
No-fly list trial: Court awards fees on government attorneys’ bad faith - jtc331
https://papersplease.org/wp/2019/01/03/plaintiff-in-first-no-fly-trial-wins-another-appeal-on-attorneys-fees-and-government-lawyers-bad-faith/
======
mabbo
> Even Attorney General Eric Holder got involved in the government’s
> obstruction of discovery in the case, signing what appears to have been a
> perjured affidavit falsely claiming that he had personal knowledge that
> disclosing the status or reasons for Dr. Ibrahim’s blacklisting (i.e. the
> fact that an FBI agent had made a mistake), “could reasonably be expected to
> cause significant harm to the national security.”

The attorney general, knowing full well that the entire case was based on the
government screwing up, perjures himself by claiming that letting anyone know
why this happened would cause harm to national security. This is the danger of
secrecy in law. When you can claim something must be kept secret with no
burden of proof, you let government's hide embarrassments.

~~~
rayiner
Yeah, there is no way that counts as perjury. The question asks for a legal
conclusion, not a fact, and for good reasons we make it very hard for anyone
to call perjury in strained conclusions. In a real case, you wouldn’t just
have to admit “oops an agent screwed up.” You’d have to give some sort of
contextual information about the process the agent was supposed to be
following, and how he deviated. There is a colorable argument that this could
result in some disclosure of importance to national security. Just because
it’s a stupid argument and the judge didn’t buy it doesn’t mean it’s perjury.

The government got the correct sanction here, a finding of “bad faith” and
attorneys’ fees, which is what courts do when parties push thin legal
arguments further than they should.

~~~
hedora
Surely this can’t be the proper standard for national security claims.
Otherwise, arguments of the form must always be acceptable, and without
repercussion:

Based on [redacted, even from the judge] the court must make [arbitrary
judgment].

That’s giving the exective branch more authority than simply giving them
immunity from perjury would!

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nagrom
In case anyone else is confused, the term "en banc" refers to a case which is
heard before _all_ the judges on the bench for that court, rather than just
one. En banc hearings are generally made in cases deemed of extreme
importance. As such, this is a fairly strong finding.

~~~
jMyles
> In case anyone else is confused, the term "en banc" refers to a case which
> is heard before all the judges on the bench for that court, rather than just
> one.

Rather than just three, no? When I argued _pro se_ in front of the 2nd circuit
(which was a great time, btw - I highly recommend it), it was in front of
three judges.

~~~
ehasbrouck
Generally a case is heard "en banc" by a larger panel only as an appeal -- at
the discretion of the court -- from an inital decision of a 3-judge panel. In
most of the circuits, en banc rehearing is before all the judges of that
circuit. The 9th Circuit is so large and has so many circuit judges that even
en banc appeals are haeard by only a subset of the circuit judges. An en banc
panel in the 9th Circuit consists of 11 judges:
[http://cdn.ca9.uscourts.gov/datastore/general/2017/02/10/En_...](http://cdn.ca9.uscourts.gov/datastore/general/2017/02/10/En_Banc_Summary2.pdf)

------
johan_larson
I wonder why the government fought this tooth and nail. Do they just really
hate to lose, so they double down time and again? Or are they worried that
losing once will open the floodgates to a torrent of litigation?

~~~
tinus_hn
The government believes the law, with its checks and balances, is not strong
enough to prevent attacks. The law prefers letting 9 guilty people walk free
if that prevents one innocent person from being unfairly punished. You can’t
allow 9 hijackers to attack just to avoid not allowing one person to fly.

As the government is limited by the law they use tricks to go around it, in
this case by using a secret list with secret rules and contents. You’re not
allowed to know the list exists so you can’t contest if you are on it by
mistake. There can be no precedent that allows people to remove themselves
from the list.

~~~
jstanley
> You can’t allow 9 hijackers to attack just to avoid not allowing one person
> to fly.

