Central to the federal government’s claim that it should be allowed to operate a vast, secret surveillance system as part of its anti-terrorism policy is that it can be trusted to do the right thing with the sensitive information in its possession.

On Thursday, U.S. District Judge William Alsup cast aspersions on that presumption and issued a detailed opinion in the case of a former Stanford University graduate student who was kept on the nation’s no-fly list and denied entry to the U.S. for nine years by mistake—which the government knew but refused to admit or correct.

The judge ruled last month that the government should clear 48-year-old Malaysian architecture Professor Rahinah Ibrahim, but held off releasing the text of his ruling to see if the U.S. Department of Homeland Security would do the right thing. The department claimed during the hearing of a lawsuit brought by Ibrahim that it had already taken her off the list and cleared her name, but the judge was skeptical and the professor and her daughter, who is a U.S. citizen, have not been allowed back in the country.

Judge Alsup detailed how Ibrahim was ensnared by the government. FBI Special Agent Kevin Kelley interviewed Ibrahim in 2004 at Stanford, where she was working on a doctorate in construction engineering and management. Ibrahim said she was asked what she knew of a militant Islamic group in Malaysia called Jemaah Islamiyah. Ibrahim said she knew nothing.

Kelley then proceeded to fill out forms incorrectly, checking off the wrong boxes and indicating the opposite of the information he meant to convey. “He made this mistake even though the form stated ‘It is recommended the subject NOT be entered into the following selected terrorist screening databases,’ ” the judge wrote.

The result for Ibrahim was a “litany of troubles in getting back into the United States.”  Ibrahim became of aware she was on the no-fly list when she attempted to fly with her daughter from San Francisco International Airport to her native Malaysia for a Stanford-sponsored conference. The authorities told her she was on the no-fly list, handcuffed her and put her in a holding cell for hours. She was in a wheelchair at the time, following a recent hysterectomy.

Ibrahim was finally sent to her Bay Area home and told she could fly the next day, which she did. But then the government refused to let her back in or give her an explanation why she was banned. After her initial complaint, the government said it took her off the list but the U.S. State Department then revoked her student visa.

An exchange between State Department employees indicated that getting off the no-fly list did not clear her name as a “potential terrorist.” So Judge Alsup ordered that the government revisit its plethora of watch lists:

“After so much gnashing of teeth and so much on-the-list-off-the-list machinations, the government is ordered to provide the foregoing relief to remediate its wrong. If the government has already cleansed its records, then no harm will be done in making sure again and so certifying to the court.”

The government has steadfastly refused, since the no-fly list was conjured up after the September 11, 2001, attacks, to say who is on the list, how they got there or how they can get off it. The government has argued that it can’t be compelled to discuss the no-fly list in open court and has consistently thrown up barriers to people receiving a judicial hearing over their inclusion on it.  

–Ken Broder

To Learn More:

FBI's No-Fly List Mistake Kicked Off Woman's Odyssey, Filing Says (by Dan Levine, Reuters)

No-Fly List Inclusion Blamed on Agent's Goof (by William Dotinga, Courthouse News Service)

Judge Rules in Favor of ex-Stanford Student Stranded on No-Fly List for 9 Years (by Ken Broder, AllGov California)

Rahinah Ibrahim v. Department of Homeland Security (U.S. District Court for the Northern District of California)