In the Eastern District of Virginia, the Justice Department has been fighting a lawsuit brought by a US citizen, who claims his constitutional rights were violated when he was placed on the No Fly List. The judge has not blindly accepted the government’s state secrets claims and left open the possibility that the government may fail to get the case thrown out. However, the day before a major hearing for summary judgment, the FBI put the US citizen’s brother on the Bureau’s list of “Most Wanted Terrorists.”

When Gulet Mohamed went to renew his Kuwaiti visitor’s visa on December 20, 2010, he was handcuffed and blindfolded by men in civilian clothes, who took him to a location approximately fifteen minutes from the airport.[PDF]. He was kept in detention for over a week and suffered torture.

Interrogators transferred him to a deportation facility on December 28. As Kuwaiti officials tried to deport him, he found out he had been placed on a No Fly List. He remained in the deportation facility for a couple weeks and FBI agents visited him twice. Mohamed believes the agents did this to “pressure him to forgo his right to counsel, submit to invasive questioning and become an informant for the FBI upon returning to the United States.”

Mohamed sued the government for allegedly violating his “constitutional right of reentry into the United States” and denying him “procedural due process.”

Argument on the government’s motion for summary judgment (seeking to have the judge rule in favor of the government without proceeding to trial) was scheduled for January 30.

Yesterday, the FBI placed Mohamed’s brother, Liban Haji Mohamed, on the list of “Most Wanted Terrorists” for providing “material support and resources to a designated foreign terrorist organization.” The government had a warrant that had been stamped and ready for execution since February 7, 2014 unsealed.

The FBI put out a “Most Wanted Terrorist” poster, announced a $50,000 reward for information leading to his arrest and released a YouTube video. The Bureau publicized the listing on social media and Carl Ghattas, special agent in charge of the Counterterrorism Division at the FBI’s Washington Field Office, accused Mohamed of leaving the US “with the intent to join al Shabaab in East Africa.”

“We believe he is currently there operating on behalf of that terrorist organization,” Ghattas stated.

“It is important for us to locate Mohamed because he has knowledge of the Washington, DC, area’s infrastructure such as shopping areas, Metro, airports, and government buildings,” Ghattas declared in an Associated Press story. “This makes him an asset to his terrorist associates who might plot attacks on US soil.”

Liban Mohamed apparently worked as a taxi driver in the DC area before he left the US in 2012. So, in other words, the FBI is saying Al Shabaab leaders won’t have to log on to Google Street View to plot attacks anymore because Mohamed can tell them exactly where everything is located. That is his value and what makes him “dangerous.”

Gadeir Abbas, Gulet’s lawyer, reacted, saying he questioned the “timing of the FBI’s placement of Liban on the most-wanted list on the day before a major hearing on the government’s authority to maintain the No Fly List.”

Abbas explicitly suggested this was probably an attempt to influence the judge to “toss out” the lawsuit Gulet has filed.

Also, from Glenn Greenwald for The Intercept:

As Gulet’s lawyer, Gadeir Abbas, told The Intercept last night, Judge Trenga has repeatedly signaled serious concern about the no-fly system, including asking why less restrictive means (e.g., subjecting suspects to greater airport security scrutiny, putting air marshals on their planes) couldn’t be used. The judge has also written eloquently about the substantial degradation and harm that comes to someone barred by their own government from boarding an airplane, with no charges to contest and no real process to challenge the prohibition.

Gulet’s brother was apparently someone who spoke out on his behalf so he could get back into the US. The FBI subsequently subjected him to harassment, according to Abbas.

“He was constantly being approached by people of dubious backgrounds that bore the hallmark of FBI informants,” Abbas told the AP. “The family believes Liban may have sought to escape that scrutiny.”

Liban’s family does not know where he is living currently and have previously asked the FBI to help find him.

Circumstantial evidence suggests that the FBI deliberately listed Gulet’s brother on the “Most Wanted Terrorists” list and the government unsealed a warrant on the same day to help the government avoid another challenge to the No Fly List and accountability for the abuse Gulet suffered.

The FBI’s own announcement indicates, “Shortly after leaving the US [in 2012], the international police organization Interpol issued a blue notice for Mohamed to collect additional information about his identity, location, and activities. On August 15, 2014, Interpol issued a red notice to seek him as a wanted fugitive.”

Why wasn’t the warrant unsealed in August? Or September? Or October?

There also is the fact that Gulet’s alleged torture and abuse occurred years before the FBI and other international law enforcement organizations sought to track his brother down.

Inarguably, the equation has shifted and now favors the government more than Gulet, who had been winning favorable decisions from Judge Anthony Trenga. The judge has not been willing to accept the government’s state secrets claims or allow the claims to prevent the lawsuit from going forward.

Government attorneys can stand in open court and talk about information that suddenly has become public, which they possibly were invoking state secrets to keep Gulet and his lawyer from seeing. This information could help the government persuade the judge to think differently about Gulet and play a decisive role in his decision to dismiss the case so as not to disrupt any ongoing efforts by law enforcement.

Greenwald highlights a previous case where Yonas Fikre, an Eritrean-American businessman, “detained without charges and repeatedly tortured by the United Arab Emirates, again almost certainly at the behest of the US government.” He refused to become an FBI informant, as Gulet did. Fikre sued the government in 2012. “Literally two weeks after Fikre went public with his allegations, the FBI suddenly announced that it was criminally charging him, along with his brother (a taxi driver), with a felony count of ‘structuring,’ where someone tries to avoid banking reporting obligations by deliberately depositing amounts less than the $10,000 reporting threshold.”

Yet, one does not have to look to past cases where the government has criminalized individuals to prevent them from seeking redress for mistreatment. The government recognizes its state secrets claims and arguments about the legality of the No Fly List no longer can stand up to scrutiny in federal courts. It lost two No Fly List cases last year – one which specifically led to redress for a Malaysian doctor mistakenly placed on the List and one which resulted in a judge ruling the No Fly List violated thirteen US citizens’ rights to procedural due process.

Using the FBI to stigmatize relatives of victims pursuing legal claims as wanted terrorists is one of the government’s last refuges at this point. It is running out of options to protect a Kafkaesque No Fly List, which offers citizens who feel they have had their rights violated little to no recourse outside of being able to request redress from the very opaque bureaucracy that placed them on the list in the first place.

Kevin Gosztola

Kevin Gosztola

Kevin Gosztola is managing editor of Shadowproof. He also produces and co-hosts the weekly podcast, "Unauthorized Disclosure."