Dr. Rahinah Ibrahim challenged the constitutionality of her inclusion on the No Fly List and won. She was the first such plaintiff to obtain an actual trial — let alone victory — in federal court. That bench trial took place in December in San Francisco. The Court’s “Findings of Fact, Conclusions of Law, and Order for Relief” was filed under seal in mid-January and accessible to the public in a redacted form in early February. But until Wednesday, when it was completely unsealed, no one but the lawyers in the case could read the entire document. Not even the plaintiff herself. Why?
Until this week, all the public could know were the most visible parameters of the plaintiff’s injury and three-quarters of the Court’s remedy. The Court found in favor of Dr. Ibrahim, who had been handcuffed, jailed, and denied boarding at San Francisco Airport way back in January 2005, when she was a Stanford University graduate student. On January 14, 2014, Judge William Alsup ordered various federal agencies to search, cleanse, and correct all entries on terrorist watchlists and databases that the Court held could contain mistakes resulting from the incompetent conduct of an FBI Special Agent. (Full Disclosure: I testified as an expert witness for the plaintiff in this case.)
But until Wednesday, the details were sealed up in 82 partially or completely blacked out lines of an otherwise public 38-page document. This redaction was at the insistence of the Justice Department. Similarly, the Justice Department demanded at least ten times during the trial (by Judge Alsup’s count) that the courtroom be closed. The press and public were commanded to leave while the trial proceeded in secret session. Dr. Ibrahim wasn’t at the trial. The Government did not permit her return to the United States from her home in Malaysia to take the witness stand and hear the testimony in her own case.
Just what was so sensitive that it had to be censored? What values were served by the insistence on secrecy, so contrary to our expectations for open judicial process? The unsealing of this record shines a rare light on those questions. The answers are revealing, but not very comforting. Read More