed national security for the Obama administration to simply tell Ms. Ibrahim she had been placed on the terrorist watch list erroneously, and that all references to her have been removed from the no-fly list and any associated databases. Holder then went on to assert various generalities about ways in which divulging classified information about terrorist watch lists could harm national security. These comments are essentially boilerplate. For example:
First, I concur with the determination of the FBI that the disclosure of the identities of subjects of FBI counterterrorism investigations or intelligence activity reasonably could be expected to cause significant harm to national security. As the FBI has explained, such disclosures would alert those subjects to the Government’s interest in them and could cause them to attempt to flee, destroy evidence, or alter their conduct so as to avoid detection of their future activities, which would seriously impede law enforcement and intelligence officers’ ability to determine their whereabouts or gain further intelligence on their activities. In addition, as the
FBI has explained, knowledge that they were under investigation could enable subjects to anticipate the actions of law enforcement and intelligence officers, possibly leading to counter-surveillance that could place federal agents at higher risk, and to ascertain the identities of confidential informants or other intelligence sources, placing those sources at risk. Such knowledge could also alert associates of the subjects to the fact that the Government is likely aware of their associations with the subjects and cause them to take similar steps to avoid scrutiny.
Of course, but what does that have to do with Ibrahim’s case? Holder assured the Court that the government’s claim that plaintiff’s discovery requests implicated state secrets complied with the Obama administration’s purported determination to avoid any abuse of the privilege:
￼16. On September 23, 2009, I announced a new Executive Branch policy governing the assertion and defense of the state secrets privilege in litigation. Under this policy, the Department of Justice will defend an assertion of the state secrets privilege in litigation, and seek dismissal of a claim on that basis, only when necessary to protect against the risk of significant harm to national security. See Exhibit 1 (State Secrets Policy), § l(A). The policy provides further that an application of a privilege assertion must be narrowly tailored and that dismissal be sought pursuant to the privilege assertion only when necessary to prevent significant harm to
national security. !d. § 1(B). Moreover, “[t]he Department will not defend an invocation of the privilege in order to: (i) conceal violations of the law, inefficiency, or administrative error; (ii) prevent embarrassment to a person, organization, or agency ofthe United States Government; (iii) restrain competition; or (iv) prevent or delay the release of information the release of which would not reasonably be expected to cause significant harm to national security.” !d. § 1(C). …
Based on my personal consideration of the matter, I have determined that the requirements for an assertion and defense of the state secrets privilege have been met in this case in accord with the September 2009 State Secrets Policy.
At best, these representations are grossly misleading. In this case, no state secrets would have been compromised by admitting that Ibrahim had been put on the no-fly list through clerical error, and correcting the mistake. It seems beyond dispute that the Obama administration asserted the state secrets privilege, and tried to get Ibrahim’s case dismissed on that basis, precisely in order to “conceal…inefficiency, or administrative error” and to “prevent embarrassment to a person, organization, or agency of the United States government.”
But the story isn’t that simple. The government asserted the privilege in objection to plaintiff’s discovery requests, which naturally covered a broader swath of information (about, for example, policies and procedures relating to the no-fly list) than the bare facts of Ibrahim’s case. As to some requests, Judge Alsup upheld the government’s assertion of state secrets privilege. That being the case, I don’t think we can say that the representations in Holder’s declaration are literally false. (Unlike the James Rosen case, where we concluded that the facts overwhelmingly supported the conclusion that Holder committed perjury.)
But that doesn’t exonerate the Obama administration and Attorney General Holder for their disgraceful handing of the Ibrahim case. Once the issue of standing was resolved, there was no good reason not to acknowledge the clerical error that had been made, and fix it. Millions of dollars in attorneys’ fees were spent on both sides, until plaintiff’s lawyers finally dragged the truth out of the government. The idea that this had anything to do with national security is a fiction–the government merely wanted to avoid admission of error. It is a fundamental principle of litigation that, if you find that all of your efforts are being devoted to preventing the truth from coming out, you had better re-think what you are doing.
The Ibrahim fiasco won’t end here, of course. The story of how the federal government committed clerical error, wrongly detained an innocent woman, and then spent close to a decade trying to cover up what happened will spread throughout the Muslim world and the international Left, and will be used to delegitimize our security measures by persons hostile to our interests (domestic as well as foreign) for many years to come. It shouldn’t be hard to understand that if our government wants to be perceived as trustworthy, it must behave in a manner that is worthy of trust. But honest dealings apparently are alien to the Obama administration.
One final note: based on my review of documents in the case (a tiny portion of the whole), it appears that Ibrahim’s principal lawyer, Elizabeth Pipkin, did a tremendous job of representing her client.