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February 16, 2014

Obama DOJ’s New Abuse of State-Secrets Privilege Revealed

By Murtaza Hussain

Source:  The Intercept

For nine years, the U.S. government refused to let a Stanford PhD student named
Rahinah Ibrahim back in the country after putting her on the no-fly list for no apparent
reason. For eight years, U.S. government lawyers fought Ibrahim’s request that she
be told why. Last April, despite his promise in 2009 to do so only in only the most
extreme cases, Attorney General Eric Holder tried to block Ibrahim’s case by asserting
the state secrets privilege, declaring under penalty of perjury that the information she
wanted “could reasonably be expected to cause significant harm to national security.”

Last week, a federal judge publicly revealed the government’s explanation for Ibrahim’
s long ordeal: an FBI agent had “checked the wrong box,” resulting in her falling
under suspicion as a terrorist. Even when the government found and corrected the
error years later, they still refused to allow Ibrahim to return to the country or learn on
what grounds she had been banned in the first place.

Holder, in his April declaration, restated his own new state secrets policy, that “[t]he
Department will not defend an invocation of the privilege in order to: (i) conceal
violations of the law, inefficiency, or administrative error; (ii) prevent embarrassment
to a person, organization, or agency of the United States Government”.

Then he did exactly what he had said he wouldn’t do.

The bogus national security claims invoked were even more outrageous because they
were used to continue the persecution of someone the government knew to be

Ibrahim’s ordeal started on January 2, 2005, when she arrived at San Francisco
International Airport to catch a flight to Malaysia for a Stanford-sponsored academic
conference. A citizen of Malaysia, she had been living in the United States for four
years on a student visa. But when a ticket agent saw her name on the no-fly list, he
called the police.

Despite being wheelchair-bound due to complications from a medical procedure,
Ibrahim was handcuffed and taken to a detention cell where she was reportedly
humiliated and threatened by San Francisco police officers. She was denied access
to medication she had been travelling with, despite suffering excruciating pain due to
a recent surgery. Her obvious medical distress apparently won her no sympathy. As
she recounted in an interview about the incident years later: “My back felt as if it was
hit by an electric shock with every beat of my heart and I repeatedly asked for
painkillers and nearly collapsed, but they ignored me.” Shaking and in tears, she was
eventually allowed to board her flight to Malaysia but found herself banned from
returning on the way back.

In an effort to clear her name and return to her life in the United States, Ibrahim
launched a lawsuit against the U.S. government challenging her placement on the
federal no-fly list. However at every step of the process government officials impeded
her ability to challenge or even examine the allegations against her by invoking the
state secrets privilege.

U.S. District Court Judge William Alsup ordered her removal from the no-fly list in
January. And last week, he unsealed  a redacted 38-page court filing disclosing the
“mistaken information” that led the government to throw an innocent woman’s life into

As a 2008 presidential candidate, Barack Obama specifically criticized the Bush
administration’s abusive state secrets policy. The Obama/Biden “Plan to Change
Washington” critically noted that “the Bush administration has invoked a legal tool
known as the ‘state secrets’ privilege more than any other administration to get cases
thrown out of court.”

After taking office, Obama declared: “We must not protect information merely because
it reveals the violation of a law or embarrassment to the government….I will never hide
the truth because it’s uncomfortable.”

But he then proceeded to cite the state secrets privilege to stonewall lawsuits on such
topics as CIA torture and extrajudicial assassinations. A lawsuit filed by Binyam
Mohammed – a man subjected to extraordinary rendition who suffered “medieval”
torture including the slashing of his chest and genitals with a scalpel –was thrown out
after the Obama Department of Justice invoked the privilege, with DOJ attorney
Douglas N. Letter asserting at the time: “This case cannot be litigated…the judges
shouldn’t play with fire in this national security situation.”

The troubling questions regarding the abuse of the state secrets privilege are
obvious: If officials of the federal government are willing to use it to conceal a
bureaucratic error, how far would they be willing to go to cover up serious crimes such
as torture and assassination?

For her part, Ibrahim said by video-link at the trial: “I would like my children not to hate
America because of what happened to me … I would like for nobody to have to go
through what happened to me.”