Transparency and Due Process, Because Governments Will Commit Any Crime To Avoid Admitting Error

Rahinah IbrahimUniversiti Putra MalaysiaDavid Kravets of Wired has a good (in an infuriating way) write-up of the story of Rahinah Ibrahim (pictured at right), a woman who was placed on the no-fly list because of an FBI agent's clerical error. She spent nine years fighting to make the federal government acknowledge and correct its mistake, finally winning just last week. Reason has covered this case, including the vindictive inclusion of U.S. citizen Raihan Mustafa Kamal, Rahinah Ibrahim's daughter, on the no-fly list to prevent her from testifying in the case. Ultimately, the story is not just a tale of injustice, but an illustration of how dangerous it is to allow government officials to invoke "national security" as a cover for their actions. As we now know, in this case, they did so through two administrations simply to avoid being publicly embarrassed by their bureaucratic incompetence.

As Kravets writes:

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.

The Justice Department nearly got away with its shenanigans, which began under the Bush administration and continued, with no interruption, under Obama. U.S. District Judge William Alsup actually tossed Rahinah Ibrahim's lawsuit out of court at one point, only to have it reinstated at the appeals level and handed back to a judge who now very obviously feels used.

How did all this begin? As Alsup details in his February 6 ruling, "FBI Special Agent Kevin Michael Kelley...misunderstood the directions on the form" he was filling out with regard to Rahinah Ibrahim "and erroneously nominated Dr. Ibrahim to the TSA's no-fly list."

When Ibrahim found out, at the airport, that she couldn't fly, she raised a legal fuss—and the feds closed ranks and refused to admit error. Justice Department officials representing the U.S. government argued in court that "summary judgment in its favor was appropriate based on state secrets."

The big state secret was that a government official screwed up, and his colleagues and superiors, all the way to the top, tried to hide that fact.

Wrote Alsup:

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.

Years of litigation through two administrations from different political parties, both of which tried to make it all go away by claiming that everything was much too hush-hush to be dealt with by a mere court. State secrets don't you know. A woman was dragged through humiliation, expense, and injustice because government officials didn't want to admit a mistake by a relatively low-level flunky.

This is why transparency is important. This is why due process is important. Because, at the end of the day, the Attorney General of the United States, law enforcement agents, and apparatchiks great and small would rather torment people and lie than say, "Whoops. Our bad!"

Proper procedures, public scrutiny, appeals processes, and protections for individual rights exist not as inefficient annoyances, but as checks on officials who are, deep down, petty scumbags.

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  • Almanian!||

    I keep reading that the agent/govt person "checked the wrong box." I'm no longer convinced that they even think it's the "wrong" box. If ya know what I'm sayin'....

    I ain't sayin', I'm just sayin'...

  • Heroic Mulatto||

    To be honest, I haven't a clue as to what you're sayin'.

  • Doctor Whom||

    the vindictive inclusion of U.S. citizen Raihan Mustafa Kamal, Rahinah Ibrahim's daughter, on the no-fly list to prevent her from testifying in the case.

    We're turning into the USSR, if not into Tsarist Russia.

  • Almanian!||

    In Soviet Russia, Tsars turn YOU in!

  • Almanian!||

    The Justice Department nearly got away with its shenanigans

    - if it hadn't tbeen for those MEDDLING KIDS!

    which began under the Bush administration ....

    - BOOOOOOOOOOOOOOOSH!!!111eleventyoneoneone11!

  • Salvius23||

    Thank goodness she wasn't named "Buttle."

  • Pro Libertate||

    So long as there are no repercussions for criminal abuses of power--and I mean people getting jailed and/or sued for serious damages--this will happen not only again, but more and more.

    You know, maybe rogue agencies and other government entities should be put in receivership, with some sort of fixers running everything for a while. Like, I dunno, Cato or somebody.

  • Shirley Knott||

    I'd be perfectly happy to support the death penalty for any error, omission, or illegal commission by any public official, whether appointed or elected.
    Without chance or opportunity for reprieve of any sort.
    Punishment to be performed in the public square within 10 days of conviction.
    No other death penalty offenses.
    But then I'm apparently an extremist.

  • Pro Libertate||

    That might be much, but what I would like is to ostracize them from any government office (at any level) or any lobbying position, for at least a decade or for life, if the crime is bad enough. That's aside from any criminal and/or civil liability.

