This article originally appeared on VICE UK.
Rahinah Ibrahim is not a national security threat.
The federal government even said so.
It took a lawsuit that has stretched for eight years for the feds to yield that admission. It is one answer in a case that opened up many more questions.
The answer to that question — to paraphrase a particularly hawkish former Secretary of Defense — may be unknowable.
Last week, there was a depressing development in the case.
A judge’s decision was made public and it revealed that the White House has created at least one “secret exception” to the legal standard that federal authorities use to place people on such lists.
This should trouble anyone who cares about things like legal due process or the US Constitution. No one is clear what the exception is — because it's secret, duh — meaning government is basically placing people on terror watch lists that can ruin their lives without explaining why or how they landed on those lists in the first place.
This flies in the face of what the government has told Congress and the American public.
Previously, federal officials said that in order to land on one of these terror watch lists, someone has to meet a “reasonable suspicion standard.”
That means there have to be clear facts supporting the government’s assertion that the individual in question is, you know, doing some terrorist shit.
Which seems like a good idea.
But not any more, apparently.
Ibrahim, a Muslim who is currently the Dean of Architecture at University Putra Malaysia, was placed on the federal no-fly list in late 2004.
She was removed from that specific list the following year, but her name remained on federal terrorism watch list databases. Her daughter, a US citizen, was also watch listed.
Ibrahim was arrested at San Francisco International Airport while she was enrolled as a PhD student at Stanford University.
She was not charged with any crime, but her student visa was revoked; later attempts at obtaining a new visa were denied.
She sued the US government in 2006, basically saying that what the federal authorities did was illegal.
Eight long years of litigation followed.
She found herself in a guilty-until-proven innocent legal quagmire.
Perhaps most importantly, she was never given an explanation as to what landed her on this list. For that answer, she is still waiting. The government would ultimately concede that she had never posed a national security threat.
In January, the court found the US government violated her due process rights.
During the case, there was one clue as to what may have convinced the US that Ibrahim was a potential terrorist.
She belongs to a women’s economic organization called Jamaah Islah Malaysia — there have been rumors that the FBI confused this with the terrorist group Jemaah Islamiyah.
Which would obviously be a really, really dumb thing for an investigative agency to do.
Ibrahim’s attorney, Elizabeth Pipkin, says she can’t say for sure how the authorities first became interested in her client.
“That was speculation on our part,” she said. “The sad thing is, even after eight years of litigation, we weren’t able to get to the bottom of what was the underlying information that lead an FBI agent to her door and brought this whole thing about.”
But as great as a “Feds Suck at Googling” headline would be, it could be even more simple and ridiculous.
According to one judge, an FBI agent made a basic paperwork error by filling out the form the opposite way from the instructions — ticking the lists she thought Ibrahim should not be on rather than the ones that she should. That screw up might be to blame for turning eight years of her life into a hellish pit of litigation.
The real criteria of the no-fly list — if there is one — remains cloaked in secrecy.
In America’s post-9/11 fever dream, it’s looking increasingly like the government has targeted Muslims who have no connection to terrorism on such lists, in the hope of developing informants, according to multiple ongoing federal lawsuits. (More on that in a minute.) And once you’re on these lists and terrorist databases, it’s a bitch to clear your name, as Ibrahim found out.
Pipkin says the only historical precedent for a like-minded program occurred during the McCarthy era back in the 1950s, when the government denied passports for people who were suspected communists.
It would appear the G-men of the 21st century are ripping a page right out of J Edgar Hoover’s playbook.
When the Red Scare was all the rage, a case challenging such a policy went all the way to the US Supreme Court, which found that if someone is deprived of their right to travel, the government has to say why — something the authorities have failed to do in Ibrahim's case.
In other words, it’s secret law: the government is deciding it doesn’t like you for some reason and punishing you, but declining to say what exactly you did to trigger the punishment.
