US Supreme Court
The Supreme Court in Washington on Tuesday, Nov. 10, 2020. The Supreme Court on Thursday, December 10, ruled in favour of three Muslim men who say they were put on the no-fly list in retaliation for refusing to become government informants. Image Credit: NYT

Washington: The Supreme Court ruled unanimously Thursday that three Muslim men may seek monetary damages from the government agents they say placed them on a no-fly list because they refused to become FBI informants.

The men filed a lawsuit in 2013 under the Religious Freedom Restoration Act (RFRA), which provides relief from government actions that substantially burden a person’s religious beliefs.

“The question here is whether ‘appropriate relief’ includes claims for money damages against government officials in their individual capacities. We hold that it does,” Justice Clarence Thomas wrote for the 8-0 court. Justice Amy Coney Barrett was confirmed after the case was argued in October, and did not take part in the decision.

Muhammad Tanvir, Jameel Algibhah and Naveed Shinwari alleged that in separate incidents they were asked to spy on their friends and fellow congregants at mosques in the New York area.

They refused, and later discovered that they were placed on the no-fly list, a secretive government list containing thousands of names of those not allowed to board airplanes because of suspected terrorism ties.

“Federal agents put my clients on the No-Fly List because they refused to spy on innocent coreligionists in violation of their Islamic beliefs,” Ramzi Kassem, a lawyer for the men, told the justices when the case was heard in October.

“My clients lost precious years with loved ones, plus jobs and educational opportunities.”

Vulnerable

Each of the plaintiffs in the case were uniquely vulnerable to the hindrances of the no-fly list; they all had wives or family abroad, giving them a powerful incentive to comply with the FBI’s demands.

Human rights attorneys and activists say they hope the case will improve awareness of rights in American Muslim communities.

“Simply getting to the Supreme Court and shining a light on these kinds of abuses, FBI practices, is in and of itself extremely important and kind of previously unthinkable,” Diala Shamas, an attorney at the Center for Constitutional Rights, who worked on the case, said this year. “The whole point of these kinds of surveillance practices is to coerce people and intimidate them in the shadows, to make it deliberately feel stigmatizing, to make them feel cut off from their community.”

Tanvir, for instance, was in his 20s and working in construction and at a New York discount store when the FBI first approached and threatened him, he said in an interview this year. US customs agents seized his passport when he returned from a vacation in Pakistan, he said. Then FBI agents came to the dollar store where he worked and asked him to come downtown.

“They took me to Manhattan, into a building, and there was a room and cameras,” he said. The agents sat at a table, across from Tanvir, who was frightened and spoke poor English. They agents accused him-without evidence-of belonging to the Taliban, he said. When Tanvir denied it, they shifted their message, suddenly offering him money and immigration benefits for his wife if he agreed to become a spy.

Harassment

Tanvir resisted, and he got his passport back. But he said the harassment continued; the FBI would show up at the dollar store where he had been promoted to manager. They threatened to arrest him if he did not agree to become an informant. Then they placed him on the no-fly list - a development Tanvir learned only after he switched jobs and started working as a long-haul trucker. When he called the FBI, unable to board a flight home from Atlanta, they told him he would need to become an informant to get off the list.

As their lawsuit progressed toward a hearing, the men were told that they were no longer on the list. A federal judge said that made their case moot. But a panel of the US Court of Appeals for the 2nd Circuit disagreed, saying the men could bring their claims for damages under RFRA.

That law allows for “appropriate relief” from the government, and defines government as “a branch, department, agency, instrumentality, and official (or other person acting under color of law) of the United States.”

The government said that was not meant to include monetary damages against government officials in their personal capacities.

But Thomas said Congress did not specify that in enacting the law in 1993.

“A damages remedy is not just ‘appropriate’ relief as viewed through the lens of suits against government employees,” he wrote. “It is also the only form of relief that can remedy some RFRA violations. For certain injuries, such as respondents’ wasted plane tickets, effective relief consists of damages, not an injunction.”

He said that if Congress, as a policy matter, wanted to shield government officials from personal liability, it was free to do so. “But there are no constitutional reasons why we must do so in its stead,” he wrote.

Immunity defence

He also noted that government officials are entitled to assert a qualified immunity defence when sued in their individual capacities, if they can show that they did not violate clearly established law.

The court has been protective of individual rights under RFRA in recent years; it often unites conservative religious organizations and liberal civil rights groups.

The Becket Fund for Religious Liberty filed an amicus brief in the case, and said the ruling was important because government officials often try to get rid of lawsuits by simply stopping the alleged illegal behavior.

“We’re glad the Supreme Court unanimously emphasized that the government can’t expect to be let off the hook by simply changing its tune at the last second,” senior counsel Lori Windham said.

The case is Tanzin v. Tanvir.