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U.S. will not appeal judge's ruling in no-fly list challenge

By Dan Levine

SAN FRANCISCO (Reuters) - The U.S. Department of Justice said on Tuesday it will not appeal a court ruling this year that found problems with how the government administers its controversial no-fly policy.

The policy excludes individuals from commercial air travel if they are suspected of having ties to terrorism, but critics say it is practically impossible to be removed from the list once on it.

Rahinah Ibrahim, a Malaysian architect, sued the U.S. government in 2006 after being told she was on the no-fly list and was subsequently denied a U.S. visa.

The no-fly list has undergone multiple legal challenges, but Ibrahim's case is believed to have been the first to go to trial, which took place in December. The U.S. government eventually conceded that Ibrahim was not a national security threat, and that her troubles stemmed from an FBI agent mistakenly checking the wrong box on a government form.

U.S. District Judge William Alsup ruled in January that existing procedures to correct mistakes on the no-fly list do not provide adequate due process protections, and ordered the government to purge any incorrect information about Ibrahim.

At a hearing on Tuesday in U.S. District Court in San Francisco, the Department of Justice's senior trial counsel, Paul Freeborne, said the deadline for filing an appeal had passed and that the government did not intend to pursue one.

Shirin Sinnar, a professor at Stanford Law School who testified as an expert for Ibrahim, said the ruling was the first time a judge has ordered the government to cleanse mistakes from its files in such a case, a precedent that will now stand.

However the facts of Ibrahim's predicament were unique, she said, and that could limit the impact of Alsup's ruling.

"So much of the decision was tied to the specific conceded mistake in this case," Sinnar said, "and that will make it harder for other litigants to argue that the reasoning should be applied elsewhere."

Ibrahim's attorney, Elizabeth Pipkin, said they were pleased the government "seems to have accepted the court's order, after eight years of preventing an innocent woman and the public from learning the truth."

A Justice Department spokeswoman declined to comment.

TOOTH AND NAIL

Ibrahim attended Stanford University on a student visa, according to court filings. In early 2005, she was detained for two hours at San Francisco's airport because authorities believed she was on the no-fly list.

Eventually, she was allowed to travel to Malaysia. However, her U.S. visa was revoked under a legal provision relating to suspected terrorist activities, though she was not told the specific factual basis for that action. She has not been allowed to return to the United States, and is currently the dean of architecture at Universiti Putra Malaysia.

According to Alsup's ruling, an FBI agent in San Jose, California, had not intended to place Ibrahim on the list, but checked the wrong boxes on a form.

"That it was human error may seem hard to accept - the FBI agent filled out the nomination form in a way exactly opposite from the instructions on the form," Alsup wrote, "a bureaucratic analogy to a surgeon amputating the wrong digit - human error, yes, but of considerable consequence."

At Tuesday's hearing, Pipkin said the government should pay more than $3.5 million to cover Ibrahim's legal fees and costs. The Justice Department fought the case "tooth and nail" for years before investigating the facts and discovering its mistake, Pipkin said.

DOJ trial counsel Karen Bloom acknowledged the government's "regrettable" error, but said its legal positions in the case had been justified.

Alsup did not rule on fees, saying the issue was "not easy." While some of the government's legal strategy may have been unjustified, Alsup said plaintiff lawyers are also unlikely to be entitled to such a large payout.

The case in U.S. District Court, Northern District of California is Rahinah Ibrahim vs Department of Homeland Security et al, 06-545.

(Reporting by Dan Levine; Editing by Franklin Paul, Leslie Adler and Jonathan Oatis)

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