Sep 25 2018

9th Circuit says government can’t moot challenge to “no-fly” order

In a blow to the US government’s evasion of judicial review of no-fly and blacklisting decisions, the 9th Circuit US Court of Appeals has reinstated a lawsuit against the government by Mr. Yonas Fikre, a US citizen who was effectively exiled from the US and consigned to imprisonment and torture abroad by being placed on a “No-Fly” list, in an attempt to pressure him to become an FBI informer, while he was overseas.

Unwiling to become an FBI informer — even when he was tortured to do so — and unable to return to the country of his citizenship, Mr. Fikre fled to Sweden, where he applied for political asylum. In a successful effort to smear Mr. Fikre and thwart his asylum claim in Sweden, the US then had him indicted on trumped-up charges related to his business (and having nothing to do with terrorism, violence, aviation, or dangerousness).

Mr. Fikre’s application for asylum in Sweden was denied, and Sweden paid to deport Mr. Fikre to the US (by private jet, because the US wouldn’t allow him on any airline flights). The bogus charges against Mr. Fikre were promptly dropped once he got back to the US. But he has been unable to resume his international business career without being able to count on being able to travel from and to the US without US government interference.

The decision by the 9th Circuit panel in Fikre v. FBI overturns the dismissal of Mr. Fikre’s complaint as “moot” by a US District Court judge in Oregon after the government defendants told the court that Mr. Fikre’s name had been removed from the no-fly list.

The 9th Circuit allowed the case to proceed, finding that there was no guarantee that the actions Fikre complained of, and the violations of his rights, wouldn’t recur:

Because there are neither procedural hurdles to reinstating Fikre on the No Fly List based solely on facts already known, nor any renouncement by the government of its prerogative and authority to do so…  Fikre’s due process claims are not moot.

The 9th Circuit also recognized an important distinction between travel as a right (which can be restricted only in accordance with due process) and “permission” to travel that can be granted or denied by the government in its secret, standardless “discretion” (which is, of course, exactly what the US government has claimed since 9/11):

Fikre was taken off the list two months after briefing was completed on the government’s motion to dismiss Fikre’s lawsuit. This record suggests that Fikre’s removal from the No Fly List was more likely an exercise of discretion than a decision arising from a broad change in agency policy or procedure. Moreover, the government has not assured Fikre that he will not be banned from flying for the same reasons that prompted the government to add him to the list in the first place, nor has it verified the implementation of procedural safeguards conditioning its ability to revise Fikre’s status on the receipt of new information. As far as we can tell, the current permission Fikre has to travel by air is “discretionary ,” and not “entrenched” or “permanent.” We presume the government acts in good faith and do not impute to it a strategic motive to moot Fikre’s suit, but with no explanation of the reasons for dropping Fikre from the No Fly L ist, we may not infer the government’s acquiescence to the righteousness of Fikre’s contentions. On this record, the government has not repudiated the decision to add Fikre to the No Fly List and maintain him there for approximately five years. [internal citations omitted]

Mooting cases by (temporarily) refraining from restricting the movements of people who have managed to bring their complaints to court has been central to the US government’s largely successful strategy of avoiding having courts rule on its assertion of extrajudicial administrative authority to deny passports or prevent travel by common carrier.

There are well-established procedures, used most often in cases of domestic violence, for courts to issue injunctions or restraining orders that limit travel and movement. But so far as we can tell, the US government has never asked a court to issue a no-fly injunction.

On the contrary, the government has used every available legal means to keep no-fly cases out of the courts — even if mooting a legal challenge required allowing travel by someone who up to that time had been alleged to be a dangerous would-be terrorist.

Typically, the government has first tried to argue that Federal law prohibits no-fly trials or review by District Courts of the factual basis (if any) for no-fly decisions.

When that argument fails (because Congress has no power to override Constitutional rights), the government falls back on the argument that no-fly decisions are a “state secret” — even when those decisions are made on the basis of FBI mistakes or incompetence and not on the basis of any allegation or evidence of terrorism or dangerousness.

But it isn’t a secret that the government tells airlines not to transport some disfavored passengers, and several no-fly cases (including those of Rahinah Ibrahim and Gulet Mohamed) have gotten past the government’s assertion of the “state secrets” privilege.

When that happens, the last resort of the government has been to try to render these cases moot by taking plaintiffs off the no-fly list and/or issuing passports for them.

But none of the plaintiffs in these cases, nor any similarly situated individual, has any guarantee that the US government won’t put them back on the no-fly list or revoke their passport the day after their case is dismissed as “moot”.  This is the essence of “capable of repetition, but evading review”.

The chilling effect on the exercise of the right to freedom of movement is clear. What US citizen is going to leave the country, especially to an overseas destination, if they don’t know whether the US will give any airline permission to bring them back home?

The 9th Circuit’s latest decision in Fikre v. FBI is thus a critical step toward bringing the system of blacklisting and no-fly decision-making within the rule of law.

Mr. Fikre’s attorneys include Brandon Mayfield of Oregon (who was himself falsely accused and arrested for terrorism in 2004, for which the government eventually apologized and paid a $2 million settlement) and Gadeir Abbas and Lena Masri of CAIR (who have led the national litigation against government blacklisting and travel controls).

We wish Mr. Fikre success in the District Court, to which his case is being remanded.

One thought on “9th Circuit says government can’t moot challenge to “no-fly” order

  1. Pingback: Another round in 9th Circuit fight over “No-Fly” orders | Papers, Please!

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