> Even Attorney General Eric Holder got involved in the government’s obstruction of discovery in the case, signing what appears to have been a perjured affidavit falsely claiming that he had personal knowledge that disclosing the status or reasons for Dr. Ibrahim’s blacklisting (i.e. the fact that an FBI agent had made a mistake), “could reasonably be expected to cause significant harm to the national security.”
The attorney general, knowing full well that the entire case was based on the government screwing up, perjures himself by claiming that letting anyone know why this happened would cause harm to national security. This is the danger of secrecy in law. When you can claim something must be kept secret with no burden of proof, you let government's hide embarrassments.
Yeah, there is no way that counts as perjury. The question asks for a legal conclusion, not a fact, and for good reasons we make it very hard for anyone to call perjury in strained conclusions. In a real case, you wouldn’t just have to admit “oops an agent screwed up.” You’d have to give some sort of contextual information about the process the agent was supposed to be following, and how he deviated. There is a colorable argument that this could result in some disclosure of importance to national security. Just because it’s a stupid argument and the judge didn’t buy it doesn’t mean it’s perjury.
The government got the correct sanction here, a finding of “bad faith” and attorneys’ fees, which is what courts do when parties push thin legal arguments further than they should.
Surely this can’t be the proper standard for national security claims. Otherwise, arguments of the form must always be acceptable, and without repercussion:
Based on [redacted, even from the judge] the court must make [arbitrary judgment].
That’s giving the exective branch more authority than simply giving them immunity from perjury would!
This, right here, is why it is very important to keep unilateral powers away from government by any means necessary. The idea that government, made of people, is going to operate in good faith and not cover-your-ass mode is a joke.
I've had to deal with numerous similar situations. My saving grace is that I make decent money so I can afford to penalize them.
but all those Hollywood movies told us that keeping aliens or some other crazy threat from public served well to prevent mass panic while the good guys did the needful to save the day!
Secret laws are bad. And besides, how we have a democracy if their are some BS ridden from the public eye? And also, the bad guys prebvial after the government fails. If you want a counter example see Half Life series.
This is bad, and there should be more serious repercussions against government agents who lie under oath in the course of a cover-up.
This though pales in comparison to what’s happening in the Concord Manangement trial (Mueller v Internet Trolls) with secret evidence presented to the judge ex parte.
In case anyone else is confused, the term "en banc" refers to a case which is heard before all the judges on the bench for that court, rather than just one. En banc hearings are generally made in cases deemed of extreme importance. As such, this is a fairly strong finding.
You are somewhat close but a little confused on the meaning of en banc. From my brief scan of the link, the trial judge was Judge Alsup of the Northern District of California (San Francisco) which awarded fees. Judge Aslup reduced the fees. The case was appealed to the 9th circuit to a three judge panel on at least the fees issue (presumably other issues as well). The three judge panel (normal appellate practice) sided with Judge Alsup.
At that point, the only option legally to appeal the appellate court is to ask for an en banc hearing with all (or eleven judges pointed out below) the appellate court judges in the 9th circuit or go to the supreme court (which is unlikely for the issue). en banc is not necessarily a case or issue of extreme importance but another appeal mechanism and also a way for the appellate court to clarify a rule of law or reverse course on a rule of law. en banc happens often in the appellate courts.
Edit: I scanned the en banc opinion - it was purely about fees calculation stating "We reheard this appeal en banc to clarify the standards applicable to awards of attorneys’ fees under the EAJA."
> In case anyone else is confused, the term "en banc" refers to a case which is heard before all the judges on the bench for that court, rather than just one.
Rather than just three, no? When I argued pro se in front of the 2nd circuit (which was a great time, btw - I highly recommend it), it was in front of three judges.
Generally a case is heard "en banc" by a larger panel only as an appeal -- at the discretion of the court -- from an inital decision of a 3-judge panel. In most of the circuits, en banc rehearing is before all the judges of that circuit. The 9th Circuit is so large and has so many circuit judges that even en banc appeals are haeard by only a subset of the circuit judges. An en banc panel in the 9th Circuit consists of 11 judges: http://cdn.ca9.uscourts.gov/datastore/general/2017/02/10/En_...
I wonder why the government fought this tooth and nail. Do they just really hate to lose, so they double down time and again? Or are they worried that losing once will open the floodgates to a torrent of litigation?
I would call it a mixture of pride and moral hazard. People are generally far less likely to pursue "scorched earth litigation" when they must personally bear the costs and risks of their actions. Given that this is the government, they are playing this cruel game with other people's money. Whatever happens, the public loses.
The other side of the coin could be equally terrible though. No government employee regulates anything because their personal bank account can’t handle it.
That's not what I'm talking about. The government doesn't spend other peoples' money. It spends its own money. Tax revenue is money people owe to the government. Once the government has it, that money is the government's money. The meme I'm talking about is "taxpayer's money". It's a bullshit piece of rhetoric that tries to imply that the government has some legal or moral duty to the people who pay taxes.
