In the wake of 9/11, the federal government’s intelligence and law enforcement agencies, particularly the FBI, have targeted Muslim communities for “domestic surveillance” as likely hotbeds for terrorism, generally without any suspicion that a crime has occurred or is likely to occur.
In a September 11, 2019 op-ed piece in USA TODAY, Stanford Law School Professor Shinin Sinnar wrote that, “ … Through a vast network of informants, the FBI singles out individuals deemed susceptible to ‘radicalization’ – including vulnerable individuals with mental health problems – and prods them to commit crimes. The government then charges people with material support to terrorism, including on the basis of speech. Sentences are severe even for individuals who have not attempted violence.”
That brings us to the case of Muhammad Tanvir, Jameel Algibhah, and Naveed Shinwari—three Muslim men who lived in New York or Connecticut between 2007 and 2013. All three men were born abroad, immigrated to the United States, and are now either a U.S. citizen or a lawful permanent resident in this country.
FBI, Joint Terrorism Task Force Pressures for Intel
Each man during that six-year period between 2017 and 2013 were repeatedly approached by FBI agents and asked to work as informants for the agency. Specifically, they were asked to gather and report information on members of their respective communities. Each refused. The initial informant requests by the FBI escalated to severe pressure being applied against the men as they refused to cooperate and become snitches.
The men’s consistent refusals to become federal informants were based on their sincerely-held religious beliefs that prohibits such conduct. The FBI responded by placing the three men on the nation’s draconian “No Fly List,” which effectively prevents them from visiting family members living abroad. The three men were added to this list despite their not posing, having ever posed, or even having ever been accused of posing a threat to aviation safety.
In April 2014, the three men filed a civil rights lawsuit against senior government officials and 25 named and unnamed federal law enforcement officers charging that they were placed on the No Fly List in retaliation for refusing to spy on their Muslim communities. Their lawsuit presented comprehensive arguments that the actions of the federal government and its law enforcement officers in placing them on the No Fly List violated their religious rights under the First Amendment and the Religious Freedom Restoration Act (“RFRA”).
No Fly List used to Violate Civil Rights
The lawsuit sought declaratory and injunctive relief against all the named defendants, and compensatory and punitive damages against the individual law enforcement officers for violating the three men’s First Amendment and RFRA rights. The district court ruled that RFRA does not permit the recovery of money damages against federal law enforcement officers sued in their individual capacities. The three men appealed that judgment to the Second Circuit Court of Appeals.
On May 2, 2018, the Second Circuit Court of Appeals disagreed with the district court’s position that civil damages are not recoverable under RFRA in this case. The appeals court remanded the case for further proceedings. In a lengthy decision, the Second Circuit said the legislative history of RFRA did not evince a “clear and express indication that Congress intended to exclude individual damages claims from the scope of RFRA’s appropriate relief …”
The defendants applied for certiorari relief before the U.S. Supreme Court this past July.
The high court agreed to hear the case on November 22, 2019.
The issue squarely before the court is whether RFRA permits monetary damages against federal employees who violate an individual’s protected religious rights.
Government Abused “No Fly List”
Three paragraphs in the three men’s 119-page certiorari application sum up both the constitutional importance and factual tragedy of this case:
“The individual agents who have petitioned for certiorari abused their broad, discretionary power to place or maintain people on the No Fly List and through those actions violated Respondents’ rights under RFRA. While the details of each Respondent’s experiences with placement and retention on the No Fly List are different, the broad contours are strikingly similar. Each was born into the Muslim faith abroad, where at least some of their family remains. Each immigrated legally to the United States relatively early in life, and each had flown on commercial aircraft many times without incident. None poses, has ever posed, or has ever been accused of posing, a threat to aviation security.
“Nonetheless, each Respondent found himself on the No Fly List. Throughout most of the proceedings before the district court, the government refused to even confirm that Respondents were on the No Fly List, inform them of the purported basis for their placement, or give them a meaningful opportunity to refute their designations. They all were prohibited from flying, sometimes when they were headed to visit loved ones or to start a new job, or on their way home from a trip abroad, stranding them overseas.
“Petitioners, FBI special agents, approached Respondents to pressure them to become sources of general information about their own Muslim communities. Since 2001, FBI recruitment of informants has significantly expanded, and considerable pressure exists within the agency to cultivate such resources, irrespective of the impact these efforts have on individuals like Respondents and their communities. None of Respondents, their friends, or families, were suspected of involvement in criminal activity. Quite the opposite: by all appearances, the agents sought to force Respondents to serve as community spies simply because they were Muslims with access to a faith community under suspicion.”
Agents Sought to Force People to Become Snitches “Simply Because They Were Muslims”
Put simply, the U.S. Government, through the FBI, utilizes its enormous power and unlimited resources to try to force Muslim men (and women) to spy on fellow members of their community against their sincerely held religious reliefs. It is a fundamentally racist and fascist governmental “domestic surveillance” program, akin to the tactics employed by Stasi – the East German feared Ministry for State Security – before the unification of Germany that forced normal citizens to betray others: neighbors reporting on neighbors, school children telling on classmates, university students snitching on fellow students, and employers spying on their employees.
Voluntary Interview, Outreach, Surveillance Programs Oppress Muslim Community
The FBI has since 9/11 sought to establish this Stasi-like “domestic surveillance” program in every Muslim community in this country. Professor Sinnar best described the program this way:
“We are only beginning to reckon with the human cost of these [domestic surveillance] policies. In July in California, a Muslim-American man imprisoned for 14 years was released after a federal court vacated his conviction for material support to terrorism. Like other cases, Hamid Hayat’s prosecution involved a paid informant motivated to find or invent a terrorist and create inflammatory evidence designed to prejudice jurors.
“As a civil rights lawyer at the time of Hayat’s investigation, I saw how the FBI treated the local Muslim community where he lived: Agents followed people in the streets, interrogated them at their workplaces, and circled a mosque while civil rights lawyers spoke to community members inside. This ‘anticipatory prosecution’ model – which cast a wide net of suspicion in an aggressive search for future threats – is not a model we should apply to people of any race, religion or ideology.”
Hopefully, the Supreme Court will uphold the well-reasoned Second Circuit decision and allow the three Muslim men to pursue damages against the FBI agents. It is the only way to check the unscrupulous “domestic surveillance” tactics the FBI employs in Muslim communities; namely, damages to the individual agents’ money pockets. The history of unconstitutional profiling employed by federal government, and local law enforcement, since 9-11 is an insult to our Country, its founding principles and to those who have sacrificed much to guarantee our freedom.