Last month, a federal district court for the very first time ordered the government to disclose an individual’s status on the terrorist watchlist. Jennifer Daskal described a publicly released summary of the then-sealed decision in an earlier post. Yesterday, a redacted version of the full court order was made public. The order reveals the incredible story of plaintiff Rahinah Ibrahim’s descent down the watchlist rabbit-hole – a story of blatant error that the court described as the “bureaucratic analogy to a surgeon amputating the wrong digit.” But precisely because the error here was so blatant – and the government ultimately conceded that Ibrahim posed no national security threat – future courts will confront still harder questions on how much procedural protections individuals should have in contesting secret watchlist designations. (In the interest of disclosure, I testified as an expert for the plaintiff in Ibrahim).
Here’s what precipitated the plaintiff’s descent down the rabbit hole: Ibrahim, a Malaysian graduate student at Stanford University, was placed on the No-Fly list in 2004 because an FBI agent marked the wrong box on a form. The form at the time (rather oddly) required agents to check off boxes for databases in which they believed a person should not be listed. The agent did the opposite, and Ibrahim ended up on the list without the agent intending it. (The redacted order hints that he intended to nominate her for other watchlists that did not actually bar air travel). When Ibrahim tried to fly to an academic conference in Hawaii en route to Malaysia in 2005, she was handcuffed, arrested, and told she couldn’t fly. She was eventually permitted to leave the country, but she could not return to the United States because the government revoked her visa.
It took eight years of litigation, including two trips to the Ninth Circuit, to obtain an admission that the government had erred:
“At long last, the government has conceded that plaintiff poses no threat to the air safety or national security and should never have been placed on the no-fly list. … 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.”
The government claims to have learned of, and corrected, the mistake within days of Ibrahim’s 2005 No-Fly list encounter. But the court found that the mistake continued to haunt her, as in influencing the initial visa revocation decision that prevented her from returning to the United States. Likening the potential perpetuation of an erroneous listing to “a bad credit report that will never go away,” the court ordered a complete cleansing of all screening databases through which the original error may have percolated. (Note that it’s not clear, however, that Ibrahim’s most recent visa denial is traceable to the initial watchlisting; extending Ninth Circuit law, the court required the government to provide more specifics on why it continues to deny Ibrahim a visa on terrorism grounds).
Legally, the due process findings here are significant: the court found that Ibrahim, a foreign national in the United States on a student visa, had protected liberty interests affected by her watch listing, and that DHS’ existing internal mechanism for watchlist complaints provided an inadequate remedy. That internal mechanism doesn’t inform a person whether she is on a watchlist, the basis for any concerns, or whether the person’s status has been changed as a result of any post-complaint review. Still, the court took pains to qualify the scope of its decision, pointing out in a revealing footnote just how narrowly it viewed Ibrahim’s case:
“In the instant case, the nomination in 2004 to the no-fly list was conceded at trial to have been a mistake. In this sense, this is an easier case to resolve. Harder no-fly cases surely exist. For example, the government uses “derogatory” information to place individuals on the no-fly list. When an individual is refused boarding, does he or she have a right to know the specific information that led to the listing? Certainly in some (but not all) cases, providing the specifics would reveal sources and methods used in our counterterrorism defense program and disclosure would unreasonably jeopardize our national security. Possibly, instead, a general summary might provide a degree of due process, allowing the nominee an opportunity to refute the charge. …This order need not and does not reach this tougher, broader issue…”
The case that is closest to deciding that “tougher, broader” issue is Latif v. Holder – where an Oregon federal court is now considering whether the internal watchlist redress mechanism and unclear appeals process affords adequate due process. (That case includes several U.S. citizens who were initially stranded abroad when they were prohibited from flying back to the United States, caught in de facto exile based on their apparent inclusion on the No-Fly list.) Intentional watchlist placements – as most cases presumably involve – may present greater risks of disclosure than in Ibrahim, but they are also far less likely to get redressed through internal agency review processes. If Ibrahim is most striking for the box-checking bungling that prompted the plaintiff’s eight-year odyssey, Latif may go further in defining constitutionally adequate due process for watchlist challengers.