As first appeared in NewsBreak
By Aron Solomon
On Monday, the Supreme Court heard oral arguments in FBI v. Fikre, a case that revolves around the question of whether a lawsuit brought by Yonas Fikre, an Oregon man who was placed on the No Fly List and later removed from it, can go forward. The key issue is whether the case is moot now that Fikre has been removed from the list and has been assured that he will not be placed back on it.
In 2010, Yonas Fikre, a U.S. citizen of Eritrean descent, was placed on the FBI’s No Fly List while he was traveling to Sudan. Fikre and his advocates argue that the FBI attempted to pressure Fikre, a Muslim “into becoming their informant, tortured and imprisoned in the United Arab Emirates at the behest of US officials, and then stranded in Sweden because of his status on the No Fly List.” After being stranded there for more than four years, Firke was removed from the list in 2016 and was informed that he would not be placed back on the list.
As attorney John Lawlor explains, “The No Fly List is a component of the U.S. government’s Terrorist Screening Database, managed by the FBI’s Terrorist Screening Center. It encompasses details of individuals identified or suspected to be engaged in terrorist activities. The primary purpose of this list is to hinder these individuals from boarding commercial flights that involve travel within, to, from, or over the United States.”
The criteria for inclusion in the No Fly List are not publicly disclosed, and individuals who believe they have been wrongly included have limited recourse. If an individual is denied boarding on a flight and suspects they are on the No Fly List, they can submit a standard form to the Department of Homeland Security Traveler Redress Inquiry Program (DHS TRIP) for further information.
The No Fly List has been the subject of legal challenges, with individuals such as Yonas Fikre contesting their placement on the list. The list has also been a topic of public debate, especially in the context of addressing unruly passenger behavior on flights. That the No Fly List is essentially amorphous, in that people who are places on the list might never understand why they were, makes this interesting grist for the Supreme Court’s mill.
In this case, the district court twice dismissed Fikre’s case as moot after he was removed from the No Fly List. However, the United States Court of Appeals for the Ninth Circuit held that the district court erred by dismissing Fikre’s No Fly List claims as moot and that 49 U.S.C. § 46110(a) does not divest the district court of jurisdiction over Fikre’s No Fly List claims. The case was remanded to the district court to consider whether Fikre’s complaint states a viable claim.
The Supreme Court is tasked with determining the relevance of Fikre’s arguments contesting his inclusion on the No Fly List, considering that he has already been removed from the list and has received assurances that he will not be reinstated, as per the information available to the FBI at the time of said assurances.
Oral argument on behalf of the FBI was done by Sopan Joshi, Assistant to the Solicitor General, Department of Justice while Gadeir Abbas argued on behalf of Yonas Fikre. From my point of view, the Justices appeared inclined to grant the FBI and other government entities a much broader authority to exercise their discretion in determining who should be included on the No Fly List than most individuals, especially those who might be remotely likely to end up on the list, would find reasonable.
The justices seemed more open to the important legal issues regarding the justifiability of Fikre’s lawsuit despite being removed from the No Fly List. No matter how the Court comes down in this case, the Supreme Court’s decision will have implications for similar cases in the future.
Because the No Fly List is a controversial tool, due to its lack of transparency and the potential impact on individuals’ rights and freedoms, the Supreme Court has to find a way to balance national security concerns with the protection of civil liberties when considering the operation something such as the No Fly List. At oral argument, several Justices raised the issue of due process for someone placed on the No Fly List, which might be the concept around which the Court bases their decision.
As the Firke case reveals, this is far easier said than done. While the Supreme Court never has an easy case, the complexity of the legal and moral issues presented in Monday’s oral argument highlights.
About Aron Solomon
A Pulitzer Prize-nominated writer, Aron Solomon, JD, is the Chief Legal Analyst for Esquire Digital and the Editor-in-Chief for Today’s Esquire. He has taught entrepreneurship at McGill University and the University of Pennsylvania, and was elected to Fastcase 50, recognizing the top 50 legal innovators in the world. Aron has been featured in Forbes, CBS News, CNBC, USA Today, ESPN, TechCrunch, The Hill, BuzzFeed, Fortune, Venture Beat, The Independent, Fortune China, Yahoo!, ABA Journal, Law.com, The Boston Globe, YouTube, NewsBreak, and many other leading publications.