A Malaysan academic who studied, married, and had a child in the United States became the first to successfully challenge her placement on the U.S. no-fly list last month. Rahinah Ibrahim was placed on the federal watchlist that bars individuals from boarding planes because an agent checked the wrong box, but the opinion released Thursday reveals that the error may have precipitated her “Kafkaesque” treatment for years through a “web of interlocking watch lists,” without any information about how or why it was happening.
Ibrahim, a devout Muslim, had lived on and off in the United States since at least 1983, including to pursue her Ph.D. at Stanford University. In 2005, Ibrahim was on her way from San Francisco to Hawaii to present a paper on affordable housing, when she was handcuffed at the airport, and taken to a holding cell for two hours before agents let her board her flight and several that followed, including one back to Malaysia.
Ibrahim was informed at the end of the incident that she had been removed from the no-fly list. But while she was in Malaysia, her student visa was revoked, and she was prevented in the years that followed from re-entering the United States. On the occasion when she found out, she had spent the equivalent of a month’s salary to visit her ill friend in the United States. Even her daughter, who is a United States citizen, was blocked from flying to the United States for Ibrahim’s trial.
Ibrahim launched an expensive, prolonged lawsuit to challenge her status. She did not seek any monetary compensation; only to clear her name. Almost nine years later — after several procedural dismissals — a judge held a trial shrouded in secrecy, with hearings and exhibits closed to the public. When the decision was first issued in January, that, too was classified. But last week, U.S. District Judge William Alsup issued a redacted version of the opinion that not only reveals Alsup deemed the government’s internal procedure for challenging her status violated the Constitution; it also paints a picture of a maze-like and secretive watchlist system in which even the court can only suspect that Ibrahim’s placement on the no-fly list may have been tied to her other subsequent troubles.
“This order finds that suspicious adverse effects continued to haunt Dr. Ibrahim in 2005 and 2006, even though the government claims to have learned of and corrected the mistake,” Alsup wrote. He explains:
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.
Since her erroneous placement on the no-fly list, plaintiff has endured a litany of troubles in getting back into the United States. Whether true or not, she reasonably suspects that those troubles are traceable to the original wrong that placed her on the no-fly list. Once derogatory information is posted to the TSDB [Terrorist Screening Database], it can propagate extensively through the government’s interlocking complex of databases, like a bad credit report that will never go away. As a post-deprivation remedy, therefore, due process requires, and this order requires, that the government remediate its wrong by cleansing and/or correcting all of its lists and records of the mistaken 2004 derogatory designation and by certifying that such cleansing and/or correction has been accurately done as to every single government watchlist and database.
Alsup ordered that the government search all of its watchlists and remove any erroneous placements that might be the result of the no-fly list error. He also required that the government inform her of the reason why her visa application was denied, and allow her an opportunity to apply for a waiver. Although Ibrahim’s lawyers worked pro bono, they generated $300,000 in court costs alone, and invested a cumulative 11,000 hours of work, according to Wired.
The ruling is also one of two issued in January to suggest for the first time that those put on watchlists have a constitutional due process right to challenge their placement. Although Alsup concedes that no one has a right to be informed of their placement on such a list, he concludes that those who later suffer “post-deprivation” injuries should be entitled to an avenue for challenging that placement, and “that the government’s post-deprivation remedies fall far short of that relief.”
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