The Supreme Court cleared the way Tuesday for a man to pursue a lawsuit against the FBI over its secret No Fly List, rejecting the bureau’s attempts to shield the list from scrutiny.
The FBI argued the case was moot since it dropped Yonas Fikre’s name from the list years back.
But the justices said the bureau has played coy over whether it might list once more. Unless the FBI can give Mr. Fikre better assurances about its decisions, he can sue.
“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,” Justice Neil M. Gorsuch wrote for a unanimous court.
Civil rights groups had seen the case as a major test of the FBI’s secrecy surrounding the operations of the No Fly List and hope that as the case proceeds it will expose some of the sketchy rules the government uses to keep people from boarding commercial aircraft.
Mr. Fikre, a Muslim U.S. citizen, says he was added to the list as retaliation after he refused the FBI’s entreaties to become an informant on fellow attendees at a Portland, Oregon, mosque.
The justices said they took no position on those allegations and said the case is too undeveloped to know what’s true. But they said the FBI can’t shut down the legal challenge merely by deleting Mr. Fikre’s name.
That’s just what the civil rights groups claim happens whenever someone brings a court challenge: The FBI drops the name to derail the case and prevent information about the list’s workings from reaching the public.
“The FBI cannot play whack-a-mole with the rights of Muslims,” said Gadeir Abbas, the lawyer who argued the case on behalf of Mr. Fikre. “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.”
During oral arguments, the Biden administration insisted it did all it could.
“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. “In the unlikely event he’s put back on the list in the future, he can bring a challenge at that time.”
But the justices said the FBI is hiding the ball.
“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 Sonia Sotomayor wondered.
In Tuesday’s ruling, Justice Gorsuch said the high court is aware of touchy national security issues surrounding the lawsuit, but said the FBI can’t duck the constitutional questions Mr. Fikre is raising.
Justice Samuel A. Alito Jr., though agreeing with the ruling, filed a separate opinion saying that while the challenge can proceed, the government can still keep some No Fly operations secret.
“I do not understand the court’s opinion to require the government to disclose classified information as a matter of course,” he said.
The No Fly List is the government’s high-level terrorism watchlist.
The list has been shrouded in secrecy from its start after 9/11, and Muslim advocates in particular have been eager to pierce the veil, saying they believe the government has used unfair criteria to decide who gets on it.
The Council on American-Islamic Relations, using a leaked version of the list, estimates that 98% of the people listed are Muslim.
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.
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.
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 a Senate report.
Mr. Fikre argues even that doesn’t work if the FBI is allowed to delete a name and try to shut down all legal challenges.
He said he ended up on the list after he rebuffed the feds’ entreaty to spy on the Portland mosque. When he refused, he says the FBI put him on the No Fly List and 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 flew 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.
The case is FBI v. Fikre.
• Stephen Dinan can be reached at sdinan@washingtontimes.com.
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