That is expressly not the case. The government's money is not in any sort of fiduciary relationship with anyone else. The fact that you nor anyone else didn't even notice what I was talking about just shows how pervasive this meme is.
Government employees aren't spending their own money. If you want to split hairs, we can say those employees spend "other entities money" instead of "other people's money", but the entire core of the points made remains. Similar problems of waste can happen with large corporations. (The smaller the company, the more likely such waste will actually impact your own paycheck, and the more market forces will make such waste painful.)
"Taxpayer's money" is useful rhetorical shorthand to remind people that creating government money requires either increasing taxes (taking money from taxpayers), printing more money ("taxing" holders of the currency through inflation), etcetera.
We have the notion of "for the people, by the people" - that the government should act in the interests of it's citizenry ("taxpayers", if sometimes quite indirectly), that the money should be spend wisely instead of wasted - both in the moral duty sense, and sometimes in the legal duty sense as well.
Can you give an example of a legal and moral use of government funds that doesn't benefit taxpayers or citizens? The closest I can come up with is foreign aid and other outwardly focused actions, which still aim to "benefit" the local citizenry through warm and fuzzy feelings, better international relationships, better access to oil and foreign markets, etc...
> Once the government has it, that money is the government's money.
Maybe in the sense, like in Office Space, that "it becomes ours", but not in any real way. The government is the public entity; its things are everyone's things. The fact that it (with few exceptions) acts like a private entity, with entitlement to its plunder, doesn't change anything about this.
I’m getting very tired of seeing people here misinterpret others’ words in the least charitable light possible. GP in no way indicated that they were anti-tax, but correctly indicated that government officials are not personally responsible for the costs of litigation, the tax payer is.
> but correctly indicated that government officials are not personally responsible for the costs of litigation, the tax payer is.
Literally not the case. I like how you said I misinterpreted the words of the original post but then repeated the very meme I said needs to die. It's fake news. The tax payer owes taxes to the government. The government spends its own money, not someone else's. The shallowest reflection on the matter would reveal this meme to be a sham of pure rhetoric.
It's not about taxes at all. The government has no financial limits, particularly where political damage could be done. A defendant, unless exceptionally wealthy, does. Dr. Ibrahim had to put up almost $4 million just to get back to square one. Do you have that kind of money lying around? If not, what would have happened to you in Dr. Ibrahims shoes?
How is it a meme? The govt gets to play with essentially unlimited funds. Is it a wonder that they rarely spend it efficiently? Is it also a wonder that they never actually lower overall taxes?
The first of the last three Presidents took office in 2001. Federal receipts in 2000 were $2.03T. They are now >$3.3T. (This also exceeds the amount of inflation over the same period.)
And the increase in the deficits is the increase in spending on top of that.
Right, but Bush took office during the tech bust followed by a massive recession caused by 9/11 and a number of corporate scandals. Receipts may have increased, but that's because size of the pie has grown, not because you're taking a larger slice.
The number of people eligible for Medicare and the level of benefits it pays out are basically entirely independent from how many rolls of adhesive tape 3M sells. If they sell twice as much tape, so that the same percentage of their profits is twice as much money, you don't inherently have to expand Medicare in order to spend all the additional money (and then some). But they did.
The size of government does not inherently need to scale linearly with the size of the economy. The cost of some services may scale with population, but that's something else entirely. For example, general productivity improvements may grow the economy at the same population level, but they imply needing fewer resources to achieve the same level of government services because the same productivity improvements should make the provision of government services more efficient too.
And not all government services even need to scale with population. If we had twice as many citizens, would that really require us to double the military budget?
"Government programs expand to consume all available funding" explains why the government budget does expand with the economy, not why it should.
The government represents us in the same way that a hedge fund owner represents its clients. They have a job to do: ensuring the money is well spent, however it isn't their money and they do not make their own rules.
That is literally not the case. Not legally, not morally, not in any reasonable sense except in a certain vein of political rhetoric which has no basis in reality. The government has no fiduciary duty to you or any other citizen or any tax payer.
Dr. Ibrahim is still barred from entry to the U.S. "for reasons that remain secret, as noted in the latest 9th Circuit opinion". These "secret" reasons might answer your question and be the real reason Holder signed off on that affidavit (i.e., it was _not_ perjury).
U.S. officials abuse their country's lack of transparency to evade scrutiny, and innocent people suffer because of it.
Current law is that you have no right to an explanation for why your visa was denied. After this litigation, the no-fly list is a different thing entirely.
I'd put money on her visa being denied because the folks who screwed up and put her on the no-fly list resent her fighting so hard and so publicly to get off it.
