Muslim men can sue FBI agents over ‘no-fly list’: US high court

The United States Supreme Court has ruled that three Muslim men can sue several FBI agents whom they accuse of placing them on the government’s “no-fly list” because they refused to become informants.

In an 8-0 decision on Thursday, the justices upheld a lower court ruling allowing the men, all US citizens or permanent residents who were born abroad, to sue for monetary damages under a 1993 federal law called the Religious Freedom Restoration Act.

The case, which began in 2013, involves New York City residents Muhammad Tanvir and Jameel Algibhah and Connecticut resident Naveed Shinwari.

They said they refused an alleged request by FBI agents to spy on Muslim communities in the US, arguing that doing so would have violated their religious beliefs.

The men claim the agents then placed or kept them on the no-fly list, a secretive US government list of people prevented from flying freely, among other restrictions, on the basis of “counter-terrorism”.

The men, who have since been removed from the list, said their inclusion prevented them from visiting family in Pakistan, Afghanistan and Yemen, harmed their reputations and cost them employment opportunities.

CAIR's lawyers have challenged the federal government's so-called Federal terrorist watch list–a de facto "Muslim registry" of 1.2 million people created by the US government and shared with many agencies & private entities to discriminate against Muslims.#Watchlist#NoFlyList https://t.co/y87YtBZeVr

— Nihad Awad (@NihadAwad) December 10, 2020

“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 in the court’s opinion (PDF).

The 1993 law aimed at ensuring that the government had compelling reasons to substantially burden any person’s exercise of religion.

The case hinged on a part of the law that provided for “appropriate relief against a government”, without defining what type of relief may be appropriate.

Qualified immunity

While the trial judge threw out the case, the 2nd US Circuit Court of Appeals ruled in 2018 the law allows individual federal officers to be sued for damages.

US President Donald Trump’s administration had challenged that decision, arguing that allowing individuals to sue federal officers for damages would open the door to a slew of lawsuits.

The Justice Department said that could deter federal employees, including national security officials, criminal investigators and correctional officers, from performing their duties.

Despite the Supreme Court’s ruling, there is no guarantee the men will win their case or collect anything from the agents.

Justice Thomas noted that the agents could argue that they should be shielded from any judgement by the doctrine of qualified immunity.

The US Supreme Court has said that doctrine protects officials as long as their actions do not violate clearly established law or constitutional rights they should have known about.

‘De facto Muslim registry’

Muslims in the US have long decried the government’s increased use of the no-fly list, especially after the September 11 attacks, and the discriminatory treatment many have received as a result of their inclusion on the list.

Nihad Awad, executive director of the Council on American-Islamic Relations (CAIR), tweeted on Thursday in response to the Supreme Court’s decision that the no-fly list is “a de facto ‘Muslim registry'” created by the US government “to discriminate against Muslims”.

It is unclear how many names are on the list, but the American Civil Liberties Union (ACLU), which has filed lawsuits on behalf of people on the list, said in 2013 that it included more than 47,000 names.

Lori Windham, senior counsel at the public interest law firm Becket Fund for Religious Liberty, welcomed Thursday’s ruling.

“This is a good decision that makes it easier to hold the government accountable when it violates Americans’ religious liberties,” Windham said in a statement.

Justice Amy Coney Barrett, a Trump appointee who was not a member of the court when the case was argued in October, did not take part in the decision.