Yes you can, and should. That's the _entire_ point of the idea that it is
better to let 9 guilty people walk free than to unfairly punish one innocent
person.

~~~
AnthonyMouse
Not only that, hijackers ceased to be a problem as soon as everyone understood
they would crash the planes instead of ransoming them.

It has always been the case that a plane full of passengers could overcome
half a dozen hijackers, but the historical assumption was that you shouldn't
fight them because you could get hurt. If you're going to get hurt _anyway_ ,
that's out the window, so you fight them, so does everybody else, and the
passengers win.

You'll notice that there have been no further crashing of airplanes into
buildings after 9/11, despite the fact that the TSA's security record is
terrible.

~~~
ohazi
Also the steel fucking doors that block the entrance to the flight deck. The
TSA shouldn't be looking for anything smaller than a plasma torch.

~~~
jMyles
You'll have to pry my plasma torch from my cold, dead... Oh, I can just check
it and pick it up at baggage claim? Sounds good.

------
onetimemanytime
If this is a victory, I'd hate to see defeat: 14 YEARS and millions in fees to
reverse a clerical mistake. Not one FBI or DOJ employee is in jail, suspended
or fired.

~~~
jkartchner
We don't see defeats because they don't have the money for a voice that will
carry. They happen every day. Those people just have to deal with being
wronged, quietly. This is how imperfect people become true criminals.

~~~
thaumasiotes
The (rhetorical) question is: if "victory" means spending 14 years and
$4,000,000 in order to not get a remedy -- while no one on the "losing" side
suffers any penalty -- if that's "victory", what does "defeat" look like?

There was no claim about the existence or visibility of actual defeats.

~~~
jkartchner
Yes. It was all rhetorical.

------
tyingq
Judge William Alsup ruling...

You may remember him from the Uber/Google or Google/Oracle proceedings. He
codes: [https://www.theverge.com/2017/10/19/16503076/oracle-vs-
googl...](https://www.theverge.com/2017/10/19/16503076/oracle-vs-google-judge-
william-alsup-interview-waymo-uber)

~~~
dchest
_En banc, the 9th Circuit reversed the panel and found that Judge Alsup had
applied the wrong standard and abused his discretion in finding that the
government hadn’t acted in bad faith . . ._

------
tomohawk
False claims are so damaging. Its a problem that's been with us a long time,
though. It's even one of the 10 commandments:

"You shall not bear false witness against your neighbor" \- Exodus 20:16

~~~
daveFNbuck
There's a pretty wide range of interpretations in the US about what neighbor
means in that sentence, so there's a good chance the people defending this
case think it's not wrong to bear false witness against foreigners.

~~~
vajrabum
That may well be but it has nothing to do with the bible. The bible is explict
about the treatment due to foreigners and in fact that is reflected in US law.

Cursed be anyone who perverts the justice due to the sojourner, the
fatherless, and the widow. - Deut 27:19

There shall be one law for the native and for the stranger who sojourns among
you. Exodus 12:49

You shall treat the stranger who sojourns with you as the native among you,
and you shall love him as yourself, for you were strangers in the land of
Egypt - Lev 19:34

~~~
daveFNbuck
I think you're taking it a little too far when you say this has nothing to do
with the bible. There are also verses instructing people to kill, rape, and
enslave foreigners. As with most topics, there's enough in the bible to
support whichever side you prefer.

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asah
Ok, so what's the disincentive for government attorneys to do this in the
future???

~~~
johan_larson
Probably the sheer amount of time and effort legal campaign has consumed. No
government agency has infinite money and staff.

------
curiousgal
Dumb question, how can a non-citizen sue the government in an American court?

~~~
ehasbrouck
This was one of the issues raised, and resolved in Dr. Ibrahim's favor, in the
second of the three appeals to the 9th Circuit Court of Appeals in this case.

The court found that she had sufficient connection to the US (including having
lived in the US for years, and having children who were born in the US and are
US citizens) to give her legal "standing" to raise these issues.

