United States District Court, N.D. California
For Gina Moon, Special Master: Gina Moon, LEAD ATTORNEY, Clarence Dyer & Cohen LLP, San Francisco, CA.
For Rahinah Ibrahim an individual, Plaintiff: James McManis, Marwa Elzankaly, LEAD ATTORNEYS, Christine Peek, Elizabeth Marie Pipkin, Rubina Kazi, McManis Faulkner, San Jose, CA.
For Department of Homeland Security, Michael Chertoff, in his official capacity as the former Secretary of the Department of Homeland Security, Tom Ridge, in his official capacity as the former Secretary of the Department of Homeland Security, Terrorist Screening Center, Donna A. Bucella, in her official capacity as former Director of the Terrorist Screening Center, Federal Bureau of Investigation, Robert Mueller, in his official capacity as Director of the Federal Bureau of Investigation, Janet Napolitano, in her official capacity as Secretary of the Department of Homeland Security, Eric H. Holder, Jr., in his official capacity as Attorney General, Leonard C. Boyle, in his official capacity as Director of the Terrorist Screening Center, Arthur M. Cummings, II, in his official capacity as Executive Assistant Director of the FBI's National Security Branch, National Counterterrorism Center, Michael E. Leiter, in his official capacity as Director of the National Counterterrorism Center, Department of State, Hilary Clinton, in her official capacity as Secretary of State, Defendants: Diane Kelleher, United States Department of Justice, Civil Division Federal Programs Branch, Washington, DC; John Kenneth Theis, U.S. Department of Justice, Civil Division Federal Programs Branch, Washington, DC; John Russell Tyler, United States Department of Justice, Washington, DC; Karen S Bloom, U.S. Department of Justice, Federal Programs Branch, Washington, DC; Lily Sara Farel, Department of Justice Civil Division, Federal Programs Branch, Washington, DC; Paul Gerald Freeborne, U.S. Department of Justice, Civil Division, Washington, DC; Samuel P. Go, U.S. Department of Justice, Office of Immigration Litigation, Washington, DC.
For John Cunningham, an individual, Defendant: Paul Gerald Freeborne, U.S. Department of Justice, Civil Division, Washington, DC.
For United States of America, Defendant: Conor Kells, Washington, DC; Paul Gerald Freeborne, U.S. Department of Justice, Civil Division, Washington, DC.
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER FOR RELIEF
WILLIAM ALSUP, UNITED STATES DISTRICT JUDGE.
In this terrorist-watchlist challenge, a nonimmigrant alien seeks relief after having been barred airplane-boarding privileges and after having been denied a visa to return to the United States. This order includes the findings of fact and conclusions of law following a five-day bench trial. Some but not all of the relief sought is granted.
Plaintiff Dr. Rahinah Ibrahim is Muslim and a subject of Malaysia. Pursuant to a student visa, she was admitted to the United States to study at Stanford University. On January 2, 2005, plaintiff attempted to fly from the San Francisco airport to Hawaii but was handcuffed and led away because she was on a federal no-fly list. After being held, she was eventually (the next day) allowed to fly to Hawaii and then back to Los Angeles and then to Malaysia. While she was in Malaysia, her student visa was revoked.
In January 2006, plaintiff commenced this civil action against multiple state and federal agencies alleging Section 1983 claims, state law tort claims, and several constitutional claims based on the inclusion of her name on government terrorist watchlists. The complaint sought damages and equitable relief. An August 2006 order dismissed her claims against the federal defendants based on lack of subject-matter jurisdiction because the no-fly list was an order of the Transportation Security Administration under 49 U.S.C. 46110(a), which granted exclusive subject-matter jurisdiction to the federal courts of appeals for review of orders of the TSA (Dkt. No. 101). The order also dismissed plaintiff's claims against a TSA employee, the airline, and the federal agency defendants.
