“No one should be harassed and forced to spy on their religious community. The FBI agents knew I was vulnerable and that I needed to fly to see my family.”

The US Supreme Court will hear a case this spring on whether Muslim men can sue FBI agents—not the organization, but individual employees—for being placed on the No-Fly List. The men received letters informing them they are no longer on the list a few days before their initial case in district court, which was thrown out as the court ruled they did not have standing to sue for damages. An appeals court later overturned the ruling.

Spy or Don’t Fly

“The fact that they were taken off the list after they sued does not end the story. Our clients were unable to see wives, children, sick parents, and elderly grandparents overseas for years. They also lost work, were stigmatized within their communities, and suffered severe financial and emotional distress. They deserve redress for these harms,” said Professor Ramzi Kassem, founding director of the (Creating Law Enforcement Accountability and Responsibility (CLEAR) project at CUNY School of Law. Kassem is representing the plaintiffs. 

The three men alleged they were placed on the list by the FBI, which asked them to spy on their communities in their home countries. Federal officials provided no evidence that Muhammad Tanvir, Jameel Algibhah, and Naveed Shinwari posed safety threats, according to a Reuters report by Jonathan Stempel.

“No one should be harassed and forced to spy on their religious community. The FBI agents knew I was vulnerable and that I needed to fly to see my family,” said Tanvir, the lead plaintiff. “This kind of harassment shouldn’t go unaccounted for – I am continuing in this fight because I want to make sure that others don’t go through what I went through.” 

The FBI asked the men “to visit online Islamic forums and ‘act extremist,’” essentially turning them into spies. They were directly told that by acting as informants, they would be removed or kept off the No-Fly List, the Center for Constitutional Rights (CCR) said. 

All of the men refused the government’s offer, citing religious beliefs. In return, they were punished with their names kept on the list for years.

Dissenters Argue it Could Affect Future Employee Decisions

Although their names were removed, the plaintiffs in the case continue to pursue a court battle in an attempt to hold FBI employees accountable. To do so, they have cited the Religious Freedom Restoration Act (RFRA). The 1993 law reinstated the Sherbert Test, a codified method by which a court may determine whether the freedom of religion, as guaranteed by the First Amendment, was violated.

As with many cases of a complicated nature, Tanzin v. Tanvir began years ago and has passed through a number of lower courts before earning a hearing at the Supreme Court. The initial lawsuit was brought in 2014, according to CCR and, after the district court dismissed it, the Second Circuit Court of Appeals overturned the ruling in a 7-3 vote.

Circuit Judge Dennis Jacobs was one of the dissenters and offered his opinion on why allowing damages may hinder law enforcement in the future. 

“The safest course for a government employee in doubt would be to avoid doing one’s job, which is not a choice in need of encouragement,” Jacobs wrote, according to Reuters. “The panel opinion is quite wrong and actually dangerous.”

The danger of being held personally liable for national security decisions could dissuade government officials in the future from taking critical actions, Jacobs explained. Circuit Judge Jose Cabranes agreed, citing Supreme Court precedents pertaining to the liability of individual government employees.

A Disturbing Pattern

Tanzin v. Tanvir is not the first case of Muslims being put on the No-Fly List for to allegedly coerce them to spy on their communities. In the ongoing case of Fikre v. FBI et al, Yonas Fikre has petitioned for redress after he was added to the list in 2010, Jonathan Stempel wrote for Reuters. He sued in 2013 and was removed in 2016, but the case continues. Fikre was offered the opportunity to become an informant in exchange for his removal from this list, he said. 

In a similar case that started lasted from 2005 to 2019, the 9th US Circuit Court of Appeals in San Francisco ruled the government must compensate a Muslim woman “after mistakenly branding her a terrorist” and adding her name to the list. 

The No-Fly List is a serious matter with longterm consequences, as plaintiffs against the government have continued to argue. Worse, clearing their names can take years and, as the aforementioned cases illustrate, lengthy court battles seem to be the only way to do so.

The Supreme Court’s decision on Tanzin v. Tanvir could have widespread repercussions as it targets individual FBI agents instead of the organization itself. The case is on the docket for March 24.