In Tanzin v. Tanvir,1. the U.S. Supreme Court held that plaintiffs suing under the Religious Freedom Restoration Act of 19932 (RFRA) can seek money damages from federal government officials in their individual capacities.3 The case involved three American Muslim men who were placed or kept on the No Fly List by Federal Bureau of Investigation (FBI) agents for the men’s refusal to work as informants and spy on their own faith communities in violation of their religious beliefs.4 For years, the men were unable to see spouses, children, sick parents, and elderly grandparents overseas.5 They lost jobs, were stigmatized within their communities, and suffered severe financial and emotional distress.6 In 2014, the plaintiffs sued for removal from the No Fly List and for monetary damages from the agents who placed them on the watchlist.7 Days before the first major court appearance in the case in 2015, the government confirmed that all the plaintiffs had been removed from the No Fly List.8 The U.S. District Court for the Southern District of New York later granted the government’s motion to dismiss the remaining claims.9 The men appealed the district court’s decision, insisting on redress for the harm they suffered by placement on the No Fly List.10 The U.S. Court of Appeals for the Second Circuit reversed in 2018, reinstating the plaintiffs’ claims.11 A majority of the members of that court then denied the defendants’ petition for rehearing en banc.12 In 2019, the government, acting on behalf of the defendant-agents, sought and obtained certiorari.13 Due to the COVID-19 pandemic, oral argument was postponed from March to October 2020,14 and the case was decided in December of that year.15
The Goals of the Lawsuit
What was most important to you at the time you filed suit: Getting off the No Fly List, getting damages for what had already happened, or something else?
Muhammad Tanvir: I had done nothing wrong and the FBI agents still put me on the No Fly List. My parents, my wife, and our son lived in Pakistan back then, and I couldn’t see them. I also lost work driving trucks long distance as a result. I wanted to clear my name. And I wanted to make sure this didn’t happen to others at the hands of the FBI. I didn’t want others to feel the way I did and experience what I did and what my family went through. That was my primary goal back then.
Jameel Algibhah: The most important thing at the time was regaining the ability to travel to Yemen to see my wife and our three daughters, the youngest of whom was only six years old. I hadn’t seen them in years at that point. I felt like I was in jail for that entire period.
Naveed Shinwari: I was heartbroken at the idea that America, a country of freedom for all faiths, where you can freely express yourself, still held double standards for minorities and especially for Muslims. My first goal at that time was to get off the No Fly List. I was stuck, and no one was responding to me. My second aim was to raise awareness about what was happening. It wasn’t just happening to me. It was happening to many Muslims.16 And I wanted to do what I could to prevent it from happening to others, Muslim or non-Muslim. The damages come third. The FBI agents ruined my life. I’m still suffering from what they did to me. Financially, I was ruined. I wasn’t able to travel from Omaha to Orlando in time to take up a temporary job I had been offered. I was unable to pay my bills as a result of all this. At the time, I felt depressed and anxious around others. Even today, socially, I still feel like I can’t trust people fully sometimes. America’s promise of freedom proved not to be real for me and others like me. The lesson I took away at the time was that the federal government can do anything to you at any time, and no one can stop it. But, now, I’m a civil rights activist as a result. I want to spread the word and raise awareness.
After you were removed from the No Fly List,17 why was it still important to you to continue with this lawsuit?
Muhammad Tanvir: For the sake of other people, in and out of my community, who see trouble from the FBI for no reason. This wasn’t just my problem. We had to continue for other people. The FBI agents thought they could do anything to me and people like me and that no one could do anything about it or hold them to account. So I wanted to do my part to hold them accountable. Also, personally, I lost so much and my wife and family suffered greatly as a result of what was happening to me. These agents should be held responsible for that.
Jameel Algibhah: Because I didn’t want what happened to me to happen to others. It did a lot of damage to me — emotionally, but also when it came to jobs, to continuing my own education, and in many other ways — so I wanted to be made whole. And the agents should face consequences for what they did to me.
