The FBI begged the Supreme Court on Monday to keep the operations of the No Fly list shrouded in secrecy, saying the government needs to be able to make decisions about whom to ban without having to divulge its decision-making.
Yonas Fikre, a U.S. citizen who ended up on the list years ago but has been off it since 2016, says the government was wrong to list him in the first place, and he’s seeking more firm guarantees that he won’t be added just for going about his normal life.
But the FBI says it currently doesn’t deem Mr. Fikre a threat so he has no case, and it has promised not to put him back on unless something changes — though it won’t say what those changes might be.
“He’s not on the list, he hasn’t been on the list in eight years. There’s simply no case or controversy,” said Sopan Joshi, the assistant solicitor general arguing the case for the FBI. “In the unlikely event he’s put back on the list in the future, he can bring a challenge at that time.”
The justices seemed torn, sympathizing with Mr. Fikre’s plight of landing on the list with no sense of the reason. But they also wondered what the court could do about it at this point.
“I don’t see how you can ask them to say anything more than they’ve said,” Chief Justice John G. Roberts Jr. told Mr. Fikre’s lawyer, Gadeir Abbas.
Run by the FBI, the No Fly list is the most sensitive level of the government’s terrorist watchlist. Those deemed “No Fly” are barred from boarding an airplane with the U.S. as its destination.
U.S. citizens are rarely listed, but when they are, it can be a nightmare for them. Mr. Fikre says he was stranded overseas for years, which is why he wants assurances about how to avoid ending up back on the list.
The FBI’s lawyer said it’s tricky to offer guarantees because the listing decisions are complicated, and information looks different as time passes. It has offered a declaration, however, saying that he won’t be put back based on current information.
Mr. Fikre says that’s not good enough, particularly with the government’s “totality of circumstances” approach, which means even facts previously known could be seen in a more nefarious light as time passes.
“Any new fact not currently known to the government would allow Yonas to be relisted,” Mr. Abbas said.
Right now, all the justices must decide is whether Mr. Fikre’s case is “moot,” meaning there is no longer a controversy for the courts to decide.
The 9th U.S. Circuit Court of Appeals ruled it is not moot, siding with Mr. Fikre in saying the government’s current assurances are too weak.
Justice Sonia Sotomayor prodded on that question Monday, offering a hypothetical of a person whom the FBI listed because the person was part of a fundraiser for a suspect mosque. She said the person, who in her hypothetical did not know the terrorism connections, was taken off the list because the fundraiser was years ago. But if the person held a new fundraiser, she wondered, would they land right back on the list?
After some deflections, Mr. Joshi, the FBI’s lawyer acknowledged it could re-list that person.
“How can someone tell you they’re not going to engage in a terrorist activity if they don’t know what terrorist activity it is?” Justice Sotomayor wondered.
Several justices, both Democratic and GOP appointees, wondered about a middle ground of telling a judge, in secret, about the reasons that someone was listed and de-listed. Then the judge could decide with more knowledge whether a re-listing was likely, in which instance the case would be allowed to continue.
“Why is that too much to ask the executive branch?” Justice Neil M. Gorsuch asked.
Mr. Joshi was wary of that middle ground, saying even then the judge couldn’t tell Mr. Fikre the reasons, so he would be right back where he started.
The FBI’s lawyer was unable to say how often someone has been listed, pulled off the list, and then re-listed.
Civil liberties groups have accused the FBI of gaming the list, pulling people off it to prevent troublesome cases from reaching the courts and potentially jeopardizing the list’s operation.
Mr. Joshi vehemently rejected that argument, saying some cases have proceeded to full findings on why someone was listed. He also said the government has given repeated assurances that it’s not gaming the system.
The lawyer also insisted the government doesn’t list people for protected First Amendment activities.
The case is FBI v. Fikre. A decision is expected by the end of June.
• Stephen Dinan can be reached at sdinan@washingtontimes.com.
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