Court Won't Let FBI Dodge Lawsuit By Removing American Citizen From No-Fly List Shortly Shortly After Being Sued

from the nothing-prompts-the-government-into-action-like-litigation dept

The FBI uses the "no fly" list as leverage. What should be used to keep threats to national security off airplanes is being used to turn people into informants. If someone travels to a country the US government views with suspicion, citizens and legal residents are often approached by FBI agents who use the threat of revoking flying privileges to obtain new info sources.

DOJ policy expressly forbids this sort of behavior, but the FBI doesn't care. It tells the CBP to keep an eye on travelers who visit or originate from certain countries, accost them in the airport, and subject them to invasive searches/interrogations with an eye on converting them to unofficial G-men.

Earlier this year, the Second Circuit Appeals Court said federal agents could be sued for tossing three men on the "no fly" list for refusing to become informants. The Ninth Circuit Appeals Court is saying the same thing. There are procedural differences between the two cases, but in both, the plaintiffs have been allowed to move forward with their lawsuits.

The case [PDF] from the Ninth Circuit deals with the FBI's coercive tactics. An American citizen from Oregon dealt with this after flying to Sudan:

In April 2010, while still in Sudan, Fikre was approached by two FBI agents who questioned him about his association with the as-Saber Mosque in Portland and his commercial finances. The agents told Fikre that he had been placed on the No Fly List, which identifies individuals who are prohibited from flying into, out of, or over the United States and Canadian airspace by commercial airlines. The FBI agents offered to remove Fikre from the list if he became a government informant. Fikre refused.

Then things got a whole lot worse for Yonas Fikre. He went from Sudan to the United Arab Emirates later that year where he was seized, imprisoned, and tortured by UAE police. Questioning centered on the Portland mosque and his captors told him the FBI had requested his detention. Once released, Fikre was trapped overseas. Unable to return to the US because of his no fly list status, Fikre sought refuge in Sweden.

Fikre appealed his no fly status, but the DHS refused to confirm or deny his placement on the list. Following the government's loss in another no fly list lawsuit, the DHS finally confirmed Fikre was on the list but refused to reinstate his flying privileges. The DHS claimed Fikre was a "threat to civil aviation or national security," but refused to provide further details as to why the agency believed this. Sweden's government ultimately expelled him from the country (presumably because the US government had pretty much declared Fikre a terrorist) and his wife left him while he spent a half-decade overseas trying to find a way to travel back home.

Fikre sued the FBI for a variety of Constitutional violations, asking for damages and an admission/declaration from the government that he should never have been placed on the no fly list. The government responded by trying to dodge the lawsuit altogether. It arbitrarily removed Fikre from the list and said that was enough to make all of his claims moot. The lower court agreed, deciding the attempt to dodge the lawsuit was the equivalent of making Fikre whole for the half-decade of overseas screwing he received because he refused to be an FBI informant.

The Appeals Court disagrees with this assessment of the government's attempted mooting. As Fikre points out, there's nothing preventing the FBI from putting him back on the no fly list once the lawsuit has been dismissed. The government points to no reason or underlying policy for Fikre's removal, much less makes any declaration it no longer considers him a national security threat.

[T]he FBI’s decision to restore Fikre’s flying privileges is an individualized determination untethered to any explanation or change in policy, much less an abiding change in policy. The DHS re-evaluated Fikre’s presence on the No Fly List in 2013 and 2015 pursuant to its TRIP procedure and determined that no adjustments to his status were necessary. Indeed, the DHS affirmed as late as March 2015—after it had amended TRIP to conform to the decision in Latif—that Fikre posed “a threat to civil aviation or national security” and it refused to remove him from the No Fly List. Yet it did just that fourteen months later, without explanation or any announced change in policy. [...] This record suggests that Fikre’s removal from the No Fly List was more likely an exercise of discretion than a decision arising from a broad change in agency policy or procedure.

The court grants the government some good faith it hasn't earned by saying it doesn't believe it removed Fikre from the list simply to moot the lawsuit, but notes it has done nothing to assure Fikre or the court that his removal will be permanent or has anything to do with the national security machinations used to strip his flying privileges.

The notice filed by the government averred only that “counsel recently was advised by the Terrorist Screening Center that [Fikre] has been removed from the No Fly List.” Absent an acknowledgment by the government that its investigation revealed Fikre did not belong on the list, and that he will not be returned to the list based on the currently available evidence, Fikre remains, in his own words, “stigmatiz[ed] . . . as a known or suspected terrorist and as an individual who represents a threat of engaging in or conducting a violent act of terrorism and who is operationally capable of doing so.” Because acquaintances, business associates, and perhaps even family members are likely to persist in shunning or avoiding him despite his renewed ability to travel, it is plain that vindication in this action would have actual and palpable consequences for Fikre.

