The U.S. government’s No Fly List is a highly debated system that prevents individuals deemed to pose a threat to aviation security from boarding commercial airplanes. For years, this list has operated largely in secrecy, raising significant concerns about due process, fairness, and potential discrimination. Currently, the Supreme Court is hearing a crucial case, FBI v. Fikre, which could determine whether individuals wrongly placed on the No Fly List have a real opportunity to challenge their inclusion in court. This case highlights the core issues surrounding the No Fly List and what it means for civil liberties in the context of national security.
To fully grasp the significance of FBI v. Fikre, it’s essential to understand what the No Fly List is and how it operates. Established in 2003, the No Fly List is a government database managed by the Terrorist Screening Center (TSC). This list prohibits U.S. citizens and residents, as well as foreign nationals, from flying into, out of, and even over the United States. The criteria for inclusion on the No Fly List are vaguely defined, relying on terms like “suspected terrorist” or “threat to national security.” This ambiguity grants the government broad discretion in deciding who is placed on the list, often with minimal evidentiary standards.
One of the most criticized aspects of the No Fly List is the lack of transparency and due process. The government frequently invokes national security to justify keeping the reasons and evidence for placing individuals on the list secret. This secrecy extends to the process for removing someone from the list. Individuals placed on the No Fly List are often left in the dark about why they were listed and what steps they can take to clear their name. Reports and legal challenges have indicated a disturbing pattern: individuals from Muslim, Arab, Middle Eastern, and South Asian communities are disproportionately represented on the No Fly List.
In 2014, a landmark case brought by ACLU clients challenged the government’s No Fly List procedures. The district court ruled that the existing administrative redress process violated due process rights. The court mandated that the government improve its process for individuals to challenge their inclusion on the list. However, the revised process implemented by the government has been widely criticized as insufficient. It still falls short of providing individuals with a clear explanation of the government’s rationale or a truly fair opportunity to contest their listing.
Yonas Fikre, the plaintiff in FBI v. Fikre, experienced these flaws firsthand. After discovering he was on the No Fly List in 2010, he initiated legal action to challenge his placement. Despite completing the government’s redress process, he received no explanation for his inclusion. Years later, only after filing a federal lawsuit, did the government remove him from the list. Adding to the uncertainty, the government stated that he would not be relisted “based on currently available information.” This conditional assurance is far from satisfactory, as it leaves open the possibility of relisting based on new or reinterpreted information, without any guarantee of transparency or due process.
The ACLU, along with the ACLU of Oregon and Goodwin Procter, submitted an amicus brief in support of Mr. Fikre, highlighting the broader issue of government secrecy and lack of accountability in No Fly List cases. Their research identified 40 U.S. citizens and residents who challenged their placement in court only to have the government withhold the full reasons for their listing. Furthermore, the government has repeatedly used removal from the list as a tactic to avoid judicial scrutiny, effectively preventing courts from reviewing the legality and fairness of the listing process. The government’s vague assurance to Mr. Fikre offers no real security against future wrongful listing and underscores the need for judicial oversight.
The consequences of being placed on the No Fly List are far-reaching and devastating. Beyond the obvious restriction on air travel, individuals on the list often face significant disruptions to their personal and professional lives. In some cases, the government has been accused of weaponizing the No Fly List to pressure individuals into becoming informants. A stark example is the case of Ahmad Chebli, a Michigan resident who was targeted by FBI agents seeking to recruit him as an informant within his community. When Mr. Chebli refused, the FBI retaliated by falsely linking him to terrorism and placing him on the No Fly List.
Mr. Chebli endured two years of bureaucratic obstacles and secrecy while attempting to challenge his No Fly List status through the government’s redress process. He only had his name removed from the list after the ACLU filed a lawsuit on his behalf. Unfortunately, Mr. Chebli’s experience is not unique. Many Americans find themselves trapped in a Kafkaesque system, struggling for years to understand why they are on the list and how to get off it.
The No Fly List is symptomatic of a broader issue: the government’s watchlisting program, which operates with excessive secrecy and insufficient oversight. The categories for watchlisting are constantly expanding, leading to a system ripe for abuse and discriminatory profiling. It’s a system built on suspicion rather than concrete evidence, and one that often lacks fundamental due process protections. The Supreme Court’s decision in FBI v. Fikre offers a critical opportunity to address these systemic problems and ensure that individuals like Mr. Fikre have meaningful recourse to challenge potential government overreach. It is essential for the courts to uphold the principle that even in matters of national security, due process and accountability must prevail.
If you believe you may be wrongly placed on the No Fly List, the ACLU encourages you to fill out their online form to share your experience.