People like Ibrahim are stuck in a legal no-man’s land, where they can’t fly but they have not been charged with a crime.
“The assertion of executive privilege in this case was extreme and the secrecy that was asserted by the federal government with respect to its action here are really hard to stomach when you believe that this should be a democratic country,” said Pipkin.
Ibrahim is not the only Muslim to be caught in an extrajudicial limbo.
Gulet Mohamed, a US citizen of Somali descent, is also currently challenging his placement on a no-fly list.
Mohamed has not been charged with any crime, but his placement on the list left him stranded in Kuwait for a month from December 2010 to January 2011.
His designation prevented him from flying home. During his confinement, US authorities grilled him about his travels in Somalia and Yemen, but Mohamed denied having contact with militants.
Mohamed, then still a teenager, says he was beaten and that federal agents made him an offer of becoming an informant, which he turned down. Ultimately, he was allowed back into the US in January 2011.
This January, a federal judge ruled that he had a right to challenge his placement on the list.
His attorney, Gadeir Abbas, of the Council on American-Islamic Relations, said the watch list policy violates due process rights guaranteed by the US Constitution.
“We know that whatever it was that interested them in Gulet, it was not enough for them to press charges against him, and if you can’t test your allegations through the criminal process, then what, exactly, are you doing?” he asked.
Abbas said that Federal authorities have significantly expanded the use of such watch lists since that guy decided to ring in Christmas 2009 by stuffing explosives into his skivvies and boarding a plane that was bound for Detroit.
The feds, he said, are now using the watch lists as a, “punitive tool that it can use as leverage [against] individuals that they want to interrogate, to become informants.”
Put another way: Federal authorities are using the watch lists to target Muslims in the hopes they will spy on their own communities on behalf of the US government.
Hina Shamsi, the director for the ACLU (American Civil Liberties Union) National Security Project, meanwhile, has said the US terrorist database is broken.
Thousands of people, she said, have been added to a no-fly list without any explanation as to why and with no opportunity to correct “the error or innuendo” that landed them there in the first place.
Abe Mashal was one such instance.
The married father of four grew up the son of an Italian-American mother and a Palestinian father in Illinois. He is a former Marine. He also happens to be Muslim. He believes the confluence of those last two factors may have caused him a considerable headache.
Mashal trains dogs for a living. Sometimes this requires him to fly around the country. One day in April 2010, he arrived at Chicago’s Midway International Airport to fly to Washington state for a dog training job. He wasn’t allowed to board, he learned, because he had been placed on a no-fly list.
He is now part of an ongoing ACLU lawsuit challenging the legality of the no-fly list.
In a familiar story, he's never been clear exactly about what landed him on the list. He says he can fly now; he was apparently taken off the list but was never told when, how or why. But for three-and-a-half years it hurt his business. About a third of his clientele required him to fly, he said.
Mashal has not been charged with a crime. He thinks federal authorities targeted him because he was a former Marine who identified himself on his military records as Muslim.
Authorities, he thought, saw him as someone whom they could groom to be a solid informant. He said during his attempts to get off the watch list, federal authorities offered him a deal: become an informant, spy on your fellow Muslims and you’ll be off the list. He declined and lawyered up. There are several other ex-military Muslims who are part of the ACLU’s suit, he said.
“I think they feel that you’re a patriotic person and you’re used to taking orders. They want someone with that type of discipline as well,” he told me. “You start putting the pieces together and say, ‘They’re aiming for military people who claim to be Muslims.'”
He added, “The FBI is very good and trained at intimidating people and getting them to do what they want. It’s been a frustrating experience. It’s made me question whether we have these rights that they say we do."
When the government can put you on a terror-list without giving you a reason, that seems a fair question to raise.
The FBI and Department of Homeland Security both declined to comment for this story, deferring to other agencies. The Department of Justice did not respond to a request for comment before deadline.
Follow Danny McDonald on Twitter: @DMacCash