Nothing will be mooted. Fikre can continue suing the government for violating his rights and hopefully obtain a full -- and honest -- declaration that he was never a threat and will not pose one in the future. Short of a big win by Fikre, it's tough to see this litigation resulting in the FBI dropping its informal policy of pressuring people into becoming informants by threatening to strand them in foreign countries. The DOJ's policies aren't worth the paper they're printed on -- not if the FBI continues to use the no fly list as leverage.


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  1. identicon
    ryuugami, 26 Sep 2018 @ 3:46am

    Then things got a whole lot worse for Yonas Fikre. He went from Sudan to the United Arab Emirates later that year where he was seized, imprisoned, and tortured by UAE police. Questioning centered on the Portland mosque and his captors told him the FBI had requested his detention. Once released, Fikre was trapped overseas. Unable to return to the US because of his no fly list status, Fikre sought refuge in Sweden.

    Land of the Free, Home of the Brave.

    You'd think the people charged with protecting a country and everything it stands for wouldn't keep undermining that country and everything it stands for with their every breath, but here we are. Again. *sigh*

    reply to this | link to this | view in thread ]

  2. identicon
    Anonymous Coward, 26 Sep 2018 @ 4:43am

    Mission Creep

    The FBI suffers from mission creep where the goals start undermining the legality of their actions. The FBI has created more plots against the US in the past decade than the rest of the world put together.

    reply to this | link to this | view in thread ]

  3. identicon
    Anonymous Coward, 26 Sep 2018 @ 4:49am

    Re: Mission Creep

    I think the CIA may have that distinction actually.

    reply to this | link to this | view in thread ]

  4. icon
    Stephen T. Stone (profile), 26 Sep 2018 @ 5:30am

    Re: Re: Mission Creep

    Mission creep for everyone!

    reply to this | link to this | view in thread ]

  5. identicon
    David, 26 Sep 2018 @ 5:53am

    Re: Mission Creep

    More like mission creepiness. They confuse loving and molesting their country.

    reply to this | link to this | view in thread ]

  6. icon
    Stephen T. Stone (profile), 26 Sep 2018 @ 6:20am

    Re: Re: Mission Creep

    I think you have them confused with the Catholic Church.

    reply to this | link to this | view in thread ]

  7. icon
    Bees Knees (profile), 26 Sep 2018 @ 6:30am

    Why not a ship?

    Not justifying the stranding, but what would be the reason for not taking a ship back? It's not unusual to have freighters that have a cabin or two for passengers. People have traveled all over using this method although it's much slower and more expensive than flying.

    Or does the DHS have ships locked up too for these people? If he was able to get to UAE, he would have enough travel abilities to get to a port where he could have sailed.


    P.S. That term "flying privileges" makes my nose wrinkle as if the government should be able to declare such a thing.

    reply to this | link to this | view in thread ]

  8. identicon
    Anon, 26 Sep 2018 @ 7:01am

    Re: Why not a ship?

    Also, why not fly to Mexico - the article says "do not fly" applies to the USA and Canada.(Presumably for overseas flights). Fly to Mexico and make his way to the USA by land.

    reply to this | link to this | view in thread ]

  9. identicon
    Anonymous Coward, 26 Sep 2018 @ 7:16am

    You can't unring the bell.

    You can't unring the bell.

    reply to this | link to this | view in thread ]

  10. identicon
    Valkor, 26 Sep 2018 @ 7:16am

    Re: Why not a ship?

    Agreed.
    Not to excuse the FBI in *any* way, but five years seems a long time.

    I'm still glad that the court recognized the issue was not that he was currently on the list, but had been at a time that caused him harm.

    reply to this | link to this | view in thread ]

  11. identicon
    Pixelation, 26 Sep 2018 @ 7:36am

    Re: Why not a ship?

    If he returned, by whatever means, where would he go exactly? His wife left him and his family is shunning him so they don't get harassed as well. It's a rather sinister thing done by the FBI and they know it. I hope his lawsuit succeeds and the ones responsible get tossed in jail or are forced to pay restitution.

    reply to this | link to this | view in thread ]

  12. identicon
    Paul Brinker, 26 Sep 2018 @ 7:52am

    Re: Re: Why not a ship?

