A lawyer for the Council on American-Islamic Relations on Monday will argue before the Supreme Court for the first time, asking the justices to help a Muslim man stay off the government’s no-fly list that blocks people from boarding airplanes.
The FBI says Yonas Fikre isn’t on the list right now, but Mr. Fikre is looking for a firmer guarantee that he won’t be secretly added back to the list later. The FBI insists his case is moot since he’s not currently listed, but a federal appeals court ruled in favor of Mr. Fikre, saying the FBI needed to proactively repudiate its past listing.
Now the justices will weigh in on whether Mr. Fikre can continue his lawsuit.
A coalition of groups from the left and right is hoping the court will slap down the FBI, which maintains the list.
“In case after case, we’ve seen the government remove people from the no-fly list and prevent their legal challenges from being heard. Now the Supreme Court has the chance to ensure Americans wrongly placed on this list are actually given their day in court,” said Hina Shamsi, a lawyer at the American Civil Liberties Union, which has weighed in on Mr. Fikre’s behalf.
But U.S. Solicitor General Elizabeth Prelogar says Mr. Fikre has been off the no-fly list for seven years and the government has said he won’t be put back on, given the current known facts, unless something changes.
She also said the Supreme Court has never required a proactive repudiation of past behavior to find a case moot when all sides agree there is no current live conflict. She said in the context of the no-fly list and national security, it’s important the court not demand too much of the FBI.
“Individuals might be placed on or removed from the No Fly List based on highly sensitive information,” she argued to the justices in a brief last year. “Allowing moot No Fly List claims to proceed to discovery would needlessly enmesh the parties and courts in disputes about the use of such information and divert scarce agency resources that otherwise could be devoted to protecting the national security.”
The no-fly list has been shrouded in secrecy from the start, with Muslim groups in particular arguing they’ve been unfairly targeted.
CAIR has been battling the no-fly system for years and says the FBI regularly removes names once someone sues. CAIR said it’s a tactic meant to try to shield the list from a legal showdown.
Using a leaked copy of the watchlist, CAIR estimates that 98% of the names on the list are Muslims.
Until a 2014 court ruling, people weren’t even told they were on the list when they were denied boarding. Now, the government must reveal their listing and the Justice Department says they can also be told nonclassified information about why they ended up there.
A Senate report last month said before the 2001 terrorist attacks the no-fly list had just 12 names. Now the No Fly list is the most heightened level of the broader terrorist watchlist, which had 1.8 million records as of late 2022. U.S. citizens and legal permanent residents made up less than 7,000 of those records.
There is a process for getting off the list, but it usually fails. From 2018 to 2022, 710 citizens or legal residents applied to get off the watchlist. Of those, five were removed from the no-fly list and 99 were erased from the broader terrorist watchlist, according to the Senate report.
“Many individuals have complained the only effective way to get off the terrorist watchlist is to sue the federal government,” the Senate report concluded.
Mr. Fikre argues even that doesn’t work if the FBI is allowed to delete a name and then try to shut down all legal challenges.
He said he ended up on the list after he rebuffed the feds’ entreaty to spy on a mosque in Portland, Oregon. When he refused he says the FBI put him on the no-fly list and then told him he could get off it if he cooperated.
He was in Sudan at the time, then moved to the United Arab Emirates, which he said detained and tortured him at the FBI’s direction. He moved to Sweden but filed a lawsuit in Oregon in 2013 challenging his listing.
He would eventually fly back to the U.S. on a private jet in 2015.
Homeland Security reviewed his case in 2015 and kept him on the list because it was deemed he “may pose a threat to civil aviation or national security.” A year later the government told him he’d been removed, and he has flown since — but he wants a ruling that his initial placement was unconstitutional.
He lost in district court, where a judge said it was unlikely the government would remove him and then restore him, particularly after an FBI official said he won’t be added “based on the currently available information.”
The 9th U.S. Circuit Court of Appeals reversed that ruling, saying the government must offer more assurances than that, and should say more about why Mr. Fikre was listed in the first place.
• Stephen Dinan can be reached at sdinan@washingtontimes.com.
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