It has been a few years since I’ve posted stories about the Department of Homeland Security’s “No Fly” list. Remember, the list that prevented Senator Ted Kennedy from flying, and countless other innocent people, with no way for them to contest being on the list. Things did eventually ease up a bit for a while, but suddenly they are back in the news.
Why? The first legal challenge to the no-fly list to actually make it to trial has started, and things have already turned decidedly Orwellian.
The plaintiff in the case is Dr. Rahinah Ibrahim, a Malaysian citizen who was a PhD student at Stanford University. Ibrahim got married in the US, and her daughter, Raihan Mustafa Kamal, was born here and is hence a US citizen. Ibrahim, along with her daughter, were denied boarding on a flight from San Francisco to Kuala Lumpur in 2005.
Ironically, Ibrahim herself is not allowed to attend the trial. She applied for a visa specifically to attend the trial, but it was denied … by the DHS, the plaintiff in the case.
The trial was supposed to start Monday in San Francisco, despite DHS lawyers attempts to get the case dismissed several times by invoking “state secrets”. But on the first day of trial, one of the plaintiff’s main witnesses — the daughter Kamal — was also unable to attend the trial. She was denied boarding Sunday night on a flight from Kuala Lumpur to San Francisco because she is now on the government no-fly list! Not only is the daughter a witness to the original incident, she is an attorney licensed to practice law in Malaysia.
Interestingly, Kamal was told by the airline that she was on the no-fly list, and was even given a phone number for DHS in the US to call. Normally, airlines are prohibited from telling the passenger why they are being denied boarding, or giving them any other information, putting them in a very strange situation.
When hearing this, the trial judge ordered the government lawyers representing the DHS to investigate what happened. Later that day, the lawyers reported back that they had been told (and confirmed) by DHS that “the plaintiff’s daughter just missed her flight”, and that she was rebooked on a flight on Tuesday.
But the DHS response is a lie. Kamal did not miss her flight, and she was not rebooked on another flight. Kamal even sent a copy of the “no-board” instructions which DHS gave to Malaysia Airlines. Again, normally the airline is not allowed to disclose this information to the passenger, but for some reason they gave this information to Kamal to explain why they were not letting her fly. As far as anyone knows, this is the first time an actual no-fly order has been disclosed to the passenger.
Ironically, the government is still trying to get the trial dismissed. Their reasoning? Because the evidence against them is secret, it is not allowed in court, so the plaintiffs cannot present evidence against the government. Initially, the government tried to claim that even evidence against the government that was public could not be used in the trial. For example, the government claimed that the 2005 SFO police report on the original incident (and which had always been publicly available) was inadmissible in court because the TSA “had subsequently determined that some of the information it contained was secret”.
That’s right, the government was claiming that they could retroactively declare public knowledge to be secret, and thus inadmissible in court. Luckily, the judge rejected this claim, saying:
That’s ridiculous. Are you saying that if the president makes a speech, TSA can retroactively make it a secret what he said? It cannot be the law that something that is publicly known later becomes hidden…
There are lots of interesting notes on this trial, which you can read on The Identity Project website.
But I warn you. If you start reading them, you might think you had fallen down a rabbit hole.
UPDATE: Coincidentally, Nelson Mandela was on the US no-fly list, and was not allowed to fly to the US, nor even fly on a US airline outside the US.
