Judge Rules for Plaintiff in No-Fly Case

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At least for now the order itself is sealed, but Judge Alsup provided some details in this summary he released today in the Ibrahim case (PDF, Reuters report). As you may recall, things were not going so well for the government in this case last time we checked in, and they didn't get much better.

Although the judge said that in his view, the whole order should be made public, he has agreed to keep it under seal until April 15 so that the government can appeal that issue to the Ninth Circuit. He did say this, however:

  • The plaintiff has standing to challenge the no-fly listing and practices, and all of the government's arguments to the contrary are overruled.
  • Once a plaintiff shows "concrete, reviewable adverse government action" (i.e. not being allowed to fly) has resulted from a government error, she is entitled to a remedy that requires the government to correct its lists and records "and to certify under oath that such correction(s) have been made."
  • Because the government's current administrative remedies, such as they are, don't do this, they are unconstitutional.
  • He ordered the government to provide that remedy here (take plaintiff off the list and certify under oath that it did so), and/or to disclose whether she is in fact on or off the list. (As you may recall, the government refuses to tell people whether they are on the list or not.)
  • Presumably she is or will soon be off it, because "the government concedes [as it has for a while now] that plaintiff is not a threat to our national security."
  • Finally, charging Justin Bieber with a felony egging is arbitrary and capricious and therefore also violates due process. (Still sealed for now but I know it's in there.)

The judge "urged" the parties to agree on a redacted version that can be released now, but didn't require them to, so it remains to be seen whether the government will negotiate on that. Either way, with any luck there will be more to mock on April 15.