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.
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.
Mr Fikre is a U.S. citizen and a Muslim. That he’s a Muslim shouldn’t matter, but apparently matters to the FBI and the other agencies that create the U.S. goverment’s blacklists. The FBI put him on the U.S. government’s No-Fly List while he was overseas, in an attempt to pressure him to spy for the FBI on members of his mosque and community in Portland, OR.
Commendably, Mr. Fikre declined to become an FBI informer. When his visa ran out and he was unable to return home to the U.S. because he was still on the U.S. no-fly list, he was arrested, imprisoned, and tortured in the U.A.E. His torturers told him, quite plausibly, that they were acting at the behest of their U.S. government “partners”.
Eventually his jailers in the U.A.E. decided that Mr. Fikre had nothing to reveal, even under torture. Expelled from the U.A.E. but still blacklisted by the U.S. and therefore unable to return home, he sought asylum in Sweden where some of his relatives live.
The U.S. retaliated with some trumped-up charges against Mr. Fikre that were later dropped, but that gave Sweden an excuse to deny Mr. Fikre political asylum. Apparently desperate to avoid embarassing the U.S. government by allowing Mr. Fikre to stay in Sweden, but unable to deport him to the U.S. by common carrier, the Swedish government paid to charter a jet to deport Mr. Fikre to the U.S. (One of many anomalies of the no-fly system is that U.S. travel blacklists aren’t applied to passengers on private flights.)
Once he got home, Mr. Fikre — understandably, and again commendably — sued the government in Federal court with the assistance of the Council on American Islamic Relations (CAIR). We’ve been watching that case drag on for a decade.
Following its standard operating procedures for this sort of litigation, the government took Mr. Fikre off the no-fly list after he filed his lawsuit. Twice the government got a District Court judge to dismiss the case as “moot”. But twice, first in 2018 and again in 2022, the 9th Circuit Court of Appeals ruled that there is still an active controversy for the courts to resolve. The government still says that its blacklisting of Mr. Fikre — based on secret evidence evaluated in secret according to secret criteria — was legally proper.
The government continues to claim the the right to blacklist Mr. Fikre again without judge, jury, or trial. Will that happen if he (again?) communicates with the “wrong” people, prays with the “wrong” people or to the “wrong” god(s), or travels to the “wrong” places?
Mr. Fikre has no way to know what might get him blacklisted again. The U.S. government still hasn’t told him any reason — other than its apparent desire to pressure him into becoming an FBI informer — why it put him on its no-fly list, or why it took him off that list (other than in order to moot his lawsuit) if it supected him of terrorism.
That doesn’t sound to us like there is no longer any dispute for the court to rule on.
All this matters because the U.S. government’s repeatedly demonstrated highest priority with respect to its no-fly list and other blacklists has not been avoiding terrorism but avoiding judicial review of its actions.
If the Supreme Court upholds the government’s strategy of mooting these lawsuits without explanation or apology, the government’s victims will never get their day in court and agencies like the FBI involved in the multi-agency “Watchlisting Council” will never be held to account for violating citizens’ rights.
Gadeir Abbas of the CAIR Legal Defense Fund, in his first appearance before the Supreme Court, will be arguing on behalf of Mr. Fikre. Mr. Abbas has been dedicated to this issue since his work as a law student helping a pro se blacklisted plaintiff, Julia Shearson
of CAIR’s regional staff in Cleveland. He’s been doing a brilliant job leading CAIR’s precedent-setting no-fly and blacklist litigation, and we wish him and Mr. Fikre a successful day in the Surpeme Court on Monday.