A Malaysian professor, educated at Stanford and barred from this country for eight years, has apparently become the first person to drag the federal government into a trial over the no-fly list. Whether her lawyer or the judge gets them to actually participate remains to be seen.

Rahinah Ibrahim, a Muslim who wears a habib, got the boot in 2005 when she attempted to fly with her daughter from San Francisco International Airport to her native country, where she was to present her doctoral research at a Stanford-sponsored conference. The authorities told her she was on the no-fly list, handcuffed her and put her in a holding cell for hours. She was in a wheelchair after a recent hysterectomy.

Ibrahim was finally sent home and told she could fly the next day. She did, but then the government refused to let her back in or give her an explanation why she was banned. Ibrahim filed a lawsuit, which like many similar suits, bounced around in the courts as the federal government threw up procedural blockades and refuse to comment on any aspect of the no-fly law.

On Monday, Ibrahim’s case went to trial in the U.S. District Court for the Northern District of California—but without her. She is still banned from this country, as is her daughter, who is seeking to testify. Judge William Alsup, appointed by President Bill Clinton,  has denied government arguments that a trial poses too high a risk that classified material will be revealed.

In his final pretrial order (pdf) last month setting December 2 as the start date, Judge Alsup made clear he was none too pleased that the government waited seven years before arguing for the first time, just weeks before trial, that information it conveyed ex-parte (to the judge without the plaintiff present) “may be relied upon to dismiss the case.”

Judge Alsup said he wouldn’t do that. He said any claims to a state secrets privilege by the government would have to be made on a case-by-case basis. The motion to compel U.S. Attorney General Eric Holder and Director of National Intelligence James Clapper was denied.

Although Ibrahim cannot attend the trial, she taped a sworn deposition that was played for the judge—there is no jury. Ibrahim denied any affiliation with terrorists and, according to the San Francisco Chronicle, suggested that her inclusion on the no-fly list was the result of a mistake by the government.

She said an FBI agent visited her at Stanford in 2004 and asked what she knew of a militant Islamic group in Malaysia called Jemaah Islamiyah. Ibrahim said she knew nothing. Four months later, a consular official denied her a visa after asking her about a group she did belong to: Jamaah Islah Malaysia.

That group is made up of Malaysian professionals who have studied abroad and are interested in job creation. Ibrahim called them “progressive Muslims.” The groups’ names are similar, but their agendas are slightly different.

The U.S. Department of Justice is arguing in the case that Ibrahim wouldn’t be harmed by a U.S. no-fly ban—it won’t confirm if she is on the list—because she is free to fly elsewhere in the world. Government lawyers also argue she has no intrinsic right to enter the United States, lacking citizenship and other connections.

Ibrahim notes her Stanford connection, the husband she met in the U.S. and the daughter who was born here. She argues that the ban does indeed impair her ability to fly and makes the case that being on a no-fly list and branded a national security threat is bad for appearances, professional and social.    

The government has never revealed how it goes about putting someone on a no-fly list and makes it very difficult to get off once there. The Ibrahim case and others pending in the system might shed some light on it.

Or not, if the federal government has its way.

–Ken Broder

To Learn More:

Former Stanford Student Sues over No-Fly List (by Bob Egelko, San Francisco Chronicle)

U.S. Terrorism Program Challenged: Former Stanford Doctoral Student Fights "No Fly" Lists in Trial (by Howard Mintz, San Jose Mercury News)

Rahinah Ibrahim No-Fly Trial Set to Begin Dec. 2 (by David Perera, Fierce Homeland Security)

Judge Slams Government for “Stubborn Refusal” to Follow the Law in 8-Year-old No-Fly Case (by Ken Broder, AllGov California)