Supreme Court hears case of Muslims who say they were targeted for not becoming informants
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Three Muslim men who said they were placed for years on a “no-fly” list because they refused to become FBI informants told the Supreme Court on Tuesday that they should be able to sue the agents for targeting them because of their religion.
“Federal agents put my clients on the No Fly List because they refused to spy on innocent co-religionists, in violation of their Islamic beliefs,” New York lawyer Ramzi Kassem told the court. “My clients lost precious years with loved ones, plus jobs and educational opportunities.”
Muhammad Tanvir, Jameel Algibhah and Naveed Shinwari sued under the Religious Freedom Restoration Act, which forbids the federal government from placing a substantial burden on religious exercise unless it can show it promotes a compelling interest, in the least restrictive way.
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The question before the court was whether the RFRA authorizes monetary damages against the individual FBI agents. The law does not expressly say yes or no; it only allows for “appropriate relief” from the government, and defines government to mean “a branch, department, agency, instrumentality, and official (or other person acting under color of law) of the United States.”
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Kassem said that in many situations — including those involving his clients — simply stopping the government from alleged illegal activities is not enough. He cited as examples “a Jewish student in a D.C. school who is compelled by a gym teacher to wear immodest clothing or a federal inmate whose hand-annotated Bible is destroyed by a guard.”
“Injunctions would be useless against these one-time harms, leaving damages as the only remedy,” Kassem said.
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But Deputy Solicitor General Edwin S. Kneedler told the court that Congress has been careful to protect federal employees “to prevent the chilling effects for the executive branch from the prospect of personal liability and protracted litigation for its employees.”
In the few cases where Congress has said monetary damages are appropriate, Kneedler said, it has done so explicitly.
“This court should not now read into the text of RFRA, which provides only for relief against the government, a sweeping new . . . cause of action against federal employees in their personal capacity for damages.”
A panel of the U.S. Court of Appeals for the 2nd Circuit ruled that the suit by the three men could proceed, and they are supported by many religious rights organizations.
Each is a practicing Muslim who was born abroad; two are U.S. lawful permanent residents and one is a U.S. citizen. According to their complaint, each was approached separately by different agents in the greater New York City area and say they answered questions from FBI agents about specific investigations.
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The lead plaintiff, Tanvir, was born in Pakistan and lives in Queens, and FBI agents began questioning him in 2007.
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But Tanvir and the others balked when asked for general information about their places of worship, religious communities and fellow Muslims.
None “wanted to spy on his religious community because doing so would violate his religious beliefs,” Kassem wrote in his brief to the court.
Tanvir discovered that he had ended up on the no-fly list, a fluctuating and secretive collection of names created after 9/11, when he tried to board a domestic flight in 2010. He and the others say being on the list cost them money for plane tickets they could not use and the ability to travel for work or visit relatives abroad. Days before a 2015 hearing in their lawsuit, they were informed that they had been removed from the list.
The Supreme Court hearing was not about proving those allegations, but about whether their claims for damages against the 15 agents involved could go forward.
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The justices, once again conducting their hearing via teleconference because of the coronavirus pandemic, were forced to look at precedent and Congress’s intentions in passing the RFRA to settle a question not explicit in the text.
Justice Sonia Sotomayor seemed to think Congress intended for the protections to be broad.
“Why would Congress take away from appropriate relief the only relief that could help some people for the violation of their rights?” she asked.
Justice Brett M. Kavanaugh, on the other hand, worried about the “career FBI agents” who could be subject to “life-altering damages remedies.”
“I know there’s strong interests on both sides here,” Kavanaugh said. “I’m just trying to make sure we cover what will happen to the special agents as well.”
The case is Tanzin v. Tanvir.
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