Any Moment Now, Judge Alsup

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.


14 thoughts on “Any Moment Now, Judge Alsup

  1. Andrew Fleischman

    After closing arguments, the judge had a closed door hearing about potential government misconduct in the case. The State appeared to concede that it may have misinformed the court, and plaintiff’s counsel told the court that she would be pursuing bar complaints against some member’s of the Government’s team.

    There’s an interesting website called “Papers, Please!” which has been documenting the case more thoroughly than Techdirt. Still to be seen if the judge will show any teeth.

    1. SHG Post author

      And Judge Alsup held a closed-door hearing, after closing argument, and did…

      So plaintiff’s counsel will pursue bar complaints against some of the assistants? Wowwy-kazoowy. That’ll show ’em. Lighten up, Judge. Oh wait. (And there’s a link to Papers, Please in the post.)

  2. Jim Tyre

    I make no predictions about what (if anything) Judge Alsup will do. But my “favorite” part of the trial comes from The Identity Project’s coverage of Day 3:

    “In contrast, the plaintiff’s first expert witness, Jeffrey Kahn, was allowed to testify in open court — over the government’s objections — because all of his testimony was based on publicly-available information and and interviews he conducted as part of his research as a law professor and author. The government’s lawyers repeatedly interrupted Professor Kahn’s testimony to demand that he identify the public-domain sources for his statements, even though he had already done so in his written pre-trial expert report and in the footnotes to the scholarly book on which most of his report and testimony was based.

    “At one point, in response to such an objection, Prof. Kahn identified the source for one of his statements as being FBI watchlist guidelines released by the FBI itself to the Electronic Privacy Information Center (EPIC), and posted on the EPIC website. Those documents showed that the mere opening of an investigation was itself deemed to be sufficient grounds for placing a person on a watchlist, without the need to evaluate whether there had been any factual predicate for the opening of the investigation. This contradicted the government’s claims about the existence of threshhold evidentiary criteria for watchlist decisions.

    “The government’s lawyers tried to argue that despite having been released by the FBI itself in response to a FOIA request, and having been publicly available for years on the EPIC website, these documents couldn’t be discussed publicly.

    “Judge Alsup overruled their objection. “This is America. You can’t take something that is in the public domain and make it a secret. If you wanted to shut down that website, you should have done so. It’s too late now.”

    Really? The government really argued that info released pursuant to a FOIA request by EPIC and on EPIC’s website is SSI (sensitive security information)?

    1. SHG Post author

      Aren’t you happy that I asked readers to provide their favorite part of coverage from other aspects of the trial having nothing to do with the issue I chose to write about in the comments here? Oh wait.

        1. SHG Post author

          Of the many things I do, smarm is not one of them, subject, of course, to terms and conditions set forth below in bold white text.

  3. John Barleycorn

    Hey now give Alsup a little slack.

    How can you blame the poor chap, after all he has not been given any mandatory sentencing and sanctioning guidelines for contempt let alone any clear rules for identifying contempt for what it is in the first place. Not all contempt is equal you know.

    Besides contempt is little bit like cocaine is it not? Cocaine is kind of bad but if you smoke it they call it crack and everyone knows that crack is not only contemptible but really, really, really, bad and ought to have special punishment and no attorney representing the government would ever considering blowing smoke up a judges ass so it might be bad but it ain’t crack.

    Gee wiz, next thing you know you will be arguing that the actions of the government in this case not only merit the creation of mandatory and rigorous contempt guidelines but the government should also be in line for some enhancements due to the obvious intent to deliver on old wives tales in copious quantities like “actions speaking louder than words” and such.

    And speaking of crack.. What’s “good for the goose is good for the gander” is it not? If you consider good and bad intentions on behalf of the government equivalent to gender identification in geese but damn if it isn’t a chore figuring out who’s a goose and who’s a gander.

    Rest assured though because you actually can nearly identify the gender of geese positively by their behavior if given enough time but if you need to know for certain you have to vent them.

    I am guessing that after all that cackling in open court judge Alsup did not do the right thing in chambers and actually vent the relevant parties behind closed doors when he was determining if there was any misconduct. So it is likely all his cackling is just his way of admitting he is not a hundred and ten percent sure based solely on the governments actions but if he were sure, mind you, he would do more than cackle.

    Sadly, we will never know…but he sure does cackle mighty good. That ought to count for something even if he choose not to vent.

    Under protest, I have not include the video of the venting of geese cracks due to site rules. However, it is a rather straight forward process and “what you see is what you get”.

    P.S. To vent or not to vent that is the question. So the next time you come home from court and vent to your wife or husband about the cackling and frenzied judge who in the end didn’t do a damned thing but flap his or her wings just be thankful you didn’t get vented.

  4. onlymom

    I agree SHG. If he hit the wall it was with a q-tip. First words out of his mouth should have been “Get the DA in my chambers immediately. Where said DA would be told you have 24hrs to get her here in my court. Fail to do it and you better have your toothbrush with you because your going to prison. The closest federal prison where you will be put into general pop and you will stay there till she is here. At that point we will continue this trial because as it is now. It’s stopped.

  5. Andrew Fleischman

    Never mind, you were right. The judge is full of crap. Not only will there be no sanctions, but he is now refusing to allow the plaintiff to view any of the classified “evidence” the government has submitted.

    1. SHG Post author

      So I’ve heard. Experience allows us to pick up the scent earlier than others, and this one smelled bad from the start.

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