Muslim men on 'no-fly list' lose US appeal over treatment by FBI agents

A US appeals court said three Muslim men cannot sue FBI agents after being placed on the "no-fly list" for refusing to become government informants.

The second US Circuit Court of Appeals in Manhattan said the 16 agents were protected by qualified immunity, despite their "improper behaviour" and the three men's belief that Muslims in the United States had been unfairly targeted.

Circuit Judge Gerard Lynch wrote for a three-judge panel that the agents had no reason to believe they were violating the men's religious beliefs, because none of the men had told them so during their interactions.

Qualified immunity shields federal officials from liability for violating constitutional rights that were not clearly established at the time of the violation.

Muhammad Tanvir, Jameel Algibhah and Naveed Shinwari sued in 2013 after being put on the No Fly List for refusing to spy on US Muslim communities, despite no evidence the men threatened airline or passenger safety.

The men, all US citizens or permanent residents who were born abroad, said inclusion on the list violated their religious beliefs, cost them jobs, harmed their reputations, and kept them from seeing family in Pakistan, Afghanistan and Yemen.

Seeking damages

Though eventually removed from the list, they sought damages under the federal Religious Freedom Restoration Act of 1993. The case in 2020 had reached the US Supreme Court, which upheld an earlier second Circuit ruling that the men could seek damages from the FBI agents. It did not address qualified immunity.

In Tuesday's decision, despite ruling in the agents' favour, Lynch faulted them for pressuring the men to become informants by "falsely and in bad faith accusing them of terrorism to deny them significant liberties under a program designed to protect lives from genuine terrorists."

"That," Lynch wrote, "is improper behaviour regardless of whether the agents knew of the (men's) particular religious beliefs."

A spokesman for U.S. Attorney Damian Williams in Manhattan, whose office represented the agents, declined to comment.

The men were represented by the Centre for Constitutional Rights, the City University of New York School of Law's Creating Law Enforcement Accountability & Responsibility project, and the law firm Debevoise & Plimpton.

In a statement provided by his lawyers, Tanvir said the case "was never just about money. We fought for a decade so people would know what happened to us and so the same thing would not happen to others. Even if this decision does not give us everything, we still won."

The government created the No Fly List after the 11 September 2001 attacks, to keep suspected terrorists off aircraft in the United States.

Tuesday's decision upheld a Feb. 2023 dismissal by U.S. District Judge Ronnie Abrams in Manhattan.