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.

PDF: Ninth Circuit Opinion on challenge to FBI No-Fly List