    What about requiring politicians to be licensed? Have to pass a test on the Constitution and other laws (depending on the jurisdiction), have to take continuing education classes, and are held to a published ethical code. Oversight by, well, me. Sorry, your license to practice politics has been suspended for ten years, sir.

  • Invisible Finger||

    That might be much,

    I don't think so. We need deterrence.

    And by deterrence I mean deterring anyone from thinking a government job is something they would want.

  • Pro Libertate||

    Did I mention the tarring and feathering?

  • Robert||

    Seriously, we need just the opposite: amnesty. That would encourage the admission of mistakes. Best it be anonymous.

  • Robert||

    Are you mad? Then they would kill people or do anything else it took to prevent their error from being discovered.

  • LarryA||

    I'd be perfectly happy to support the death penalty for any error, omission, or illegal commission by any public official, whether appointed or elected.

    Nope. Nobody's perfect. The harsh penalty should be reserved for covering up the error.

    The stupid here is that if TSA had just immediately said, "Oops. Agent checked the wrong box. We're really sorry. Here's free transport to where you were going" no one else would ever have heard about the incident. Another case of "In a hole? Quit digging!"

  • Nazdrakke||

    You know, maybe rogue agencies and other government entities

    If they consistently operate in this same manner are they really rouge agencies or a clear reflection of how they actually function?

  • Pro Libertate||

    I meant rogue to me. I'm sure they think they're perfectly justified in their money-making and soul-crushing endeavors. I doubt the mob is full of introspective thugs, either.

  • GILMORE||

    YEAH BUT CORPORATIONS!
    /derp

  • The Late P Brooks||

    But nobody would take on the arduous and distasteful job of being a (not so) petty tyrant if the plebs had recourse against them.

    ANARCHY!

  • John||

    The no fly list should have never been created and if it was, the courts should have killed it immediately. Travel is a fundamental right. The government has no authority to deprive people of that right without due process.

    Ironically, this problem really goes back to drivers' licenses. They justify telling people they can't drive because "driving on state roads is a privilege" and thus effectively end the right to travel. It is the same chickenshit logic being applied here. "Sure you can travel, but traveling on a plane is a privilege not a right". It is just infuriating.

  • FreeToFear||

    Not really equivalent - In the former you're committing to an action that puts potentially deadly equipment under your control to operate on a roadway owned by someone. Nominally, without some set of rules for public roadways, the government could be held liable for accidents caused by your poor driving. On the Flight side though, the government is denying you the right to book passage through a private entity - which I agree is fundamentally unconstitutional and deeply immoral

  • John||

    Not really equivalent - In the former you're committing to an action that puts potentially deadly equipment under your control to operate on a roadway owned by someone.

    Sure. But in this case you are a potential terrorist who could blow up the plane.

    In both cases the government is saying you can't travel because it deems you a danger and doing so without any due process. Both are equally outrageous.

    If you want to take me to court and convict me of a crime and take away my right to drive or fly as punishment, have at it. But no way should the government be able with the stroke of a pen prevent me from traveling because it thinks my doing so might be dangerous.

  • Rasilio||

    They are still different.

    If you do not have a drivers license you are still not barred from traveling on the roads, you are utterly free to use a cab, bus, get a ride from a friend, ride a bike, or even walk along them. Further the government at least owns the road.

    With the no fly list the government is asserting both that it owns the airspace and that they can interfere with your ability to contract with a 3rd party to transport you across the government owned medium. Essentially it is like saying that not only can't you drive without a drivers license but you can't even take a bus without one.

  • John||

    That is a valid distinction. This is much worse in that they are telling you not only can you not drive but also can't be a passenger.

    But I still say my larger point stands. With driver's licenses your right to travel is severely restricted without any real due process. They get by doing that because they call driving on the public roads a privilege separate from your right to travel. They are using the same logic here. Your right to fly on a plane is a privilege separate from your right to travel.

    I think that distinction is bullshit. I totally object to driver's license. Anyone should be allowed to drive provided they can buy insurance. Let the insurance market handle safety and get the government out of the business of deciding who is really worthy of exercising their rights.

  • CE||

    A lack of a driver's license doesn't stop anyone from getting in a car and driving. But government goons at all the airports stops someone from flying, based solely on their say-so.