    The no fly list is a misnomer, he's blocked from ships as well. It's more like a no transportation list of any kind if it goes anywhere near North America. He would need to go to Cuba or central America on an airline that does not use the list and then try to go by land. Even then he could be blocked at the border.

    reply to this | link to this | view in thread ]

  13. icon
    Uriel-238 (profile), 26 Sep 2018 @ 8:33am

    Remember when the FBI was a law enforcement agency?

    Now its mission is national security.

    How's it doing with that?

    reply to this | link to this | view in thread ]

  14. identicon
    Harley, 26 Sep 2018 @ 8:38am

    Re: Re: Re: Why not a ship?

    If you can get to an immigration control point on US soil with a valid passport, they have to admit you. They may detain you, but you'll be in the US.

    reply to this | link to this | view in thread ]

  15. identicon
    Anonymous Coward, 26 Sep 2018 @ 8:40am

    The Police State

    is alive and well, and well liked by most Americans.

    Regardless of the party in power this shit remains... tell us republicans and democrats how you are really that different from each other then the end result of all your efforts are less liberty and more government control?

    At least the democrats are more honest about the government control part and don't try to lie to the citizens about desiring less government. But they do lie about the "caring" part. The republicans are more honest about the caring part.

    reply to this | link to this | view in thread ]

  16. identicon
    Anonymous Coward, 26 Sep 2018 @ 8:43am

    Re: Re: Re: Re: Why not a ship?

    you are "technically" wrong.

    Being detained is the same as "no entry" immigration control points are essentially constitution free zones where you are NOT technically on US soil as an American citizen/visitor... you are instead on US Government soil where anything can be done to you that the government wants.

    The US Government is America... not the soil or its citizens. All 3 branches of government have already declared this in official rulings and through their actions.

    reply to this | link to this | view in thread ]

  17. icon
    ShadowNinja (profile), 26 Sep 2018 @ 8:50am

    Re:

    But we had to destroy our freedom in order to save our freedom!

    Never forget, the terrorists hate us for our freedoms!

    reply to this | link to this | view in thread ]

  18. identicon
    Anonymous Coward, 26 Sep 2018 @ 9:10am

    Lack of accountability?

    He sounds like he will very much prevail in court and we as tax payers will foot the bill.

    I wonder how much could have been saved if it weren't for the bruised ego's of field agents that couldn't 'turn' their quarry.

    But hell, they've probably been promoted by now.

    reply to this | link to this | view in thread ]

  19. identicon
    Anonymous Coward, 26 Sep 2018 @ 10:08am

    Re: Lack of accountability?

    Two things, #1. The Tax Payers should foot the bill because they vote in the people who rule over them. #2. Exactly how could you change the system so that tax payers don't foot the bill. Make the accused pay the time of the judge, the staff, the building costs and maintenance along with the extraneous law enforcement actions associated with decisions and evidence gathering as a result of bringing and deciding the case?

    This "tax payers foot the bill" whine needs to die an ugly death. It is a comment only made by wholesomely clueless people. Not only is it not feasible for tax payers to avoid paying for everything because the government does not make money under capitalism, but the tax payers SHOULD pay for all of the mistakes because they are supposed to be the ultimate boss of them by voting in people that won't do this stuff and voting out people that do approve of this stuff.

    The only other barrier to that is everyone's tribalism that allows each group to keep & SUPPORT their corrupt politicians because they think that punishing their side first so that they will not send these shitbags next time is less important than stopping the other sides shitbag instead.

    The only result is a race to the bottom and this is exactly how we got and election so fucking bad that people like Hillary and Trump won primaries of their parties as Presidential candidates.

    To everyone bitching about Trump, all I can say is this... your side (Rs & Ds) ran candidates so bad that someone like Trump beat them and you have the nerve to bitch about ethics, intelligence, or decency? It's the twilight zone up in here!

    reply to this | link to this | view in thread ]

  20. icon
    Get off my cyber-lawn! (profile), 26 Sep 2018 @ 10:31am

    The DHS "Hokey Pokey" Edition

    They put your name on the list...
    The take your name back off...
    They put your name on the list...
    you're screwed...

    reply to this | link to this | view in thread ]

  21. identicon
    Paul Brinker, 26 Sep 2018 @ 10:35am

    Re: Re: Re: Re: Re: Why not a ship?

    This is because US Citizens do stupid stuff outside the country. The courts required a system to deal with the fact that people would break US law outside the US and wanted to hold its population accountable anyway.

