Is the Government Tampering With Witnesses in No-Fly Trial?

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That’s what Judge William Alsup wants to know, according to this post by Mike Masnick at Techdirt (based on coverage by the identity project).

The trial, going on right now in federal court in San Francisco, involves claims by a former Stanford Ph.D. student that she was not allowed to fly in 2005 (except to go home to Malaysia) for reasons that the government won’t explain. As explained in this NYT article (via TYWKIWDBI), the main “terrorist watch list,” from which the “no-fly list” is derived, is believed to include at least 700,000 people. We don’t know for sure, because the government won’t say. Nor do we know the criteria for getting on it, and as many people have found, it is extremely difficult to get off it. 

watch list

Shouldn’t the funnel be a cylinder?

According to this NYT graphic (click for more detail), 99% of the names that are “nominated” end up on the master watch list. The smallest twisty line going off to the right is the 1% that doesn’t get included, so the funnel graphic seriously misrepresents what’s going on there; if someone says you should be on the master list, you will almost certainly be put on it. In other words, the “Terrorist Screening Center” isn’t doing any “screening.”

But, you say, perhaps the initial selection process is 99% accurate! To which I would respond, yes, and perhaps 99% of what comes out of my butt is sunshine.

Anyway, back to the case. The plaintiff, Rahinah Ibrahim, has managed to get her case to trial, a very rare event. Unfortunately for the government, the case is before Judge Alsup, who is not known for accepting bullshit. So when he learned Monday that one of the plaintiff’s witnesses—one of her daughters, who is an American citizen—had not been able to travel to the U.S. to testify because (wait for it) she had been put on the no-fly list, he wanted an explanation. The government’s lawyers “made inquiries” and said they had been told she “just missed her flight.” Alsup was not buying that:

“We may have to have a separate evidentiary hearing about this,” Judge Alsup said, and ordered the defendants to provide further information [Tuesday]…. “I want to know whether the government did something to obstruct a witness, a U.S. citizen.”

Yesterday, Ibrahim’s lawyer said that the witness had not “just missed her flight,” whereupon she handed Judge Alsup what she said was a copy of DHS’s instructions to Malaysia Airlines telling it not to let the witness board the plane. (Awkward!) That still needs to be authenticated, but Alsup made clear he is not happy:

I am disturbed by this [he said]. We’ll hear from [the witness] when she gets here. If it turns out that the DHS has sabotaged a witness, that will go against the government’s case. I want a witness from Homeland Security who can testify to what has happened. You find a witness and get them here.

If the government has “sabotaged a witness,” that should do more than “go against its case,” shouldn’t it? Last I heard, witness tampering was a federal crime. But maybe when the government does it, that means it is not illegal?