  • John||

    A lack of a driver's license doesn't stop anyone from getting in a car and driving

    Yes it does in that doing so is a crime. The law against murder doesn't stop me from going home and shooting my wife tonight. But I am still legally prohibited from killing my wife.

  • CE||

    Nominally, without some set of rules for public roadways, the government could be held liable for accidents caused by your poor driving.

    You're new here, aren't you?

  • John||

    Yeah. I would say, you can be held liable for your poor driving.

    I am willing to say the government can require you to have some kind of insurance. That is just the government ensuring that you are not placing other people at risk of being harmed with no avenue of compensation. It is not telling you that you can't drive or that you have to play mother may I with the government. It is just saying that if you do, you had better be able to compensate anyone you harm.

  • Ted S.||

    Travel is a fundamental right.

    I'd argue that technically it's the contract with the private person/group providing the travel that's the fundamental right in this case.

  • Robert||

    You're neglecting one important detail: The no-fly list is advisory. It is not illegal for the airline to transport those persons.

  • Whahappan?||

    Nice airline you got there. Shame if something were to happen to it.

  • R C Dean||

    Proper procedures, public scrutiny, appeals processes, and protections for individual rights exist not as inefficient annoyances, but as checks on officials who are, deep down, petty scumbags.

    You know what's missing from that list? And why we actually have fall of those things on paper but they don't do shit to change the behavior of petty scumbags?

    Personal accountability. Without that, all the three-ring binders, time-wasting hearings and meetings, and empty hand-waving about civil rights are part of the problem, not part of a solution.

  • Homple||

    ^^This, as they say.

  • John||

    But this really is even worse than that. This list has been around for years. I am pretty sure that Bush came up with it right after 911. And the courts are just now getting around to finding a problem with it?

    This thing is an outrage. They can put you on a list and effectively end your ability to travel outside the country or really much of anywhere at all if you don't have a car or worse still strand you somewhere with no way to get home. That actually happened to a guy. And they can do it with absolutely no due process.

    How the hell did this thing not get laughed out of court from day one?

  • Nazdrakke||

    How the hell did this thing not get laughed out of court from day one?

    Surely you are not asking this question seriously..

  • John||

    It was a rhetorical question, yes.

  • Homple||

    Somehow the US Constitution got swapped out for a Franz Kafka story.

  • John||

    You can't fly on this plane. You are on a list but we can't tell you what that list is or why you are on it. And also, we can't even admit to the list's existence, since that is classified. But you can't get on the plane regardless.

    And since we can't admit to the list's existence much less tell you if you are on it or why you are on it if you are on the list, you have no standing to go to court and get your name removed from this list, the existence of which we can neither confirm nor deny.

    And by the way, you can't get on the plane.

    That about cover it?

    And yes, that is straight out of The Trial.

  • Homple||

    Yes, that covers it. Brutally succinct and correct.

  • John||

    I know how these people roll.

  • CE||

    Someone needs to dig up the Ninth Amendment and let it loose on these losers.

  • Paul.||

    "FBI Special Agent Kevin Michael Kelley...misunderstood the directions on the form" he was filling out with regard to Rahinah Ibrahim "and erroneously nominated Dr. Ibrahim to the TSA's no-fly list."

    I say again, they're lying. I know it. I know it with all my precious heart. They are LYING. There was no clerical error. This is a red herring. It's a bone thrown to the guard dogs to distract them.

    There is no way in fucking holy hell the government fought this hard, this long to keep Ibrahim on the no-fly list to suddenly discover, "whoops, our bad! Clerical error! She's off the list, nothing to see here, problem fixed!"

    They will not reverse, clarify, open up or change this policy. And to tell us why Ibrahim was really on the list is utterly indefensible, and they know it. They fear that telling us why Ibrahim was really on the list will set a precedent which will cause a wide public demand to reverse or reform the policy.

  • John||

    I am not so sure. I can believe that the FBI will fight this hard to keep from admitting even a small fuck up. That is how these people are. They never admit they are wrong about anything. Moreover, even if they wanted to admit they were wrong, they would never want to set the precedent that someone can get off that list simply by asking.

  • Scruffy Nerfherder||

    A clerical fuckup is still a fuckup. My guess is that the FBI et al are about the same as the military. Grade inflation among employees who are up for promotion is rampant. Any small blemish on an otherwise stellar career gets you passed over. Therefore, nobody wants to own up to anything, ever.