    Of course now the US says that breaking US law when your not a citizen and not in the US is still illegal, but there not getting to far with that one.

    reply to this | link to this | view in thread ]

  22. identicon
    Anonymous Coward, 26 Sep 2018 @ 10:52am

    Re: Re: Re: Re: Re: Re: Why not a ship?

    "wanted to hold its population accountable anyway"

    Unless it is a profit center for them, like off shore gambling, then it is all very copacetic.

    reply to this | link to this | view in thread ]

  23. identicon
    Anonymous Coward, 26 Sep 2018 @ 10:55am

    Re: The Police State

    The Police State is alive and well, and well liked by most wealthy Americans.

    ftfy


    "The republicans are more honest about the caring part."

    LOL - yeah, they don't give a shit about anyone but themselves and they let you know it in no uncertain terms.

    reply to this | link to this | view in thread ]

  24. identicon
    Anonymous Coward, 26 Sep 2018 @ 10:58am

    Re: Re: Lack of accountability?

    Is it required to pay taxes to an illegitimate government?

    You act as though everyone fits into nice little compartmentalized stereotypes for your convenience, hate to break it to you but that is simply not the case.

    reply to this | link to this | view in thread ]

  25. identicon
    Paul Brinker, 26 Sep 2018 @ 11:23am

    Re: Re: Re: Re: Re: Re: Re: Why not a ship?

    Underage Prostitution is the most common one they go after, that and copyright infringement.

    reply to this | link to this | view in thread ]

  26. identicon
    Anonymous Coward, 26 Sep 2018 @ 11:59am

    Re: Re: Lack of accountability?

    Did we vote in the FBI agents that did this? No.

    Did we vote in the director of the FBI? No.

    Nobody but you even brought up trump... And we technically didn't vote him in anyway, the electoral college did.

    So please take your points elsewhere, as they don't work here.

    reply to this | link to this | view in thread ]

  27. icon
    That One Guy (profile), 26 Sep 2018 @ 1:57pm

    Imagine if that worked in other cases...

    "The defendant is accused of gaining illegal access to the house of the victim, tying them up and leaving them in a closest, and stealing several hundred thousand dollars worth of property from them."

    "Your Honor, I move that this case be dismissed as groundless. The records clearly show that the property in question was returned shortly after the lawsuit against my client was filed. As such it is clear that no crime has taken place."

    "And the act of tying up the victim?"

    "Like I said, the property was returned, so clearly nothing wrong happened here."

    "Hmm... very well, case dismissed."

    reply to this | link to this | view in thread ]

  28. identicon
    Personanongrata, 26 Sep 2018 @ 3:51pm

    Rule of Man

    Short of a big win by Fikre, it's tough to see this litigation resulting in the FBI dropping its informal policy of pressuring people into becoming informants by threatening to strand them in foreign countries.

    What about FBI's other informal policy of using the security forces of foreign nations to arbitrarily detain, interrogate and torture American citizens for.... their amusement?

    What is benefit gained in exiling/torturing American citizens for refusing to become US government snitches?

    How many other American citizens under threat of similar harm have become informants?

    How many others exiled and or tortured?

    What type of government sets up it's own citizens like bowling pins to be knocked down and tortured abroad for refusing to become a rat fink snitches for Uncle Sam?

    Who in their right mind would want to willingly live in a place where people are raised/conditioned/coerced to genuflect upon arbitrary US government command under penalty of exile and torture for all?

    What a wonderful quality of life which has been bestowed upon our nation by the all-powerful, omnipresent and benevolent guiding hand of Republican/Democrat bipartisan stooges. They have created a dystopia (with our tax-dollars) where in 2017 Americans voluntarily (HaHa) remitted on average $17k on a myriad of taxes at the federal/state/local levels while spending only $9k on food and clothing.

    https://www.bls.gov/news.release/cesan.nr0.htm

    'More for government and less for your family' - should be every politicians campaign slogan in 2020. It is a sure-fire winner.

    reply to this | link to this | view in thread ]

  29. identicon
    steve, 26 Sep 2018 @ 3:58pm

    No Fly List = No Due Process

    Some Democrats are outraged that those on the no fly list are able to buy guns. This case demonstrates why they are wrong. What those Democrats really want is to be able to deprive us of our rights, with no due process.

    reply to this | link to this | view in thread ]

  30. identicon
    Anonymous Coward, 26 Sep 2018 @ 4:06pm

    Re: Re: The Police State

    I'm a Republican and I care about any liberal, conservative, socialist or anyone, who is an American citizen, that gets treated like that guy was.

