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Tanvir v. Holder

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Synopsis

Tanvir v. Holder is a federal lawsuit brought by four American Muslim men (Muhammad Tanvir, Jameel Algibhah, Naveed Shinwari, and Awais Sajjad). The four were placed on the federal government’s notoriously overbroad and inaccurate “No Fly List,” not because they pose a threat to aviation security, but because they refused to forfeit their constitutional rights by serving as government informants against innocent members of their religious community.

Status

The original complaint, on behalf of plaintiff Muhammad Tanvir, was filed by the CLEAR project of CUNY School of Law and the Center for Constitutional Rights in the Southern District of New York on October 1, 2013, and assigned to Judge Abrams.
 
On April 22, 2014 an amended complaint was filed, adding plaintiffs Algibhah, Shinwari and Sajjad and their associated defendants.

Description

The lawsuit is brought on behalf of four American Muslim men who were approached by the FBI in an effort to recruit them as informants. None of them pose a risk to aviation security, indeed, nothing in their backgrounds suggest that they pose any kind of threat to anyone. Some of our clients found themselves on the No Fly List after refusing to spy for the FBI, and were then told by the FBI that they could get off the List if they agreed to become informants. Others were approached by the FBI shortly after finding themselves unable to fly and were told that they would be removed from the List if they consented to work for the FBI.
 
As a result of their placement on the No Fly List and the FBI’s unwarranted scrutiny, some of the plaintiffs have not been able to family overseas for years. One has not been able to visit his gravely ill 93-year-old grandmother; another has been separated from his wife and three young daughters for roughly five years; a third has been unable to see his wife for nearly two years. They have lost jobs, been stigmatized within their communities, and suffered severe financial and emotional distress.
 
One plaintiff was asked by the FBI if he would go to online Islamic forums and “act extremist,” while another was asked whether he would travel to Pakistan for the FBI. All felt they were being asked to inform to the government on innocent people. For many Muslims and other people of faith, doing so would violate their core religious beliefs, including the proscription on bearing witness against one’s neighbor by engaging in relationships and religious practices under false pretenses, and generally betraying the trust and confidence of one’s religious community
 
The government operates the No Fly List under near-total secrecy and never tells people on the List why they are listed or gives them a meaningful chance to dispute their placement. The only process available for relief is the TRIP program, whereby travelers who encounter problems may file an inquiry with DHS, but never receive any confirmation or denial that they were on the list or that any change in status has taken place in response. Even after filing a TRIP complaint, generally the only way to tell whether one is still on the list is to buy a plane ticket and attempt to fly.
 
This complete lack of transparency and accountability makes the List ripe for abuse by FBI field agents who, in the post-9/11 environment, often face pressure from their superiors to recruit human sources, and have a great deal of individual discretion to nominate individuals to the list with only the most minimal oversight from superiors.
 
The No Fly List is supposed to be limited to individuals who are determined to be such significant threats to aviation security that it is too dangerous to allow them on any commercial flight to, from or over the United States regardless of the extent of pre-boarding searches they are subjected to. (A second, larger, “selectee” list includes names of people who will be subjected to an extra level of scrutiny at security checkpoints before boarding, but not categorically barred from flying. That list is not at issue here, though it is sometimes colloquially described as a “no-fly” list.) As of 2012, the No Fly List contained over 21,000 names. A 2007 audit found that more than half of the 71,000 names then on the List were wrongly included.  It is an open question how many people today are on the list purely by mistake and how many, like our plaintiffs, have been listed improperly because they refuse to spy on their communities. The fact that our plaintiffs were told they could fly again if they agreed to work as informants for the FBI begs the question of how, if they were truly so dangerous to begin with, the FBI could risk enlisting them as informants and allowing them to fly.
 
Plaintiffs all allege the government unlawfully placed them on the No Fly List in retaliation for their having exercised their First Amendment rights not to become informants. Plaintiffs also allege that the No Fly List violates the Due Process Clause of the Constitution because it fails to give plaintiffs any meaningful notice or opportunity to see or challenge the asserted reasons for their placement. Finally, they allege violations of the Religious Freedom Restoration Act and the Administrative Procedure Act. The complaint amends claims previously advanced on behalf of one plaintiff and adds claims on behalf of three new plaintiffs.
 
Plaintiffs are asking the court to remove their names from the No Fly List, for declaratory and injunctive relief stating that they were kept on the List without cause and in retaliation for their assertion of constitutional rights in refusing to serve as informants, and that the List deprives individuals on it of liberty without sufficient procedural safeguards against abuse. Finally, they seek monetary relief for damages they suffered as a result.
 
CCR’s co-counsel on the lawsuit are Professors Ramzi Kassem and Diala Shamas of the City University of New York School of Law’s CLEAR project, and the law firm of Debevoise & Plimpton LLP.
 

News Highlights



July 2014 – The government’s 2013 Watchlisting Guidance, which describes the criteria for placing someone on the No Fly List and other terrorist watchlists, is leaked to The Intercept. Two weeks later, more documents are leaked, revealing the astronomical growth of terrorist watchlists under President Obama.

April 23, 2014, NPR4 Muslim Men To Sue Feds Over No-Fly List

April 24, 2014, Democracy Now!

Timeline

October 1, 2013 – Original complaint, on behalf of plaintiff Muhammad Tanvir, filed in the federal district court for the Southern District of New York. Case is assigned to Judge Abrams.

April 22, 2014 – Amended complaint is filed, adding plaintiffs Algibhah, Shinwari and Sajjad and their associated defendants.

July 2014 – the government moved to dismiss the claims against high-level agency defendants for lack of subject matter jurisdiction. The government also moved to dismiss the Bivens and RFRA claims raised against the individual FBI officers.