Qualified Immunity May Shield FBI Agents Who Abused the No-Fly List

Any inconvenience governments can impose will eventually be abused as a tool of arbitrary punishment. Take, for example, the no-fly list and related watchlists, which are supposed to contain the names of known and suspected terrorists so they can be monitored and their movements restricted. From day one, placement on the list has been misused to punish innocent people who won't do what federal agents command. Now FBI agents caught abusing the system want qualified immunity to shield them from consequences as people they mistreated seek justice through the courts.

Violating Rights to Gain Compliance

"Following the Sept. 11, 2001, terrorist attacks, FBI agents unsuccessfully attempted to pressure a group of innocent Muslims, including Muhammad Tanvir, to become informants for the Bureau," notes the Institute for Justice (I.J.), which filed an amicus brief in Tanvir v. Tanzin. "Tanvir and the others—who were all either American citizens or lawful permanent residents—declined to become informants, because doing so goes against their sincerely held religious beliefs. FBI agents then harassed the group and placed them all on the No-Fly List."

The Center for Constitutional Rights acts as co-counsels for the plaintiffs alongside the CUNY School of Law's CLEAR Clinic. They sued under the Religious Freedom Restoration Act (RFRA) on the grounds that the plaintiffs' Muslim faith forbids them to inform on coreligionists. The defendants—FBI agents who put Tanvir and the other plaintiffs on the no-fly list—protested that the RFRA doesn't provide for monetary damages against government officials who violate rights, but the U.S. Supreme Court ruled otherwise in an important 2020 decision written by Justice Clarence Thomas.

Violating Rights Without Consequences

The next question is whether the law shields federal employees from consequences. After the Supreme Court ruled that the agents could be individually sued, the U.S. Department of Justice argued the agents are entitled to qualified immunity because it wasn't "clearly established" that their conduct "imposes a substantial burden" on the plaintiffs' rights. It's an illustration of a serious problem with the law.

"Qualified immunity shields government officials from financial liability, even if they have violated the Constitution, so long as they have not violated 'clearly established law," wrote Joanna Schwartz of the UCLA School of Law in 2019. "According to the Supreme Court, the law is only clearly established if a prior decision has held very similar facts to be unconstitutional. Officers are entitled to qualified immunity even if they have engaged in clear misconduct, and even if they knew what they were doing was wrong."

Unfortunately, in February of this year, U.S. District Judge Ronnie Abrams agreed with the government.

"The Court therefore construes the right presented by Plaintiffs' claims here as the right not to be pressured by law enforcement to inform on members of their religious communities through the coercive or retaliatory use of the No Fly List," Abrams wrote on the way to dismissing the case. "The Court concludes that such a right was not clearly established at the time of the alleged violations."

How are federal agents supposed to know that arbitrarily sticking people who defy them on terrorism watch lists is wrong? After all, it's just how they get things done.

Violating Rights as Standard Practice

It really is how they get things done. In 2021, The Intercept's Murtaza Hussain wrote about Aswad Khan's mistreatment by the FBI when he refused to be an informant. That same year, Ahmad Chebli, a U.S. citizen, described a similar ordeal.

"Agents threatened my family and me," he wrote. "They said that if I didn't agree to become an informant, my family would be investigated, my wife and I could be arrested, my children could be taken away, and my wife's immigration status could be at risk."

Chebli was finally removed from the No Fly list after the ACLU sued on his behalf.

Watchlists aren't supposed to be used this way. In 2014, a federal district judge declared the byzantine process for people to challenge their inclusion on the no-fly list unconstitutional and ordered better guarantees of due process. But as Chebli's case demonstrates, it's easy for the government to put people on the lists and then pull them off years later only after they've gone through the hassle and expense of filing a federal lawsuit—if they ever do. With no further consequences, that leaves administrative tools like the No Fly List available for ongoing abuse.

Qualified immunity makes matters worse, since it shields government employees creative enough to distinguish recent abuses from those that went before. It's a game that goes on forever so long as officials can persuade judges that they've violated individual rights in a slightly novel way.

More than a few people see the ease with which names can be placed on watchlists—growing from a handful to hundreds of thousands in the decade after 9/11—as a feature rather than a bug. "If you're too dangerous to board a plane, you're too dangerous, by definition, to buy a gun," then-President Barack Obama huffed in 2015. During the pandemic, everybody's favorite authoritarian public health czar, Anthony Fauci, toyed with listing the unvaccinated. Airlines lobbied for including the names of unruly passengers, turning a supposed national security tool into a bouncer for drunk assholes in the sky.

Many people want an easy method for severely punishing those who offend them, which is a problem in itself. But it's an even worse problem because easy methods for punishing people invite abuse.

Violating Rights Shouldn't Be Shielded by Law

"There is this mythology surrounding the war on terrorism, and the F.B.I., that has given agents the power to ruin the lives of completely innocent people based solely on what part of the world they came from, or what religion they practice, or the color of their skin. And I did that," Terry Albury, a former FBI agent who went to prison for leaking bureau documents about such practices, told The New York Times. "I helped destroy people. For 17 years."

Ironically, Albury was himself subjected to "special administrative measures" in prison, he says, for acting against the FBI and for needling the Bureau of Prisons.

"Qualified immunity should not exist at all. It certainly should not apply to RFRA," says Institute for Justice Senior Attorney Patrick Jaicomo. "But if it does, the court should at least grapple with the fact that a constitutional violation occurred" and explicitly say so to prevent government officials from claiming in the future that they didn't know "coercive or retaliatory use of the No Fly List" (in Judge Abrams' words) was illegal.

Qualified immunity shouldn't exist and neither should easily abused administrative punishments. They're two terrible aspects of government that make each other much worse.