    So the thing is, you're a bigot doing what bigots do, they stereotype entire groups.Go join the KKK, they're your kind of people.

    reply to this | link to this | view in thread ]

  31. identicon
    Anonymous Coward, 26 Sep 2018 @ 4:10pm

    Re: The Police State

    Trump got elected because people think what you do, "Regardless of the party in power this shit remains..." It's why Washington, the deep state, and the media are continuously attacking him.

    Yeah, yeah I know he posts those stupid tweets and all the other nonsense, but he'll bring down the deep state if he gets support and at the moment the nation is thriving.

    reply to this | link to this | view in thread ]

  32. icon
    nasch (profile), 26 Sep 2018 @ 5:32pm

    Re: Re: The Police State

    What is he doing to bring down the deep state?

    reply to this | link to this | view in thread ]

  33. identicon
    Anonymous Coward, 26 Sep 2018 @ 5:34pm

    If you are a dual national, you use your other passport to enter and depart other countries and only use your U.S. one to re-enter the United States. That will keep the US government knowing that you, say, went to Sudan.

    reply to this | link to this | view in thread ]

  34. identicon
    Anonymous Coward, 27 Sep 2018 @ 12:51am

    Re: Re: The Police State

    Deep state. Lol. Looks like someones grandpa is off their meds.

    reply to this | link to this | view in thread ]

  35. identicon
    Anonymous Coward, 27 Sep 2018 @ 12:52am

    Re: No Fly List = No Due Process

    Citation?

    No of course not.

    Now get your dumb ass back to infowars where it belongs v

    reply to this | link to this | view in thread ]

  36. icon
    Uriel-238 (profile), 27 Sep 2018 @ 1:44am

    No guns if on no-fly

    That was one of the issues that came up in the numerous times it was suggested, but the notion disappears once it raises the uncomfortable matter that the no fly list is a violation of the right to due process.

    Rather than address the no fly list, our legislators stop mentioning it again.

    It's still an issue.

    reply to this | link to this | view in thread ]

  37. identicon
    Anonymous Coward, 27 Sep 2018 @ 3:15pm

    If applied to the same legal standards as mere mortals....

    That move would be basically taken as an admission of guilt within court.

    reply to this | link to this | view in thread ]

  38. icon
    Coyne Tibbets (profile), 27 Sep 2018 @ 11:51pm

    Re: No Fly List = No Due Process

    Ah, yes, the usual b******* straw man argument about the Democrats and guns.

    What the no fly lists do is crap on citizen rights.

    Take these men: Their right to liberty? Crapped on. Pursuit of happiness? Crapped on. Due process? Crapped on. Redress? Crapped on. Representation? Crapped on. Ban on cruel and unusual punishment? Crapped on.

    Right to life could have been crapped on, too, in that UAE prison but they survived. (I can just hear the FBI agents complaining, "Why can't we crap on that, too? It would be so much easier to get rid of this infernal court case if these men were dead.")

    Even the right to bear arms...well, these men might still have that here in the US...but they couldn't get here, could they? Crapped on.

    So what were the Democrats up in arms about?

    Because the Republicans passed a law that barred the government from using no fly to interfere with Second Amendment rights. In essence, what that law says is, "Thou shalt respect the citizens' Second Amendment rights even if they are on the no fly list...BUT OTHERWISE WE ARE FINE WITH YOUR USE OF NO FLY TO CRAP ON EVERY OTHER CITIZEN RIGHT. Life? Liberty? All those other rights? Crap on those at will. But not our SACRED SECOND AMENDMENT COW!"

    And that is what the Democrats were up in arms about.

    reply to this | link to this | view in thread ]

  39. identicon
    Anonymous Coward, 30 Sep 2018 @ 4:16pm

    Re: Re: Re: The Police State

    No, actually they are your kind of people...

    reply to this | link to this | view in thread ]

  40. icon
    Seegras (profile), 30 Sep 2018 @ 11:43pm

    Re:

    It's not just an exception; it's the default.

    Hoarding zero-day exploits and asking for backdoors for "lawful interception" is ALSO undermining the security of the country and all the infrastructure and inhabitants. But still secret services and police forces do it.

    reply to this | link to this | view in thread ]

  41. icon
    Dave Cortright (profile), 6 Oct 2018 @ 10:46pm

    Sunlight is the best disinfectant

    If I am ever questioned by the FBI, CIA ICE or really any other government enforcement agency, I'm going to livestream it. If they are unwilling to say it on camera, then it was not a legit request to begin with. and if they are, well then it's either legit, or it's fantastic evidence for the subsequent lawsuit.

    reply to this | link to this | view in thread ]


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