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Major Trial Goes Right to the Heart of Massive U.S. Terrorism "No-Fly" Database

After an eight-year-long legal battle, landmark case goes to trial in a federal court.

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AMY GOODMAN: This year, hundreds of thousands of people may have been in for a rude awakening when they tried to board their flights. The New York Times reportsthe federal government’s terrorist watch list, officially called the "Terrorist Screening Database," has grown to at least 700,000 people, and those on the list are often subjected to extra scrutiny, prohibited from flying, interrogated while attempting to cross borders. According to the article, "Who Is Watching the Watch Lists?" the government refuses to divulge who is on the list, how one can get off the list, and what criteria is used to place someone on the list in the first place. Oftentimes people have no idea their name is in the database until they attempt to board a flight.

That’s exactly what happened to former Stanford student Rahinah Ibrahim in January of 2005 when she showed up at San Francisco International Airport with her teenage daughter for a flight to Malaysia. At the United Airlines ticket counter, Ibrahim was handcuffed and detained by police without explanation. Ultimately, she was allowed to fly home to Malaysia, but she has been unable to return to the United States because the State Department revoked her student visa.

Today, after an eight-year-long legal battle, Ibrahim’s case is going to trial in federal district court in San Francisco. This is one of Ibrahim’s lawyers, Marwa Elzankaly, in 2011 explaining to federal judge what Ibrahim is seeking to accomplish with the suit.

MARWA ELZANKALY: We sued the TSA, the Department of Homeland Security, the Department of Justice, the Terrorist Screening Center and the FBI. We basically sued anyone who was involved or could have been involved in Ms. Ibrahim’s arrest and in her—the placement of her name on the no-fly list.

JUDGE ALEX KOZINSKI: Essentially, and your APA claim is simply to try to get her name off the no-fly list.


JUDGE ALEX KOZINSKI: That’s the only relief you seek under the APA.

MARWA ELZANKALY: It’s to take her name off of a government watch list. It’s the same list that is being used, that is basically put together by the TSC, and is used by every government agency who engages in any terrorist monitoring activities, including the TSA, but also including overseas consulates issuing visas, including local law enforcement agencies and state law enforcement agencies. And that list is distributed to many different agencies. It’s not just used by the TSA.

AMY GOODMAN: That was attorney Marwa Elzankaly and Alex Kozinski, a chief judge of the United States Court of Appeals for the 9th Circuit. Elzankaly was representing Rahinah Ibrahim, whose case goes to trial in federal district court in San Francisco today. She is trying to get off the U.S. government’s no-fly list.

For more, we’re joined by video Skype by Anya Bernstein. She is an associate professor at SUNY Buffalo Law School and author of "The Hidden Costs of Terrorist Watch Lists," published by Buffalo Law Review.

Professor Bernstein, thanks so much for being with us. Just lay out for us what is on this—who is on the terrorist watch list. And how has it grown?

ANYA BERNSTEIN: Well, one important thing to realize is that there isn’t really a terrorist watch list; there are many, many terrorist watch lists run by various agencies. In the past few years, those have been funneled into a general database called, as you said, the Terrorist Screening Database, run by the Terrorist Screening Center. But the way that people are nominated—that’s the word; you’re nominated to be on the watch list—is through the subordinate law enforcement agencies. So, an FBI agent might think that somebody is suspicious and want to nominate them to the Terrorist Screening Database. That’s one of the reasons that the list has grown as much as it has in the last decade, because it’s—the names are coming in from a lot of different places. And most of the oversight, according to the government’s own inspector general report issued a couple years ago, is about things like whether the paperwork is filled out correctly. There isn’t a lot of oversight about things like whether the predictions of terrorist acts are actually accurate. So, we don’t know who is on the list, but we do know that it’s a very large number of people, as you said.