  • Paul.||

    I am not so sure. I can believe that the FBI will fight this hard to keep from admitting even a small fuck up.

    If that's true, then the policy is even worse than any of us could imagine.

    I at least want to believe that you get on the no-fly list for one of the following reasons (in no particular order)

    o Your last name sounds vaguely Muslim-ey.
    o You traveled or lived in a dangerous Muslim-ey country in the last few years.
    o A computer matched your name with someone who's suspected of real terrorism.
    o You acted huffy with the ticketing agent, she retaliated and put the infamous four 'Ss' on your ticket, and you talked back during the extra security screening.
    o You let your libertarian colors fly a little too loudly and got the attention of someone at the TSA.
    o You're an honest journalist and made a little too much noise in your last several articles and pissed off the wrong U.S. official.
    o Your dog crapped on Bob's lawn.

  • John||

    the policy is even worse than any of us could imagine.

    It is my professional opinion Paul that that is probably a good guess.

  • Paul.||

    But you know what's funny? They can't prove my lying-theory either true or false.

  • John||

    Nope

  • CE||

    She probably made a phone call to someone overseas who knew someone whose son was temporarily under investigation. And turned out to be no threat.

  • Adam330||

    It's worth recalling that the SCOTUS case establishing the state secrets doctrine, United States v. Reynolds, was itself based on a government lie. It was tort suit by the survivors of the crew of B-29 that crashed. The government refused to disclose documents about the cause of the crash, and particularly the accident report, claiming that it would reveal information about secret equipment on the plane. Subsequent declassification of the accident report showed it contained no information on secret equipment and the accident was caused by an engine fire.

  • Scruffy Nerfherder||

    I challenge your standing to make these accusations.

  • The Original Jason||

    Not just an engine fire… the accident report included the fact that there were two required maintenance bulletin on that model of aircraft to prevent the exact type of fire that caused the crash and this particular aircraft had been tagged "not safe for flight" because of that plus the unit didn't have regular crews and the crew and passengers were not briefed contrary to USAF regulations (see the ruling of the follow up case, pages 20-23 and especially the conclusions on page 23).

    The classification was to cover up negligence by the USAF.

    I like how the cited article skips over the fact that the Reynolds case involved US government negligence and subtly blames McCarthyism:

    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.
  • Loki||

    the FBI agent filled out the nomination form in a way exactly opposite from the instructions on the form

    How many other forms did this moron fill out incorrectly? Also, I wouldn't be surprised if this one agent wasn't the only FBI agent who had trouble understanding the form. TOP. MEN. and all that. Who knows how many innocent people wound up on the no fly list while potential actual terrorists could still fly.

  • John||

    And more importantly, how is it that you can have a system so broke that the simple mistake of one agent filling out one form improperly results in an innocent person being on this list for years?

    Maybe the FBI agent made an honest mistake. Those happen. The system then screwed this person for years as a result of one wrong form. I would say there is a real problem with the system and a complete lack of accountability or oversight of it.

    Wasn't anyone checking to make sure these forms were done properly and that the right people were going on the list? Apparently not. And that is a much bigger problem than some flat foot filling out a form improperly or even maliciously.

  • Paul.||

    And then stuck her daughter on the no-fly list to keep her from testifying. That falls under the 'huffy with ticketing agent' or 'crapped on Bob's lawn' headings.

  • John||

    That falls under criminal obstruction of justice.

  • Paul.||

    abso-hunnert percent-lutely.

  • The Original Jason||

    It seems to me that if the government had simply examined its files and corrected the error when Rahinah Ibrahim first complained, the whole thing would have gone away quietly.

    I want to know what genius it was that thought it was a good idea to fight her the whole way, getting the story into newspapers and online and costing the government thousands (millions?) of dollars in litigation and other expenses.

  • Whahappan?||

    It's your money, not theirs they're wasting, what do they care? Plus they got to screw with her and her family for years, great fun in that.

  • wagnert in atlanta||

    Aren't we missing an obvious remedy in cases like this? Put Special Agent Kevin Kelly, plus the officious jackwagon who raised the "state secret" defense and all the idiots who refused to admit error on the no-fly list -- permanently and without right of appeal. That'll put a kink in their careers, right?

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