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Fed. Judge Won't Dismiss No-Fly List Case on State Secrets Ground

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By Mark Wilson, Esq. on November 04, 2014 3:57 PM

In 2009, U.S. citizen Gulet Mohamed went to the Middle East to study Arabic. He visited to several countries, including Yemen and Somalia. Then he moved to Kuwait. In 2010, he tried to renew his visitor's visa but was instead handcuffed, blindfolded, and held in detention for a week while being tortured.

And you thought renewing your driver's license was hard.

Kuwaiti officials tried to deport him, but it turned out that Mohamed's name was on a No-Fly List, so he can't return to the United States. While being held incommunicado in Kuwait, he was interrogated by FBI agents, who threatened more interrogation and criminal charges if he didn't speak to them.

We Can Neither Confirm Nor Deny That This Is a Headline

The government has repeatedly invoked the "state secrets" privilege, claiming that letting the plaintiff see certain evidence would be so harmful to national security that it overrode his due process rights.

District Judge Anthony Trenga, however, wanted proof that the evidence was damning to national security. In an order issued last week, Trenga said that the government hadn't presented enough evidence to him to demonstrate that disclosing the documents to the plaintiff would "expose military matters which, in the interest of national security, should not be divulged." Nevertheless, Trenga struck a middle ground by saying the documents weren't so necessary to the case that they had to be introduced. He also didn't dismiss the case outright as the government requested.

Trenga suspended ruling on the state secrets issue pending the parties' motions for summary judgment -- basically, if the parties can resolve the case without the documents, then Trenga doesn't have to wade into the state secrets problem. He also advised the government that the state secrets privilege isn't a panacea for getting a case thrown out. It's "a judicially created rule of evidence, not a doctrine of sovereign immunity or non-justiciability, whose applicability and consequences, where applicable, are best considered within a specific context during the actual adjudication of any claims to which it may apply." Meaning he's not going to dismiss Mohamed's case unless he has to.

The Word 'Kafkaesque' Comes to Mind

For much of its existence, the No-Fly List was a big secret. Nobody knew they were on it until they weren't allowed to fly, and there was no way to get your name off once you were on it. Earlier this year, a federal judge in Oregon ruled that the No-Fly List was unconstitutional as it existed because there were no due process protections.

Couple that with the government's liberal use of the state secrets privilege since September 11, 2001, to get dismissed any lawsuits brought over warrantless wiretapping, international travel restrictions, or the alleged U.S. government-sponsored torture of foreign nationals abroad.

Mohamed, by the way, is back in the United States, though when he entered the country in January 2011, he was questioned by the FBI for hours. The Council on American-Islamic Relations estimates that there are 400,000 people on the No-Fly List.

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