No Spy, No Fly! (Tanzin v. Tanvir)

        In the Supreme Court’s upcoming 2020 term, they will hear the oral argument for FNU Tanzin v. Tanvir, a case involving the FBI’s “No Fly List”. Muhammad Tanvir, Jameel Algibhah and Naveed Shinwari have all been placed on the FBI’s “No Fly List” for refusing to become FBI informants. All of the men were approached by the FBI, who intended to have them spy on their local communities in their home countries. They were asked to participate in extremist events and online forums and that based on their participation alone, they would either be removed or kept on the “No Fly List”. The plaintiffs are all either citizens or permanent residents of the United States despite being born abroad and have no history of being threats to national security or aviation and no criminal records. The plaintiffs argue that their refusal to become informants was faithful to their religion. Also, one interesting note is that all three men were recently taken off the “No Fly List” but are continuing to pursue the case for damages. They continue to pursue the case as they were unable to visit family, lost work, and suffered financial and emotional distress as a result of their names being on the list.

        The U.S. Circuit Court of Appeals ruled in favor of Tanvir, Algibhah, and Shinwari in 2018, however one of the dissenters, Judge Dennis Jacobs argues that this decision sets a dangerous precedent. He argues that the possibility of being held personally responsible for decisions concerning national security could have significant and damaging impacts on the actions of current and future government officials and employees.

        The primary question in this case is whether or not the Religious Freedom Restoration act of 1993 (RFRA) will allow the men to pursue money damages against individual federal employees. The RFRA is known for providing exemptions and accommodations from burdensome laws for sincerely held religious beliefs. The plaintiffs argue that by putting their names on the “No Fly List”, their free exercise of religion was violated.

        In this case, I believe that the Supreme Court should decide in favor of Tanzin. BY forcing the men to choose to betray their religion in order to be removed from the “No Fly List”, the FBI and the agents were forcing the men to choose between their religion and their freedom to travel and work. In United States v. Seeger, Daniel Seeger sought an exception from the draft citing his religious beliefs of pacifism and his belief in a “Supreme Being”. The Supreme Court ruled in favor of Seeger and argued that all religions and religious beliefs should be legitimately considered whether or not they believe in a God or not. While not identical, both of these cases present the combatting issues of religious beliefs and religious loyalty clashing with service to the government. United States v. Seeger ruled that there could no be discrimination on sincere religious beliefs and stated that the Constitution grants the freedom of religion, inherently providing a benefit to religion that non-religion does not receive, touching on the issue of special rights versus neutrality under the law

        In Braunfeld v. Brown, the Supreme Court ruled that the Pennsylvania blue law requiring businesses to be closed on Sundays was not a violation of the Free Exercise of religion. Justice Warren, in the majority opinion, argued that there was no crime in believing in any religion whatsoever or pressure to conform or embrace any specific religion, according to the statute. The majority argued that the freedom to believe in any religion you want is given, but the law simply placed an indirect burden on the exercise of religion. Justice Brennan dissented on this issue, arguing that the statute forced Braunfeld to make a choice between his religion and his business. In McGowan v. Maryland, the Supreme Court reached a similar conclusion that the blue laws did not violate the Free Exercise Clause of the First Amendment as they did not infringe on their own religious practices, it simply placed an economic burden on them. However, this case is different. While in Braunfeld v. Brown, there was no coercion whatsoever to conform to another religion and the burden placed on Braunfeld was only indirect, in this case, there is a clear direct burden. By forcing the men to choose between their religion and their families, their work, and freedom to travel, there was not only an economic burden on them, but a mental one as well. I believe that this case could also be examined in the light of different religions. Would the case be viewed any differently if it were a group of Christian men who were added to the “No Fly List” and the only path to removal was spying on their churches and communities?

        However, I also believe that there is a strong counter argument to be made. Based on the decisions in the two cases mentioned above, the Supreme Court could rule based on precedent and argue that the burden placed on the men was reasonable and justifiable in the name of national security. Additionally, I found Judge Jacobs’ argument about setting a dangerous precedent for current and future government employees compelling. If individuals become liable for the actions they take given to them by their employers, I have no doubts that at least a reasonable handful of workers would question their actions while working and possibly even refuse with the fear of legal action looming over them. However, I have confidence that employees would still be willing to carry out their duties without overwhelming concern and that if there were to be a surge in legal filings, the courts would ensure that only reasonable complaints and significant issues would be accepted. Despite the aforementioned cases and other decisions and arguments made in favor of the FBI and the agent, the direct burden placed on the men to choose between their livelihood and their religion denote their pursuant of money damages legitimate under the RFRA and the Free Exercise Clause of the First Amendment.

        Since this case is going to be decided by the Supreme Court, I believe that it is relevant to look at how the Supreme Court may decide the case, especially with the recent death of Justice Ginsburg. At this point, I am unsure how the Court will decide. Historically, conservative justices tend to lean on the side of the Free Exercise Clause and the rights it grants, but the main focus of the case it not on the Free Exercise Clause, but the allowance or disallowance of pursing legal action against in individual government employee. Based on the reading and research that I have done on the case; I currently suspect that the case will be decided in favor of Tanzin and the FBI, but I am interested to see the development of the case.