Today brings a limited but interesting decision from the Supreme Court. It involves Yonas Fikre, a US citizen from Sudan, who was placed on the no-fly list 15 years ago. Here's the summary:
Mr. Fikre alleged that he traveled from his home in Portland, Oregon to Sudan in 2009 to pursue business opportunities there. At a visit to the U. S. embassy, two FBI agents informed Mr. Fikre that he could not return to the United States because the government had placed him on the No Fly List. The agents questioned him extensively about the Portland mosque he attended, and they offered to take steps to remove him from the No Fly List if he agreed to become an FBI informant and to report on other members of his religious community. Mr. Fikre refused.
The whole affair is even worse than this: Fikre informed the US embassy of his business plans when he entered Sudan and was subsequently invited to lunch—where he was told he couldn't return to the US. A few weeks later he traveled to the UAE, where he was held and tortured for months at the instigation of the US. Fikre then ended up in Sweden, where he filed suit, and eventually returned to Portland years later on a private jet. After Fikre sued, the government took him off the no-fly list and then argued that the case was moot and should be dismissed.
This went back and forth for several years, and the Supreme Court's decision today was a limited one. All it says is that the government can't moot its own case and prevent judgment by the simple expedient of withdrawing:
Were the rule more forgiving, a defendant might suspend its challenged conduct after being sued, win dismissal, and later pick up where it left off; it might even repeat “this cycle” as necessary until it achieves all of its allegedly “unlawful ends.” A live case or controversy cannot be so easily disguised, and a federal court’s constitutional authority cannot be so readily manipulated.
The ruling was unanimous, but it doesn't mean Fikre has won on the merits of this case. It only means that he'll have his day in court—where the government will undoubtedly insist that national security would be devastated if it explained the reasons Fikre was placed on the no-fly list in the first place. The Supreme Court has been generally receptive to this argument, so there's no telling how the case will pan out.
The secret no-fly list is like civil asset forfeiture: something I flatly don't understand. It's inexplicable to me that the government can routinely strand citizens overseas without having to explain itself in any way, just as it's inexplicable that the government can seize assets just because it suspects they're adjacent to a crime. Neither of these things seem even remotely compatible with the notion of due process or the truism that you're innocent until proven guilty. I am gobsmacked that either of them has been allowed to continue.
I wouldn't be surprised if the courts disagree, but for me the fact that they IMMEDIATELY removed him from the no-fly list once he filed suit should be considered very strong evidence that there were no legitimate national security reasons to put him on it in the first place.
Of course, it's theoretically possible that they just happen to clear him from suspicion at that exact time but claiming that is laughable and should require actual strong evidence from the FBI.
i'd feel better if civil forfeiture was applied impartially
but regardless of the number of crimes committed, no cop shop is gonna confiscate trump tower or the trumpco jet
Well, maybe not for any future criming ... but it's a cinch Lititia James will be seizing both within the month.
"applied impartially" doesn't mean anything.
Oh, and Trump's money woes have nothing to do with civil asset forfeiture.
I don't care the reasons behind the list, the fact that there's basically no lawful way to comply and retain the freedom of travel that is in fourteenth amendment.
That they don't provide a means for him to either get off it or comply with extra security is bullshit.
Crissa, the Fourteenth Amendment only pertains to things that happen within the US.
"nor deny to any person within its jurisdiction the equal protection of the laws"
So if you aren't in the US you aren't within any jurisdiction that answers to the US Constitution.
There's a fair bit of evil done under that banner, to be sure.
Yes, I understand the current court is illegitimate.
But by definition, if a US law or policy is what's blocking you, you are under its jurisdiction.
And besides, he's a US resident in Portland, OR.
The no-fly list doesn't just apply to people getting on planes in foreign countries to the US. And it would be stupid to say US customs pre-checks were not under US jurisdiction.
+1
It isn't the current court. It's a loophole in the law that has been around for a long, long time and is very, very hard to get rid of. Which gets exploited by a wide variety of parties.
I guess my point is that this has to be addressed as a problem with policy (in this case the policy and procedures of the FBI) as opposed to a problem with law.
Thought it also seems as though you are addressing the "no-fly" list in general, as opposed to the specifics of Fikre.
As a US citizen, not just a resident, I can be searched for no reason before I am allowed to re-enter the country. This is because of the jurisdictional business.
As much as I endorse your displeasure with these circumstances, I'd like to see the issue correctly attributed.
