US government travel blacklists (euphemistically described by the government as merely “watchlists”) are being used to restrict airline travel and target searches of electronic devices of organizers of protests against US support for Israel’s military actions in Gaza, according to a complaint filed this week in Federal court by attorneys for two blacklisted Palestinian-American US citizens, Dr. Osama Abu Irshaid and Mr. Mustafa Zeidan.

It might be tempting to interpret the allegations in this complaint as indicative of the need for oversight or guardrails to prevent “abuse” of the blacklisting and travel control system. But we think it makes more sense to see this case as indicative of the risk of political weaponization inherent in the system of algorithmic, identity-based, extrajudicial administrative control of travel. This case shows why this travel control system should be abolished entirely, and why any restrictions on the right to travel should be imposed through existing judicial procedures for restraining orders and injunctions — adversary procedures that incorporate notice, the right to confront one’s accusers, and the other elements of Constitutional due process.

The heavy lifting that makes this use of travel controls to restrict political dissidents possible was carried out when airlines were required to install communication and control lines enabling the US government to decide, in real time, on the basis of information from airline reservations and travelers’ ID documents, whether or not to give airlines “permission” to transport each would-be passenger. That entailed more than $2 billion, by the US government’s own underestimate, in unfunded mandates imposed on airlines and their IT providers for changes to their reservation and departure control systems.

Now that this infrastructure is in place, only the ruleset needs to be changed to change who is, and who is not, allowed to travel by air, or how they are treated when they fly.

Names and other selectors (phone numbers, IP addresses, etc.) can be added to list-based rules. New category-based rules can be added to the ruleset. New real-time “pre-crime” profiling and scoring algorithms can be applied to fly/no-fly decision-making. New external databases and actors can be connected to the system.

All of this has, in fact, been done, making it harder and harder for anyone to exercise effective oversight over the system or the decisions generated by its secret algorithms.

The potential for targeting of dissidents and political opponents is a feature, not a bug, of secret administrative decision-making, especially in the absence of judicial review.

Here’s how it played out in this case, according to the complaint and other reports: Read More →

In a decision issued last week, the 5th Circuit Court of Appeals has offered the first appellate opinion on whether there is any basis in law for the U.S. government’s creation and use of a system of “watchlists” (blacklists) to determine who is allowed to travel by air and how they are treated when they travel, as well as to impose other sanctions.

Numerous lawsuits have challenged various aspects of the government’s blacklistsing system and its application to airline passengers, but this is the first time that any U.S. appellate court has ruled on whether Congress has given the various agencies that created, maintain, and use these lists any statutory authority to so so.

The 5th Circuit panel found multiple mentions in Federal law of the use “databases” for “screening” of airline passengers. But that begs the question that was actually presented. As the Council on American-Islamic Relations (CAIR) argued in their brief on appeal:

Below, both the district court and the Government presented a mishmash of statutory language, none of which clearly authorizes any of the Defendant agencies to create, maintain, administer, or use a million-name list to infringe on the liberty of U.S. citizens and foreign nationals alike….  High-level congressional authorization of general law-enforcement and national-security activity is self-evidently inadequate to satisfy the major questions doctrine. Even the more precisely-worded statutory provisions that the Government offers to justify specific uses of the watchlist fall short because they nowhere authorize the creation or maintenance of the watchlist in the first place. At bottom, a survey of the Government’s cited authorities reveals that Congress did not create the watchlist—unelected bureaucrats did….

The district court did not conclude that the text of any specific statute clearly authorized federal agencies to create, maintain, and use the watchlist. Instead, the district court followed the Government’s lead and cobbled together (supposedly) clear statutory authorization from a hodgepodge of different laws, none of which—whether viewed separately or together—comes close to supplying clear congressional authorization….

Other cited provisions may grant TSA the power to use the watchlist to screen passengers but nowhere authorize any agency to create, maintain, or administer the watchlist in the first place.

Congress’s after-the-fact acquiescence to an agency’s power grab cannot provide the clear congressional authorization for the agency’s action. Rather, Congress’s clear authorization must come before the agency asserts the power to significantly intrude on the liberty of millions of Americans.

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In a unanimous 9-0 decision announced today,  the US Supreme Court has ruled that a lawsuit brought by Yonas Fikre challenging the US government’s placing him on its no-fly list can go forward even though the government has, for the time being (and only after he sued), taken him off its travel blacklist.

Mr. Fikre is a US citizen who was put on the US government’s “no-fly” list while he was traveling overseas, in order to pressure him to become an informer working for the FBI to spy on members of a mosque he had attended back home in Portland, OR. As a result of being unable to return to the US, he was eventually arrested (at the behind-the-scenes instigation of the US, he plausibly claims) for overstaying his visa, tortured and further interrogated (also at the behest of the US, he claims, also plausibly), and again told he could be removed from the no-fly list — and thus allowed to be released from immigration detention and deported to the US — if he became an FBI informer.

The Supreme Court’s unanimous decision is narrow but important. The government has never, so far as we can tell, actually tried to defend any of its no-fly decisions and orders in court. Instead, the government has tried to avoid judicial review of either its decision-making procedures (as the Supreme Court notes in its opinion today, “no statute or publicly promulgated regulation describes the standards the government employs when adding individuals to, or removing them from, the list”) or the substantive outcomes (a striking pattern, publicly-revealed when the list was leaked, of anti-Muslim bigotry).

The government’s two-prong strategy for avoiding judicial review has been to argue that the evidentiary basis (if any) for no-fly decisions is a state secret that can’t be disclosed even to judges, much less the subjects of no-fly orders, and to try to render the remaining cases “moot” by taking those who lawyer up and sue off the blacklist before their cases can come to trial, as it did with Mr. Fikre once he was back in the US.

The Supreme Court’s decision today deals solely with the “mootness” issue. So little has been revealed about the government’s  actions in putting Mr. Fikre on, and later off, the no-fly list that there is no basis for confidence that the government actions that he complained of in his lawsuit won’t recur if the case is dismissed.

The unanimous opinion, written by Justice Gorsuch, didn’t reach the question of classified or “privileged” information or “state secrets”. Those issues remain to be addressed as the case proceeds on remand in the U.S. District Court for the District of Oregon. Justice Alito, joined by Justice Kavanaugh, filed a concurring opinion agreeing with the judgment that the case was not moot, but stressing that they “do not understand the Court’s opinion to require the Government to disclose classified information as a matter of course” and that it might be possible to decide the case on the basis of unclassified evidence.

Gadeir Abbas, the lawyer for the Council on American Islamic Relations (CAIR) who argued Mr. Fikre’s case before the Supreme Court, said after today’s decision was announced, “The FBI cannot place innocent Muslims on the No Fly List, only to then block that unconstitutional list from scrutiny by removing those Muslims whenever they file a lawsuit.”

We congratulate Mr. Fikre and his lawyers for standing up for all blacklisted Americans. Fifteen years after he was blacklisted by his government and ten years after he filed his lawsuit, Mr. Fikre is still a long way from a trial or a ruling on the merits of his case. Today’s ruling is a step toward justice, but shouldn’t be misunderstood as meaning that “the system works” or that Mr. Fikre has been “given his day in court”.

We wish Mr. Fikre and his lawyers all success on remand in the District Court in Portland.

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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