Naveed Shinwari: What the FBI agents did to me was very wrong. Watchlists, including the No Fly List, are like a big pond, and agents throw people into these dark, murky ponds at will and with no consequence. The agents are responsible, and I wanted to hold them to account for ruining lives. Also, even though one of my goals had been met and I could board a flight again, I still wanted to raise awareness, to make sure that other brothers and sisters in the United States know that they have recourse they can pursue, that they don’t have to sit still, hopeless and helpless. And maybe some of our fellow Americans who live in a bubble, thinking that they are in the freest country in the world, will realize this is happening to your neighbors, because of nothing other than their religion. Now that Allah has freed me from this, I want to raise awareness, make it better for others, and hopefully help improve this society. Maybe some good can come out of what happened to me and others.
Was your lawsuit one part of a larger strategy? If so, what was that larger strategy?
Naveed Shinwari: Part of our larger strategy was to raise awareness by going after these agents publicly when they prefer secrecy. We were standing up for Muslim lives, Muslim honor, and Muslim freedoms in the United States. That’s why I volunteered to sit for press interviews and to talk to community groups about my case, and I took time off work at personal cost to do it. Of course, none of what we experienced is new in America. Muslims aren’t the first group to be targeted in this way. Before us, there were others, and there are still many others, including the African American community first and foremost, with its Muslim and non-Muslim members. I did worry at times about retaliation — I have a green card, and they could come up with some excuse to deport me. But it was important for me to stand up in this way, not just for myself but for others, regardless of the consequences. Our effort against injustice might even benefit the children and grandchildren of the agents who harmed us. And we wanted to deter these agents from doing to others what they did to us — to deter them by the possibility of damages coming out of their pockets.
The Many Stages of Litigation
When you first filed the lawsuit, were you optimistic?
Muhammad Tanvir: I felt really scared at the beginning. I was very worried about what might happen, what the FBI might do to me because I sued. But my team at CLEAR,18 the lawyers and the students, they really put me at ease about the process. And from the very beginning, when the team told me never to talk to the FBI without having a lawyer with me, for the first time, I felt like someone had my back. I had been feeling alone all this time, with no one to help me. God sent someone to help me.
Jameel Algibhah: Not really. I had gone to many different lawyers — maybe ten — before finding the CLEAR clinic, including experienced lawyers who handled federal cases. They all refused to take the case because it was against the government and the FBI. And then I found one lawyer who took my case, but for almost two years she did nothing at all. I’d call her but she almost never called me back. She just interviewed me the first time I visited her office, when I gave her the case, and that was it — I never saw her or spoke to her again. I almost gave up. Once I met my legal team at CLEAR, that gave me hope, but I still wasn’t sure things would work out for me.
Naveed Shinwari: I felt that the odds were stacked against us. We were standing up to the federal government and the FBI. At that time, my primary aim was to get off the No Fly List and be free again to travel back to Afghanistan and just go about my normal life here in the United States. I felt imprisoned. I would have to spend thirty hours on a bus to travel between Connecticut, where I had been placed on assignment for work, and Omaha, where my family lived. A flight would have taken me only three hours. The lawsuit gave me a chance to get off the list, I thought. But I never envisioned it going all the way to the Supreme Court.
Did you feel like the case might be over when you lost in district court? 19 Were you optimistic about the idea of an appeal?
Muhammad Tanvir: Initially, I thought it was over — I thought we had done all we could do. I wasn’t particularly optimistic about an appeal at first. This was the FBI, after all, not some regular police department — they’re a big agency.
Jameel Algibhah: I thought that maybe our case was over, but I also felt that it wasn’t fair for us to lose this way, being told that we didn’t even have a right to sue these agents for what they did to us. And that’s why I wanted to continue.
Naveed Shinwari: I mostly felt grateful that we were off the No Fly List and that we had been able to raise some awareness around what happened to us. I did think our case was probably done with, but I never lost hope completely. Thank God, we were blessed with some very good attorneys, who were pursuing the effort vigorously. Our lawyers were affected by this, too. Many of them are Muslims themselves. And our non-Muslim lawyers are sincere as well. So, I didn’t lose hope entirely, and I thought we had a chance on appeal. But it was like the beginning: the odds were against us again. We were back to being the underdogs that we were at the very start of the case.
Were you surprised when you won on appeal?20 Were you happy?
Muhammad Tanvir: It’s hard to describe. I wouldn’t say I was just happy. It felt like a big success for everybody. It was unbelievable for me. I saw that there was a chance for justice in America.
