Unsealed Decision in Nation's First "No-Fly List" Trial Reveals Government Use of "Secret Exception" to Watchlist Innocent People

The full, unredacted decision in the nation’s first “No-Fly List” trial was publicly released today after a three-month hold and reveals for the first time that the Government employs a secret standard to watchlist individuals who pose no threat to national security. 

According to the newly unsealed decision in Ibrahim v. Department of Homeland Security, et al., the Government invoked a secret, classified exception to the “reasonable suspicion” standard to place Dr. Rahinah Ibrahim and her eldest daughter, an American citizen, in the Terrorist Screening Database (“TSDB”). The Government has long assured the public that individuals must meet the reasonable suspicion standard before being added to the TSDB.  Reasonable suspicion generally requires “articulable facts” that reasonably warrant a determination that an individual is engaged in terrorist activities. 

U.S. District Court Judge William Alsup’s landmark Ibrahim decision now reveals that the Executive Branch has created at least one secret exception to the reasonable suspicion standard to watchlist innocent individuals. The Government conceded at trial that Dr. Ibrahim has never posed a threat to national security and does not meet the reasonable suspicion standard for inclusion in the TSDB. 

“For the Executive Branch to create secret law, not subject to any legislative or judicial review, runs afoul of everything our founders envisioned for this country. Quite simply, secret laws have no place in a democratic society,” said Elizabeth Pipkin, a partner with McManis Faulkner and lead lawyer for Dr. Ibrahim.

In January, Judge Alsup issued a redacted version of his 38-page decision, finding that Dr. Rahinah Ibrahim does not pose, and never posed, a threat to national security. The Court further found that Dr. Ibrahim’s due process rights were violated when the Government failed to rectify the many “suspicious adverse effects” of mistakenly placing her on the No-Fly List in 2004.

The Judge redacted several portions of the decision that the Government claimed, but the Judge disagreed, would reveal “Sensitive Security Information” and law enforcement sensitive information. The Government was given a three-month deadline to object to the public release of the full decision, but ultimately did not file any objection or appeal the merits of the Court’s decision. 

The newly disclosed facts reveal the power of the Government to interfere with the lives of innocent individuals who do not pose a threat to national security:

  • Dr. Ibrahim’s mistaken entry in the No-Fly List was removed in 2005. However, she remains in the Terrorist Screening Database (“TSDB”) and several downstream watchlists pursuant to a secret, classified exception to the “reasonable suspicion standard” normally used to place individuals in the TSDB. The Government concedes that Dr. Ibrahim does not meet the “reasonable suspicion standard.”
  • The Court reviewed classified information that purportedly supports the Government’s denials of Dr. Ibrahim’s visa applications in 2009 and 2013. The Government has invoked the “State Secrets Privilege” over this information, which remains concealed from Dr. Ibrahim, her lawyers and the public. Although the Government admits that Dr. Ibrahim has never posed a threat to national security, it has not provided her a visa to allow her to return to the U.S.

In addition to Pipkin, Dr. Ibrahim is represented by James McManis, Christine Peek, Ruby Kazi and Jennifer Murakami of McManis Faulkner in San Jose, Calif. The case is Rahinah Ibrahim v. Department of Homeland Security et al., case number 3:06-cv-00545, in the U.S. District Court for the Northern District of California.