Due Process

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

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Rahinah Ibrahim
Universiti Putra Malaysia

David 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.