Our court of appeals affirmed in part, reversed in part, and remanded, holding that the district court had original subject-matter jurisdiction over her claim for injunctive relief regarding placement of her name on the no-fly list. The court of appeals agreed that the district court, however, lacked subject-matter jurisdiction over her claim for injunctive relief regarding the government's policies and procedures implementing the no-fly list, that the federal agency and airline actions were not state actions under Section 1983, and that the tort claims against the federal officials in their official capacities and airline defendants were precluded. Our court of appeals further held that specific jurisdiction was available for the claims against the TSA employee, who was sued in his individual capacity. Although the government urged the appellate court to find no standing, it expressly asked the district court to rule on that issue first. Ibrahim v. Dep't of Homeland Sec., 538 F.3d 1250, 1254-56 n.9 (9th Cir. 2008)(" Ibrahim I " ).
On remand, plaintiff filed a second amended complaint. The operative second amended complaint sought, among other
things, limited relief relevant to plaintiff's visa situation but stopped short of attempting to force the government to issue her a visa. Cash settlements eventually reduced the question to prospective relief only. A motion to dismiss for lack of standing was made. In granting it, the district court drew a distinction between damages claims for past injury while plaintiff had been in the United States (settled) versus prospective relief sought after plaintiff had voluntarily left the United States (not settled). The July 2009 order held that while plaintiff could seek damages for her past injury at the San Francisco airport (and had successfully settled that part of the case), she had voluntarily left the United States and, as a nonimmigrant alien abroad, no longer had standing to assert constitutional and statutory claims to seek prospective relief. Although nonimmigrant aliens in the United States had standing to assert constitutional and statutory claims, the order held that a nonimmigrant alien who had voluntarily left the United States and was at large abroad had no standing to assert federal claims for prospective relief in our federal courts. This holding was based on the ground that the development of federal constitutional law should not be controlled by nonimmigrant aliens overseas (Dkt. No. 197). A second appeal followed.
Our court of appeals, while affirming in part, reversed (over a dissent) as to prospective standing by holding that even a nonimmigrant alien who had voluntarily left the United States nonetheless had standing to litigate federal constitutional claims in district court in the United States as long as the alien had a " substantial voluntary connection" to the United States. Ibrahim v. Dep't of Homeland Sec., 669 F.3d 983, 993-94 (9th Cir. 2012) (" Ibrahim II " ). Plaintiff had such a connection, our court of appeals held, because of her time at Stanford University, her continuing collaboration with professors in the United States, her membership in several professional organizations located in the United States, the invitations for her to return, and her network of close friends in the United States. The government did not seek review by the United States Supreme Court.
On the second remand, the government moved to dismiss again. This was denied. The parties and the judge then became embroiled in discovery disputes involving the state secrets privilege, the law enforcement privilege, and so-called " sensitive security information" (" SSI" ), 49 U.S.C. 114(r) and 49 C.F.R. 1520.5. Defendants invoked these as bases for withholding classified and otherwise allegedly sensitive government information from plaintiff and her counsel. A pair of orders dated April 19, 2013, granted in part and denied in part plaintiff's motion to compel production (Dkt. Nos. 462, 464). Resolving these disputes required individual review by the district judge of all of the documents sought by plaintiff. Most of this review was conducted ex parte and in camera due to the privileged and classified nature of the documents. The state secrets privilege was upheld as to nearly all of the classified documents in question. The government's assertion of other privileges regarding non-classified documents was overruled as to the majority of the remaining documents. Plaintiff's counsel became cleared to receive SSI, but never tried to become cleared to read classified information. (Plaintiff herself was never cleared to receive either SSI or classified information.) Subsequent rounds of contentious discovery motions resulted in yet further ex parte and in camera review. Again, the government's assertions of the state secrets privilege were upheld, while its assertions of other privileges were upheld
in part and overruled in part (Dkt. Nos. 539, 548).
One recurring procedural issue concerned the effect of an assertion of state secrets. The government announced on at least two occasions that if state secrets were invoked, then that evidence could not be relied upon by either side. The evidence was simply out of the case, the government said (Dkt. Nos. 417, 534). After making such representations on the record, an order dated September 13, 2013, provided the government with another opportunity to clarify its position (Dkt. No. 540). The order stated:
Plaintiff's pending motion to compel production of documents (Dkt. No. 515) raises questions regarding what evidence the government intends to rely on at summary judgment and at trial. The Court is of the view that the government may not rely in any way upon any information it has refused to turn over to plaintiff in response to a reasonable request. The government shall file a submission stating whether it agrees with or objects to this principle by September 17 at Noon.
