Supreme Court rules Muslim men in violation of no-fly list
The Supreme Court decided unanimously Tuesday in favor of a Muslim man who said he was placed on the no-fly list in retaliation for refusing to become a government informant. The court rejected the government’s claim that removing the man from the list had made his case moot.
The no-fly list, which was quickly expanded after the terrorist attacks of September 11, 2001, appears to include tens of thousands of people. The criteria for inclusion on the list are opaque, allowing for errors and misuse.
Yonas Fikre, a US citizen, challenged his inclusion on the list, saying it violated due process and amounted to discrimination based on race, national origin and religion.
The legal proceedings are in their early stages and Judge Neil M. Gorsuch, writing for the court, said it was necessary to assume that the following version of events outlined in the lawsuit was true.
Mr. Fikre, who lived in Portland, Oregon, had moved to Sudan from his home country of Eritrea as a child. In 2009, he traveled back to Sudan in search of a consumer electronics company in East Africa.
When he was invited to lunch at the U.S. Embassy, he was confronted by FBI agents, who told him he had been placed on the no-fly list and could not return to the United States. They questioned him about activities at a Portland mosque, asked him to act as an informant and said they would take steps to remove him from the list if he agreed.
He refused. Weeks later, during a trip to the United Arab Emirates, he was arrested, detained, interrogated and tortured. After 106 days, he was flown to Sweden, where he lived until 2015, when the Swedish government returned him to Portland by private jet.
The following year, the government told Mr. Fikre that he had been removed from the list. It provided no explanation but argued the move made its lawsuit moot.
Judge Gorsuch wrote that defendants cannot automatically moot a dispute by “the simple expedient of suspending the challenged conduct after it has been charged.”
Instead, he wrote, citing an earlier decision, “a defendant’s ‘voluntary cessation of a challenged practice’ will only raise a case if the defendant can demonstrate that the practice ‘could not reasonably be expected to will repeat itself’.”
Judge Gorsuch wrote that it remains possible that the government will place Mr. Fikre back on the no-fly list. “The government could reinstate him,” the judge wrote, “if he does the same or similar things in the future — for example, visiting a particular mosque or refusing new overtures to serve as an informant.”
Justice Gorsuch added: “What matters is not whether a defendant repudiates his past actions, but what the repudiation may prove about his future conduct. “We base our judgment on that consideration alone – the potential for a suspect’s future behavior.”
Justice Samuel A. Alito Jr., joined by Justice Brett M. Kavanaugh, delivered a brief concurring opinion. It stressed that “our decision does not suggest that the government should release classified information to Mr. Fikre, his lawyer or a court to demonstrate that this case is moot.”
Hina Shamsi, an attorney with the American Civil Liberties Union, filed a brief support from Mr Fikrewelcomed the decision.
“For decades,” she said in a statement, “rights groups have documented the secrecy and unfairness of the no-fly list program and its devastating impact on people’s lives, yet the program has remained a black box. Not only are people left in the dark about why they were listed, they are also given no meaningful explanation when they are removed, or any assurance that they will not be wrongly listed in the future.”