SAN FRANCISCO (CN) - The Malaysian graduate student who battled the government after being placed on terror watchlists now says counterterrorism officials broke their own rules by blacklisting her.
Rahinah Ibrahim, who was attending Stanford at the time, successfully fought
a mistake by an FBI agent that landed her on a terrorist database and the Transportation Security Administration's no-fly list, and got her booted out of the United States in 2005.
Earlier this year, U.S. District Judge William Alsup rebuked
the government for its handling of Ibrahim's case and ordered all agencies to remove her from their terror databases and watchlists. But he stopped short of finding in Ibrahim's favor on her constitutional claims, including First Amendment, substantive due process and equal protection infringements.
Since then, Ibrahim has asked Alsup to reconsider - which he has so far refused to do. But on Wednesday, Ibrahim's pro bono attorneys at McManis Faulkner said that newly discovered documents prove that broken rules - and not a mistake by an FBI agent - landed Ibrahim on terror watchlists and got her booted from the United States.
"The newly available evidence is a document entitled 'March 2013 Watchlisting Guidance,' which the government withheld from plaintiff during discovery," Ibrahim said in this latest request. "This document was issued by defendant National Counterterrorism Center and provides federal watchlisting criteria, including the exceptions to the so-called 'reasonable suspicion' standard employed by the defendants in this case."
The request continued: "Among other things, the document proves that defendants violated their own guidelines when they placed Dr. Ibrahim in the Terrorist Screening Database without any reasonable suspicion that she posed a terrorist threat. In a section entitled 'Special Considerations," the watchlisting guidance
provides that foreign government officials should be watchlisted if there is 'particularized derogatory information to support a reasonable suspicion.' Defendants conceded at trial, and the court found, that Dr. Ibrahim, an official of the Malaysian government at all relevant times, had never posed any threat of terrorism."
According to the redacted filing, portions of the guidance document that list all the exceptions to the reasonable suspicion standard - exceptions used by the government to blacklist Ibrahim and throughout the trial fought to keep shrouded in secrecy - are actually marked as unclassified and not a state secret as the Justice Department claimed.
"In light of this new information, the remedies ordered by the court are inadequate because they only address FBI Special Agent Kevin Kelley's box-checking blunder from 2004, and the Department of State's failure to provide Dr. Ibrahim visa waiver information in 2009," the request stated. "Absent is any remedy addressing the government's ongoing
erroneous placement of Dr. Ibrahim in the Terror Screening Database without reasonable suspicion of terrorist activity. Removal from all terrorist databases, the full relief plaintiff requested in her second amended complaint, is warranted."
The request also accused some government witnesses of giving misleading - or flat-out false - testimony during Ibrahim's trial.
"Moreover, the government misconduct revealed by the watchlisting guidance provides further evidence of defendants' widespread bad faith within the meaning of the Equal
Access to Justice Act," the request stated. "Defendants have violated multiple provisions of their own terrorist watchlisting guidelines, misled the public regarding the use of protected constitutional activity as a basis for watchlisting individuals, and continue to treat innocent individuals as terrorists."
Late Wednesday, Alsup gave the government a week to respond to Ibrahim's new allegations.
Both sides are currently hashing out the issue of Ibrahim's attorney fees before a special master, after Alsup called
McManis Faulkner's $3.9 million bill for the eight-year case "grossly broad even to the point of seeking double recovery."