In a unanimous 9-0 decision announced today,  the US Supreme Court has ruled that a lawsuit brought by Yonas Fikre challenging the US government’s placing him on its no-fly list can go forward even though the government has, for the time being (and only after he sued), taken him off its travel blacklist.

Mr. Fikre is a US citizen who was put on the US government’s “no-fly” list while he was traveling overseas, in order to pressure him to become an informer working for the FBI to spy on members of a mosque he had attended back home in Portland, OR. As a result of being unable to return to the US, he was eventually arrested (at the behind-the-scenes instigation of the US, he plausibly claims) for overstaying his visa, tortured and further interrogated (also at the behest of the US, he claims, also plausibly), and again told he could be removed from the no-fly list — and thus allowed to be released from immigration detention and deported to the US — if he became an FBI informer.

The Supreme Court’s unanimous decision is narrow but important. The government has never, so far as we can tell, actually tried to defend any of its no-fly decisions and orders in court. Instead, the government has tried to avoid judicial review of either its decision-making procedures (as the Supreme Court notes in its opinion today, “no statute or publicly promulgated regulation describes the standards the government employs when adding individuals to, or removing them from, the list”) or the substantive outcomes (a striking pattern, publicly-revealed when the list was leaked, of anti-Muslim bigotry).

The government’s two-prong strategy for avoiding judicial review has been to argue that the evidentiary basis (if any) for no-fly decisions is a state secret that can’t be disclosed even to judges, much less the subjects of no-fly orders, and to try to render the remaining cases “moot” by taking those who lawyer up and sue off the blacklist before their cases can come to trial, as it did with Mr. Fikre once he was back in the US.

The Supreme Court’s decision today deals solely with the “mootness” issue. So little has been revealed about the government’s  actions in putting Mr. Fikre on, and later off, the no-fly list that there is no basis for confidence that the government actions that he complained of in his lawsuit won’t recur if the case is dismissed.

The unanimous opinion, written by Justice Gorsuch, didn’t reach the question of classified or “privileged” information or “state secrets”. Those issues remain to be addressed as the case proceeds on remand in the U.S. District Court for the District of Oregon. Justice Alito, joined by Justice Kavanaugh, filed a concurring opinion agreeing with the judgment that the case was not moot, but stressing that they “do not understand the Court’s opinion to require the Government to disclose classified information as a matter of course” and that it might be possible to decide the case on the basis of unclassified evidence.

Gadeir Abbas, the lawyer for the Council on American Islamic Relations (CAIR) who argued Mr. Fikre’s case before the Supreme Court, said after today’s decision was announced, “The FBI cannot place innocent Muslims on the No Fly List, only to then block that unconstitutional list from scrutiny by removing those Muslims whenever they file a lawsuit.”

We congratulate Mr. Fikre and his lawyers for standing up for all blacklisted Americans. Fifteen years after he was blacklisted by his government and ten years after he filed his lawsuit, Mr. Fikre is still a long way from a trial or a ruling on the merits of his case. Today’s ruling is a step toward justice, but shouldn’t be misunderstood as meaning that “the system works” or that Mr. Fikre has been “given his day in court”.

We wish Mr. Fikre and his lawyers all success on remand in the District Court in Portland.

Today the US Supreme Court heard more than an hour of oral argument (transcript, MP3 audio) in the case of FBI v. Fikre, the latest in a series of cases in which the government has tried to avoid having a judge or jury review the criteria, procedures, and factual basis (if any) for no-fly decisions by removing previously blacklisted people from the no-fly list after they sue the government, and then asking courts to dismiss their lawsuits as “moot”.

In order to get such a complaint dismissed as “moot”, the government has the burden of showing that “subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur”, according to the District Court.

Inquiring minds on the Supreme Court wanted to know how the government could meet that burden — or whether it could ever do so — without disclosing the basis for the initial no-fly decision and/or what changes had been made to no-fly decision-making criteria or procedures.

Several Justices expressed “sympathy” with the government, but concern for due process:

Justice Gorsuch, for example, wanted to know why the government wouldn’t even tell a judge in a “Sensitive Compartmented Information Facility” (and maybe the plaintiff’s lawyer, if the government would give them a security clearance) anything about a no-fly decision:

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The U.S. Supreme Court will hear oral argument this Monday, January 8, 2024 on an appeal brought by the FBI challenging a Circuit Court decision in favor of Yonas Fikre. It’s the second case on the Supreme Court’s 10 a.m. EST calendar for oral argument Monday.

You can listen live online, attend a live watch party in DC if you can’t get into the Supreme Court, or listen to recorded audio that should be posted by the end of the day on Monday.

The complete Supreme Court docket and links to the pleadings in FBI v. Fikre are here.

The question presented to the Supreme Court in this case doesn’t directly address what substantive criteria or procedures are Constitutionally required for the government to order common carriers not to transport an otherwise-qualified U.S. citizen. A separate challenge to the entirety of the blacklisting system remains pending in U.S. District Court in Boston.

But this case in the Supreme Court does address one of the government’s standard tactics for evading judicial review of its blacklisting decisions: taking people who sue the government off blacklists to “moot” their cases if it looks like they might have a chance of getting a court to rule on the legality of the government’s procedures or criteria for blacklisting decisions or or the sufficiency of the evidence (if any) against them.

If anyone deserves to have the U.S. government’s decision to put him on its no-fly list reviewed by a judge, it’s Yonas Fikre.

