ACLU Cheers Supreme Court Decision to Allow No Fly List Challenge to Continue

WASHINGTON — The Supreme Court today ruled in FBI v. Fikre that a U.S. citizen can continue to challenge his placement on the No Fly List, after the government removed him from it and sought to end his case.

Mr. Yonas Fikre, the respondent in the case, discovered he was on the No Fly List in 2010 and subsequently filed a lawsuit to challenge his placement. The government removed him from the list in 2016 and argued that his challenge could not proceed because it was moot. After two Court of Appeals decisions ruling in Mr. Fikre’s favor and rejecting the government’s attempt to end the case, the government appealed to the Supreme Court. The American Civil Liberties Union, ACLU of Oregon, and Goodwin Procter filed a friend-of-the-court brief in the case, asking the court to rule for Mr. Fikre.

U.S. citizens and residents on the No Fly List are indefinitely barred from flying to, from, or over the United States. People wrongly placed on the list are stigmatized as terrorism suspects and denied a fair process to clear their names. Americans on the No Fly List are disproportionately Muslim and those of Arab, Middle Eastern, or South Asian heritage.

“In case after case, we’ve seen the government remove people from the No Fly List and prevent their legal challenges from being heard with no guarantee that the government will not wrongly place them on the List again. With this decision, the Supreme Court has ensured that an American challenging his No Fly List placement is actually given his day in court and we are delighted for Mr. Fikre,” said Hina Shamsi, director of the ACLU’s National Security Project. “For decades, rights groups have documented the secrecy and unfairness of the No Fly List program and its devastating consequences for people's lives, yet the program has remained a black box. Not only are people left in the dark about why they've been placed on the list, they are not given any meaningful explanation when they are removed, or any guarantee against being wrongfully placed on the list in the future.”

The ACLU has long challenged the constitutionality of the No Fly List, representing numerous Americans who have been left to languish on it — impacting their ability to be with their families, go to school, and travel for work. In its amicus brief, the ACLU identified 40 U.S. citizens and residents who challenged their placement in court, and found that the government kept secret the full reasons — or any reason — for placing each of them on the list. The ACLU argued that the government has repeatedly acted to prevent judicial review by taking people off the list at strategic points in litigation. As a result, a government statement that Mr. Fikre would not be relisted “based on currently available information,” provided no assurance that the government would not wrongly put him back on the list.

FBI v. Fikre is part of the ACLU’s Joan and Irwin Jacobs Supreme Court Docket.