The government responded:
In response, Defendants affirm that they will not rely on any information they have withheld on grounds of privilege from Plaintiff in response to a discovery request in this case. Defendants are mindful of the Court's December 20, 2012 ruling (Dkt. [No.] 399) that the Government may not affirmatively seek to prevail in this action based upon information that has been withheld on grounds of privilege, and have acted in a manner consistent with that ruling in both the assertion of privilege and summary judgment briefing.
(Dkt. No. 541). As will be seen, however, the government reversed course at trial and sought to prevail by having this action dismissed due to its inability to disclose state secrets, citing precedent by our court of appeals.
As trial approached, a number of expert disclosure and discovery disputes were raised in late September and October 2013. (There was also a brief stay in light of the appropriations shutdown for the Department of Justice.) A pair of orders permitted plaintiff to revise an expert report, allowed the government to take a second one-day deposition of the expert, and ordered him to produce interview notes he considered in forming his opinions at least 24 hours prior to his second deposition, once a proper subpoena was served (Dkt. Nos. 580, 585).
A hearing was held on the government's motion for summary judgment on October 31, 2013. The vast majority of the hearing time, however, was consumed over whether or not the trial should be public and whether certain information listed on plaintiff's demonstratives was subject to various privileges. The government argued that plaintiff had not yet sought and received a final determination by the TSA regarding whether certain information was SSI pursuant to Section 525(a) and (d) of the Homeland Security Appropriations Act, 2007, Pub. L. No. 109-295, Section 525(a), (d), 120 Stat. 1355, 1382 (Oct. 4, 2006). The government further argued that plaintiff's counsel could only challenge a final order designating information as SSI in the United States Court of Appeals for the District of Columbia. The same day, plaintiff submitted a request to the TSA. The TSA subsequently identified certain information as SSI. Possibly, an appeal from that order has been taken but the parties have not so indicated
The government's motion for summary judgment was granted in limited part but mostly denied (Dkt. No. 592). The " exchange of information" claim based on the
First Amendment was dismissed. Plaintiff's claims based on procedural and substantive due process, equal protection, and First Amendment rights of expressive association and retaliation proceeded to trial. Lack of standing was raised yet again by the government and denied.
For the first time, and contrary to what it had represented before, the government further argued that summary judgment in its favor was appropriate based on state secrets, citing to our court of appeals' decision in Mohamed v. Jeppesen Dataplan, Inc., 614 F.3d 1070, 1080 (9th Cir. 2010) (en banc). That motion was denied to provide an opportunity to see how the evidence would actually develop at trial and the extent to which at least portions of the case could be tried and decided without regard to state secrets.
A final pre-trial conference was held on November 15, 2013, during which the parties' motions in limine were heard. Plaintiff sought to exclude evidence submitted ex parte, to recuse the undersigned judge based on his having reviewed relevant classified documents (in order to rule on various discovery requests), and to exclude two of defendants' may-call witnesses. The government sought to exclude plaintiff's experts, to exclude 22 of 42 " may call" witnesses on plaintiff's witness list, and to exclude certain trial exhibits. The final pre-trial order denied the motions in limine, but the motion to exclude and prevent plaintiff from calling Attorney General Eric Holder and James Clapper, Director of National Intelligence, was granted (Dkt. No. 616).
At the final pretrial conference, the government also made what amounted to a motion for reconsideration of its motion for summary judgment on state secrets, previously denied. The government argued that the action should be dismissed because the core of the case had been excluded as state secrets. The motion was denied on several grounds. First, the government failed to raise such an argument until weeks before trial. Second, it was unsettling for the government to completely reverse its prior position that the effect of invoking the state secrets doctrine was to exclude the evidence from the action. Third, even under Jeppesen, 614 F.3d at 1080, it could not be said with certainty that plaintiff would be unable to prove her case at trial or defendants would be absolutely deprived of a meritorious and complete defense. The Court's plan was to allow both sides to present their unclassified evidence through the " normal" trial procedure and then to allow the government to submit an ex parte and under seal submission to try to explain how its state secrets might bear on the actual trial issues.
