Main: FILE – Transportation Security Administration staff screen travelers at a security checkpoint at Seattle-Tacoma International Airport in SeaTac, Wash., on May 18, 2020. (AP Photo/Elaine Thompson, File); Inset: Left: The judges of the United States Supreme Court (Alex Wong/Getty images).
The federal government faced a unanimous ruling from the Supreme Court on Tuesday, as all nine justices decided that a Muslim American had a valid legal claim for being included on the FBI’s no-fly list despite the fact that the man was later taken off the list, permitted to go back to his home in Oregon, and reassured by the FBI that he would not be added to the list again.
Yonas Fikre is an American citizen of Eritrean descent who journeyed from his residence in Portland, Oregon, to Sudan in 2009 for a business trip. During his time in Sudan, he was asked to attend a lunch at the U.S. Embassy. Instead of a lunch, Fikre was met by two FBI agents who informed him that he was not permitted to return to the U.S. because he was on the no-fly list. According to Fikre, the agents extensively interrogated him about the Portland mosque he frequented, and offered to assist in removing him from the list if he agreed to become an FBI informant and report on other members of his religious community.
The no-fly list is a subset of the Terrorist Screening Database (TSDB), established after the Sept. 11 terrorist attacks. It is maintained by the Terrorist Screening Center (TSC) and managed by the FBI. It logs individuals who are prohibited from boarding commercial aircraft traveling to, from, within, or over the United States. As of June 2016, around 81,000 individuals were on the No Fly List, with 1,000 of them being American citizens or legal residents.
Specifics about the no-fly list are notoriously unclear, but generally, TSC must have reasonable suspicion that a person poses a threat of committing a violent act of international or domestic terrorism to include that person on the list.
Fikre stated that he declined the government’s offer and chose to travel to the United Arab Emirates instead. He claims that while there, authorities interrogated and detained him for 106 days at the request of the FBI, and that he was compelled — without due process — to stay abroad in Sweden until 2015 when the Swedish government arranged for 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 also placed on the no-fly list unlawfully due to 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 informed him that he had been removed from the no-fly list and stated that “based on the currently available information,” Fikre would not be put back on the list in the future for the same reasons.
The government wanted to end Fikre's lawsuit because he was no longer on the no-fly list and they didn't plan to put him on it. The district court sided with the government, but the U.S. Court of Appeals for the Ninth Circuit disagreed, saying that because the government didn't say why Fikre was put on the list in the first place, his claim wasn't invalid just because he was taken off.
On Tuesday, the Supreme Court agreed with the Ninth Circuit's decision in an opinion written by Justice Neil Gorsuch. This doesn't mean Fikre wins his lawsuit, but it means the lawsuit can move forward.
Gorsuch explained in a nine-page opinion why Fikre's case still needs to be resolved. He said the FBI's assurance that Fikre was removed from the no-fly list and wouldn't be added again is not enough to eliminate future risk.
Gorsuch wrote that the government's actions don't prove they won't add Fikre back to the list in the future if he does similar things, like attend a certain mosque or refuse to be an informant.
The justice stated that the Court wasn't convinced that Fikre wouldn't be at risk of similar legal violations in the future. He said the government's statement doesn't show they can't be expected to do the same in the future.
Gorsuch emphasized that the ruling is provisional, meaning the government might be able to show it didn't violate Fikre's rights by putting him on the list. He explained that the unanimous ruling only gives Fikre the right to argue his claim at this early stage.
Gorsuch noted in his opinion that careful attention is needed for this case because it relies on classified information. Both Fikre and the government agree that following the traditional rules of mootness is important in this national security context.
Justice Samuel Alito wrote a short addition, joined by Justice Brett Kavanaugh, to clarify that the Court's decision doesn't mean the government had to reveal classified information to show the case was invalid.
Alito said that requiring the government to disclose the reasons for putting someone on or off the no-fly list could harm national security and make the country vulnerable to terrorist attacks. He also mentioned that most district court staff don't have security clearance to handle such information.
The no-fly list has been criticized for being overly broad, and some justices have agreed. In 2020, Justice Clarence Thomas led a unanimous decision where the Court said that three practicing Muslims could sue government officials under the Religious Freedom Restoration Act of 1993 for putting them on the no-fly list when they refused to act as informants in their religious community. Neil Gorsuch headed a Supreme Court decision where all the judges agreed that Yonas Fikre's legal case about being added to the no-fly list is still relevant and can continue., 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.