Judge in CA: If Secret Information Is Published, It Is Public

If you’ve been following my recent Orwellian saga where the government accidentally published one of my sealed briefs, exposing information embarrassing to the TSA to the public, and then demanded that I stop talking about it despite it having been published to millions, there is some good news out in California.

A federal judge for the Northern District of California was confronted with a similar question in another case you may have heard about: Ibrahim v. DHS — the foreign-born professor who left the U.S. for a few weeks to be never allowed back because she was erroneously placed on the no-fly list (which apparently causes your visa to be revoked). The government in that case was demanding that Sensitive Security Information — the D.H.S. monicker for “stuff it wants to keep secret” — be prohibited from disclosure in open court, even if that SSI was gleaned from a public source. U.S. District Judge William H. Alsup firmly and unambiguously rejected that argument in a ruling delivered orally on Monday:

[I]f the government was contending that the ABC list and its very existence was secret and should be SSI, and the plaintiff was able to prove and wanted to try to prove that there was such a list and could do it from independent sources, the government cannot clamp that down and say: No, you can’t even mention it because that’s SSI, if there is an independent public source for that information.

So in my view, the plaintiff has the right to try to prove its case. And if it can prove its case entirely through publicly available information, even if the same — the same information is within the government designated as SSI, the plaintiff can still use that publicly available evidence if it’s admissible.

Let’s hope the court in my case decides the same. I’ve sent them a copy of Judge Alsup’s ruling to help them. 😀

Excerpt from Ibrahim v. DHS Ruling Re: SSI

14 thoughts on “Judge in CA: If Secret Information Is Published, It Is Public

Add yours

  1. The ruling should go in your favor, but what should happen and what does happen are two different things as you well know.

  2. In Bizarre No-Fly List Trial, Even the Verdict Might Be Top Secret:

    There’s a real possibility the verdict itself will be kept a secret, even from Ibrahim.

    “It is conceivable? If the government continues to keep this information secret from her and the public, and the judge sustains that objection, it is possible we can have a ruling in this case and she would not know the result,” Elizabeth Marie Pipkin, Ibrahim’s pro-bono attorney, said in a telephone interview.

    Read more:

  3. WTF? Judge ruled in the no-fly case to keep all law-enforcement-related testimony secret!

    The state secrets privilege is rooted in the President’s constitutional powers and absolute when invoked.

    Much of the proceedings took place behind closed doors however, since Alsup reluctantly granted the Justice Department’s request to keep SSI – sensitive security information – and all law-enforcement-related testimony out of the public view.

    This included the government’s response to why Homeland Security placed Ibrahim’s daughter – a potential witness and a U.S. citizen – on the no-fly list just before she boarded a U.S.-bound plane in Malaysia to attend the trial.

    “If the government’s interests could be adequately protected via SSI treatment, which can be disclosed for litigation without public access, why should the government be allowed to classify evidence as state secrets and thereby deny the opponent an opportunity to meet the evidence?”
    Judge William Aslup said


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