At a Glance
Plaintiffs were notified they were taken off the No-Fly List and are currently able to fly. The Court of Appeals for the Second Circuit ruled on May 2, 2018, that the RFRA does authorize damages against individual agents. On December 10, 2020, the Supreme Court unanimously affirmed the lower court and held that individuals can sue federal law enforcement officials for damages under RFRA. After remand to the district (lower) court, the government again moved to dismiss the RFRA claims on the basis of qualified immunity, and oral argument on that motion will take place before the District Court on June 14, 2022.
Debevoise & Plimpton LLP
Tanvir v. Tanzin (originally Tanvir v. Holder) is a federal lawsuit filed against the FBI, the Department of Justice, and the Department of Homeland Security that challenges the FBI’s abuse of the No-Fly List to coerce law-abiding American Muslims into spying on their religious communities. The government operates the No-Fly List under near-total secrecy, and, at the time the suit was filed, refused to tell people whether they were on the list or why they had been listed, and provided no mechanism to dispute that placement. The plaintiffs in the case are four American Muslim men with no criminal records who were approached by the FBI in an effort to recruit them as informants. As a result of their placement on the No-Fly List and the FBI’s unwarranted scrutiny, some of the men were not able to see family members overseas for years. One was not able to visit his gravely ill 93-year-old grandmother; another was separated from his wife and three young daughters for roughly five years; a third was unable to see his wife for nearly two years. The case is part of CCR’s broader effort to end warrantless government surveillance of civilians, particularly those who are being targeted on the basis of their Muslim identity or activism.
The original complaint, on behalf of plaintiff Muhammad Tanvir, was filed by the CLEAR project of CUNY School of Law and later joined by CCR. The lawsuit sought to remove our clients from the No-Fly List. In response to this and other lawsuits, the government created a limited process to confirm placement on the list and challenge it; as a result of the process, the government confirmed that all our clients were once again able to fly. The remaining portion of our lawsuit seeks damages for the fact that our clients were kept on the list without cause and in retaliation for their assertion of constitutional rights in refusing to serve as informants. The men have lost jobs, been stigmatized within their communities, and suffered severe financial and emotional distress as a result of their placement on the list. The issue of whether the 1993 Religious Freedom Restoration Act allows for damages was argued before the Supreme Court on October 6, 2020. On December 10, 2020, the Court ruled 8-0 that the RFRA claims against the FBI agents could proceed. The government responded by again moving to dismiss the RFRA claims, now on grounds of qualified immunity, and briefing on those issues is pending in the district court, with oral argument set for June 14, 2022.
“I do not want to become an informant, but the government says I must in order to be taken off the No-Fly List. How can the government tell me that the only way I can see my family again is if I turn my back on my community?” said Awais Sajjad, a plaintiff in the lawsuit.
The complete lack of transparency and accountability with which the government operates the No-Fly List makes it ripe for abuse by FBI field agents who, in the post-9/11 environment, often face pressure from their superiors to recruit human sources and have a great deal of individual discretion to nominate individuals to the list with only the most minimal oversight from superiors. As of 2012, the No-Fly List contained over 21,000 names. A 2007 audit found that more than half of the 71,000 names then on the list were wrongly included. It is an open question how many people today are on the list, like our clients, because they refuse to spy on their communities. The fact that our clients were told they could fly again if they agreed to work as informants for the FBI begs the question of how, if they were truly so dangerous to begin with, the FBI could risk enlisting them as informants and allowing them to fly.
“I have no words. This is very big news for me,” said Awais Sajjad. “I hope next month I will travel to visit my grandmother in Pakistan. I miss my grandmother who is very sick and over 90 years old now. She raised me after my mother’s death.”
“They have done a lot of damage to me and to my life. They messed up my life,” said Jameel Algibhah, another plaintiff. “I haven’t seen my family in a long time. My youngest daughter doesn’t even know me. I want to continue this lawsuit.”