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Supreme Court Says Muslim Men Can Sue FBI Agents In No-Fly List Case

Dec 10, 2020
Originally published on December 14, 2020 11:56 am

Updated at 2:43 p.m. ET

The U.S. Supreme Court, in a unanimous opinion, ruled Thursday that Muslims put on the no-fly list after refusing to act as informants can sue federal officials for money damages under the Religious Freedom Restoration Act.

The case – Tanzin v. Tanvir — involved three Muslim men who said their religious freedom rights were violated when FBI agents tried to use the no-fly list to force them into becoming informants.

Ramzi Kassen, the lawyer representing the thee men, explained that the no-fly list is problematic because it combines "tremendous power with a near total lack of transparency," empowering the FBI to use it as coercive force.

None of the men was suspected of illegal activity, and indeed the Obama administration tried to head off the suit by removing their names from the no-fly list just days before the case first went to court. It didn't work. The men refused to drop their case, and on Thursday the Supreme Court ruled unanimously in their favor.

"I feel extremely happy and content. All praise belongs to Allah. This is a great victory for every voiceless Muslim and non-Muslim against hate and oppression and ... I hope that this is a warning to [the] FBI and other agencies that they will be held responsible for ... traumatizing people and ruining their lives," said Naveed Shinwari, one of the three men involved in the case.

Shinwari, a manufacturing contractor who came to the U.S. with his father from Afghanistan when he was 14, is a legal permanent resident. His presence on the no-fly list, he said, meant he could not do his contracting job because it required travel within the United States. Nor could he visit his wife in Afghanistan. She is, however, now is in U.S., and the couple have three young children, two of them born in this country.

Writing for the court, Justice Clarence Thomas noted that money damages have long been authorized in American law, dating back to the founding of the republic. And he pointed specifically to a post-Civil War statute that provides for damages against government officials who act "under color of state law" to deprive people of their constitutional rights. The Religious Freedom Restoration Act, enacted in 1993, is in that tradition and uses the same terminology, he observed.

Thomas acknowledged that Congress is free to shield government agents from suit, but "[w]e cannot manufacture" such a presumption 27 years later.

This is not the end of the line in the case. The three men now have the right to sue, but the government may wish to settle the case out of court, or in the alternative, it could invoke the doctrine of qualified immunity, and assert that the agents are immune from suit because they had no way of knowing their conduct would be illegal at the time.

Attorneys for the three men contend that though some 80,000 individuals have been placed on the no-fly list, there will be no flood of lawsuits stemming from Thursday's decision because the vast majority of those on the list are residents of another country, unlike the three men who brought this case.

While the court's decision was unanimous, it was heard before Justice Amy Coney Barrett was confirmed as the newest justice, and she did not participate in the ruling.

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AILSA CHANG, HOST:

The U.S. Supreme Court ruled today that Muslim individuals placed on the no-fly list because they refused to become informants for the FBI can sue federal agents for money damages under the Religious Freedom Restoration Act. The vote was unanimous. NPR legal affairs correspondent Nina Totenberg reports.

NINA TOTENBERG, BYLINE: The case began after three Muslim men refused to become informants for the FBI - one was a naturalized U.S. citizen; the other two legal permanent residents.

NAVEED SHINWARI: FBI agents repeatedly tried to recruit me, to coerce me to become an informant for them.

TOTENBERG: Naveed Shinwari said his reasons for refusing were both religious and personal.

SHINWARI: In the holy Quran, a law prohibits us from spying on one another. And secondly, I didn't see anyone doing anything wrong.

TOTENBERG: Shinwari, who immigrated to the U.S. with his father when he was 14, says the agents put him on the no-fly list to pressure him to cooperate. Not being able to fly meant he couldn't do his job, which required lots of travel within the U.S., and he couldn't visit relatives outside the U.S., including his wife in Afghanistan. Neither he nor the other two men were suspected of illegal activity themselves. Indeed, the government tried to head off the suit by removing their names from the no-fly list just days before the case first went to court. It didn't work. The men refused to drop their case. And today the Supreme Court ruled unanimously in their favor.

It was the latest example of the court's increased willingness to put religious interests first among equals in conflicts with the government. Writing for the court, Justice Clarence Thomas noted that money damages have long been authorized in American law, and he pointed specifically to a post-Civil War statute that provides for damage suits against government officials who, quote, "act under color of state law to deprive people of their constitutional rights." The Religious Freedom Restoration Act, passed by Congress in 1993, is in that tradition, Thomas said, and uses the same terminology.

True, Congress is free to shield government agents from suit, he said, but we cannot manufacture such a presumption 27 years later. Today's decision is not the end of the case. The men now have the right to sue, but the government may wish to settle the case out of court, or it could try to invoke the doctrine of qualified immunity and assert that the agents are immune from suit because they had no way of knowing until now that their conduct was illegal. Lawyers for the men say there are more than 80,000 people who have been placed on the no-fly list, but they contend that today's ruling will not result in a flood of lawsuits because the vast majority of those on the no-fly list are residents of another country.

As for the three men who prevailed in today's case, they were elated. Naveed Shinwari said he was surprised in light of other Supreme Court decisions upholding Trump administration actions hostile to Muslim immigrants.

SHINWARI: I feel extremely happy and content. All praise belongs to Allah. This is a great victory for every voiceless Muslim and non-Muslim against hate and oppression. And I hope that this is a warning to FBI and other agencies that they will be held responsible for traumatizing people and ruining their lives.

TOTENBERG: Though today's decision was unanimous, new Justice Amy Coney Barrett did not participate because she was not yet on the court when the justices heard the case argued.

Nina Totenberg, NPR News, Washington.

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