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Judge rebuffs feds' secret arguments on no-fly list

A federal judge in California has rejected the Obama administration's effort to use secret arguments and evidence to defeat a lawsuit relating to the so-called no-fly list designed to keep suspected terrorists off of airline flights.

U.S. District Court Judge William Alsup turned down a motion by the Justice Department to dismiss former Stanford student Rahinah Ibrahim's lawsuit against various federal government agencies over her reported inclusion on the no-fly list as well as an incident in September 2005 where she was barred from taking a flight from San Francisco and detained for a couple of hours.

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Alsup, who sits in San Francisco, also refused the Justice Department's offer to show him affidavits from law enforcement officials which the government would not share with Ibrahim or her attorneys.

"Here the government seeks to affirmatively use allegedly privileged information to dispose of the case entirely without ever revealing to the other side what its secret evidence might be," Alsup wrote in an order filed last week (and posted here). "Only in the rarest of circumstances should a district judge, in his or her discretion, receive ex parte argument and evidence in secret from only one side aimed at winning or ending a case over the objection of the other side. Here, the government has not justified its sweeping proposal."

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"It has gone so far as even to redact from its table of authorities some of the reported caselaw on which it relies! This is too hard to swallow," Alsup wrote.

Alsup seemed particularly exercised by what he said was the Justice Department's proposal that it would hang on to the confidential materials, which he added would not be officially filed with the court. If the judge is correctly stating the government's proposal, it would be unusual even for cases involving classified information. A quick glance at the filings in the case suggests the government is following its typical process for cases involving sensitive information. (No-fly list data, which is regularly shared with uncleared airline personnel, is not considered classified but rather "sensitive security information" which the Transportation Security Administration has legal control over.)

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The civil case will now proceed to discovery of relevant evidence. The judge did not rule out considering specific evidence later on that the government may wish to submit and keep secret, but he set a high bar for doing so. He also said the government would have to share any SSI relevant to the case with Ibrahim's counsel.

The public accounts of what happened to Ibrahim make it sound like the Maylaysian national may have been on the no-fly list when first denied travel in 2005, but was later moved to a "selectee" list of travelers who get extra security attention but aren't banned outright from traveling. However, the U.S. subsequently revoked her visa and denied her another one in 2009, suggesting some ongoing security concern on the government's part. The revocation cited actual or possible terrorist activity, but was not specific.

The lawsuit, filed in 2006, has already traveled twice to the U.S. Court of Appeals for the 9th Circuit. The most recent ruling, in February of this year, held that Ibrahim had standing to sue even though she's not a U.S. citizen and left the country voluntarily.

If the Obama administration really wanted to drop a bomb on the case, it could invoke the State Secrets Privilege in an effort to make the suit go away, but the courts might frown on an effort to do so at this point in the legal process.