After seven years of litigation, two trips to a federal appeals court and $3.8 million worth of lawyer time, the public has finally learned why a wheelchair-bound Stanford University scholar was cuffed, detained and denied a flight from San Francisco to Hawaii: FBI human error.
FBI agent Kevin Kelley was investigating Muslims in the San Francisco Bay Area in 2004 when he checked the wrong box on a terrorism form, erroneously placing Rahinah Ibrahim on the no-fly list.
What happened next was the real shame. Instead of admitting to the error, high-ranking President Barack Obama administration officials spent years covering it up. Attorney General Eric Holder, Director of National Intelligence James Clapper, and a litany of other government officials claimed repeatedly that disclosing the reason Ibrahim was detained, or even acknowledging that she’d been placed on a watch list, would cause serious damage to the U.S. national security. Again and again they asserted the so-called “state secrets privilege” to block the 48-year-old woman’s lawsuit, which sought only to clear her name.
Holder went so far as to tell the judge presiding over the case that this assertion of the state secrets privilege was fully in keeping with Obama’s much-ballyhooed 2009 executive branch reforms of the privilege, which stated the administration would invoke state secrets sparingly.
“Under this policy, the Department of Justice will defend an assertion of the state secrets privilege in litigation, and seek dismissal of a claim on that basis, only when necessary to protect against the risk of significant harm to national security,” reads an April signed declaration from the attorney general to U.S. District Judge William Alsup, who presided over the Ibrahim litigation in San Francisco.
The state secrets privilege was first upheld by the Supreme Court in a McCarthy-era case and generally requires judges to dismiss lawsuits against the United States when the government asserts a trial threatens national security.
In his declaration, Holder assured Judge Alsup that the government would not be claiming national security to conceal “administrative error” or to “prevent embarrassment” — an assertion that is now nearly impossible to square with the facts.
Elizabeth Pipkin, the San Jose attorney who represented Ibrahim in her legal odyssey pro bono, said the Obama administration should be embarrassed.
“The idea that any of this poses any threat to national security is ridiculous,” Pipkin said in a telephone interview. “These government state secret privileges are to protect national security. They are not supposed to be used to cover up government errors.”
The Justice Department did not respond for comment.
The Justice Department nearly got away with the cover up, which commenced under the President George W. Bush administration.
At one point, Judge Alsup dismissed the case. A federal appeals court reinstated it in 2012, more than a year after Alsup tossed it. A month before Ibrahim’s trial, the judge said he learned the Kafkaesque truth. “I feel that I have been had by the government,” he said in a November pretrial conference.
Last week he laid it out all in his final order in the case, ruling for Ibrahim following a five-day, non-jury trial that was conducted largely behind closed doors in December.
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. (.pdf)
Ibrahim was a Stanford University doctoral student in architecture and design from Malaysia and was headed to Hawaii to give a paper on affordable housing. Wheelchair-bound after just having a hysterectomy, she was handcuffed, detained for hours at San Francisco International Airport and denied her pain medication until paramedics arrived in 2005. She was eventually released and allowed to fly to her home country of Malaysia.
She sued, seeking to learn if she was on the no-fly list and to clear her name. Her case ping-ponged across the legal landscape for years as the government tried everything it could to have the lawsuit tossed.
The woman was even barred a return flight for her own trial. So was one of her daughters, a U.S. born American citizen, who witnessed her mother’s humiliation at the San Francisco airport.
It’s not the first time the government pushed the envelop in declaring state secrets in litigation. The same was true when the state secrets privilege was born in a 1953 Supreme Court case.
At the time, three widows of civilians whose husbands died in a Georgia military aircraft crash sued. The government refused to release the accident report, on the grounds that it would disclose information about secret military equipment. That report was declassified in 2004, however, and did not mention any secret military equipment.
“Praise to God for this win,” Ibrahim, who is in Malaysia, said in a statement provided by her lawyers.