Stuck in Malaysia, though still in possession of a valid student visa, Ibrahim filed a lawsuit against the U.S. government, asking to be removed from the no-fly list and allowed back into the country to continue her architectural studies.
Over almost nine years, the U.S. Department of Justice (DOJ) employed an arsenal of dodges and post-9/11 tricks to impede her lawsuit, including invoking the "state secrets doctrine" to ensure that she would never have access to the records she needed. "State secrets" is not a law in the U.S., as it is, for example, in Great Britain, where the monarch also retains "Crown Privilege," the absolute right to refuse to share information with Parliament or the courts. Here, it is instead a kind of assumed privilege and the courts accept it as such. Based on it, the president can refuse to produce evidence in a court case on the grounds that its public disclosure might harm national security. The government has, in the past, successfully employed this "privilege" to withhold information and dead-end legal challenges. Once "state secrets" is in play, there is literally nothing left to talk about in court.
A related DOJ dodge was also brought to bear in an attempt to derail Ibrahim's case: the use of made-up classification categories that dispatch even routine information into the black world of national security. Much of the information concerning her placement on the no-fly list, for instance, was labeled Security Sensitive Information (SSI) and so was unavailable to her. SSI is among hundreds of post-9/11 security categories created via memo by various federal agencies. These categories, too, have no true legal basis. Congress never passed a law establishing anything called SSI, nor is there any law prohibiting the disclosure of SSI information. The abuse of such pseudo-classifications has been common enough in the post-9/11 years and figured significantly in the ongoing case of Transportation Security Administration (TSA) whistleblower Robert MacLean.
Next in its end-run around Ibrahim's lawsuit, the DOJ pulled "standing" out of its bag of tricks. Standing is a legal term that means a person filing a lawsuit has a right to do so. For example, in some states you must be a resident to sue. Seeking to have a case thrown out because the plaintiff does not have standing was a tactic used successfully by the government in other national security cases. The ACLU, for instance, sued the National Security Agency for Fourth Amendment violations in 2008. The Supreme Court rejected the case in 2013 for lack of standing, claiming that unless the ACLU could conclusively prove it had been spied upon, it could not sue. In the wake of the Edward Snowden revelations showing that the NSA indeed spied widely on American citizens, the ACLU has revived the suit. It claims that the new documents provide clear evidence of broad-based surveillance and so now give it standing.
Standing was also used by the DOJ in the case of American citizen and purported al-Qaeda member Anwar al-Awlaki, whom the U.S. murdered by drone in Yemen. Prior to his son's death, attorneys for al-Awlaki's father tried to persuade a U.S. District Court to issue an injunction preventing the government from killing him. A judge dismissed the case, ruling that the father did not have standing to sue.
In Ibrahim's no-fly case, the government argued that since she was not an American citizen, she had no standing to sue the government for its actions against her in the U.S. When all of those non-meritorious challenges failed to stop the case, the government invoked the very no-fly designation Ibrahim was challenging, and refused to allow her to travel to the United States to testify at her own trial.
Next, Ibrahim's daughter, an American citizen traveling on a U.S. passport, was not allowed to board a flight from Malaysia to serve as a witness at her mother's trial. She, too, was told she was on the no-fly list. After some legal tussling, however, she was finally allowed to fly to "the Homeland." Why the American government changed its mind is classified and almost all of the trial transcript concerning the attempt to stop her from testifying was redacted from public disclosure.
In addition, by regularly claiming that classified information was going to be presented, the government effectively hid the ludicrous nature of the Ibrahim case from much public scrutiny. The trial was interrupted at least 10 times and the public, including journalists, were asked to leave the courtroom so that "classified evidence" could be presented.
A message of intimidation had been repeatedly delivered. It failed, however, and Ibrahim's case went to trial, albeit without her present.
Ibrahim Wins
Despite years of effort by the DOJ, Ibrahim won her lawsuit. The U.S. District Court for Northern California ordered the removal of her name from the no-fly list. However, in our evolving post-Constitutional era, what that "victory" revealed should unnerve those who claim that if they are innocent, they have nothing to fear. Innocence is no longer a defense.
During the lawsuit, it was made clear that the FBI had never intended Ibrahim to be placed on the no-fly list. The FBI agent involved in the initial post-9/11 investigation of Ibrahim simply checked the wrong box on a paper form used to send people into travel limbo. It was a mistake, a slip up, the equivalent of a typo. There was no evidence that the agent intended harm or malice, nor it seems were there any checks, balances, or safeguards against such errors. One agent could, quite literally at the stroke of a pen, end someone's education, job, and family visits, and there was essentially no recourse.
Throughout the nine years Ibrahim fought to return to the U.S., it appears that the government either knew all along that she was no threat and tried to cover up its mistake anyway, or fought her bitterly at great taxpayer expense without at any time checking whether the no-fly designation was ever valid. You pick which theory is most likely to disturb your sleep tonight.
Ibrahim Loses
Having won her case, Ibrahim went to the airport in Kuala Lumpur to fly back to Stanford and resume her studies. As she attempted to board the plane, however, she was pulled aside and informed that the U.S. embassy in Malaysia had without notice revoked her student visa. No visa meant, despite her court victory, she once again could not return to the United States.
At the U.S. embassy in Kuala Lumpur, Ibrahim was handed a preprinted "explanation" for the visa revocation with the word "terrorist" hand-written next to the boilerplate text. Ibrahim was never informed of her right under U.S. law to apply for a waiver of the visa revocation.
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