In the wake of the September 11, 2001 “terror attacks,” the federal government created two national security lists dealing with air travel in and out of the United States: the “No Fly List,” which denied 594 individuals the right to air travel and the “Selectee” list which designated 365 people to undergo enhanced security searches at airports.
Where the government got the information on those original watchlists names remains murky. It can reasonably be assumed that they came from government databases storing tens of thousands of names of real, potential, and imagined terrorists—thousands of whom were placed in those databases after 9/11.
An American Muslim, Yonas Fikre, became another horribly abused victim of the No Fly List beginning in 2010.
Fikre, an American citizen, lived in Portland, Oregon until 2009. He was a member of the as-Saber Mosque in Portland and was employed by a local cellular telephone company. In 2010, he left the country for Sudan, hoping to establish an electronics company in East Africa. Shortly after arriving in Sudan, he was approached by two FBI agents who questioned him about his ties to the as-Saber Mosque and the source of his commercial finances.
The FBI agents then informed Fikre that he had been placed on the No Fly List, meaning he could not fly into, out of, or over either United States or Canadian airspace via commercial airlines. The agents told him they would get his name removed from the list if he became an informant for their agency. He refused.
Five months after this encounter with the FBI, Fikre flew to the United Arab Emirates (UAE) on a business trip.
In June 2011, some nine months after he arrived in the UAE, he was seized from his residence by government agents and taken to an unknown location, where he was held and tortured for 106 days. During the tortuous interrogations, Fikre was told that the FBI requested his detention and interrogation.
Fikre was released by UAE authorities in September 2011, after which he was informed that he could not fly to the United States. He managed to make his way to Sweden, where he hired an attorney, conducted a press conference during which he condemned the FBI and his UAE torturers, and requested asylum.
In November 2013, Fikre sought to have his name removed from the No Fly List through a Department of Homeland Security (DHS) program called the Traveler’s Redress Inquiry Program (TRIP).
TRIP allows individuals to request that the Transportation Security Administration review their files and remove their names from a watchlist if they are inappropriately placed on it. While neither confirming nor denying his placement on the No Fly List, the DHS denied Fikre’s request to be removed, saying “no correction” was appropriate at that time.
Following a 2014 federal district court decision, the DHS modified TRIP in 2015 by adding procedural safeguards for those seeking redress through the program. These safeguards include individuals being apprised of their placement on a watchlist and any unclassified reasons for the placement.
These safeguards notwithstanding, DHS informed Fikre in February 2015 that he would remain on the No Fly List because he had been “identified as an individual who may be a threat to civil aviation or national security.”
In the wake of this DHS action, Sweden denied Fikre’s request for asylum and returned him to the United States later in 2015. However, before leaving Sweden, Fikre filed a 42 USC Section 1983 civil rights lawsuit in Oregon claiming that his reputation had been ruined by the US government’s stigmatizing him as a suspected terrorist and by causing the termination of his marriage through divorce while he was stranded outside the US.
Less than a year after his return to the United States, while his lawsuit was still pending, DHS informed Fikre that his name had been removed from the No Fly List. The agency did not provide any explanation for the removal decision. The U.S. Justice Department (DOJ) then immediately moved to dismiss Fikre’s lawsuit, saying it had been mooted by Fikre’s removal from the No Fly List.
The US District Court in Oregon agreed with the government on the moot issue and dismissed the lawsuit.
However, the Ninth Circuit Court of Appeals on September 20, 2018 reversed the district court’s dismissal, finding that the mere removal of Fikre from the No Fly List did not moot the issues raised in his lawsuit.
Turning to civil law principles, the Ninth Circuit informed both the DOJ and the lower court that when a party seeks to moot a cause of action based on a decision to cease the wrongful conduct alleged in the action, the party has a burden to show the court that “wrongful behavior [cannot] reasonably be expected to recur.”
Against that legal backdrop, the appeals court said that the government’s “mere announcement that Fikre was removed” from the No Fly List did not satisfy this burden. The case was remanded back to the district court.
Neither the district court nor the DOJ learned anything from the remand order.
On remand, the DOJ simply submitted a declaration from a government official saying that Fikre would not be “placed on the No Fly List in the future based on currently available information.” The district court deemed this satisfactory and dismissed Fikre’s lawsuit again.
The Ninth Circuit reversed the district court yet again.
The appeals court essentially said that the law expressed in its first ruling stood and that the government declaration did not offer a reasonable expectation that Fikre would not again be placed on the list. Because the government would not or could not carry its burden to show that Fikre would not again be inappropriately placed on the No Fly List, Fikre’s initial claims of government wrongdoing were not moot.
The government would not give that assurance.
The case made its way to the US Supreme Court. Agreeing with the Ninth Circuit, the high court on March 19, 2024, addressed the mootness issue this way:
“… A case does not automatically become moot when a defendant suspends its challenged conduct and then carries on litigating for some specified period. Nor can a defendant’s speculation about a plaintiff’s actions make up for a lack of assurance about its own. (For that matter, given what little we know at this stage in the proceedings, Mr. Fikre may have done none of the things the government presumes he has, perhaps wishing to but refraining for fear of finding himself relisted.) In all cases, it is the defendant’s burden to establish that it cannot reasonably be expected to resume its challenged conduct—whether the suit happens to be new or long lingering and whether the challenged conduct might recur immediately or later at some more propitious moment. Nothing the government offers here satisfies that formidable standard.”
The Council on American-Islamic Relations (CAIR), the nation’s largest Muslim civil rights and advocacy organization, who filed the case on behalf of Fikre, welcomed the decision as “historic.” Commenting on the Supreme Court’s decision, CAIR stated:
“…Yonas Fikre is an American Muslim who was tortured and imprisoned in the United Arab Emirates at the behest of American officials and then stranded in Sweden because of his status on the No Fly List after he refused pressure from the FBI to become an informant.
“The government took Fikre off the list after CAIR filed suit and tried to argue that Fikre’s case was moot in order to avoid the threat of a court ruling declaring the watchlist unconstitutional. The FBI has previously removed over ten CAIR clients from the No Fly List in response to lawsuits filed by the civil rights group…
CAIR National Deputy Litigation Director Gadeir Abbas, who argued the case for Yonas Fikre before the Supreme Court on January 8th, hailed the decision. ‘The FBI cannot play whack-a-mole with the rights of Muslims. 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.'”
The government is now between the proverbial horns of a dilemma: it can settle the lawsuit with an admission of wrongdoing without disclosing the reasons it placed Fikre on the No Fly List, or it can fight the lawsuit and disclose in discovery the reasons he was placed on the No Fly List—the latter decision would force the DOJ to produce credible, factual evidence that Fikre engaged in the misconduct, which may not exist, that caused his name to be placed on the list in the first place.
Millions of innocent individuals have been wrongly placed on various government watchlists. Fikre, we believe, was one of those individuals. It’s time for this travesty to end.