The Supreme Court unanimously determined last week that three Muslim men may seek monetary damages from the FBI agents who, according to the men, placed them on a no-fly list because they refused to spy on their communities as informants.
In the 8-0 decision, Justice Clarence Thomas wrote that the men had a right to sue for damages, further noting that the Religious Freedom Restoration Act allows lawsuits against individual FBI agents. However, he also noted that government officials are entitled to qualified immunity when sued in their individual capacities.
And while advocates and lawyers applauded Thursday’s ruling as a small win against religious discrimination and an opportunity to hold government officials accountable, Muslim Americans are still reeling from the use of informants and other unconstitutional and targeted programs in their communities after September 2001.
Decades of discriminatory profiling and government surveillance have resulted in eroded trust, the vilification of Muslim Americans and traumatized a community that does not feel any safer.
“We see generations of people and communities who feel insecure and suspicious, both of each other when it becomes known, as it inevitably does, that informants have been deployed, and also suspicious of police, federal and other law enforcement agencies,” said Hina Shamsi, the director of the American Civil Liberties Union National Security Project, which ensures that current national security policies are in line with the Constitution and civil liberties.
“This is a broader policing problem that in the 11 years became vastly exacerbated with respect to Muslim communities,” she added.
“My family saw me be harassed by FBI agents when I didn’t do anything wrong, and we felt helpless.”
The three Muslim men, Muhammad Tanvir, Jameel Algibhah and Naveed Shinwari, all alleged that FBI agents asked them to spy on their fellow Muslim community members between 2007 and 2012. After the men refused, they discovered that they had been placed on a no-fly list, a secretive government list of thousands of people prohibited to board any aircraft that originates from, terminates in, or passes over the United States.
Some of the men were not able to see family members overseas for years. Tanvir was not able to visit his gravely ill mother, and Algibhah was separated from his wife and three young daughters for roughly five years.
“It is hard to describe how challenging it was — it took a huge emotional and psychological toll on me. I felt so isolated,” Shinwari told HuffPost in an emailed statement. “Setting aside the lost money, the missed flights, the unpredictability of life when you don’t know when you’ll next be able to all be together was very difficult for us. My family saw me be harassed by FBI agents when I didn’t do anything wrong, and we felt helpless. It was a very hard time for me.”
A 2007 audit by the Department of Justice found that more than half of the 71,000 names then on the list were wrongly included. Once an individual’s name is put on the watch list, many have said it’s nearly impossible to have it removed.
In 2013, the Creating Law Enforcement Accountability & Responsibility (CLEAR) Clinic of CUNY School of Law filed a complaint, later joined by the Center For Constitutional Rights, aimed at removing the men from the no-fly list. They were finally removed from the list a few years later, but a trial court dismissed their suit in 2015 despite their lawyers arguing that the FBI’s retaliation had resulted in irrevocable damages. In 2016, the U.S. Court of Appeals for the 2nd Circuit revived the case, noting that the men could bring their claims for damages under the Religious Freedom Restoration Act.
Even after they were removed from the list, the men said the retaliation by government officials upended their lives. They described losing jobs, being stigmatized in their communities, and suffering financial and emotional distress as a result of their placement on the list.
“This is just as much about [suing] for damages as it is about seeking accountability and being public, and speaking out about what happens in Muslim and other communities on a daily basis at the hands of the FBI,” said Diala Shamas, a staff attorney at the Center for Constitutional Rights.
Human rights lawyers and advocates have argued that using the no-fly list to pressure individuals to become informants is part of the broad issue of warrantless government surveillance and discriminatory profiling that is not only ineffective but has damning consequences for marginalized communities.
Such programs have annihilated trust between the government and Muslim American communities, caused mutual suspicion and traumatized generations of Muslim Americans who are left fearful and paranoid.
“There’s little to no reason to trust that it won’t happen in your community or my community, or [in a] community three towns over. And so, fear and suspicion and distrust spread, and it’s not paranoia if you can see that they’re doing it,” said Shamsi.
“I fundamentally hope that we’ll see more scrutiny of FBI informant recruitment practices, whether it’s coercion through the no-fly list or coercion through the immigration process.”
Law enforcement at large can get away with such programs due to their “incredible amount of power and discretion,” said Wadie Said, a law professor at the University of South Carolina School of Law and author of the book “Crimes of Terror: The Legal and Political Implications of Federal Terrorism Prosecutions.”
Recruiting, threatening and controlling informants through the no-fly list are “are not tactics that would be used on the vast majority of Americans,” Said told HuffPost in a phone call. “It was created as a kind of a ‘War on Terror’-adjacent practice to target who the society believes to terrorists, which is shorthand for Muslims.”
The use of informants, particularly in terrorism cases, increased after the 9/11 attacks, said Said, but the tactic has questionable efficacy and has led to people being wrongly imprisoned. Still, no one was held accountable.
“You’re dealing with very sophisticated actors in terms of how they craft these practices and how they’re kind of designed to skirt on any real type of oversight or scrutiny,” Said added.
There need to be tighter controls on the use of confidential informants and greater safeguards against law enforcement abuses, especially when it comes to an individual’s First and Fourth Amendment rights, said Shamsi at the ACLU.
“I fundamentally hope that we’ll see more scrutiny of FBI informant recruitment practices, whether it’s coercion through the no-fly list or coercion through the immigration process,” said Shamas at CCR. “I’m also hoping that people will pay more attention to this practice,” she said, after it was “largely rolled out in the dark.”
As for the men, they hope more Muslims like themselves will speak up as they proceed with their case, and that government officials will put an end to discriminatory profiling.
“In Islam, we are taught to strive for the truth, so I saw this as my duty to make life easier for other Muslims and non-Muslims,” said Shinwari.
“I hope that the FBI and other agencies think twice before violating innocent peoples’ lives. I hope that others are empowered by my story and that they feel like they can speak out and seek justice.”