US appeals court boosts Muslim American's challenge to 'no-fly' list

A US court of appeals ruled on Thursday that a Muslim American who says he was tortured at the behest of US anti-terrorism officials can sue the government for placing him on the "no-fly list".  

Yonas Fikre, an Eritrean-born American citizen who lives in Portland, Oregon, found himself unable to return to the US after a business trip to Khartoum in 2010.

He says that he was brought to the US embassy in Khartoum under false pretences to be interviewed by intelligence officers who asked questions about a mosque he attended in Oregon.

The "no-fly" list is created and maintained by the US government's Terrorist Screening Centre, a division of the national security branch of the FBI. Other members of the Oregon mosque were placed on the list. Fikre has said that it is being used to intimidate Muslim Americans into spying on behalf of the American administration. 

In Khartoum, the intelligence agents allegedly tried to recruit Fikre as an informant; he says he refused. 

Torture in UAE

Fikre was able to fly to the United Arab Emirates, where he settled in autumn 2010.

In 2011, he was arrested in the Gulf state, where he endured "multiple threats and beatings" by English-speaking interrogators who again asked him about the mosque in Oregon, mirroring the FBI's inquiries in Sudan, according to the lawsuit. His ordeal in an Emirati jail lasted for 106 days, court documents say.

The lawsuit alleges that Fikre contemplated suicide or a hunger strike to stop the abuse, but was told he would be force-fed.

"Near the end of his detention, Fikre again asked an interrogator whether the FBI had requested his detention and interrogation," the lawsuit reads. "This time the interrogator confirmed the FBI had made such a request and that American and Emirati authorities work closely on a number of such matters."

Fikre described the UAE interrogations in a 2015 interview with the Guardian.

"I refused to answer questions. That’s when the beating started," he told the newspaper. "They started with punches, slaps. They got tired of that so they brought water hose. There’s the hard ones, the black ones, and there’s the soft ones. The soft kind they would use for strangling. When I refused to answer, they put that thing on my neck. They had me lay down and beat me on the soles of my feet. They beat me on the back constantly."

Even after he was released in the UAE, he could not return to the US because he was still on the "no-fly list".

The list was created after the 11 September 2001 attacks to prevent potential militants from boarding US flights. Critics of the measure argue that it robs individuals of their freedom to fly without presenting evidence or giving them a chance to defend themselves.

Fikre's lawsuit alleges that the US government violated his constitutionally protected right to due process.

In 2011, he travelled to Sweden where his bid for political asylum was rejected.

He did not return to the US until 2015, when the Swedish government put him on a Portland-bound private jet. He remained on the list until 2016. His lawsuit against the US government was dismissed by a district judge in Portland because he was no longer on the no-fly list.

On Thursday, the 9th Circuit Court of Appeals ruled that Fikre has standing to sue because of the hardships that the government's actions still cause him, including damage to his reputation.

Judge Morgan Christen said in the ruling that Fikre remains stigmatised if the government does not acknowledge that he did not belong on the list, which ties him to terrorism.

"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," Christen wrote.

Due process

The Council on American Islamic Relations (CAIR), which has been advocating for Fikre, welcomed the ruling.

"This decision will give Yonas Fikre his day in court to challenge the government's ability to place innocent Americans - people who have not been charged, arrested, or convicted of a terrorism-related offense-on its no-fly list," CAIR National Litigation Director Lena Masri said in a statement.

"The 9th circuit authored a well-supported opinion upholding due process, making it clear, saying: 'I won’t do it again, trust me,' just isn’t enough when one’s very liberty and reputation is at stake.''

Nabih Ayad, a Detroit-based civil rights attorney who has represented several people placed on the list, including a paralysed man, said the decision opens the door for people who have been victimised by the list to seek damages from the government.

Ayad, who is not involved in Fikre's case, called the list "discriminatory".

"The government paints with a very wide brush, and it's targeted mostly towards people of our community, the Arab American and Muslim community," Ayad told Middle East Eye.

He explained that the FBI and Justice Department handle the no-fly list, but any agency can nominate individuals to be placed on it.

While there is a procedure to file a complaint with US aviation authorities to be removed from the list, Ayad said he does not know of anyone who has been able to regain the freedom to board an airplane through administrative means.

"The only ones who were ever able to get off had to bring a federal lawsuit, and not everyone has the know-how or the money or the privity to a federal constitutional attorney who knows how to deal with those issues," Ayad said.

In 2014, a federal judge ruled that the list is unconstitutional, arguing that travel is a "necessary aspect of liberties".

The ruling prompted the government to introduce changes to the list, including reforming the appeals system.

Still, rights advocates say the reforms do not go far enough because the government does not provide the reasons for placing people on the list, making it impossible for targeted individuals to challenge them.