Five days before trial, the government filed another request seeking to exclude a plaintiff expert because of his refusal to produce documents pursuant to a subpoena issued by the District of Columbia and served at his second deposition (after two failed attempts to serve him). Plaintiff produced non-privileged documents to the government and defendants cross-examined the expert at trial. That dispute was accordingly resolved.
The bench trial then began on December 2, 2013. On the first day of trial, before opening statements, plaintiff's counsel reported that plaintiff's daughter -- a United States citizen born in the United States and a witness disclosed on her witness list -- was not permitted to board her flight from Kuala Lumpur to attend trial, evidently because she too was on a no-fly list. Counsel were asked to investigate. Immediately after trial, on December 6, an evidentiary hearing regarding plaintiff's daughter's travel difficulties was held. Plaintiff and the government submitted
declarations. One live witness was examined. The snafu was the result of government error, albeit corrected quickly, as will be outlined at the end of the findings of fact. Plaintiff's counsel was given the option to reopen the trial to permit the daughter to appear late and testify, which counsel chose not to do. Instead, counsel asked for inclusion of the evidentiary hearing and associated declarations in the trial record. The government objected to reopening the trial record. The parties were permitted to file proposed contingent findings of fact and conclusions of law based on the evidentiary hearing and associated declarations.
No classified information was used at trial (nor referenced in this order). Nonetheless, at numerous times throughout the trial, there were privilege assertions and motions to close the courtroom. These were based on a statutory privilege called " sensitive security information" (" SSI" ) and a common law privilege known as the " law enforcement privilege." Due to these assertions, at least ten times, the Court reluctantly asked the press and the public to leave the courtroom.
After a one-week bench trial, lengthy findings of fact and conclusions of law, and responses, were proposed by both sides. Rather than merely vet each and every finding and conclusion proposed by the parties, this order has navigated its own course through the evidence and arguments, although many of the proposals have found their way into this order. Any proposal that has been expressly agreed to by the opposing side at least in part, however, shall be deemed adopted (to the extent agreed upon), even if not expressly adopted herein. It is unnecessary for this order to cite the record for all of the findings herein. Citations will only be provided as to particulars that may assist the court of appeals. All declarative statements herein are factual findings.
FINDINGS OF FACT
1. Dr. Rahinah Ibrahim is a subject of Malaysia, a scholar, a wife, and a mother of four children. She lawfully entered the United States in 1983 to study architecture at the University of Washington in Seattle, where she graduated in 1987. While living in Seattle, she married her husband, Mustafa Kamal Mohammed Zaini, and had her first daughter, Raihan Binti Mustafa Kamal. Mr. Zaini is a subject of Malaysia, not a citizen of the United States. Her daughter, Ms. Kamal, is a United States citizen, having been born in Seattle.
2. Dr. Ibrahim received her master of architecture in 1990 from the Southern California Institute of Architecture in Santa Monica, California.
3. She returned to Malaysia, worked as an architect, and eventually became a lecturer at the Universiti Putra Malaysia. She was the department's first female lecturer. During this time, she met Stanford Professor Boyd Paulson, who encouraged her to apply to Stanford University.
4. In 2000, Dr. Ibrahim returned to the United States under an F-1 student visa to work towards a Ph.D. in construction engineering and management at Stanford University. While studying at Stanford, she was involved in the Islamic Society of Stanford University and volunteered with the spiritual care services at Stanford Hospital. Dr. Ibrahim also attended prayers at the MCA in Santa Clara, a Muslim place of worship. She eventually received a Ph.D from Stanford University.
5. Government counsel has conceded at trial that Dr. Ibrahim is not a threat to our national security. She does not pose (and has not posed) a threat of committing an
act of international or domestic terrorism with respect to an aircraft, a threat to airline passenger or civil aviation security, or a threat of domestic terrorism. This the government admits and this order finds.
6. On September 11, 2001, radical Islamic terrorists destroyed the World Trade Center in New York City and part of the Pentagon alongside the Potomac and commandeered United Airlines Flight 93, leading to its crash in Pennsylvania. More than 2,900 victims were killed.
