For more than a decade (see our articles from 2012 and 2018), we’ve been monitoring the saga of Yonas Fikre, a US citizen who was placed on the US government’s “No-Fly List” and blacklisted by his government as a “suspected terrorist” while he was overseas on business.
Last week, after nine years and counting in the courts, Mr. Fikre “won” a second successive favorable decision on pre-trial appeals to the 9th Circuit US Court of Appeals, but his quest for justice remains unfulfilled. The history of this case to date is a case study in the lack of accountability or judicial review for no-fly decisions and decision-makers.
The US government didn’t tell Mr. Fikre when it blacklisted him, but did tell airlines and other governments who it hoped would take action against him — as in fact they did. Mr. Fikre’s placement on a widely-disseminated US government blacklist of alleged terrorists (euphemistically and misleadingly described by the US government as a mere “watchlist”) resulted, among other consequences, in his being arrested and tortured by authorities in the United Arab Emirates who told him they were acting at the request of the FBI.
FBI agents told Mr. Fikre that they could get him removed from the US No-Fly list so that he could return to his home and family in the US if he agreed to become an FBI informer. This was a systematic practice. Other blacklisted and effectively banished US citizens, mostly (or perhaps exclusively) young Muslim men, were told the same thing.
Mr. Fikre declined to become a confidential FBI informant in his mosque and community.
Unable to torture Mr. Fikre into agreeing to become an FBI informer, and unable to deport him on any regular flight to the US because he was still on the US No-Fly List, the UAE eventually released him and allowed him to leave the country. Unable to get back to the US, and (rightfully) fearing further persecution if he did, Mr. Fikre sought asylum in Sweden. But Sweden later denied his application for asylum and chartered a private jet as the only way they could deport him to the US. Meanwhile, as another collateral consequence of his de facto banishment by the US government, his wife divorced him during the long period when it appeared he would never be able to return home.
Back in the US, but stigmatized by his government for reasons that remain secret and entirely unexplained to this day, with his business and family life derailed, Mr. Fikre sought redress through the US Federal courts. After nine years of litigation including two “successful” appeals, his case is still at the pre-trial stage and he’s still waiting for justice.
If the government really thought there was enough evidence that Mr. Fikre posed a threat to justify restriction of his right to travel, it could have arrested him and charged him with “attempt” or “conspiracy” to commit specified criminal acts. But it didn’t do that.
When Mr. Fikre sued, the government could have defended its blacklisting decision and its restrictions on Mr. Fikre’s right to travel by presenting and allowing Mr. Fikre to respond to, and the court to assess: (1) the substantive and procedural criteria for no-fly decisions, (2) the argument for why those criteria and procedures are legal and Constitutional, (3) the evidence against Mr. Fikre, and (4) the argument for how that evidence, considered along with any rebuttal evidence from Mr. Fikre or witnesses he might call, satisfies those legal criteria. But the government didn’t do that either.
Instead, the government’s entire argument in court for the last nine years has been that, for one reason or another, no-fly decisions should be exempt from judicial review, the government shouldn’t have to explain or justify its actions, and Mr. Fikre should never have his day in court.
As in other no-fly cases, the government played a partially successful shell game of evasion of responsibility by shifting nominal authority for internal administrative “review” of no-fly orders to the TSA (while the original blacklisting decisions remained in the hands of the FBI’s Terrrorist Screening Center), and then arguing that Federal District Courts lack jurisdiction to review challenges to no-fly orders issued by the TSA; that Mr. Fikre, despite all of the consequences of his blacklisting, has not complained of sufficient damages of the right sort, from the right causes, to constitute a claim “cognizable” by a Federal court; and that it would endanger national security to disclose either the criteria for no-fly decisions or the evidence, if any, against Mr. Fikre.
This hard line against judicial review has been the position of the DHS during every Administration since at least 2006, when former Federal judge Michael Chertoff, then Secretary of Homeland Security, said of no-fly decisions:
We don’t conduct court hearings on this…. We’re not about to let them do that… because we would be inundated with proceedings… If you are asking if we would do a court process where we litigate it, I mean, that effectively would shut it down.
Of course, if a former Federal judge thinks that courts would inevitably shut the no-fly decision-making system down if they reviewed it, maybe it should be shut down.
When it began to seem that some of Mr. Fikre’s causes of action might survive the government’s pre-trial motions to dismiss on all of these grounds, the government — also as in other such cases — took Mr. Fikre off its No-Fly List (without explanation, apology, payment of damages, or any guarantee he wouldn’t secretly be put back on the list the next day) and then tried to get the case dismissed as “moot”.
When the District Court accepted this argument and dismissed Mr. Fikre’s complaint as moot, his legal team appealed to the 9th Circuit Court of Appeals. In 2018, the 9th Circuit ruled that there was still an “actual cause or controversy” between Mr. Fikre and the government. The 9th Circuit overturned the dismissal and sent the case back to the District Court.
On remand, in line with the government’s history of refusal to accept adverse no-fly rulings, the government made yet another motion to dismiss the complaint as moot, thinly supported by a self-serving government declaration that still included no admission of wrongdoing, no disclosure of the no-fly criteria or the evidence, if any, against Mr. Fikre, no indication that any of the consequences of the widely-disseminated stigma of “suspected terrorist” had been redressed, and no commitment not to put Mr. Fikre back on the No-Fly List. The District Court, ignoring the 9th Circuit’s ruling, again dismissed the case as moot
Mr. Fikre’s lawyers appealed the new dismissal to the 9th Circuit, which again held last week that the case is not moot and remanded it yet again to the District Court:
Because the government has failed to follow the instructions given by this Court the last time Fikre’s case was before us… we hold that the district court erred by dismissing as moot Fikre’s No Fly List claims. We also hold that 49 U.S.C. § 46110(a) does not divest the district court of jurisdiction over Fikre’s No Fly List claims. We remand to the district court….
The government’s attempt to re-litigate matters established by the Court of Appeals in prior decisions in the same case is the same sort of “scorched earth” bad-faith strategy the government has pursued, and that the 9th Circuit has criticized, in other no-fly cases.
We welcome the latest decsion by the 9th Circuit Court of Appeals. We hope Mr. Fikre will someday get a chance to confront, cross-examine, and respond to the witnesses and evidence, if any, against him. We thank and congratulate the legal team respresenting Mr. Fikre, including Brandon Mayfield, Gadeir Abbas, and Lena F. Masri.
But what may be as significant as the favorable opinions from the 9th Circuit is that even after nine years of diligent litigation by a team of experts and two rulings in his favor by the Court of Appeals, Mr. Fikre still hasn’t had his day in court on the merits of his complaint or the basis (if any) for his blacklisting. Mr. Fikre is no better off today, after two “wins” in the Court of Appeals, than when he filed his complaint against the government nine years ago.
It can be tempting to see a favorable ruling on appeal as a sign that the system of judicial review is working. But the history of this case only shows that the system still doesn’t work for victims of no-fly orders like Mr. Fikre.