by Lewis Marshall, PhD Candidate in Chemical Engineering
In January 2005, a graduate of Construction Engineering and Management at Stanford attempted to board a plane at SFO. She was told that her name was on the No-Fly list. She was detained for two hours, and then informed that her name had been cleared.
The next day, she attempted to fly out again, and was again told that her name was on the No-Fly list. This time, however, she was allowed to board the plane and fly to Malaysia. Not long after, her student visa was revoked. She has not been allowed to return to the United States since.
Rahinah Ibrahim is one of approximately 400,000 people on the US No-Fly list, a list established in the months after the terrorist attacks of September 11, 2001. I say approximately because the number of names on the list is a secret. (The TSA released approximate figures on their blog four years ago in response to ACLU estimates.) The identities of the people on the list are also a secret, not only from the general public, but the from the individuals themselves. There is no website you can check, no phone number to call. As the ACLU says, the only way to know whether you are on the list is to book a trip. “If you are ultimately allowed onto a plane, this means you are not on the No Fly List.”
The No-Fly list is a class of people in perpetual limbo between criminality and innocence. We have circumvented the spirit of the fifth and sixth amendments; these people have no recourse to due process, no speedy trial, and no judgement by a jury of their peers when they attempt to clear their names. Complaints are handled through a TSA ombudsman, with no guarantee of response. The reasons for placing individuals on the list are secret; after these 8 years, the reason for Rahinah’s inclusion is still unknown.
Rahinah Ibrahim has been suing to have her name removed from the No-Fly list for the last 6 years. In December, a northern California judge refused an attempt by the Department of Homeland Security to have her case dismissed. The contents of these court proceedings raise another troubling concern about the lengths to which the Federal Government will go to protect the No-Fly list. The Department of Homeland Security has attempted to sidestep a full, independent judicial review in Rahinah Ibrahim’s case by introducing secret evidence in court. From the ruling:
The government again moved to dismiss [the case…]. While the briefing was in progress, a telephone call came into the court staff saying that a federal agent was on his way from Washington to San Francisco to show the judge confidential records about this case, all to be relied upon by the government in support of its motion to dismiss (but not to be disclosed to the other side [Ibrahim’s lawyers]). The officer would take back the records after the judge reviewed them, and would leave no record behind of what he had shown the judge.
To the great credit of Judge William Alsup, he refused this introduction of secret evidence into the case. But the idea that secret evidence would be introduced and then withdrawn from a court case by the government without disclosure to the opposition lawyers is deeply corrosive to our adversarial court system. Furthermore, it raises a troubling question: has the Department of Homeland Security used this tactic successfully in the past?
I’ve had an interest in the growing, secret power of the national security state for years. It is one of the most important changes to the US system in our lifetimes. But it has always seemed like a theoretical problem; the national security state threatens people unlike me, perhaps of different religion and social class. But reading about Rahinah Ibrahim’s case, and realizing that she could very easily have been my classmate or neighbor, is a reminder of the scope of the problem we face. It highlights the core problem of unchecked executive power: when the government has the power to punish, detain, and kill without judicial review, the distinction between the guilty and the innocent is lost. All of us are at risk, and we have no recourse to the unbiased arbitration of the judiciary.
In his inaugural address, President Obama gave lip service to making it easier for foreign students to study in the US, saying “Our journey is not complete until we find a better way to welcome the striving, hopeful immigrants who still see America as a land of opportunity, until bright young students and engineers are enlisted in our workforce rather than expelled from our country.” The No-Fly list is a product of the executive branch. President Obama has the power to change these destructive practices that undermine the personal security of visiting students. Reforming the no-fly list would be a good first step in making people from around the world feel welcome on U.S. soil.
Lewis Marshall is a Ph.D. student in Chemical Engineering. He is the former president of Atheists, Humanists, and Agnostics @ Stanford.