Today the US Supreme Court heard more than an hour of oral argument (transcript, MP3 audio) in the case of FBI v. Fikre, the latest in a series of cases in which the government has tried to avoid having a judge or jury review the criteria, procedures, and factual basis (if any) for no-fly decisions by removing previously blacklisted people from the no-fly list after they sue the government, and then asking courts to dismiss their lawsuits as “moot”.

In order to get such a complaint dismissed as “moot”, the government has the burden of showing that “subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur”, according to the District Court.

Inquiring minds on the Supreme Court wanted to know how the government could meet that burden — or whether it could ever do so — without disclosing the basis for the initial no-fly decision and/or what changes had been made to no-fly decision-making criteria or procedures.

Several Justices expressed “sympathy” with the government, but concern for due process:

Justice Gorsuch, for example, wanted to know why the government wouldn’t even tell a judge in a “Sensitive Compartmented Information Facility” (and maybe the plaintiff’s lawyer, if the government would give them a security clearance) anything about a no-fly decision:

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The U.S. Supreme Court will hear oral argument this Monday, January 8, 2024 on an appeal brought by the FBI challenging a Circuit Court decision in favor of Yonas Fikre. It’s the second case on the Supreme Court’s 10 a.m. EST calendar for oral argument Monday.

You can listen live online, attend a live watch party in DC if you can’t get into the Supreme Court, or listen to recorded audio that should be posted by the end of the day on Monday.

The complete Supreme Court docket and links to the pleadings in FBI v. Fikre are here.

The question presented to the Supreme Court in this case doesn’t directly address what substantive criteria or procedures are Constitutionally required for the government to order common carriers not to transport an otherwise-qualified U.S. citizen. A separate challenge to the entirety of the blacklisting system remains pending in U.S. District Court in Boston.

But this case in the Supreme Court does address one of the government’s standard tactics for evading judicial review of its blacklisting decisions: taking people who sue the government off blacklists to “moot” their cases if it looks like they might have a chance of getting a court to rule on the legality of the government’s procedures or criteria for blacklisting decisions or or the sufficiency of the evidence (if any) against them.

If anyone deserves to have the U.S. government’s decision to put him on its no-fly list reviewed by a judge, it’s Yonas Fikre.

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