Four individuals challenging the federal government’s airport security policies asked the Supreme Court this week to review the Department of Homeland Security’s terrorist watchlists.
CAIR is representing the petitioners, Adis Kovac, Bashar Aljame, Abraham Sbyti, and Fadumo Warsame. All four are U.S. citizens and Muslims.
The lead respondent is Christopher Wray, who is being sued in his official capacity as director of the Federal Bureau of Investigation (FBI). Wray announced this month that he will resign on Jan. 20, 2025, the day of President-elect Donald Trump’s inauguration. Trump has nominated Kash Patel as his successor.
Under dispute in the case is the Terrorist Screening Database, which is overseen by the Terrorist Screening Center at the FBI. The federal government says that the database is needed to protect the United States from terrorist attacks.
The database produces two sub-lists. The No-Fly List bars individuals from flying, and the Selectee List requires individuals to go through additional security screening before boarding.
Three of the petitioners—Aljame, Sbyti, and Warsame—said they were on the Selectee List because they have repeatedly been subjected to extra screening, extended interrogations, and searches. The other petitioner, Kovac, said he was on the No-Fly List because he was denied boarding, according to court papers.
The petitioners applied under the DHS Traveler Redress Inquiry Program, which permits individuals who feel they should not have been subjected to enhanced screening or prevented from flying to ask officials to review their status and change it based on new information.
The federal government will neither confirm nor deny if an individual is on the Selectee List, but those on the No-Fly List are advised of their status and may dispute it in court.
DHS provided the three petitioners with “no-confirm-no-deny” letters regarding their presence on the Selectee List. The agency advised Kovac his name was on the No-Fly List.
The four petitioners sued various federal agencies, hoping to be removed from the lists.
They argued that Congress never provided clear authorization to the agencies to create the watchlists, which is a violation of the Supreme Court’s major questions doctrine. The doctrine requires courts to presume that Congress doesn’t delegate important policy questions to government agencies.
A federal district court in Texas found in 2023 that “the current patchwork of applicable caselaw obligates courts to employ a two-pronged analysis” to evaluate major-questions claims, the petition said.
Under the doctrine, a court first has to decide if “the power an agency asserts is of vast economic and political significance.” Second, the agency has to “point to a clear congressional authorization permitting its action.”
The court found that the major questions doctrine applies to the case because more than a million people are on the list, and an “unlimited number of people” could be added to it, so the “liberty intrusions that flow from the watchlist are significant.”
But the court ruled against the petitioners, holding that “Congress has repeatedly ratified” the watchlists.
The petition said the Supreme Court should take up the appeal to defend the major questions doctrine, which the circuit court did not rule on.
“If the Government is going to run a sprawling multi-agency program that destroys the lives of innocent Americans without a hearing or even evidence of any crime, the least our judiciary could demand is that Congress enact the program. But it hasn’t.”
The Epoch Times reached out for comment to the U.S. Department of Justice, which represents Wray, but did not receive a reply by publication time.