Naveed Shinwari: I was surprised, of course, and I was happy. People expected us to lose, yet it was another victory for us, so it was joyful. The fact that the case would go on meant more exposure and awareness-raising opportunities, and more pressure on the government and the agents in response to these policies. It wasn’t just the FBI agents and other agencies pushing around American Muslims anymore — we were pushing back. The agents wanted everything to be kept secret and hidden from the world, and we were achieving the opposite: we were exposing what they had done to us and we were holding them to account before the public and higher powers in court.
When you learned that the case would be going to the Supreme Court, how did you feel?21 Were you worried or excited that the issue was getting high-level attention?
Muhammad Tanvir: It was important to stand up for what was right, on behalf of all the others who, like ourselves, had suffered and were suffering. But I was also a little worried that it was going to the Supreme Court. I definitely didn’t expect that at the beginning. Personally, I had hardly ever been to court, and here was the biggest court taking our case.
Naveed Shinwari: I was very happy. Going to the U.S. Supreme Court is such a big deal. This was no longer at a local level. The case had gained national and maybe even international prominence. That meant so much more exposure. I knew this bothered and increased the heat on the FBI and other agencies that had programs and policies that alienated and victimized Muslims. Honestly, I still thought the odds were against us. We were the underdogs again, just like we were on day one in New York. But we were going to do our best to win and to raise awareness to a new level. I kept thinking that this could change lives and maybe even improve this society and help heal the wounds of the Muslims here in America.
Did you listen to the oral argument before the Supreme Court in October 2020?22 What were your thoughts and feelings as the argument was taking place and afterwards?
Muhammad Tanvir: My English is a little weak so I didn’t understand everything. But I fully trusted my attorney who argued on my behalf. In the end, we can only do our best, and the rest is not up to us.
Jameel Algibhah: I was so happy. As the argument was happening, I started to think that we might win. My lawyer did such a good job!
Naveed Shinwari: Of course, I listened to the argument! I actually forwarded the audio link to my brothers and friends in Omaha, Michigan, Connecticut, and other parts of the country. The jargon of law makes it hard at times for normal people to understand everything. But I knew that my attorney was prepared and passionate and that we were on the side of truth and justice. And even though we were the underdogs, I believed that we could beat the odds again. To me, the government lawyer didn’t sound like he really cared. My lawyers, on the other hand, felt my pain, and they were invested. During the argument, my lawyer sounded both more precise and more heartfelt.
Now that the Supreme Court has ruled in your favor, do you feel like you’ve accomplished something important?
Jameel Algibhah: Yes, we accomplished something important. I don’t think there’s another case like ours. But there are lots of people who have experienced similar discrimination, in different ways — at airports and elsewhere. Many of these people read about the decision in our case and were happy that we won. It gives them hope. And our win helps impose a limit on the actions of federal officers at the FBI and other agencies.
Did you ever feel frustrated by how long the litigation took?23
Naveed Shinwari: We scored an early victory getting off the No Fly List. That motivated me to carry on even if, along the way, I definitely felt frustrated at times by how long everything took. But I also knew it wasn’t in my attorneys’ hands. And I knew we were the victims. It was clear cut. I knew that the agents who did this to us were still out there possibly doing the same thing to others. Civil rights litigation can take a very long time, and people can lose hope in the system as a result. Perhaps the system is designed or functions this way to benefit the government and these agencies and to protect them, while discouraging people like me who might seek justice. It requires a lot of patience, and God gave me that patience. I often thought of how Moses and Aaron prayed for patience against Pharaoh.
Justice in the United States
Did you lose faith in the American administrative system during your struggles trying to get off the No Fly List before you ended up filing suit?24
Muhammad Tanvir: Back then, I felt that the FBI controlled everything and that I could not do anything or go anywhere without their permission. I felt trapped. Thank God, someone gave me the number for CLEAR in Queens.
Naveed Shinwari: One hundred percent. I fully lost faith in the administrative system. They don’t care about fairness. We tried so many times, we reached out to so many people in various offices throughout the sprawling bureaucracy. Most often, they wouldn’t even answer at all. Those who did usually acted dumbfounded because programs like the No Fly List operate in secrecy.