However, non-US citizens outside the US generally don;t have any right to
challenge denials of US visas in US courts, which is why she remains barred
from the US with no way to challenge that. (It's possible that one of her
children could raise that issue in a US court, but they are afraid that if
they they return to the US, the US might put them too on the no-fly list
again, trapping them in the US.)

~~~
dane-pgp
I'm not sure if being "trapped" in the US is the biggest concern for her US-
citizen children visiting America. Couldn't they travel by land from Canada?
Hopefully them bringing such a case would cost less than $4 million and 14
years.

~~~
ehasbrouck
People have bene prevented from flying between Canada and Europe becuase of
objections from the US government. So being able to cross from the US to
Canada (assuming Canada would let her in, which isn't assured if she is a US
but not Canadian citizen), that wouldn't guarantee being able to get back to
her home and family and profession in Malaysia.

~~~
dane-pgp
I'd be interested to read an article about people being prevented from flying
between Canada and Europe because of the US government. I think I remember a
case of Canada refusing to let someone enter as part of a pre-booked journey
which had a leg that took them into the US, but even then, I don't suppose
that the affected passenger was a US citizen.

Similarly I don't know if there are cases where Canada has refused entry to a
US citizen that isn't a wanted criminal (suspect) in the US or guilty of
something that Canada themselves object to.

We could certainly imagine all sorts of extreme scenarios, such as the entire
family secretly being spies for China, and the US tipping off the Canadians,
but neither country being able to publicly reveal this, but -- assuming that
these children are just innocent victims of an abusive bureaucracy -- I'd like
to see them launch a case in the US.

There may be many good reasons for them not doing so, but I don't think that
their ability to travel to Canada (from Europe, for example) nor their ability
to travel by land between the US and Canada, is the limiting factor.

~~~
ehasbrouck
"I'd be interested to read an article about people being prevented from flying
between Canada and Europe because of the US government."

Here you go:

[https://papersplease.org/wp/2011/02/16/british-man-
marooned-...](https://papersplease.org/wp/2011/02/16/british-man-marooned-in-
canada-because-of-us-no-fly-list/)

[https://papersplease.org/wp/2011/03/18/canadian-denied-
passa...](https://papersplease.org/wp/2011/03/18/canadian-denied-passage-home-
from-germany-because-of-us-no-fly-list/)

[https://papersplease.org/wp/2011/05/25/us-intervenes-to-
bloc...](https://papersplease.org/wp/2011/05/25/us-intervenes-to-block-uk-to-
canada-trip-by-ex-gitmo-prisoner/)

None of these people were scheduled to fly to, from, or via the USA.

There have also been people denied passage on fligths between other countries,
merely becuase they were scheduled to pass through US airspace without
landing. But that's a different issue from the incidents reported in the links
above:

[https://papersplease.org/wp/2009/05/16/air-france-
passenger-...](https://papersplease.org/wp/2009/05/16/air-france-passenger-
data-and-no-fly-orders/)

[https://papersplease.org/wp/2010/06/07/another-paris-
mexico-...](https://papersplease.org/wp/2010/06/07/another-paris-mexico-
flight-barred-from-us-airspace/)

[https://papersplease.org/wp/2011/07/25/mexico-barcelona-
flig...](https://papersplease.org/wp/2011/07/25/mexico-barcelona-flight-
barred-from-overflying-the-us/)

------
hopler
Remember that State Secrets have a long history of being used to cover up
government incompetence and prevent victims of the government from seeking
justice.

[https://en.m.wikipedia.org/wiki/United_States_v._Reynolds](https://en.m.wikipedia.org/wiki/United_States_v._Reynolds)

------
test6554
This is why I like lower taxes. The government should be so desperate for
money that it would have had to be more reasonable with which cases it chooses
to pursue.

~~~
dane-pgp
No matter how little money you give a government, it will always rather use
that money for unreasonable things if you elect a government that has
unreasonable priorities.

In fact, the opposite argument almost makes more sense: "I like paying high
taxes, so that, after the government has wasted money on the unreasonable
things it wants, it will still have so much money that it will have to spend
it on reasonable things as well."

