MANHATTAN (CN) — With the no-fly list’s processes already found unconstitutional, judges on the Second Circuit argued Wednesday over whether FBI agents who used it to pressure Muslims into becoming informants should have to pay up.
Queens resident Muhammad Tanvir and three other men have been fighting their case against dozens of known and unknown federal agents for going on four years.
Courts have restrained the no-fly list’s reach since that time. A year into the case, in 2014, a federal judge in Oregon blasted the procedures by which people could challenge their inclusion on the list as inadequate, unconstitutional and “wholly ineffective.”
Tanvir and the other men have successfully had their names removed from the list, but they say they deserve damages for having their lives uprooted.
“The fact that they were taken off the list after they sued does not end the story,” their attorney Ramzi Kassem said in a statement. “Our clients were unable to see their wives, children, sick parents, and elderly grandparents overseas for years. They also lost their jobs, were stigmatized within their communities, and suffered severe financial and emotional distress.”
Kassem’s clients brought their case to the Second Circuit on Wednesday after a federal judge rejected their bid for damages under the Religious Freedom Restoration Act.
Passed in 1993, the RFRA provides “appropriate relief” for a government burden on the free exercise of religion.
Assistant U.S. Attorney Ellen Blain told the court’s three-judge panel that injunctive relief is the only appropriate remedy. Anything else, Blain insisted, would come at a “substantial social cost.”
“You would find that individual FBI agents or agents at any other federal agency could be held liable from their own pockets,” she said. “Again, this is not a lawsuit against the government, as the court well knows. It’s not a lawsuit against agencies. This is against individual officers who are trying to protect this nation from terrorism.”
Splashing cold water on that concern, U.S. Circuit Judge Gerard Lynch noted that those agents already enjoy protection by asserting qualified immunity.
“This would only apply to federal officials who act in a way that any federal official would understand that would be a violation of people’s constitutional rights,” Lynch said. “If there’s any ambiguity about that, there is no liability.”
Indeed, Tanvir’s lawyer Kassem acknowledged that his client’s case could be defeated on immunity grounds even if the Second Circuit revives it, but said establishing the legal principle would put the FBI on notice.
“Even then, there’s some value in this litigation moving forward because that takes us one step toward establishing the law, so future defendants, future agents, will know not to overstep in the way these individual defendants overstepped their authority to place individuals on no-fly lists in order to coerce them into informancy,” Kassem argued.
The prospects for the case returning to U.S. District Court appear likely, as the three-judge panel sharply questioned the government’s reading of the statute.
At one point, U.S. Circuit Judge Rosemary Pooler told Blain: “It really doesn’t make sense, this interpretation.”
The final member of the panel, Chief U.S. Circuit Judge Robert Katzmann, noted at one point that appropriate relief is usually interpreted to include money damages.
As is customary, the panel reserved decision on a ruling.