The Federal government keeps a classified “no-fly” list of Americans and citizens of other Nations that it bars from traveling by air, allegedly to avoid a repeat of the tragic events on 9/11. To date, a “state secrets” law has meant that only the Executive branch can grant access to the list—but a Federal judge is challenging the provision.
U.S. District Judge William Alsup of San Francisco appears headed for a showdown with the Administration of President Barack Obama in his quest to make available to the court documents explaining why Malaysian citizen and former Stanford student Rahinah Ibrahim was denied travel and briefly detained at the San Francisco airport in 2005.
Alsup is using the seven-year-old case filed against the Feds by Ibrahim to force the Federal government to “show cause” as to why at least nine documents— some pertaining to the reasons for placing individuals on the “no fly” list— have been labeled as classified and kept from the plaintiff’s lawyers.
The judge, however, has made clear that he is not interested in reducing the Federal government’s power to retain information in the interest of national security in ordering that the government release records dating back to 2005 but allowing withholding of documents that pertain to “terrorist screening and watchlist procedures” from 2009 to now.
“There is some risk that disclosure of these documents would hinder frank and ongoing discussion regarding contemplated visa decisions. Nevertheless, these documents are highly relevant to plaintiff’s claims and are not available from any other source,” Alsup wrote in an order issued Friday. “The other factors that outweigh the government’s assertion of the [deliberative process privilege] likewise play a substantial role here. Plaintiff has properly pled constitutional claims challenging alleged government misconduct. This creates a strong interest in accurate fact-finding for plaintiff and for society, and a strong interest in the enforcement of the constitutional protections asserted in plaintiff’s complaint.”
Attorney General Eric Holder and Director of National Intelligence James Clapper have both filed declarations in the case, supporting the Administration’s view that the no-questions-asked “state secrets” policy should remain intact in Ibrahim’s case.
Remarkably transparent to the Obama Administration’s complete disregard for the campaign promises the President has made, however, is this: In 2008, both Obama and Holder went on record ripping the Administration of George W. Bush for using “state secrets” to thwart civil liberties lawsuits. Holder even went on to make the executive privilege more difficult after taking office. But despite the public proclamations, the Obama Administration has repeatedly used the same policy as Bush to block litigation related to warrantless wiretapping, drone usage and cases of Federal spying.