Do you feel justice was done in your case? Did your victory make you more confident that the American legal system can achieve justice? Or did you feel like it was too little, too late?
Muhammad Tanvir: Long before we won at the Supreme Court, as soon as I was taken off the No Fly List after I sued, I felt that justice was possible in America.
Jameel Algibhah: It has taken a long time, almost ten years now, and we still aren’t done — we still have a way to go. It reminds me of how things are back in Yemen, where I’m from: when you go to court, you go for fifty years! Forget it! You’ll die before that case is over [laughing]!
Naveed Shinwari: My feelings are mixed. If this legal system were so great, if it were so ideal, why would this have happened to us at all and why would redress have taken so long? But winning in the Supreme Court was a positive moment. We have to go after these agents and sue them, just like they go after Muslims. The laws are there to protect them, and the agents feel free to do as they please. But this result equips us to carry on with our struggle, and it motivates tens of thousands of others, Muslim and non-Muslim, to join the struggle. It instills hope.
Did the way you were treated by the FBI impact or change your feelings regarding the United States, your place in it, and the guarantee of religious freedom?
Muhammad Tanvir: I felt like everyone was watching me. Anytime I left my home, I thought that anyone who looked at me was working for the FBI. This was because of the way the FBI treated me, how they threatened me, and what they said to me. It made me suspicious of everyone. I almost stopped leaving my home because I thought people were always watching me. I would just go to work and then stay home. I hardly went out because I was afraid that people were watching, taking my pictures. The FBI agents even told me that someone had followed me in Pakistan to watch me there during one of my trips to see family.
Jameel Algibhah: The reality is different from the ideal of religious freedom. When I go to the airport, when I do anything, I’m treated differently from others.
Naveed Shinwari: My experience showed me that there was a double standard when it came to Islam and Muslims. We couldn’t be fully free to practice our religion. We are victimized for it. And we’re that minority that they can do anything to. It makes you feel almost worthless. The agents can ruin my life and my family’s life, cause me depression, financial troubles, and social and trust issues, and they can get away with it. You can’t do anything about it. It really took a toll, to this very day. And all of that for what? All to recruit a few spies and informants. But, thankfully, I never lost my faith.
Solidarity and Allyship
The United States witnessed an unprecedented mass movement for racial justice nationwide following the murder of George Floyd by police in 2020, along with a corresponding federal crackdown on Black activists and their allies in the name of “security.”25 Given your own experience with the powerful federal security apparatus, what were your reactions to that?
Jameel Algibhah: Black people in this country are like us Muslims and Arabs: the system is rarely fair to them. They aren’t treated the way white people are in the United States. If you’re Muslim or Black and you’re holding a gun in public, the police will shoot you right away. But if you’re white, they’ll try to talk you down.
Naveed Shinwari: Our Black brothers and sisters have been suffering for centuries. Discrimination against them hasn’t disappeared. A positive development is that there’s more awareness about police violence now. But unless there’s significant change in the system overall, we’re stuck with police racism. My worry is that programs like the No Fly List could be used against Black folks and others in this country — maybe even white people.
Many other religious communities supported you and filed briefs with the Supreme Court on your side.26 Did you personally feel a sense of solidarity with or isolation from other religious communities?
Muhammad Tanvir: I am so grateful for the support we received. Our supporters were acting in the most human way, regardless of religion. Because that’s who we all are, first and foremost — we are all human first. I love them for that.
Jameel Algibhah: This could happen to anybody. It used to be Jewish people being mistreated. Right now, it’s Muslims. So, I’m glad they stood with us, and I would stand with them.
Naveed Shinwari: I personally did not read all the briefs, but my sincere feeling is one of gratitude toward anyone who believed us and who stood by us throughout this long journey. Knowing that all these religious groups spoke up gives me hope that together we can improve this society and stand by each other. And I hope that we will repay that stance in kind one day and stand with others on their worst day.
Lessons and Messages
Do you have any thoughts to share with us this year — the twentieth anniversary of the events of September 11, 2001 — given your personal experience with post-9/11 surveillance and intelligence-gathering programs?
Muhammad Tanvir: I mourn for innocent people who die here and anywhere in the world. I condemn any act of violence that kills innocent people. But that doesn’t mean we in the Muslim community should be punished for what happened twenty years ago. For me, the first thing in my religion is the obligation to take care of other people. We are all human beings who come from two parents.