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In a nationally-significant lawsuit, the Council on American-Islamic Relations (CAIR) has filed the most comprehensive challenge  to date to the US government’s system of arbitrary and extrajudicial blacklists (“watchlists”) used to stigmatize and impose sanctions on innocent people — almost all of them Muslim — without notice, trial, conviction, or any opportunity, even after the fact, to see or contest the allegations or evidence (if any) against them.

The lawsuit, Khairullah et al. v. Garland et al., was filed last week in Federal District Court in Boston on behalf of twelve Muslims from Massachusetts and other states who have been stopped, prevented from traveling to, from, or within the US by air, harassed, delayed, interrogated, threatened, strip-searched, had all the data on their electronic devices copied, detained at gunpoint, denied permits, and had banking and money-transfer accounts summarily and irrevocably closed, among other adverse consequences:

Plaintiffs, along with over one million other people, have been placed by Defendants on the federal terrorist watchlist. Defendants claim the power to place an unlimited number of people on that list and, as a result, subject them to extensive security screening, impose adverse immigration consequences on them, and distribute their information to thousands of law-enforcement and private entities, which then use it to affect everyday interactions like traffic stops, municipal permit processes, firearm purchases, and licensing applications.

Congress has never statutorily authorized the creation, maintenance, use, or dissemination of the Terrorist Screening Dataset, its subsets like the Selectee List and No Fly List, the Quiet Skies and Silent Partner systems, or any other rules-based terrorist targeting lists.

WHEREFORE, Plaintiffs requests this Honorable Court grant declaratory and injunctive relief….

The complaint includes a depressingly thorough, detailed, and diverse litany of incidents of interference with normal life, especially with normal travel.

One US citizen plaintiff now abroad has been effectively exiled because the US government won’t allow any airline to transport him back to the US from overseas.

The effects of blacklisting can last for life. Because the US government continues to stigmatize “formerly” blacklisted individuals and flag them to its own agents and third parties including foreign governments, some of the plaintiffs continue to suffer these consequences despite having purportedly been “removed” from US “watchlists”.

Because the US government’s blacklisting algorithms incorporate explicit guilt-by-association criteria, some plaintiffs have had their friends, family members, and colleagues targeted for adverse treatment solely on the basis of having “associated” (an act protected by the First Amendment to the Constitution) with a blacklisted person.

As the complaint explains:

[B]ecause Defendants consider being a relative, friend, colleague, or fellow community member of a TSDS [Terrorist Screening Dataset] Listee “derogatory information” supporting placement on the watchlist, Muslim communities are subjected to rapidly-unfolding network effects once one member is watchlisted. One nomination, even if grounded in probable cause or a preexisting criminal conviction, can quickly spiral into Defendants classifying nearly every member of an extended family or community mosque as a suspected terrorist.

A similar lawsuit, also brought by CAIR, led a Federal District Court judge in Virginia to rule in 2019 that the Federal blacklisting system was unconstitutional. But that ruling was overturned in 2021 in a strikingly poorly-reasoned opinion by the 4th Circuit Court of Appeals.

The new lawsuit has been brought in a different circuit (the 1st Circuit), and the new complaint includes more recent information — including the disclosure of the no-fly and “selectee” lists — and arguments to bolster the case and counter the claims made by the 4th Circuit judges.

Lawsuits like this take years to be resolved, but we’ll be watching this one closely.

98% of the names on the U.S. government’s travel blacklists, including all of the top 50 names that appear most frequently on those lists, appear to be Muslim, according to a statistical analysis commissioned by the Council on American Islamic Relations (CAIR).

This analysis of the so-called “watchlist” (a euphemism for “blacklist”) is included in a report released this week in conjunction with the annual Muslim Advocacy Day on Capitol Hill organized by the US Council of Muslim Organizations (USCMO).

When the U.S. government’s “No-Fly list” and “Selectee list” were made public earlier this year, we were the first to point out that more than 10% of the entries on the No-Fly list (174,202 of 1,566,062) contain “MUHAMMAD” in either the first or last name fields, in addition to those entries with other spellings of Muhammad.

CAIR’s latest report goes into more detail:

CAIR has studied more than 1.5 million entries on a 2019 version of the FBI’s list, provided to us by a Swiss hacker who found them online after a regional air carrier accidentally posted them to the public internet. One scroll through it reveals a list almost completely comprised of Muslim names. In fact, more than 350,000 entries alone include some transliteration of Mohamed or Ali or Mahmoud and the top 50 most frequently occurring names are all Muslim names….

CAIR shared the leaked list with statistical experts for review to determine what percentage of the list is Muslim. The expert analysis of the people on the list—approximately 1.5 million entries—indicates that more than 98% of all records in the watchlist identify Muslims.

In its report and at the press conference announcing its findings, CAIR called out the lack of any legislative basis for secret blacklists, the difficulty of challenging secret decisions in court, and the failure of Congress to exercise its oversight responsibilities:

Congress did not give the FBI this authority. There is no law that made the watchlist…. But neither the FBI nor any other government agency should have a secret list. They’ve abused the one that they have now, and there is no such thing as a good, lawful kind of secret government list made available to hundreds of thousands of government actors. It is time to bring this practice to a close.

CAIR and other advocates for the civil rights of Muslim Americans are making this issue a priority in their meetings with members of Congress this week. We hope that their efforts will help prompt members of Congress to reintroduce and enact the Freedom To Travel Act or include it in other omnibus legislation.