Woman on nofly list wins court ruling

The U.S. Supreme Court refused to let the government off the hook Tuesday for millions of dollars in legal costs to a Stanford graduate student who was prevented from returning from her native Malaysia to San Francisco more than 14 years ago because the FBI mistakenly put her on the “nofly” list of suspected terrorists.

Rahinah Ibrahim is now a professor and dean of architecture at a university in Malaysia. She remains unable to fly to the United States because, after being removed from the nofly list, she was placed on one or more additional watchlists based on evidence the government has not disclosed. That despite a government lawyer declaring during legal proceedings in 2013 that Ibrahim “was not a threat to the national security of the United States and ... never has been.”

But the Supreme Court’s order provides her a degree of vindication. Over the dissent of Justice Samuel Alito, the court denied review of a federal appeals court ruling in January that requires the government to compensate Ibrahim’s lawyers for millions of dollars they spent on her case.

“Dr. Ibrahim was the first person ever to force the government to admit a terrorist watchlisting error,” the Ninth U.S. Circuit Court of Appeals in San Francisco said in an 83 ruling. After a federal judge ruled that Ibrahim’s rights had been violated, the court said, the government started allowing individuals to challenge their inclusion on the secretive nofly list.

Ibrahim, while still a Stanford student, was arrested at San Francisco International Airport in January 2005 as she tried to board a plane for Hawaii with her 14yearold daughter, a U.S. citizen. Ibrahim, then in a wheelchair because of recent surgery, was held for two hours, then released and allowed to fly to Hawaii to present her research, and from there to Malaysia.

But when she tried to return to the U.S. two months later, she was told that her visa had been revoked under a terrorism law. The case dragged on for years, with changing government explanations, until it went to trial in San Francisco. It was the first trial ever held in a challenge to the nofly list.

There, an FBI agent — testifying behind closed doors, at the government’s insistence — admitted he had checked the wrong box and placed Ibrahim on the list in November 2004 after an investigation had cleared her.

Ibrahim settled claims against San Francisco police and others involved in her arrest for $225,000. U.S. District Judge William Alsup of San Francisco ruled that her rights had been violated, but rejected her attorneys’ claims for nearly $4 million in fees they had run up during eight years of litigation. Alsup found that Ibrahim had succeeded in only some of the legal arguments her lawyers had presented, and awarded about $400,000 in fees.

The appeals court disagreed in January and said the lawyers were entitled to the “vast majority” of the fees they sought. The court also told Alsup to reconsider his decision that the government had not acted in bad faith, a basis for increased fees.

There was evidence that the government — starting in George W. Bush’s administration and continuing under his successors — had prolonged the case for years with “ethically questionable” conduct and baseless arguments, possibly because of Ibrahim’s Muslim faith, Judge Kim Wardlaw said in the majority opinion.

In seeking Supreme Court review, lawyers for President Trump’s Justice Department argued that there was no evidence the government had acted in bad faith “in this sensitive and protracted litigation brought by an alien residing abroad to challenge measures adopted by Congress and the executive branch to protect the national security.”

The case is Department of Homeland Security vs. Ibrahim, 181509.