The Supreme Court Must Allow U.S. Citizens to Challenge Placement on No Fly List

Americans wrongly placed on this harmful and discriminatory list deserve their day in court.

Hina Shamsi, Director, ACLU National Security Project

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. Today, the Supreme Court will hear FBI v. Fikre, a case that 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.

To understand what’s at stake, it helps to know how the No Fly List program functions. Since 2003, the U.S. government has operated a No Fly List that indefinitely bars U.S. citizens and residents from flying to, from, or over the United States. Using vague criteria and a low evidentiary standard, the government exercises virtually unfettered discretion and secrecy in making its No Fly List decisions. Claiming national security, the government says it can keep its reasons and evidence for putting people on the list — or taking them off it — entirely or almost entirely secret. We know that Americans on the No Fly List are disproportionately Muslim and those of Arab, Middle Eastern, or South Asian heritage.

In 2014, in a case filed by ACLU clients, a district court found that the administrative process the government provides to challenge placement on the No Fly List violated due process and required the government to change it. But the process the government then put in place is little better — it still does not provide people with the government’s reasons and evidence for placing them on the list or a fair process to challenge error.

Mr. Yonas Fikre, the respondent in the Supreme Court case, discovered he was on the No Fly List in 2010 and subsequently filed a lawsuit to challenge his placement. Although Mr. Fikre completed the government’s redress process, he was still not given any reasons for his placement on the No Fly List. Six years later, after he filed a federal court challenge, the government removed Mr. Fikre from the list and argued his case could not go forward because it was moot. It also told him that he “will not be placed on the No Fly List in the future based on the currently available information.” But this is not good enough.

In the friend-of-the-court brief submitted by the ACLU, ACLU of Oregon, and Goodwin Procter in support of Mr. Fikre, we 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. We found 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 a plaintiff like 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 in the future. And as we argued to the Supreme Court, because the government has not made it absolutely clear that its allegedly wrongful behavior will not recur, Mr. Fikre’s court challenge is not moot and the courts should hear and decide his case.

Mr. Fikre’s experience is not an isolated one. We and others have repeatedly documented that placement on the No Fly List has devastating consequences for people’s personal and professional lives — and the government has used the list as a tool of coercion. For example, in 2018, Ahmad Chebli, a Michigan-based father of two, was pressured by FBI agents to become an informant in his own community. When he refused, the FBI agents falsely accused him of being affiliated with a terrorist group, and made threats of investigation, arrest, and immigration consequences for his family. Despite terrible anxiety and stress as a result, Mr. Chebli still refused to become an informant. He sent his wife and children to Lebanon for safety and later joined them — hoping that his government would back off. But when he tried to return home to Michigan, he learned that it had instead put him on the No Fly list.

For two years Mr. Chebli tried to use the government’s redress process to seek removal from the list — but that process was a black box of secrecy and unfairness. The government only took him off the list in 2021, 10 days after we sued on his behalf. Unfortunately, this experience is not unusual for Americans placed on the list. Many spend years seeking information about how to be removed, without even learning why the government put them on the list in the first place.

At its core, both the No Fly List and the government’s watchlisting program perpetuates unfairness, secrecy, and discriminatory profiling. The categories of people who are watchlisted seem ever-expanding, never constricting — which is exactly what happens when you have a vague, overbroad system of government surveillance and sanction based on suspicion and without due process. Mr. Fikre, and those like him, should have their day in court. We hope the Supreme Court agrees.

If you are an American citizen or lawful permanent resident concerned that you’re on the No Fly List, please fill out this form.