The Supreme Court Reins In the No Fly List

A unanimous Supreme Court this morning, in FBI v. Fikre, rejected an effort by the government to insulate the No Fly List from judicial review simply by saying it wouldn’t put the plaintiff in the case back on the list for doing the same things — without saying what those things are.

The No Fly List is one of those post-9/11 emergency measures that made eminent sense at the time but gave effectively unreviewable discretion to executive national-security agencies — an unsustainable position over the long term in a nation of laws. Yonas Fikre, an Eritrean Muslim immigrant who came to the U.S. from Sudan and became a U.S. citizen, alleged that the FBI only informed him he was on the No Fly List while he was in Sudan on a business trip in 2009. That left him unable to return to the U.S. for six years, until the Swedish government flew him back to Portland, Ore., on a private jet in 2015. Flying into the United States as a foreign national is a privilege. But the government can’t just strand a U.S. citizen overseas, unable to return to his own country, without some sort of process or recourse.

The story, according to Justice Neil Gorsuch’s summary of Fikre’s account, is a harrowing one:

On arrival [in Sudan], Mr. Fikre informed U. S. officials of his interest in pursuing business opportunities in the country. Eventually, he received an invitation to the U. S. embassy—ostensibly for a luncheon. But, once there, Fikre was whisked instead to a small meeting room with two FBI agents. The agents told him that the government had placed him on the No Fly List, so he could not return to the United States. The agents then questioned him extensively about the events, activities, and leadership of the Portland mosque he attended. They asked him to serve as an FBI informant and report on other members of his religious community, offering to take steps to remove him from the No Fly List if he agreed. Mr. Fikre refused. . . . The next day, an agent told him over the phone that, “whenever you want to go home, you come to the embassy.” Mr. Fikre took this to mean that he would not be removed from the No Fly List and he could not travel to the United States unless he became an FBI informant. Several weeks later, Mr. Fikre traveled to the United Arab Emirates to advance his business plans. . . . Authorities there arrested, imprisoned, and tortured him. They interrogated him, too, about his Portland mosque, its events, leader, and fundraising activities. One interrogator told Mr. Fikre that the FBI had solicited his interrogation and detention. After holding him for 106 days, authorities arranged to have Mr. Fikre flown to Sweden where he had a relative. [Quotations and citations omitted.]

Fikre sued, claiming both that the FBI had deprived him of due process by giving him no notice of why he was placed on the No Fly List and — inconsistently, but in the absence of knowing why — that he had been placed on the list as an act of religious, racial, and/or national-origin discrimination. In 2016, after the suit was filed, the FBI assured Fikre that he had been taken off the No Fly List, and after this failed to persuade the federal district court, the FBI submitted a sworn declaration from the acting deputy director for operations of the Terrorist Screening Center saying that Fikre “will not be placed on the No Fly List in the future based on the currently available information.” The FBI argued that the case was now moot, so there was no reason for it to explain its reasons or contest Fikre’s claims.

We thus have no idea why Fikre was on the No Fly List: Maybe he’s a nefarious character for reasons the FBI doesn’t want to disclose, or maybe the FBI badly wanted to squeeze an innocent man to inform on genuinely bad people of his acquaintance in Portland or Sudan, or maybe it was a sincere case of mistaken identity or bad intelligence, or maybe the FBI really did target him just for being an Eritrean Muslim. The Court had to determine whether to throw the case out even if Fikre’s account was entirely true.

Justice Gorsuch’s opinion for a unanimous Court concluded that the case was not moot. Because the FBI didn’t tell Fikre why he was put on the No Fly List the first time, there was no way for him or the courts to know what he had to do in order to avoid its happening again:

Mr. Fikre . . . contends that the government placed him on the No Fly List for constitutionally impermissible reasons, including his religious beliefs. In support of his claim, Mr. Fikre alleges (among other things) that FBI agents interrogated him about a mosque in Portland he once attended and threatened to keep him on the No Fly List unless he agreed to serve as an informant against his co-religionists. Accepting these as-yet uncontested allegations, the government’s representation that it will not relist Mr. Fikre based on “currently available information” may mean that his past actions are not enough to warrant his relisting. But . . . none of that speaks to whether the government might relist him if he does the same or similar things in the future—say, attend a particular mosque or refuse renewed overtures to serve as an informant. 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.

That’s right, and the Court’s opinion emphasized that neither the government nor private litigants are entitled to make a federal case moot just by stopping what they were doing, if there’s no barrier to resuming later:

Were the [mootness] rule more forgiving, a defendant might suspend its challenged conduct after being sued, win dismissal, and later pick up where it left off; it might even repeat this cycle as necessary until it achieves all of its allegedly unlawful ends. A live case or controversy cannot be so easily disguised, and a federal court’s constitutional authority cannot be so readily manipulated. To show that a case is truly moot, a defendant must prove no reasonable expectation remains that it will return to its old ways. That much holds for governmental defendants no less than for private ones. [Quotations and citations omitted.]

The Court noted that the defendant doesn’t have to admit it was wrong to show that a case is moot, although that can help. It also emphasized that No Fly List decisions require careful handling if the government’s reasons are classified; Justice Samuel Alito, joined by Justice Brett Kavanaugh, wrote separately just to stress that

our decision does not suggest that the Government must disclose classified information to Mr. Fikre, his attorney, or a court to show that this case is moot. In at least some instances, requiring the Government to disclose sensitive information regarding its grounds for placing or removing a person from the No-Fly List could undermine the Government’s significant interests in airline safety and the prevention of terrorist attacks. Indeed, some of the Nation’s 600-plus district courts are poorly positioned to handle classified documents, and most court personnel lack security clearance. Recognizing such limitations, I do not understand the Court’s opinion to require the Government to disclose classified information as a matter of course.

The immediate effect of this decision will be to compel the government to defend more suits challenging No Fly List designations. But the Court also strengthened the general rule against government agencies trying to avoid an adverse court ruling just by going to ground or exempting particular litigants from its decisions. The Becket Fund for Religious Liberty, for example, hailed the decision as “a big win for religious liberty, helping ensure that when governments violate constitutional rights, they can be held accountable for it—rather than wriggling off the hook through post-litigation maneuvering. . . . In light of Fikre, the lower-court decisions giving the government special treatment on this question are not sustainable.” The mootness issue was likewise a major battleground in the student-loan cases, as the Biden administration kept trying to pass new unilateral exemptions to pick off anybody with standing to bring a lawsuit. Fikre ensures that anybody who has earned his day in court cannot so easily be deprived of it just because the government got caught doing something it doesn’t want to explain.