Abstract
Excerpted From: Cheyenne Knavel, Targeting Civilians in the Name of National Security: How the No Fly List Perpetuates Post-9/11 Discrimination and Individual Rights Violations, 84 Maryland Law Review 1043 (2025) (84 Footnotes) (Full Document)
In the period following the September 11, 2001, terrorist attacks (“9/11”), Americans came together in a moment of national unity. This notion of national unity, however, was a pretense for a violent and divisive form of purported American patriotism: The post-9/11 period saw a sharp increase in hate crimes committed against Muslim, Arab, Middle Eastern, and South Asian individuals, with perpetrators characterizing these acts as patriotic. The predominant sociopolitical narrative in the country became one centered on violent retribution against “Islamic terrorists” as a common enemy. A key feature of this cultural moment was the suppression of dissent, particularly with regard to opposition to the Bush administration and the War on Terror. Capitalizing on this cultural climate, the Bush administration stoked the flames of the nation's anger to use as justification for war, torture, increased surveillance, and the expansion of executive power. The federal government, in its newly enlarged role, created the No Fly List as part of its stated aim “to protect Americans and defeat violent extremism.”
The No Fly List is demonstrative of the flawed domestic policy of its time, as it gives an executive agency, operating largely in secret, the power to deprive individuals of fundamental rights with minimal basis to do so. Moreover, the No Fly List functions as part of a broader regime that weaponizes a threat of purported “Islamic terrorism” to target Muslim communities and harm innocent individuals. More than two decades after its creation, the No Fly List continues to employ these very same practices, as a vestige of post-9/11 policies that sacrifice individual liberties for the sake of national security goals.
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.
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The No Fly List weaponizes national security interests as justification for individual rights violations and systematic discrimination against Muslim individuals. This Comment proposes a framework for reform that ends federal law enforcement's free pass for racial and religious profiling, promotes a practicable nomination standard to prevent abuses of power that harm innocent individuals, and ensures a system for accountability. We are currently living in the wreckage caused by post-9/11 policies, and the No Fly List, as it stands, actively perpetuates this painful legacy. Fikre, while presenting a sign of progress, also serves as a harsh reminder of the No Fly List's failings that necessitate substantial change. The structural reforms proposed in this Comment seek to turn the tide and begin a new era where national security policies protect civilians rather than harm them.
J.D. Candidate, 2026, University of Maryland Francis King Carey School of Law.
