Over at Techdirt, Mike Masnick has been closely following the “no fly list” trial of Stanford Ph.D student Rahinah Ibrahim against the government before Judge William Haskell Alsup in the Northern District of California. The plaintiff experienced a bit more turbulence at the hands of our government than she was willing to take.
In that case, a Stanford University Ph.D. student named Rahinah Ibrahim was prevented from boarding a flight at San Francisco International Airport in 2005, and was handcuffed and detained by the police. Ultimately, she was allowed to fly to Malaysia, her home country, but she has been unable to return to the United States because the State Department revoked her student visa.
To say that the government stonewalled the prosecution is to insult stone walls. But when a witness for the plaintiff was suddenly refused permission to fly to San Francisco to testify, even Judge Alsup seemed to hit the wall.
Apparently, one of the people set to testify in the case, Ibrahim’s oldest daughter, Raihan Mustafa Kamal (an American citizen, born in the US), was blocked from boarding her flight to the US to appear at the trial, and told that she was on the no fly list as well. Kamal, a lawyer, was an eye witness to her mother being blocked from boarding her flight. The US knew that Kamal was set to testify and from all indications, in a move that appears extremely petty, appears to have purposely blocked her from flying to the US. Kamal was directly told by the airline that DHS had ordered them not to let Kamal to board. The airline even gave her a phone number for a Customs and Border Patrol office in Miami, telling her to call that concerning her not being able to board.
The judge demanded that the government explain what happened, and they denied anything to do about it. Edward Hasbrouck at the Identity Project tells what happened next:
Judge Alsup ordered the government defendants’ lawyers to investigate and report back. “You’ve got ten lawyers over there on your side of the courtroom. You can send one of them out in the hall to make a phone call and find out what’s going on.”
At the end of the first day’s session of the trial (more on that below), the governments’ lawyers told Judge Alsup that they had made inquiries and had been told that “the plaintiff’s daughter just missed her flight” and was rebooked on a flight tomorrow (Tuesday) afternoon.
To make a longish story short, testimony has concluded in the trial and closing arguments are being made. The plaintiff’s daughter never testified, because she remains unable to return to the United States. And the government has fully investigated the situation, as directed by Judge Alsup, and now confidently asserts that it’s not their fault.
When Mike first wrote about the case, I smelled a rat. Gideon at A Public Defender accused me of being unduly cynical; that Judge Alsup was just lining up his ducks before he slammed the government with severe sanctions for their conduct. Even Kevin Underhill at Lowering the Bar took this case seriously. Just you wait. You’ll see. You will see.
Oh, I see, all right. And what I see is what I’ve seen before. And what I see is not what I see when there is any question, any hint, of someone screwing around with a government witness. What I see is the machinations of the government to create plausible deniability, documents sufficient to assure that a witness is never allowed to board a plane but inadequate to be admitted into evidence.
What I see is an angry judge who has excoriated the government for its disingenuous approach toward the plaintiff, but done nothing about it. What I see is an angry judge who could have ordered the government to put the witness on a plane immediately, but instead used very harsh words to direct the government to pretend to investigate. What I see is that Judge Alsup called the government mean names and then did nothing.
It’s not like this is the only no-fly list case, and other judges have made bold rulings. But this isn’t just about the no-fly list: this is about the government screwing with the courts and judges, clearly aware that the government is screwing with them, doing no more than another tongue-lashing.
We have been here before.
While Mike, Gid and others may applaud Judge Alsup’s critical words, they don’t cut it for me. Tough talk? Spare me. Call me every name in the book, as long as I’m not required to actually do anything. I’ll get over it.
After the initial refusal to permit the plaintiff’s daughter to board the plane to come testify, Judge Alsup had an option: a good faith allegation was made, was supported. He should have stopped the trial at that moment and held a hearing, ordering the government to either expressly permit Kamal’s entry into the United State or, better still, fly her here at their expense. And at that moment, nothing should have gone forward in the case until it was determined that the government played no role in preventing the plaintiff’s witness from appearing and testifying.
And if the government failed to do so, the judge should have stricken its answer and imposed sanctions, ranging from financial to contempt. Because you can bet that if the government made allegations even remotely similar about any other party, they would be sitting in a cell right now rather than giving closing argument in a case where the other side was denied its witness at the hand of the government.
Applaud Judge Alsup’s words all you want. Talk is cheap. I’m waiting for Judge Alsup to do something. Anything. Anything at all. Any moment now, judge.