A federal court ruled American Muslims, who claim they were placed on the No Fly List after refusing to become informants, are not allowed to sue FBI agents for damages.
The case, Tanvir v. Holder, was filed by the Center for Constitutional Rights (CCR) and the Creative Law Enforcement Accountability and Responsibility (CLEAR) project in April 2014. Twenty-four FBI agents were alleged to have been involved in retaliation.
CCR and CLEAR claimed the plaintiffs in the case were “among the many innocent people who find themselves swept up in the United States government’s secretive watch list dragnet.” When they “declined to act as informants” for the FBI and to “spy on their own American Muslim communities and other innocent people,” they faced retaliation from the FBI and subsequently discovered they were on the No Fly List.
The complaint further alleged FBI agents “exploited the significant burdens imposed by the No Fly List, its opaque nature and ill-defined standards and its lack of procedural safeguards.” This exploitation was intended to coerce them into entering “places of worship” to conduct surveillance for the FBI.
“Agents told them they could get off the No Fly List if they agreed to work for the FBI. One was asked by the FBI to visit online Islamic forums and ‘act extremist.’ Another was asked whether he would travel to Pakistan for the FBI,” according to CCR.
Judge Ronnie Abrams of the U.S. District Court of the Southern District of New York decided the American Muslims could not invoke the Religious Freedom Restoration Act (RFRA) and Bivens to pursue damages against the agents.
Under the RFRA, a “person whose religious exercise has been burdened” may “assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government.”
Abrams, however, concluded “appropriate relief” does not include money damages.
Referring to the Supreme Court decision, which created a right to sue federal officials who violate constitutional rights, Abrams insisted the right to relief did not cover the claims that the plaintiffs had their First Amendment rights violated.
“Plaintiffs cannot point to any case recognizing a Bivens remedy for a federal officer’s retaliation against an individual by placing or maintaining that individual’s name on the No Fly List or, more generally, any government watch list,” Abrams wrote. “Nor can Plaintiffs point to a case recognizing a Bivens action where the mechanism of injury was the imposition of a substantial burden on an individual’s ability to travel. Thus, whether viewed through the lens of the rights injured or the mechanism of injury, Plaintiffs ask this Court to extend Bivens to a new context.”
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Abrams opposed “extending” Bivens absent guidance from the Supreme Court, which the judge maintained had not found the decision applied to allegations of First Amendment violations.
On June 8, 2015, the plaintiffs received a letter from the Department of Homeland Security informing them the U.S. government knew of “no reason” why they would not be able to fly. This happened because the U.S. government lost a No Fly List case in June 2014 and was ordered by a federal judge to develop a process for Americans to challenge their placement, which satisfied “constitutional requirements for due process.”
“I’m disappointed that I won’t be allowed to have my day in court,” Awais Sajjad said, reacting to the judge’s decision. “Though I can finally travel to see my family, I have missed so many milestones being away and have been treated unfairly. The FBI agents knew I was desperate and tried to pressure me to become an informant. That shouldn’t go unpunished.”
“While the pressure of this lawsuit has compelled the government to remove our clients from the No-Fly List, that does not remedy the harm they suffered as a result of being on the list in the first place,” CCR Senior Managing Attorney Shayana Kadidal declared. “If the FBI is not held accountable for retaliating against our clients for refusing to spy on their communities, what will deter agents from doing this to others in the future?”
“FBI agents are tasked with and rewarded for recruiting informants within American Muslim communities,” CLEAR Senior Staff Attorney Diala Shamas stated. “These agents abused their ability to place our clients on the No-Fly List to meet this goal and should be held accountable.”
Neither CCR nor CLEAR attorneys agree the government has fixed the process so that it does not violate the constitutional rights of Americans anymore. Procedures for challenging one’s placement on the No Fly List “remain deficient.” There still is near-total secrecy and little accountability when it comes to the No Fly List (as well as other government watchlists).
Gadeir Abbas, an attorney for Gulet Mohammed, a US citizen who claims his constitutional rights were violated when he was put on the No Fly List, has said, “The fact remains that people on the No Fly List don’t need the government to tell them whether or not they are on that list because they find out for themselves when they try to fly.”
This does not “improve the constitutionality of the No Fly List,” according to Abbas. Furthermore, the government has only agreed to identify the criteria under which a person has been listed. The criteria is “so broad as to actually communicate no meaningful information to allow a person to rebut the designation.”
In fact, the American Civil Liberties Union (ACLU), which won the case decided in June 2014, has gone back to court to challenge the redress process because the government refused to remove multiple plaintiffs from the No Fly List. The government is relying on predictive judgments but has not presented any evidence to support the accuracy of their predictions.
There are other claims in the lawsuit, which the judge planned to address at a later date. For that reason, Abrams did not express any opinion on arguments “concerning the manner in which individuals are added to the No Fly List or the mechanisms for challenging such inclusion.”