The U.S. government recently removed four law-abiding Muslim men from the no-fly list just days before a New York federal district court hears their case, scheduled for Friday.
Tanvir v. Lynch alleges that the FBI used the no-fly list to coerce Muslims into becoming informants on their community and that the government retaliated against them when they lawfully opted not to.
“The fact that the government has confirmed that all four of our clients now can fly really affirms our claims in this lawsuit that the only reason they were ever on a no-fly list is … they were refusing to be informants. There was never any valid reason for their placement,” said Diala Shamas, a senior staff attorney at CLEAR (Creating Law Enforcement Accountability and Responsibility) at the City University of New York School of Law, which brought the lawsuit along with the Center for Constitutional Rights and Debevoise & Plimpton.
According to the suit, Muhammed Tanvir, a resident of the New York City borough of Queens, was not allowed to travel after he refused multiple requests from FBI agents to work on their behalf, saying it would violate his religious beliefs. Furthermore, he said he had no useful information to share.
He was first approached by the FBI in early February 2007, and the suit alleges that the harassment continued for years and included a temporary confiscation of his passport and threats to deport him to Pakistan, where his wife and son lived.
The suit also alleges that the FBI believed him to be a “special,” “honest” and “hardworking” person and offered him incentives, help with his family’s travels to the U.S. and financial assistance for his parents to take religious trips to Saudi Arabia.
Tanvir believes he was placed on the no-fly list sometime before October 2010, after he refused to speak to the agents further.
“Had Mr. Tanvir actually presented a threat to aviation safety, [FBI agent Sanya] Garcia would not and could not have offered to remove Mr. Tanvir from the list merely in exchange for his willingness to become an informant,” the suit states.
The three other men included in the suit — Jameel Algibhah, Naveed Shinwari and Awais Sajjad — believe they too were prevented from traveling after refusing to work on behalf of the FBI, or they found themselves unable to travel and were told by the FBI that they could be removed from the list if they agreed to work as informants.
“I haven’t seen my family in a long time. My youngest daughter doesn’t even know me,” said Algibhah, whose wife and daughters live in Yemen, according to a Center for Constitutional Rights press release issued after the men were notified that they would again be able to fly in the U.S.
Sajjad said he would like to travel to Pakistan to see his ailing grandmother. Shinwari has been unable to visit his wife and family in Afghanistan since 2012.
The men say their First and Fifth Amendment rights to freedom of speech and association as well as freedom of religion and due process, among others, have been violated.
The lawsuit names among the defendants the attorney general, FBI Director James Comey and more than a dozen FBI agents, some whose identities are not known.
The lawsuit is far from unique in its aim to make the government blacklist more transparent.
Last June, a federal judge in Oregon ruled in response to an American Civil Liberties Union lawsuit that the government’s system for people to challenge their inclusion on the no-fly list was unconstitutional, noting that the redress process contained “a high risk of erroneous deprivation of plaintiffs’ constitutionally protected interests.” In response, seven of 13 American citizens or residents represented by the ACLU were cleared to fly, after having fought their ban for years. Two U.S. military veterans are among those who remain on the list.
The government provided unclassified summaries about the ACLU clients regarding some of the reasons they may not have been able to fly. But none of those summaries included all the reasons, said Hugh Handeyside, a staff attorney in the ACLU's national security project.
The government “didn’t provide any actual evidence in support of the summaries,” he said. “They didn’t provide access to the witnesses against our clients … and there was no live hearing at which our clients could establish their credibility.”
The ACLU continues to fight the government regarding the constitutionality of the no-fly list, which the organization says “treats people as guilty without a trial and deprives them of their freedoms without due process.”
If someone is on the no-fly list, he or she cannot fly to or from the U.S. or in U.S. airspace. Several federal agencies — including the FBI, which administers the Terrorist Screening Center — can nominate someone for the list, but the government has not said what criteria are used to designate someone a threat.
The Department of Homeland Security alleges that if the government revealed this information, “terrorist organizations would be able to circumvent the watch list’s purpose by determining in advance which of their members were likely to be questioned or detained.”
The number of the people prevented from flying is unknown, but estimates range from more than 21,000 people in 2012 to about 48,000 in 2013 to 64,000 in 2014.
Nearly half the people in the U.S. terrorist screening database, of which the no-fly list is a subset, were found to have no connection to a terrorist group, according to a document obtained by online news site The Intercept last year.
The no-fly list is shared with 22 foreign governments, and people usually discover they are on the list only when they try to fly and are not permitted to do so.
If people believe they are on the list, they can submit a complaint to the Department of Homeland Security, which is then reviewed by the Terrorist Screening Center. They are notified by letter whether they are on the list and, if so, given instructions how to request additional information regarding why they were placed on the list.
But as the ACLU notes, a hearing is not provided.
The original primary guidelines of the government blacklist were to identify if a person was a threat to aviation and could be properly identified as such via “sufficient unclassified biographical data.”
There have long been allegations that the FBI has tried to coerce Americans, including law-abiding ones, to act as informants.
Former FBI Special Agent Michael German, who is now with the Brennan Center for Justice, said these allegations are true and are more acute for Americans living overseas.
There needs to be proper redress and stronger regulations that are “constitutionally adequate” and don’t “deprive persons of the rights that they are entitled to,” he said, adding that coercing informants should not be part of the equation. Those put on the list, he said, must also have an “adequate forum to challenge the allegations against them.”
The case brought on behalf of Tanvir and the other men raises the larger issues of discriminatory policing, government surveillance and the profiling of Muslims.
“Post-9/11, the FBI has been very aggressively recruiting informants within the Muslim community, and they use a number of tools,” said CUNY’s Shamas. “Among them has been the no-fly list.”