My belief is that behavior like this is no more than an attempt at a cover up and ultimately protecting each other. Much like some police officers will perjure themselves to protect another officer.
The government believes the law, with its checks and balances, is not strong enough to prevent attacks. The law prefers letting 9 guilty people walk free if that prevents one innocent person from being unfairly punished. You can’t allow 9 hijackers to attack just to avoid not allowing one person to fly.
As the government is limited by the law they use tricks to go around it, in this case by using a secret list with secret rules and contents. You’re not allowed to know the list exists so you can’t contest if you are on it by mistake. There can be no precedent that allows people to remove themselves from the list.
> You can’t allow 9 hijackers to attack just to avoid not allowing one person to fly.
Yes you can, and should. That's the entire point of the idea that it is better to let 9 guilty people walk free than to unfairly punish one innocent person.
Not only that, hijackers ceased to be a problem as soon as everyone understood they would crash the planes instead of ransoming them.
It has always been the case that a plane full of passengers could overcome half a dozen hijackers, but the historical assumption was that you shouldn't fight them because you could get hurt. If you're going to get hurt anyway, that's out the window, so you fight them, so does everybody else, and the passengers win.
You'll notice that there have been no further crashing of airplanes into buildings after 9/11, despite the fact that the TSA's security record is terrible.
And Americans discovered, updated their thinking, and acted on this fact in about 25 minutes. Fight 93 was hijacked at 9:28am, by calling out the passengers knew that the New York attacks had happened a few minutes later, and at 9:54am passengers were breaking into the cockpit to stop the hijacker by force.
Americans should have honored the heroes of flight 93, reminded each other that plane hijackers should now be fought directly, and the TSA never created with all of its waste and violations of civil liberties. Hopefully some near future government can find the strength to do this.
That's a false dilemma. Were you to know about the attacks you would do things to prevent them. And at point it's also not about innocents.
And there is of course a difference between harm reduction based on risk assessment (what's allowed in the carry on, where planes can fly, when they are escorted by fighter jets) and other active prevention (metal detectors, backscatter Xray, luggage Xray, passenger interviews, up to and including armed air marshalls).
And the profiling of somehow dangerous individuals is of course there as an option. But so far all the previously mentioned actions were uniform and prevented no one from flying. (Of course implanted medical devices are an interesting challenge for detectors. But it's much easier to acquire and smuggle a land to air homing missile and aim it at a plane taking off than implanting a bomb into someone and smuggling through security.) So they were just. To infringe on someone's right of free movement we would have to be very sure that there is no other - just - way to minimize the risk. And that's how a lot of regulations (should) work, but ... they don't. They are inefficient and injust in a lot of cases and government has no priority to address these injustices. (As the electorate is also biased, and regulations usually amplify these biases.)
Why all this costly nonsense? Executing the person on the spot would surely be more time and resource effective. It would also serve as a better deterrent.
Because murder is illegal. Making your life impossible in and outside the justice system is not, as shown by this case. The government pays the legal fees, not the FBI agent or DOJ lawyers.
Edit: My comment was meant to say that this was /is a loophole so the Gov stays "within the law." Killing you is obviously illegal, using their entire power to ruin you is not because they try 1000 arguments before the courts. May the truth win....er, if you have the time and tens of million$.
But govt can write laws. After all, that is good the oft-abused NSLs are part of Patriot Act.
Are you saying they the judiciary, upon seeing this law, would invalidate it at first opportunity?
The Fifth Amendment to the US Constitution says "No person shall […] be deprived of life, liberty, or property, without due process of law." Since the Constitution is the supreme law of the land, that provision trumps anything that the president or Congress can do short of passing another amendment to modify that.
Denying a US citizen the right to travel without telling them why and preventing them from having any recourse to challenge it almost certainly violates that provision.
All the above. Absolute power corrupts absolutely. Small government supporters argue that without the power to be held (i.e. small government) that you can worry less about corruption, because it's easier to see.
Perfect, quite literally. When corruption exposes itself, and it does from time to time (literally pick any recent year for a serious example), the private sector and free market should give us a competitive option.
If this is a victory, I'd hate to see defeat:
14 YEARS and millions in fees to reverse a clerical mistake. Not one FBI or DOJ employee is in jail, suspended or fired.
We don't see defeats because they don't have the money for a voice that will carry. They happen every day. Those people just have to deal with being wronged, quietly. This is how imperfect people become true criminals.
The (rhetorical) question is: if "victory" means spending 14 years and $4,000,000 in order to not get a remedy -- while no one on the "losing" side suffers any penalty -- if that's "victory", what does "defeat" look like?
There was no claim about the existence or visibility of actual defeats.
En banc, the 9th Circuit reversed the panel and found that Judge Alsup had applied the wrong standard and abused his discretion in finding that the government hadn’t acted in bad faith . . .
