Why All Americans Should Welcome 9-0 SCOTUS Ruling Against the FBI in Watchlist Lawsuit

By Gadeir Abbas & Zara White

Earlier this year, the Supreme Court issued a major ruling that all Americans—liberals and conservatives, originalists and living constitutionalists, and everyone in between— should celebrate. 

In a 9-0 decision, the U.S. Supreme Court allowed a lawsuit challenging the abuses of the federal government's secretive so-called terror watchlist to move forward over the objections of the FBI. Our civil rights group, the Council on American-Islamic Relations, filed the lawsuit years ago on behalf of an American citizen on the list, Mr. Yonas Fikre.

Mr. Fikre, who was tortured and imprisoned in the United Arab Emirates at the behest of American officials, had been stranded in Sweden because of his status on the No Fly List after he refused pressure from the FBI to become an informant. After CAIR filed suit, the government took Fikre off the list and tried to argue that Fikre’s case was moot in an apparent attempt to avoid the threat of a court ruling declaring the watchlist unconstitutional. The FBI has tried the same escape route before, removing over ten CAIR clients from the No Fly List in response to lawsuits we filed.

This time, the government's escape strategy didn't work.

The Supreme Court unanimously ruled that our lawsuit is still live and can move forward given that the government's refusal to sufficiently explain why Mr. Fikre was placed on the list in the first place leaves open the possibility that the government could relist him in the future.

The Court’s ruling represents a major victory for not only American Muslims who have been disproportionately targeted by the federal government’s flawed watchlisting system, but every American who cares about due process of law.

For too long, the No Fly List has operated without transparency or meaningful redress procedures, enabling the government to deprive citizens of their freedom of movement based on vague criteria and without affording them notice of the reasons or a fair opportunity to challenge their placements on the list. The No Fly List, along with the FBI’s so-called Terrorism Watchlist, has severely affected the lives of innocent American Muslims.

One case that CAIR has been litigating involves an Air Force veteran who was repeatedly pulled over by Oklahoma police officers, once with guns drawn, because his name shows up on the watchlist that has been distributed to local law enforcement. We have represented other clients who have been separated from their families for years because they cannot enter the country due to their placement on the No Fly List or Watchlist. By allowing CAIR’s lawsuit to proceed, the Supreme Court has sent a strong message that the government cannot turn the Constitution on and off like a faucet without facing any accountability. Vague appeals to national security do not trump the rule of law.

 The decision also opens the door for much-needed judicial scrutiny of the No Fly List and will hopefully lead to reforms to rein in this easily abused system. While, yes, it’s difficult to agree on the proper balance between liberty and security, it’s indisputable that a system that empowers the government to secretly blacklist citizens and restrict their travel without due process is anathema to American values. The Court’s unanimous ruling reaffirms that even in perilous times, we must not abandon the fundamental safeguards enshrined in our Constitution against arbitrary measures to deprive citizens of their freedoms. 

The timing of this victory overlaps with the recent congressional debate leading to the temporary renewal of Section 702 of FISA, which has highlighted the federal government's overreach in surveillance practices. 
As it stands, the recently renewed law permits government agencies like the FBI to collect phone records and internet activity of foreigners overseas even if they interact with American citizens. This allows the government to scoop up vast amounts of data on Americans without warrants, including phone records and internet activity. This unchecked surveillance has led to abuses against various Americans, including activists, journalists, and even elected officials like Congressman Darin Lahood (R-IL). 

No one, whether liberal or conservative, Christian or Muslim, immigrant or citizen, should feel satisfied with the notion that the government can spy on your international communications without a warrant or place you on a secret watchlist without notice, an explanation, or an opportunity to challenge the decision.

That is why the Supreme Court’s 9-0 decision marks an important step forward in the fight to defend the rights of all Americans in the post-9/11 era of government overreach and hold the federal law enforcement and intelligence agencies accountable for abuses committed in the name of national security. While much work remains to be done, the Court’s ruling represents a historic milestone in this struggle. The unanimous rebuke to the government’s attempt to insulate the No Fly List from judicial review sends an unmistakable signal that no Americans, including American Muslims, are second-class citizens that the government can relegate to a legal black hole. 

As Yonas Fikre’s ordeal illustrates, the watchlist system as currently constituted is ripe for abuse and discrimination. Until Congress exercises its authority to regulate or end this Orwellian system,  the judiciary must act as a check on executive overreach. Only then can we be assured that the liberties of all Americans – regardless of religion, race, ethnicity, or political persuasion – are being adequately safeguarded.

Gadeir Abbas is the Senior Litigation Attorney at the Council on American-Islamic Relations (CAIR). Zara White is a communications intern at CAIR and a student at Georgetown University’s Walsh School of Foreign Service pursuing a degree in International Affairs with a focus on the Middle East and North Africa.