Victims May Sue Agents Who Listed them for Refusing to Inform

May 2, 2018, New York – Today, a federal appeals court reinstated a lawsuit against 24 FBI agents alleging that they had placed or kept law-abiding American Muslims on the No-Fly List in an attempt to coerce the men into spying on their communities. The men—Muhammad Tanvir, Jameel Algibhah, Naveed Shinwari, and a fourth who did not join the appeal—filed the lawsuit seeking removal from the list and damages under the federal Religious Freedom Restoration Act (RFRA) for the harm they suffered for having been placed on it. Just days before the first major court hearing in the case, the men received letters from the U.S. government informing them they were no longer on the list. A judge later refused to allow them to continue litigating their claim for damages, but that claim has now been reinstated in a precedent-setting opinion that ensures that individuals may sue individual federal officials for acts of religious discrimination. 

“I am gratified that the court has recognized my right to be free from religious discrimination," said Naveed Shinwari, a plaintiff in the lawsuit. "By putting me on the No-Fly List, these federal agents punished me for refusing to spy on my own community and caused me and my family great pain. I want my Muslim brothers and sisters to know that this affair has only strengthened my faith and I will continue the fight for justice, God willing.”

The men in the case allege that the agents told them they could get off or avoid being placed on the No-Fly List if they agreed to work for the FBI. One was asked by agents to visit online Islamic forums and “act extremist”; another was asked to travel to Pakistan for the FBI.

“The court of appeals today brought our courageous clients one step closer to holding accountable the FBI agents who forced them to choose between spying on innocent fellow Muslims and being able to fly to see their families,” said Professor Ramzi Kassem, founding director of the CLEAR project at CUNY School of Law, who argued the case on appeal. “Today’s decision should give pause to any FBI agent who is abusing the power to place people on the No-Fly List in order to turn them into informants.”

As a result of their placement on the No-Fly List and the FBI’s unwarranted scrutiny, for years, the men were unable to see spouses, children, sick parents, and elderly grandparents who are overseas. They lost jobs, were stigmatized within their communities, and suffered severe financial and emotional distress. In dismissing the damages claim, the lower court reasoned that, even if the federal agents had violated the Constitution, the law does not afford a damages remedy for the specific type of religious and speech retaliation the men suffered. In reinstating the claim today, the panel of the Second Circuit Court of Appeals held that damages are available under the Religious Freedom Restoration Act for these harms.

“The court correctly understood that the only way to prevent future abuse of the No-Fly List is to provide accountability for past abuse,” said Center for Constitutional Rights Senior Attorney Shayana Kadidal. “Having our clients removed from the list is an important accomplishment, but it is not enough to ensure that the FBI does not retaliate against others for refusing to become informants.”

Prior to this and other lawsuits, the government operated the No-Fly List in near-total secrecy and never told people why they were on the list or gave them a meaningful chance to dispute their placement. Despite some reforms, civil rights attorneys say, the procedures governing who is placed on the list and how to challenge that placement remain deficient, and a general lack of transparency and accountability make the list, and other watch lists, ripe for abuse, as in this case.                                                                     

Read today’s decision here.

Tanvir v. Tanzin was brought in 2014 on behalf of Muhammad Tanvir, Jameel Algibhah, Naveed Shinwari and one other plaintiff not currently appealing by the CLEAR project at CUNY School of Law, the Center for Constitutional Rights, and co-counsel at the law firm of Debevoise & Plimpton LLP.

The CLEAR project (Creating Law Enforcement Accountability & Responsibility) is based out of Main Street Legal Services, Inc., the clinical arm of CUNY School of Law.  CLEAR serves Arab, Muslim, South Asian, and other communities that are disparately affected by post-9/11 law enforcement policies and practices.  In the course of its work, CLEAR has come to represent many individuals who have been placed on various U.S. government watch lists or approached for interrogation or recruitment by law enforcement agencies. Visit www.cunyclear.org and follow @CUNY_CLEAR.