Supreme Court wrestles with Muslims’ suit over no-fly list

A Supreme Court that has been friendly to religious interests took up a case Tuesday involving Muslim men who claim their religious rights were violated when they were placed on the government’s no-fly list because they refused to serve as FBI informants.

The justices, in arguments by telephone, wrestled with whether the men can seek to hold the FBI agents financially liable under a 1993 religious freedom law for trying to persuade the men to spy on other Muslims.

In recent years, the court has ruled in favor of people and companies asserting claims under the law at issue, the Religious Freedom Restoration Act, or the Constitution’s guarantee of religious liberty.

The three foreign-born men claim in the lawsuit that their religious convictions led them to rebuff agents who wanted them to inform on people in their Muslim communities. "This is a clear prohibition in the Islamic faith," Ramzi Kassem, the men’s lawyer, told the justices.
The men claim the agents then placed or kept them on the list of people prevented from flying because they are considered a threat. The men have since been removed from the no-fly list.

Questions from the court did not even touch on the men’s Islamic faith or the actions of federal officials. Instead, the justices focused, in an often technical way, on the wording of the federal law to figure out if the lawsuit could proceed.

They asked both sides whether Congress should have written the law differently if it wanted to clearly rule in or out suits for money damages against federal officials.

"In thinking about what the text means here, I look at the words but also look at the words that aren’t there. And this is a relatively short and heavily-focused-upon statute by Congress at the time. And when it says ‘appropriate relief,’ it does not, of course, say appropriate injunctive relief. And it’s hard to imagine that that didn’t escape the attention of the members of Congress who were focused on this," Justice Brett Kavanaugh said to Justice Department lawyer Edwin Kneedler, who argued that the men should not be able to seek damages.

Justice Elena Kagan, questioning Kassem, suggested lawmakers should have been clearer if they wanted to allow lawsuits like this one.

"Certainly, we haven’t interpreted any statutes, with this little specificity, to permit damages against federal employees personally. So the question is, why shouldn’t we take that as signaling what we should do here, that we should say, you know, Congress really has to be clear to do this, and Congress hasn’t been so clear?" Kagan said.

A decision in Tanzin v. Tanvir, 19-71, is expected by spring.