7. In November 2004, FBI Special Agent Kevin Michael Kelley, located in San Jose, nominated Dr. Ibrahim, who was then at Stanford, to various federal watchlists using the NCIC Violent Gang and Terrorist Organizations File Gang Member Entry Form (" VGTOF" ) (TX 8). VGTO, also known as Violent Gang and Terrorist Organization, was an office within the FBI's National Crime Information Center (" NCIC" ). VGTOF was a file within the FBI's NCIC.
Agent Kelley misunderstood the directions on the form and erroneously nominated Dr. Ibrahim to the TSA's no-fly list and the Interagency Border Information System (" IBIS" ). He did not intend to do so. This was a mistake, he admitted at trial. He intended to nominate her to the Consular Lookout and Support System (" CLASS" ), the TSA selectee list, TUSCAN (information exported to Canada), and TACTICS (information exported to Australia). He checked the wrong boxes, filling out the form exactly the opposite way from the instructions on the form. He made this mistake even though the form stated, " It is recommended the subject NOT be entered into the following selected terrorist screening databases." An excerpt of Agent Kelley's nomination form is provided below:
It is recommended the subject NOT be entered into the following selected terrorist screening databases
☒ Consular Lookout and Support System (CLASS)
☐ Interagency Border Information System (IBIS)
☐ TSA No Fly List
☒ TSA Selectee List
Figure 1. VGTOF Form (November 2004.)
Based on the way Agent Kelley checked the boxes on the form, plaintiff was placed on the no-fly list and IBIS (but not on CLASS, the selectee list, TUSCAN, or TACTICS). So, the way in which plaintiff got on the no-fly list in the first place was human error by the FBI. Agent Kelley did not learn of this error until his deposition in September 2013.
8. Around the same time, Agent Kelley's squad conducted a mosque outreach program. One purpose of the program was to provide a point of contact for mosques and Islamic associations. The outreach program included Muslims and Sikhs in the South Bay.
9. In December 2004, Agent Kelley and his colleague interviewed Dr. Ibrahim, again while she was attending Stanford University. (This was after he had filled out the form wrong.) He asked, among other things, about her plans to attend a conference in Hawaii, her thesis work, her plans after graduation, her involvement in
the Muslim community, her husband, her travel plans, and the organization Jemaah Islamiyah (TX 4, 116).
10. Jemaah Islamiyah is (and was then) on the Department of State's list of designated foreign terrorist organizations (TX 13). The FOIA-produced version of Agent Kelley's interview notes with Dr. Ibrahim were designated by the FBI as " 315," which means " International Terrorism Investigations" (TX 4, 116, 516). Jemaah Islah Malaysia, a similar sounding name, is not a terrorist organization but a Malaysian professional organization composed primarily of individuals who studied in the United States or Europe. Other than Jemaah Islah Malaysia coming up at trial when counsel asked about it, the significance of this possible point of confusion has been obscured by counsel. This order does not find that Agent Kelley confused the two organizations.
Bevents from January 2005 to March 2005
11. In early January 2005, Dr. Ibrahim planned to fly from San Francisco to Hawaii and then to Los Angeles and thence to Kuala Lumpur. Her plans were to attend a conference in Hawaii (sponsored by Stanford University) from January 3 to January 6 and to present her research findings at the conference.
12. On January 2, 2005, Dr. Ibrahim arrived at the San Francisco airport with her daughter, Rafeah, then fourteen. At the time, Dr. Ibrahim was still recovering from her hysterectomy surgery performed three months earlier and thus requested wheelchair assistance to the airport gate.
13. The trouble started when Dr. Ibrahim arrived at the United Airlines counter. The police were called by airline staff. She was handcuffed and arrested. She was escorted to a police car (while handcuffed) and transported to a holding cell by male police officers. There, a female police officer asked her if she had any weapons and attempted to remove her hiijab.
14. She was held for approximately two hours. Paramedics were called so that medication related to her hysterectomy surgery could be administered.
