Obama's Surveillance State: Opaque, Autocratic, Unchallengable Supreme Court to Hear 'National Security' Case of Visa Denial
February 26, 2015
Bob Egelko / San Francisco Chronicle
This month, a US District Judge in Oakland dismissed a suit by AT&T customers over government interception of their phone calls and e-mails in a search for terrorist connections. The judge ruled the issue was too sensitive to litigate in court. Other federal courts have cited secrecy and security needs in dismissing a lawsuit by foreign prisoners who accused a US company of arranging flights to CIA torture sites. None of those courts ruled the government had acted legally.
(February 21, 2015) -- When Fauzia Din's case reaches the US Supreme Court on Monday, the Obama administration plans to argue that it can't risk telling anyone -- even a judge behind closed doors -- why it denied a visa to her Afghan husband. And that Din, a Fremont resident and naturalized US citizen, has no rights at stake that entitle her to seek judicial review.
The only explanation a US consular official gave Din's husband in 2009 was that a law involving national security and terrorism barred his entry to the United States. Din says that's ridiculous -- her husband is so leery of violence that he won't even step on an insect -- and she's been fighting for an explanation since then.
A lower court ruled in her favor, but the nation's high court set that ruling aside and agreed to hear the government's appeal.
The Justice Department's argument in Din's case -- that the government's need for security, and the secrecy it often requires, outweighs demands for accountability -- have succeeded in other cases for both the Obama and George W. Bush administrations. Often, the rulings refrain from even discussing the legality of the government's actions.
This month, US District Judge Jeffrey White of Oakland dismissed a suit by AT&T customers over government interception of their phone calls and e-mails in a search for terrorist connections, saying the issue was too sensitive to litigate in court.
Earlier, Bay Area federal courts cited secrecy and security needs in dismissing a lawsuit by foreign prisoners who accused a local air transport company of arranging their flights to CIA torture sites.
None of those courts decided whether the government had acted legally. And there's no guarantee that the Supreme Court will shed any light on why the government denied a visa to Din's husband.
In 2013, the high court avoided deciding whether another secret government operation was legal when it dismissed a suit over a surveillance program. A 5-4 majority said journalists, lawyers and others who claimed the government had illegally spied on their communications with foreign terror suspects had no right to sue because they couldn't prove they were targets of the clandestine program.
In these fearful times, said one Supreme Court analyst, the odds are against litigants like Din who seek disclosure of the reasons for official actions against them.
With daily headlines about beheadings and suicide bombings by the Islamic State, "the world today is an awfully scary place," and Din has "an uphill battle," said Jesse Choper, a UC Berkeley law professor and former Supreme Court law clerk.
That is why the case is both important and potentially dangerous for the principle of an open and accountable government, said UC Irvine Law School Dean Erwin Chemerinsky, who has argued cases before the Supreme Court.
"There must be some check in a governmental system based on checks and balances," Chemerinsky said. "Unreviewable executive power is inconsistent with the Constitution." And unreviewable power, he said, is "what the Obama administration is claiming in this case."
Din says she isn't after state secrets, just a simple explanation of why the government in her adopted country is keeping her family apart.
"This is my home. I want my husband to be here, right next to me," she said in an interview Tuesday, speaking through an interpreter in her native Dari language. "I want to know the reason why my husband can't be allowed in this country."
Din, now 44, fled Afghanistan with her mother and sister in 1998. With the fundamentalist Taliban in power, she said, women could no longer hold jobs or even leave their homes. She entered the United States in 2000 and now works as a home health care aide.
In 2006, she returned to Afghanistan to marry her fiance, Kanishka, whom she had known since childhood. She asked The Chronicle to withhold his last name for safety reasons. Kanishka, a clerk in the Ministry of Education, has held clerical jobs with the Afghan government since 1992, including the period of Taliban control from 1996 to 2001.
After returning to the US, Din applied to the State Department for a visa for him. She said a consular official in Pakistan assured Kanishka in 2008 that the document would arrive shortly. Instead, he was notified by mail in June 2009 that the visa had been denied under a law that bars entry because of "terrorist activities," and that no further explanation was possible.
That rationale is preposterous, Din said Tuesday.
"He hates violence so much that he can't even watch films that have a fight scene in them," she said. "He doesn't even have the heart to step on an ant."
In 2013, the Ninth US Circuit Court of Appeals said the government must explain why it denied the visa, providing a "facially legitimate and bona fide reason" -- a quote from a 1972 Supreme Court ruling in another immigration case -- and evidence that a court can review. If necessary, the court said, government lawyers can present classified evidence to a judge behind closed doors.
In their Supreme Court filing, Justice Department lawyers said that even a private submission of evidence to a judge sworn to secrecy "increases the risk of unauthorized or inadvertent disclosure." A legal commentator said the argument was unintentionally revealing.
When the government argues that it can't trust a judge to keep a secret, "it sounds like a matter of national embarrassment and not national security," said Ahmed Ghappour, a visiting law professor at UC Hastings in San Francisco who has represented prisoners at Guantanamo.
Chemerinsky, who has also represented Guantanamo inmates, said a wall of secrecy also allows the government to hide its mistakes.
No-fly List Case
One example is another Bay Area case, in which Rahinah Ibrahim, a Stanford graduate student, flew to her native Malaysia in 2005 and was barred from returning because the US government had placed her on a no-fly list for reasons it wouldn't disclose.
After a trial held mostly behind closed doors, US District Judge William Alsup said the listing was a mistake -- an FBI agent had checked the wrong box on a government form -- and ordered it purged.
But when government lawyers, in a private session, showed Alsup new claims of terrorist connections, the judge said he had no power to end Ibrahim's exclusion. She is still in Malaysia.
The central issue in Din's case is whether the government must disclose the reasons for the visa denial. But to reach that issue, the court must first decide whether Din even has a right to challenge the government's action.
Her lawyers argue that the constitutional right of marriage includes living with one's spouse, and that the government can't separate a couple for unexplained or arbitrary reasons. But Justice Department lawyers say no such right exists in immigration cases.
"The denial of an alien's visa application does not interfere with any recognized marriage-related right of his US citizen spouse," government lawyers told the court. "The visa denial did not nullify the marriage . . . or prevent her from living with her spouse anywhere in the world besides the United States."
If that argument prevailed, "the meaning of marriage would be reduced to a piece of paper," the California Women's Law Center said in a filing supporting Din.
The government's suggestion that she could reunite with her husband in Afghanistan didn't impress Din.
"If I thought I was safe in Afghanistan," she said, "I never would have come to America."
Bob Egelko is a San Francisco Chronicle staff writer. E-mail: firstname.lastname@example.org Twitter: @egelko
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