If you read more Kafka you wouldn't be in such a quandary.
LOL
You want an easy explanation? 50+ years of solid Republican majorities on the Supreme Court, increasingly reactionary. The only expansions of civil rights have been in a few areas where society had changed--gay rights and right of women to work.
The main line has been a reversal or limitations of previous rights (racial equality, voting, abortion, 4th amendment), with rights not being extended to new situations (electronic surveillance, travel, torture, civil forfeiture)
" The only expansions of civil..."
The rights of rich people to bankroll politicians was also expanded substanially.
I grew up at a border crossing. Seriously, the Canadian border was maybe 6 blocks away from my high school. Many of my teachers took summer work with Customs and Immigration (the border crossing had very high summer traffic).
One of the things I learned is that even as a US citizen, certain rights did not apply if you were outside the country trying to return. For instance, you can be searched for no reason at all.
I don't support Mr. Fikre's treatment. I only mean to highlight the legal foundation of this kind of thing. I am glad to see the Court place bounds on it.
I remember a number of years ago returning from British Columbia to Washington State after a nice vacation wandering about Vancouver, wine touring through the Frazier Valley, hiking various parks in and about the city, and doing a lot of good dining. It was in the summer.
When we drove back to get into the US, it was quite warm, and our US Customs agent was totally slumped in the booth (with insufficient air conditioning). He started asking questions very slowly, so I replied in very low register, quietly, and slowly. He kept shrinking down in the booth. Finally, his hand, but not his face, came up and handed back our passports and drivers licenses and we drove south.
I really think that if I'd talked a bit longer, he would have gone comatose.
Close, but not quite there. Governments can, and frequently do, successfully moot cases. Along the similar line of how a prosecutor can withdraw a case with or without prejudice, here, the federal government has on par failed to withdraw with prejudice. Fikre is still exposed to a real, live risk of being placed on the no-fly list.
Yeah, withdraw, but that doesn't make a case moot.
The WHOLE US legal system is a ridiculous mess. I think I saw someone say this the other day. Everybody talks about obvious problems like the Senate or the winner take all nature of state wide elections, but hardly anybody dares to say what a mess the legal system is. (To call it a justice system is an affront.)
Fixing the legal system is the job of elected politicians. So fixing the elections to get better ellected politicians is the first step to fix the legal system (and many other issues).
Constitutional rights have been waived before, for example in the Civil War, on the grounds of national security in a war emergency. Since 2001 at least we have been in an unofficial state of war, the "War Against Terror". Of course according to the Constitution war must be declared by Congress and this has not been done since 1941. National security is presumably the rational for the no-fly list, but the seizure of property seems to be explicitly forbidden in the Constitution and there is no national security excuse for it.
Forfeiture is legal because as-applied, it predominantly is used against poor people and minorities. We all know the cliche about protecting those whom the law does not bind and vice-versa. This is how that looks in practice.
And borders are special, in sovereign terms, in ways I do not like. But that's a global thing, not just the US. Do-not-fly is not quite border enforcement, but tends to be close enough for judges to stop caring. And again, if you're important or wealthy, you are unlikely to be added to the list in the first place, so it really only hurts the little, or brown, people.
Kevin of course knows this.
Another strange “no due process” is the use of TROs in divorces, I now tell my patients that the first person to file a TRO wins… the loser loses the house, kids, assets, and it seems that there is no penalty to making up pure fiction as the reason for the TRO…
And for those who file a TRO against a real threat, it doesn’t protect them from getting executed by their ex…
I am sure someone has a more educated nuanced understanding of the TRO, but it seems useless at best and often and easily abused in practice…
Threatening Rain Outside?
Teens Reaching Out?
Trainers Repeating Orders?
temporary restraining order.......
My view has long been that if a government agency is considering putting somebody on a no-fly list or anything similar, they should be required to notify that person in advance and some accessible process should be available to have a hearing on the merits before the name goes on the list.
We’re all going on the no fly list when trump becomes president for life. You’ll lose your job and property too.
The no-fly list and the set-up are concerning, but shouldn't we be paying more attention to the torture part?
As I understand it, the Supremes affirmed asset seizure in the early 20th Century. The statute has a long history, and comes under maritime law. It has to do with the seizure of pirate ships, because it was difficult to learn who were the real owners. I agree completely that it needs to be thoroughly reformed, but that ain't gonna happen as long as police forces make money from the present statutes.