15. Eventually, an aviation security inspector with the Department of Homeland Security informed Dr. Ibrahim that she was released and her name had been removed from the nofly list. The police were satisfied that there were insufficient grounds for making a criminal complaint against her (TX 31). The trial record shows no evidence that would have justified a detention or arrest. She was told that she could fly to Hawaii the next day. She did, voluntarily. She was, however, given an unusual red boarding pass (in addition to her regular boarding pass) with " SSSS," meaning Secondary Security Screening Selection, printed on it.
16. Dr. Ibrahim flew to Hawaii and presented her research findings at the conference. From there, she flew to Los Angeles and then to Kuala Lumpur. That was in January 2005.
17. The next trouble came two months later. In March 2005, Dr. Ibrahim planned to visit the United States to meet with one of her Stanford thesis advisors and her friend, Professor Paulson, who was very ill. She was not permitted to board the flight to the United States. She was told her F-1 student visa had been revoked, which in fact it had been, as will be detailed below. The ticket cost was approximately one month's salary at the time. The record is unclear as to the extent to which she was able to get reimbursed. So, even though she had been told she was off the no-fly list, she was now being told that she could not come to the United States, regardless of how she traveled. She has never been permitted to return to the United States since.
Terrorist Screening Database and Related Watchlists
18. The government maintains a web of interlocking watchlists, all now centered on the Terrorist Screening Database (" TSDB" ). This web and how they interlock are important to the relief sought and awarded herein. The present tense is used but the findings accurately describe the procedures in place at the time in question (except as indicated otherwise).
19. The Terrorist Screening Center (" TSC" ) is a multi-agency organization administered by the FBI. The TSC is staffed by officials from various agencies, including the FBI, the Department of Homeland Security, and the Department of State. The TSC manages the Terrorist Screening Database. The TSC and TSDB were created after September 11 so that information about known and suspected terrorists could be more centralized and then exported as appropriate to various " customer databases" operated by other agencies and government entities. In this way, " the dots could be connected." Information in the TSDB is not classified, although a closely allied and separate database called the Terrorist Identities Datamart Environment (" TIDE" ) does contain classified information. (The predecessor to TIDE was called TIPOFF.) The National Counterterrorism Center (" NCTC" ), a branch of the Office of the Director of National Intelligence, places classified substantive " derogatory" information supporting a nomination to the TSDB in TIDE. These terrorist watchlists, and others, provide information to the United States intelligence community, a coalition of 17 agencies and organizations within the Executive Branch, including the Office of the Director of National Intelligence and the FBI.
20. FBI agents and other government employees normally nominate individuals to the TSDB using a " reasonable suspicion standard," meaning articulable facts which, taken together with rational inferences, reasonably warrant the determination that an individual is known or suspected to be or has been engaged in conduct constituting, in preparation for, in aid of, or related to terrorism and terrorist activities. Unlike a standard codified by Congress or rendered by judicial decision, this " reasonable suspicion" standard was adopted by internal Executive Branch policy and practice. From 2004 to 2007, there was no uniform standard for TSDB nominations. Each agency promulgated its own nominating procedures for inclusion in the TSDB based on its interpretation of homeland security presidential directives and the memorandum of opinion that established the TSC. One such directive was Homeland Security Presidential Directive 6 (" HSPD-6" ) which stated, " [t]his directive shall be implemented in a manner consistent with the provisions of the Constitution and applicable laws, including those protecting the rights of all Americans" (TX 538). Agents now interpret this guideline, and others, as meaning that it would not be appropriate to watchlist someone based upon their religion, religious practices, and any other First Amendment activity.
21. For each nominee, the TSDB calls out which particular watchlists the nominee should be on and which he or she should not be on. It is a box-check procedure, then computerized. There are several watchlists affected by the TSDB, namely:
o the no-fly list (TSA),
o the selectee list (TSA),
o Known and Suspected Terrorist File (" KSTF," previously known as the
Violent Gang and Terrorist Organizations File),
o Consular Lookout and Support System (" CLASS," including CLASS-Visa and CLASS-Passport) (Department of State),
o TECS (not an acronym, but the successor of the Treasury Enforcement Communications System) (Department of Homeland Security),
o Interagency Border Inspection System (" IBIS" ) (Department of Homeland ...