Homeland Kafka

On January 2, 2005, Rahinah Ibrahim, then completing a PhD in engineering at Stanford University, arrived at San Francisco airport expecting to board a United Airlines flight back to her native Malaysia to attend a conference.

What happened next is the stuff of Kafka. It also helps put in context the relatively brief indignities endured at the US border by former housing minister Tokyo Sexwale and other ANC stalwarts when they have been mistakenly flagged on immigration officers’ computer screens as belonging to a terrorist organization and sent to “secondary”.

When the clerk at the check-in counter typed Ms. Ibrahim’s name into his terminal, back shot a warning that the burqa-clad traveller was on the federal No-Fly List of persons deemed too much of a terrorism threat to be let on an aircraft. The clerk summoned police who in turn called the Transportation Security Agency. Upon instruction from the HQ TSA calls without irony “The Freedom Center”, Ms. Ibrahim was handcuffed and detained.

She was held for two hours, released without explanation and allowed to catch another flight next day. When, however, she tried to return to Stanford from Kuala Lumpur to pick up her PhD two months later, she was again told she was on the No-Fly List and was not allowed to board her plane.

Shortly thereafter she received a letter from the US Embassy informing her that her student visa had been revoked because she might possibly have engaged in “terrorist activity”. Encouraged to reapply, she did so and was immediately rejected on the same grounds.

Since then, Ms. Ibrahim, now a university professor, has been battling via the US courts, perforce in absentia, to find out what she is accused of and to clear her name. Although she managed to win a $225 000 civil settlement from the local police who originally detained her, federal authorities have fought her every millimeter of the way.

This week she is finally getting her day in court, albeit from afar, on the merits or otherwise of her banishment from America’s skies and soil. In a preliminary hearing, the government asked for dismissal on the grounds that since the evidence against Ms. Ibrahim was secret, she would be unable to rebut it. US District Judge William Alsup said no and publicly questioned the government’s bona fides.

Ms. Ibrahim’s is not the only No-Fly List case before the courts. The American Civil Liberties Union is helping a group of 15 plaintiffs, most with Arab-sounding names and all, unlike Ms. Ibrahim, either American citizens or green card holders, who have found themselves barred from flights in US airspace. They want to know whether they are on the List, and if so, why. The authorities will not tell them.

Their case, like Ms. Ibrahim’s, has been before the Ninth Circuit Court of Appeals in California, which observed in letting it move forward:”At oral argument, the government was stymied by what we considered a relatively straightforward question: what should United States citizens and legal permanent residents do if they believe they have been wrongly included on the No-Fly List?”

The List is drawn from a database containing an estimated 700,000 names which have been submitted to the government’s Terrorist Screening Center (TSC) by the full gamut of America’s foreign and domestic intelligence and law enforcement agencies.

Ninety nine per cent of the names thus submitted are accepted by the TSC, according to the Government Accountability Office, which conducts audits for Congress. The lists the names are drawn from, University of Chicago law professor Anya Bernstein writes in a recent paper entitled ‘The Hidden Costs of Terrorist Watch Lists”, are “largely unregulated, unappealable and obscured from public attention.”

Dr Bernstein worries that the agencies compiling the lists have less incentive to weed out “false positives” than to risk excluding real threats. For a securocrat, it is always best to err on the side of caution. Politically, there’s less trouble to be had from messing up the travel plans of innocents with Islamic-sounding names than from letting an actual bomber get on a flight. Also, budgets depend on maximising the apparent danger.

Nobody likes to be taken off into “secondary” when they land in the US. I’ve been there myself on too many occasions. The reason it still happens to ANC struggle veterans, interventions by Congress notwithstanding, has a lot more to do with technical glitches (see Obamacare), and database managers not knowing or caring who’s who, than with policy.

If it had been policy, Mr Sexwale would not have reached the immigration officer at New York’s JFK airport. He would not have received a visa and would not have been allowed to board a US-bound plane.


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