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<nettime> The world we're facing: more Kafka than Orwell

After seven years, exactly one person gets off the gov’t no-fly list
New report on terrorism "blacklists" suggests it won't be easier the
next time.

by Joe Silver - Mar 27 2014, 11:10pm CET

A hearing in federal court Tuesday has apparently marked the conclusion
of a drawn-out, costly, and, to use the judge’s own term, “Kafkaesque”
legal battle over the government no-fly list. Malaysian college
professor Rahinah Ibrahim sued the government back in 2006, after Dr.
Ibrahim’s name mistakenly ended up on a federal government no-fly list.

Last month, US District Judge William Alsup ruled that Ibrahim must be
removed from the government's various watchlists. At Tuesday's hearing,
a Department of Justice lawyer said that the government did not intend
to appeal the ruling. The ruling in Ibrahim v. DHS calls into question
the government's administration of its controversial no-fly list as well
as other terrorist watch lists, but it leaves no clear roadmap for other
people wrongly placed on such lists.

Ibrahim's pro bono attorney, Elizabeth Pipkin, has asked for the
government to pay more than $3.5 million to cover her legal fees and
costs. Alsup didn't rule on that motion, but said that the issue was
"not easy," while indicating that Pipkin is unlikely to be entitled to
such a large payout.

No recourse

The Ibrahim case marks the first and only successful challenge to the
terrorist watch-listing program, which arose following the 9/11 attacks.
But Ibrahim's case, as just one of hundreds of thousands of individuals
who have been placed on such lists, shows the system's opacity. First,
the only surefire way to even determine if one is on such a list in the
US is to attempt to board a flight and be denied. Even after that
happens, when a denied person inquires about his or her status, the
likely response will be that the government “can neither confirm nor
deny” the placement on such lists.

The government's surrender in Ibrahim comes on the heels of a new report
by the American Civil Liberties Union that shows just how insanely
difficult it is to contest one's status on the government blacklists.
The ACLU explains:

    The 'redress' procedures the US government provides for those who
have been wrongly or mistakenly included on a watchlist are wholly
inadequate. Even after people know the government has placed them on a
watchlist... the government's official policy is to refuse to confirm or
deny watchlist status. Nor is there any meaningful way to contest one's
designation as a potential terrorist and ensure that the US
government... removes or corrects inadequate records. The result is that
innocent people can languish on the watchlists indefinitely, without
real recourse.

The report also includes several examples of people challenging no-fly
determinations, and it's a very murky procedure. Litigation is typically
subject to sealed filings and a closed proceeding.

One of the secrets of the government's watchlists is how big they are.
No one outside of the intelligence community seems to know for sure. The
ACLU report cites a National Counterterrorism Center Fact Sheet, which
notes that the "consolidated terrorist watchlist" contained about
875,000 names in December 2011. It also described how the Terrorist
Screening Center's watchlist has grown significantly over time, from
approximately 158,000 records in June 2004 to over 1.1 million records
in May 2009. It cites an AP report from February 2012 documenting that
there were approximately 21,000 people on the no-fly list (including
about 500 US citizens and permanent residents) and saying that the list
had more than doubled in the previous year.

Even after the drawn-out Ibrahim case, there's still no good way to
question the government's determination besides going to court. The next
person who wants to challenge a no-fly decision is probably going to
have to retread the same path as Ibrahim. Taking a look back at her
ordeal is instructive, if not inspiring.

The Ibrahim saga

Rahinah Ibrahim was admitted to the US on a student visa to study at
Stanford’s graduate school in 2000. Five years later, when attempting to
fly from San Francisco to Hawaii, she was denied entry onto the plane,
was handcuffed—despite being wheelchair-bound at the time—and was placed
in a holding cell, detained for two hours, and then questioned. During
questioning, a police officer attempted to remove her hijab. Eventually,
she was released and told that her name had been stricken from the
no-fly list.

After flying back to Hawaii and then to Malaysia a few days later, her
student visa was revoked, and she was denied reentry into the US. That
was the beginning of a nine-year fight over whether she could travel
back to the US, which Ibrahim said she considered her "second home."

As explained in Alsup’s opinion, the whole dispute stemmed from an
errant check placed on a form filled out by FBI agent Kevin Kelly. At
trial, Agent Kelly admitted his mistake, and government lawyers actually
conceded that Ibrahim doesn't pose a threat to national security and
never has. The mistake was not a small thing, Alsup wrote.

    At long last, the government has conceded that plaintiff poses no
threat to air safety or national security and should never have been
placed on the no-fly list. She got there by human error within the FBI…
the FBI agent filled out the nomination form in a way exactly opposite
from the instructions on the form, a bureaucratic analogy to a surgeon
amputating the wrong digit—human error, yes, but of considerable

Much of the litigation took place even while Ibrahim was unable to get
much information about the government's case against her. In December,
Alsup denied Ibrahim’s request to see the classified evidence submitted
by the government in its defense against her lawsuit.

Kafka today

Ben Wizner, Edward Snowden’s attorney at the ACLU, remarked at SXSW that
problems with the no-fly list aren't going away; the world we're facing
will look more like Kafka than Orwell. It will be a place where we
simply can't get answers. Wizner said:

    We already have watch lists that say that some people can fly and
some people can’t, or that they can go in this lane or they can go in
that lane. But that’s only going to proliferate as there’s more and more
data and faster and faster computers and more confidence that they can
make these predictions about us. I worry about due process. I worry
about basic fairness. And I worry about a world—not a world that looks
like Orwell. The law professor Daniel Solove has said that maybe the
better analogy for this, or metaphor, is not Orwell, but Kafka, where a
big data state makes judgments that can be permanent and irreversible,
and don’t seem fair, and we don’t have a chance to speak back.

In Kafka’s famous novel, “The Trial,” the protagonist, Josef K. awakens
one morning to be arrested for an offense that is never explained and
for which he is subsequently to be tried without ever learning of the
nature of the charges.

The sense that it's impossible to know what one is up against runs
through the Ibrahim opinion. In one section, shown below, Judge Alsup
orders the government “expressly to tell Dr. Ibrahim”—and then the
remainder of the sentence is redacted.

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