Not With A Bang, But A Whimper

As the trial progressed, some usually cynical people took notice.  It certainly appeared to them as if Judge William Haskell Alsup was about to kick some government ass in their handling of Stanford Ph.D student Rahinah Ibrahim.  The link tells the story, and I will assume you’ve bothered to go and read it rather than retell it here.

But the piece that made this special was Judge Alsup’s refusal to take the government’s word  that it would never do anything untoward.  From his demands and directions, it certainly looked as if Judge Alsup wasn’t going to drink the government’s Kool-Aid, but rather was about to drop the hammer on their cute attempt to circumvent the truth, their duty to the court and Ibrahim, and their effort to hide their abuse behind executive secrecy.  It certainly looked that way.

When Mike [Masnick] 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.

I was unmoved.

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.

And life went on. The trial reached its end, with Ibrahim’s daughter, Raihan Mustafa Kamal, a United States citizen and a lawyer, blocked from returning and unable to testify as a witness for her mother in the trial.  After the trial, Ibrahim and her lawyers were denied access to documents submitted by the government in evidence for lack of security clearance.

This seems like a generally questionable move — especially since Alsup himself has repeatedly questioned why certain information in the case was secret in the first place.  But, in the end, this appears to mainly be a process issue.

Little by little, tough talk softened, and unfulfilled demands remained unfulfilled, until they were eventually forgotten. Then dubious rulings, weighed down by the resignation of “process issue,” served as sufficient explanation of why due process went unmentioned, and the rulings were shrugged off as business as usual.

Eventually, though, there was a ruling in the case by Judge Alsup.

The ruling issued today, and we’d love to tell you what’s in it… except for the fact that it’s sealed.  Judge William Alsup has stated that he believes that the entire order should be made public, but that the US government is fighting that.  So, for now, the order is under seal until April 15, while Homeland Security is supposed to agree to what it will allow to be released in a redacted version.

But the judge did release a “public notice and summary“:

Many of the important details are still missing, but it certainly sounds like Ibrahim has mostly succeeded in the case.  Alsup notes that “some but not all of the relief” sought by Ibrahim has been granted.  And this includes having her name scrubbed from the no fly list:

Once a plaintiff shows concrete, reviewable adverse government action has occurred, and, as here, shows that the action resulted from an error by the government, then the plaintiff is entitled by due process to a post-deprivation remedy that requires the government to cleanse and/or correct its lists and records of the mistaken information and to certify under oath that such correction(s) have been made. The government’s administrative remedies fall short of such relief and do not supply sufficient due process. In light of the confusion caused by the government’s mistake, such cleansing-certification relief is ordered in this case. Also, the government is ordered to disclose to plaintiff her current status on (or off) the no-fly list (without prejudice to future adjustments based on new information). In this connection, the government concedes that plaintiff is not a threat to our national security.

That appears to suggest that the government ought to remove her from the no fly list and let her know that she’s now off the list.  But it’s not entirely clear that’s the case.  In theory, they could inform her that she’s still on the list as well.

Perhaps Ibrahim prevailed. Perhaps Ibrahim’s win will last long enough for her to travel freely before she’s inexplicably put back on the no-fly list for reasons she will never be told.  For the time being, it’s a one-off decision that affects Ibrahim alone, and maybe not even that.

Come April 15th or so, there may be a redacted copy of Judge Alsup’s decision for public consumption, to the extent that Homeland Security deems it acceptable for us to know how their machinations work.  It’s unlikely to be very satisfying.

But the lesson, the rat to be smelled from the tough talk of Judge Alsup toward the government, is that talk is cheap. When Judge Alsup stopped short of ordering the government to act, stopped short of dropping that big, old hammer he was given by Article III along with his life tenure, the odor in the room was that the government was going to get away with it again. And so it did.

And the overarching lesson is that actions speak louder than words, and there was a flurry of words but no action when it came to compelling the United States government to do what the court said it should do.  The ducks were all lined up, and so they remain.

One comment on “Not With A Bang, But A Whimper

  1. John Barleycorn

    You silly man…

    Everyone knows Article lll Judges have been implanted with a chip that repeats the nursery rhyme “there’s a hole in my bucket” indefinitely.

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