On December 19, the Liberty Justice Center filed an amicus brief with the U.S. Supreme Court in FBI v. Fikre, a case about whether the government can dodge citizens’ attempts to assert their constitutional rights via gamesmanship.
In 2010, Yonas Fikre, a Muslim American man from Portland, Oregon, was on a business trip to Sudan when he discovered he had been placed on the FBI’s No Fly List—with no notice and no explanation. Fikre claims that FBI agents told him they would let him fly home if he agreed to become an informant about a mosque he had attended in Portland. He declined and was stranded abroad, unable to return home, for four years.
In 2012, Fikre sought asylum in Sweden and, in 2013, he sued the FBI for violating his Fifth Amendment right to due process. In 2016, the FBI removed Fikre’s name from the No Fly List and moved to dismiss his case, arguing that the lawsuit was now moot because the government had taken him off the list and had no current plans to put him back on it. At no point did the FBI explain its reason for putting him on the list—or its reason for finally taking him off it.
The Ninth Circuit Court of Appeals ruled that the case was not moot, under a well-settled rule that the government cannot avoid constitutional review by simply stopping illegal behavior when sued by those whose rights it is violating.
In its amicus brief, the Liberty Justice Center urges the U.S. Supreme Court to affirm the Ninth Circuit Court’s ruling in favor of transparency and accountability. The Liberty Justice Center’s brief argues that the government cannot prevent citizens from asserting their constitutional rights by playing a game of “legal Whac-A-Mole,” taking those who challenge the list off the list to dodge judicial scrutiny.
“At minimum, due process must mean that the fundamental rights of Americans to speak, associate, worship, and travel cannot be abridged by secret lists compiled according to arbitrary standards—or what’s worse, by standards rooted in ethnic background, political affiliation, or religious confession. Yet that is precisely what the programs at issue in this case amount to,” said Jacob Huebert, President of the Liberty Justice Center.
“This case asks the Supreme Court to accept, without explanation, not just the assertion that the government properly and appropriately stranded an American citizen in Sweden for four years, but furthermore the notion that the government can avoid judicial scrutiny by mooting the case of any citizen who sued to challenge its violation of their rights,” said Reilly Stephens, Counsel at the Liberty Justice Center.
The Liberty Justice Center’s amicus brief is available here.