Naveed Shinwari: When people in the United States and the West said that 9/11 would change everything, they were right. But the change was for the worst for us Muslims, here and abroad. It translated to injustice against American Muslims here and injustice overseas. Our U.S. government supports tyrants, including in Muslim-majority countries, arming them and backing them in other ways. Unfortunately, we don’t export freedom. This isn’t new. We should learn from history and not repeat the mistakes of the past. These agencies here in the United States have made our lives hell as Muslims, and it’s mostly to justify their own funding. They’ve gone after mentally troubled Muslims, with fabricated plots of FBI design and instigation, and they’ve held out such cases as examples of major terrorist threats to justify their massive budgets.27 I was fourteen when my father brought us here. I thought it was a dream. It never occurred to me that these things would happen to me. But when I started practicing my religion, the Feds were on top of me, and I suddenly became a problem. Still, I have faith that justice always prevails.
What advice would you have for others — Muslims and non-Muslims — in America who experience the same discrimination that you did?
Muhammad Tanvir: Anyone who experiences what I went through should not give up. They should reach out to lawyers and to others who can help.
Jameel Algibhah: Do not talk to the FBI without your lawyer. This is the most important thing. Tell them you have a lawyer, and that they have to talk to your lawyer. I wish I had done that myself. Things would have been very different for me. And even if they don’t use what you say against you, which they might, they could be using your words against other people you don’t even know. CLEAR taught me that, and I used it later.
Naveed Shinwari: Rely on God. Pray for hope, patience, and steadfastness because it’s a very long journey, a very long struggle. It will affect you mentally, socially, psychologically — in every way possible — but, still, fight for your rights. Fight for them, even if you don’t succeed immediately or ever. It’s better to live honorably and with your head held high than scared. One way or another, with the truth on your side, you will win. Remember, it’s a lifelong struggle. And always stick together. Never stay on the sidelines quietly watching when your neighbor is being victimized. Stand with them.
Most of the readers of this article will be lawyers and law students. Based on your years of experience working with your legal team in connection with your case, do you have any advice to offer current and aspiring lawyers?
Muhammad Tanvir: The only advice I can give is that lawyers and law students should use their skills to help other people, especially poor people who need their help. If a lawyer or law student is just looking for money and looking out for themselves, then that is the wrong path. Money isn’t everything.
Jameel Algibhah: Never give up. And help people like us. Teams of students from CLEAR had left flyers at my mosque. That’s how I found and called CLEAR, and they later introduced me to the rest of the great legal team at the Center for Constitutional Rights and at Debevoise & Plimpton. The CLEAR flyer talked about problems with the FBI. I recognized my own situation, and I called the next day. But I almost didn’t call. I almost gave up. I felt lost at the time. There are many people with cases like mine who need good legal support.
Naveed Shinwari: My advice to them would be to always stand for the truth and for people who are victimized. Never stand for the mighty. Never stand for powerful government agencies in cases like mine. Remember why you are pursuing this career. Are you doing it to improve society and spread peace? If you want peace, work for justice — I once read that on a Catholic pamphlet. Work for true justice. Don’t allow yourself to be manipulated or be career driven or obsessed with the trappings of worldly life which will be over in no time. Are your actions going to hurt people? Or are you going to heal people and give them a better life? Your actions and choices matter. Work for the truth and have empathy for others, no matter how different they might be from you in culture or religion or otherwise.
* Muhammad Tanvir is a lawful permanent resident of the United States hailing from Pakistan and currently living in North Carolina. Jameel Algibhah is a United States citizen originally from Yemen and residing in New York City. Naveed Shinwari is a lawful permanent resident of the United States originally from Afghanistan and now living in Omaha, Nebraska. The three plaintiffs have shared this reflection through their attorney, Professor Ramzi Kassem, who compiled their answers to questions from Harvard Law Review editors, supplemented with his own questions and follow-up discussions. The responses have been edited slightly. All alterations were approved by the three plaintiffs before publication. Any opinions expressed are those of the quoted plaintiff, not of the other plaintiffs, Professor Kassem, or the Harvard Law Review.