Supreme Court Refuses to Shoot Down No-Fly Case

This morning, the U.S. Supreme Court allowed a case of allegedly wrongful placement on the No-Fly List to go forward in FBI v. Fikre. The FBI sought to dismiss the case as moot because it had removed Mr. Fikre from the list. The Court held that this was insufficient for mootness because the FBI had not refuted the possibility he would be placed on the list again.

The decision was unanimous. Justice Alito added a brief concurrence, joined by Justice Kavanaugh, “to clarify my understanding that our decision does not suggest that the Government must disclose classified information to Mr. Fikre, his attorney, or a court to show that this case is moot.” Revealing classified information — even to the district court itself — can be hazardous to national security and to the persons who provide essential information to the government on such matters. Justice Alito notes, “Indeed, some of the Nation’s 600-plus district courts are poorly positioned to handle classified documents, and most court personnel lack security clearance.” “Poorly positioned” is an understatement. Even if the district judges can be trusted (which is by no means certain in all cases), they rarely work alone. Among the clerks and other personnel there are, no doubt, people who would gleefully leak the identities of informants to our adversaries.

The decision is correct as to the law of mootness, but great care is required in its implementation.