ACLU Urges Supreme Court to Allow No Fly List Challenge to Continue

WASHINGTON — The American Civil Liberties Union, ACLU of Oregon, and Goodwin Procter today filed a friend-of-the-court brief in the Supreme Court case FBI v. Fikre, which will determine whether 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.

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.

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 ACLU is asking the Supreme Court to rule for Mr. Fikre.

“In case after case, we’ve seen the government remove people from the No Fly List and prevent their legal challenges from being heard. Now the Supreme Court has the chance to ensure Americans wrongly placed on this List are actually given their day in court,” 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 remains 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. We urge the Court to see through this disturbing pattern.”

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 the brief, the ACLU identifies 40 U.S. citizens and residents who challenged their placement in court and finds that the government kept secret the full reasons — or any reason — for placing each of them on the list. The ACLU argues 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 will not be relisted “based on currently available information,” provides no assurance that the government will not wrongly put him back on the list.

ACLU’s amicus comes on the heels of a long-awaited report from the U.S. Senate Committee on Homeland Security & Governmental Affairs, detailing the drastic increase in U.S. watchlisting and its infringement upon Americans’ constitutional rights.

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