The United States Justice Department has moved to dismiss a lawsuit in which American Muslims allege that that twenty-five law enforcement officials, particularly FBI agents, had them placed on the No Fly List after they refused to become government informants in their community.
In April, the Center for Constitutional Rights (CCR) and Creative Law Enforcement Accountability and Responsibility (CLEAR) Project filed a lawsuit on behalf of four American Muslim men, which claimed that they were “among the many innocent people who find themselves swept up in the United States government’s secretive watch list dragnet.” When they “declined to act as informants” for the FBI and to “spy on their own American Muslim communities and other innocent people,” they faced retaliation from the FBI and subsequently discovered they were on the No Fly List.
The complaint further alleged that FBI agents “exploited the significant burdens imposed by the No Fly List, its opaque nature and ill-defined standards and its lack of procedural safeguards.” This exploitation was intended to coerce them into entering “places of worship” to conduct surveillance for the FBI.
According to the Center for Constitutional Rights, the officials allegedly violated their First Amendment rights “not to become informants.” Officials allegedly violated their due process rights by failing to give them “any meaningful notice or opportunity to see or challenge the asserted reasons for thier placement.” The officials also violated the Religious Freedom Restoration Act (RFRA).
The Justice Department’s motion to dismiss [PDF] plainly argues “there is no constitutional right not to become an informant.” The department cited United States v. Paguio, a case from 1997 in which prosecutors “argued that prosecutors indicted her in order to pressure her co-defendant fiancé to cooperate.” The court ruled “there is no constitutional right not to ‘snitch.’”
Therefore, the Justice Department maintains that submitting the names of these four American Muslims to the Terrorist Screening Center (TSC) for “consideration for the No Fly List,” even if based on their refusal to become informants, would not violate their constitutional rights. There is no clearly established right so the agents being sued are entitled to “qualified immunity” from their claims.
The Justice Department also argues that “it is not clearly established that a request to inform on an individual’s Muslim American community imposes a substantial burden on religious exercise.”
“Because there was no precedent clearly establishing that a request to serve as an informant would impose a religious burden in this context, the statutory question was not ‘beyond debate,’ and holding individuals personally liable for imposing such an alleged burden ‘would undermine the purpose of qualified immunity,’” the department contends.
The motion further suggests that it is Muhamad Tanvir, Jameel Algibhah, Naveed Shinwari and Awais Sajjad—the plaintiffs—who had the burden of informing law enforcement officials that they believed their religious beliefs were being violated. For example, Tanvir and Shinwari did not “allege that they expressed any religious objection to the request nor that they made any other statement from which it would have been clear that they had a religious objection.”
It is worth highlighting the fact that Attorney General Eric Holder has previously invoked the “state secrets privilege” to block American Muslims from bringing a lawsuit against the FBI for allegedly engaging in illegal surveillance when agents sent an informant to infiltrate mosques in southern California.
Similarly, the Justice Department is more concerned with keeping the system in which individuals are placed on watchlists shrouded in secrecy than whether anyone had their rights violated. For example, the motion invokes Arar v. Ashcroft, a case in which Canadian citizen Maher Arar was subject to rendition by the US government and transferred to Syria where he was tortured. The department managed to convince the Second Circuit that victims were not entitled to damages from officials because “extraordinary rendition implicated national security and foreign policy.”
The Justice Department argued that the claims involved classified information and “probing” these matters entailed the risk that other countries would become “less willing to cooperate with the United States in sharing intelligence resources to counter terrorism.”
“If plaintiffs are or were in fact on the No Fly List,” the motion argues, “the agents’ defense of the lawsuit necessarily would require inquiry into whether the individual agents had any role in nominating plaintiffs to the No Fly List and the classified or otherwise protected reasons for TSC’s decision to include them on the list.”
In June, a federal district court in Oregon ruled American Muslims who were placed on the No Fly List had their rights to “procedural due process” violated and the current process was unconstitutional. Judge Anna Brown instructed the government to “provide a new process” that satisfies the “constitutional requirements for due process.”
But in the dismissal motion the Justice Department asserts that this ruling does not matter. “It was not—and still is not—clearly established that plaintiffs had a constitutional right to air travel, further undermining any argument that a ‘reasonable official would understand that’ nominating an individual to the No Fly List, or failing to recommend the individual’s removal from the No Fly List, ‘violates that right.’” The department also suggests neither of the men are entitled to the “most convenient form of travel.”
The Justice Department believes that the men did not have their “liberty interest in travel” violated. Officials in President Barack Obama’s administration have argued “all modes of transportation must be foreclosed before any infringement of an individual’s due process right to international travel is triggered.” Judge Brown rejected this argument and concluded, “Plaintiffs have constitutionally-protected liberty interests in traveling internationally by air, which are significantly affected by being placed on the No Fly List.”
Brown additionally declared in addressing the “liberty interest” Americans have:
…It is undisputed inclusion on the No-Fly List completely bans listed persons from boarding commercial flights to or from the United States or overUnited States airspace. In addition, the realistic implications of being on the No Fly List are far-reaching. For example, TSC shares watch-list information with 22 foreign governments, and United States Customs and Border Protection makes recommendations to ship captains as to whether a passenger poses a risk to transportation security. Thus, having one’s name on the watch list can also result in interference with an individual’s ability to travel by means other than commercial airlines as evidenced by some Plaintiffs’ experiences as they attempted to travel internationally or return to the United States by sea and by land. In addition, the ban on air travel has exposed some Plaintiffs to extensive detention and interrogation at the hands of foreign authorities. With perhaps the exception of travel to a small number of countries in North and Central America, a prohibition on flying turns routine international travel into an odyssey that imposes significant logistical, economic, and physical demands on travelers… [emphasis added]
Thus, in addition to the indifference to the alleged violations of religious freedom, the motion is remarkable because the Justice Department still insists on this idea that Americans have no “constitutionally-protected liberty interest” in travel just so it can have one more argument to shield real and actual abuses in the watchlisting system from legal challenge.
Journalists Jeremy Scahill and Ryan Devereaux of The Intercept appeared on “Democracy Now!” to discuss their major story from last week on the criteria government officials use to place an individual on a terrorism watch list.
Scahill explained that being designated as a “known” or “suspected terrorist” can “secretly be used in court proceedings. It can prevent you from getting employment. You can be designated as a representative of a terrorist organization, even if you are not affiliated with that terrorist organization.”
It is nearly impossible to get off a list. “If there are multiple agencies who have contributed information on your file, then all of those agencies have to agree that you should be removed. And when you’re removed, you don’t get any notification whatsoever,” Deveraux said.
Scahill later added, “I don’t want to talk about future reporting that Ryan and I are doing, but we’re staying on this beat, and we’ve learned information that indicates that even if you think you’re removed from the list, you may end up on another part of the list. I mean, once you get sucked into the vortex of the watchlisting system, it’s almost impossible to come back up for air. You’re stuck.”
So, if four American Muslims believe that law enforcement is applying pressure to them to become informants, they may be removed from the No Fly List and placed on other lists so that pressure could continue. They may later find themselves back on the No Fly List for no explicable reason and continue to struggle to travel.
With no accountability for decisions because the government reflexively invokes terrorism, national security and the “state secrets privilege” to stifle lawsuits, there is not much in the way of violating a persons’ rights that the government cannot get away with and American Muslims are especially vulnerable to the racism intrinsic to internal decision-making.
*Watch Jeremy Scahill and Ryan Devereaux on “Democracy Now!”
Creative Commons Licensed Photo by Ryan J. Reilly