Main: FILE – Transportation Security Administration officers process passengers at a security screening area at Seattle-Tacoma International Airport in SeaTac, Wash., on May 18, 2020. (AP Photo/Elaine Thompson, File); Inset: Left: The justices of the United States Supreme Court (Alex Wong/Getty images).
The federal government got smacked down by a unanimous Supreme on Court Tuesday when all nine justices ruled that a Muslim American had a viable legal claim for being put on the FBI’s no-fly list even though the man was later removed from the list, allowed to return to his home in Oregon, and assured by the FBI that he was not expected to be placed back on the list.
Yonas Fikre is a U.S. citizen of Eritrean descent who traveled from his home in Portland, Oregon, to Sudan in 2009 on a business trip. While abroad in Sudan, he was invited to a lunch at the U.S. Embassy. When Fikre showed up, instead of a lunch, Fikre was greeted by two FBI agents who told him he was not allowed to return to the U.S. because the was on the no-fly list. According to Fikre, the agents extensively questioned him about the Portland mosque he attended, and offered to help remove him from the list if he agreed to become an FBI informant and to report on other members of his religious community.
The no-fly list is a sub-list of the Terrorist Screening Database (TSDB), created in the aftermath of the Sept. 11 terrorist attacks. It is maintained by the Terrorist Screening Center (TSC) and administered by the FBI. It lists individuals who are barred from boarding commercial aircraft flying to, from, within, or over the United States. As of June 2016, approximately 81,000 people were on the No Fly List, 1,000 of whom were American citizens or legal residents.
Details about the no-fly list are notoriously vague, but generally, TSC must reasonably suspect that a person presents a threat of committing a violent act of international or domestic terrorism to place that person on the list.
Fikre said he refused the government’s proposal and instead opted to travel to the United Arab Emirates. He alleges that while there, authorities interrogated and detained him for 106 days at the behest of the FBI, and that he was forced — without due process — to remain abroad in Sweden until 2015 when the Swedish government arranged a private plane to return him to Oregon. While still in Sweden, Fikre sued the federal government and alleged that he was not only denied due process, but that he was put on the no-fly list illegally because of his race, national origin, and religion. In the lawsuit, Fikre sought a declaratory judgment confirming that the government had violated his rights, as well as an injunction prohibiting it from keeping him on the no-fly list.
However, in 2016, after Fikre returned to the U.S. and while his lawsuit was still pending, the government notified him that he had been removed from the no-fly list and said that “based on the currently available information,” Fikre would not be put back on the list in the future for the same reasons.
Because Fikre was neither on the no-fly list, nor was he intended to be put on the list, the government moved to dismiss his lawsuit as moot. The district court agreed with the government, but the U.S. Court of Appeals for the Ninth Circuit reversed and said that because the government did not disclose what conduct landed Fikre on the list in the first place, his claim was not moot simply because he had been currently removed.
The Supreme Court unanimously upheld the Ninth Circuit’s ruling Tuesday in an opinion authored by Justice Neil Gorsuch. The ruling does not mean that Fikre wins his lawsuit against the federal government, but simply that the lawsuit may now proceed.
In the nine-page opinion, Gorsuch explained why Fikre’s case still presents a live dispute worthy of adjudication. The FBI’s assurance that he was taken off the no-fly list and would not be re-listed is simply not enough to alleviate any future risk, said Gorsuch.
“[N]one of that speaks to whether the government might relist him if he does the same or similar things in the future — say, attend a particular mosque or refuse renewed overtures to serve as an informant,” Gorsuch wrote.
The justice then explained that the Court simply was not convinced that Fikre would not be at future risk of similar alleged legal violations: “Put simply, the government’s sparse declaration falls short of demonstrating that it cannot reasonably be expected to do again in the future what it is alleged to have done in the past.”
Gorsuch made sure to point out that the judgment was “a provisional one,” meaning that the government might well be able to show that it had not violated Fikre’s rights by placing him on the list. The unanimous ruling, explained the justice, simply means that Fikre has the right to litigate his claim at this preliminary stage.
In his opinion, Gorsuch noted that the case requires “[c]areful attention” given its reliance on classified or privileged information. Both Fikre and the government agree that sticking close to the traditional rules of mootness “is especially important in this national security context.”
Justice Samuel Alito penned a one-paragraph concurrence, joined by Justice Brett Kavanaugh, to point out that the Court’s ruling does not suggest that the government should have disclosed classified information in order to show that the case was moot.
Alito said that requiring the government to unveil the grounds for putting someone on or taking someone off the no-fly list could undermine national security and open the country up to terrorist attacks and noted that most district court personnel lack security clearance to even handle such information.
The no-fly list has often been criticized for being overly inclusive, and the justices have sometimes agreed. In 2020, Justice Clarence Thomas led a unanimous ruling in which the Court said that three practicing Muslims could file suit under the Religious Freedom Restoration Act of 1993 (RFRA) against government officials who “unlawfully burdened” their religious exercise by putting then on the no-fly list when they refused to act as informants against their religious community.
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