Targeting Civilians in the Name of National Security: How the No Fly List Perpetuates Post-9/11 Discrimination and Individual Rights Violations

Cheyenne Knavel

In 2024, the Supreme Court issued its decision in FBI v. Fikre, a case in which a U.S. citizen was unlawfully placed on the No Fly List in retaliation for his refusal to become an FBI informant, and, as a result, he was arrested, imprisoned, and tortured. While the full implications of Fikre’s procedural holding have yet to be revealed, this case is a reminder that the No Fly List perpetuates the discrimination and individual rights violations of the post-9/11 era. The No Fly List threatens individual liberties through discriminatory profiling, frequent false positives, and its use as a means for FBI retaliation against civilians, all while lacking an effective administrative grievance procedure. As the U.S. government has since designated domestic terrorism as a primary terrorist threat, it becomes increasingly clear that the No Fly List is incompatible with the present national security landscape.

This Comment argues that the No Fly List’s systematic use of racial and religious profiling, discretionary watchlisting criteria, and lack of transparency and oversight result in a pattern of individual rights violations and discrimination against Muslim individuals. It proposes a framework for reform to eliminate these detrimental impacts without compromising national security objectives. Part I first introduces the No Fly List’s origins, assesses the criteria for nominations, examines the prevalence of false positives and profiling, and evaluates the current administrative redress procedure used to challenge nominations. It then discusses the No Fly List’s role in the changing national security landscape, the Court’s holding in Fikre, and the use of the List as a tool for retaliation and targeting Muslim communities.

Part II analyzes how the composition of the No Fly List is shaped by discriminatory profiling, as permitted by the national security exception; its vague, circular criteria and low evidentiary standard that permit nominations with little basis and open the door for immeasurable abuses; and its disproportionate power controlled by an executive agency, which unnecessarily deprives the public of transparency while lacking a meaningful oversight procedure. This Part further contends that Fikre is a positive step toward access to justice for individuals harmed by the No Fly List but ultimately neglects to address the systemic causes that perpetuate this harm. It will then propose a three-pronged approach for reform: (1) Eliminate the exception permitting federal law enforcement to utilize racial, religious, and other discriminatory profiling in the national security context; (2) revise the watchlisting criteria for clarity and eliminate exceptions that undermine the purpose of the reasonable suspicion standard; and (3) increase transparency and oversight by releasing the watchlisting criteria to the public and designating a specific body to conduct oversight through regular, comprehensive review.