There's a pretty wide range of interpretations in the US about what neighbor means in that sentence, so there's a good chance the people defending this case think it's not wrong to bear false witness against foreigners.
That may well be but it has nothing to do with the bible. The bible is explict about the treatment due to foreigners and in fact that is reflected in US law.
Cursed be anyone who perverts the justice due to the sojourner, the fatherless, and the widow. - Deut 27:19
There shall be one law for the native and for the stranger who sojourns among you. Exodus 12:49
You shall treat the stranger who sojourns with you as the native among you, and you shall love him as yourself, for you were strangers in the land of Egypt - Lev 19:34
I think you're taking it a little too far when you say this has nothing to do with the bible. There are also verses instructing people to kill, rape, and enslave foreigners. As with most topics, there's enough in the bible to support whichever side you prefer.
This was one of the issues raised, and resolved in Dr. Ibrahim's favor, in the second of the three appeals to the 9th Circuit Court of Appeals in this case.
The court found that she had sufficient connection to the US (including having lived in the US for years, and having children who were born in the US and are US citizens) to give her legal "standing" to raise these issues.
However, non-US citizens outside the US generally don;t have any right to challenge denials of US visas in US courts, which is why she remains barred from the US with no way to challenge that. (It's possible that one of her children could raise that issue in a US court, but they are afraid that if they they return to the US, the US might put them too on the no-fly list again, trapping them in the US.)
I'm not sure if being "trapped" in the US is the biggest concern for her US-citizen children visiting America. Couldn't they travel by land from Canada? Hopefully them bringing such a case would cost less than $4 million and 14 years.
People have bene prevented from flying between Canada and Europe becuase of objections from the US government. So being able to cross from the US to Canada (assuming Canada would let her in, which isn't assured if she is a US but not Canadian citizen), that wouldn't guarantee being able to get back to her home and family and profession in Malaysia.
I'd be interested to read an article about people being prevented from flying between Canada and Europe because of the US government. I think I remember a case of Canada refusing to let someone enter as part of a pre-booked journey which had a leg that took them into the US, but even then, I don't suppose that the affected passenger was a US citizen.
Similarly I don't know if there are cases where Canada has refused entry to a US citizen that isn't a wanted criminal (suspect) in the US or guilty of something that Canada themselves object to.
We could certainly imagine all sorts of extreme scenarios, such as the entire family secretly being spies for China, and the US tipping off the Canadians, but neither country being able to publicly reveal this, but -- assuming that these children are just innocent victims of an abusive bureaucracy -- I'd like to see them launch a case in the US.
There may be many good reasons for them not doing so, but I don't think that their ability to travel to Canada (from Europe, for example) nor their ability to travel by land between the US and Canada, is the limiting factor.
None of these people were scheduled to fly to, from, or via the USA.
There have also been people denied passage on fligths between other countries, merely becuase they were scheduled to pass through US airspace without landing. But that's a different issue from the incidents reported in the links above:
Not a dumb question at all. Courts have been reluctant to back that precedent/law in recent years. Filings get around it by naming individuals rather than the US government.
In this case, it was entered as DR. RAHINAH IBRAHIM, an individual, Plaintiff-Appellant,
v.
U.S. DEPARTMENT OF HOMELAND SECURITY; TERRORIST SCREENING CENTER; FEDERAL BUREAU OF INVESTIGATION; CHRISTOPHER A. WRAY,* in his official capacity as Director of the Federal Bureau of Investigation; KIRSTJEN NIELSEN, in her official capacity as Secretary of the Department of Homeland Security; MATTHEW G. WHITAKER, in his official capacity as Acting Attorney General; CHARLES H. KABLE IV, in his official capacity as Director of the Terrorist Screening Center; JAY S. TABB, JR., in his official capacity as Executive Assistant Director of the FBI’s National Security Branch; NATIONAL COUNTERTERRORISM CENTER; RUSSELL “RUSS” TRAVERS, in his official capacity as Director of the National Counterterrorism Center; DEPARTMENT OF STATE; MICHAEL R. POMPEO, in his official capacity as Secretary of State; UNITED STATES OF AMERICA
Remember that State Secrets have a long history of being used to cover up government incompetence and prevent victims of the government from seeking justice.
This is why I like lower taxes. The government should be so desperate for money that it would have had to be more reasonable with which cases it chooses to pursue.
No matter how little money you give a government, it will always rather use that money for unreasonable things if you elect a government that has unreasonable priorities.
In fact, the opposite argument almost makes more sense: "I like paying high taxes, so that, after the government has wasted money on the unreasonable things it wants, it will still have so much money that it will have to spend it on reasonable things as well."
The attorney general, knowing full well that the entire case was based on the government screwing up, perjures himself by claiming that letting anyone know why this happened would cause harm to national security. This is the danger of secrecy in law. When you can claim something must be kept secret with no burden of proof, you let government's hide embarrassments.