By Tim Cushing
The FBI really enjoys its take on the War on Terror. Starting with the hassling of Muslims at airports and border entries, the FBI cultivates a large collection of confidential informants. These informants then find pliable individuals to target with extra attention, pushing them towards threatening to engage in violence. Then the FBI swoops in to arrest these supposed “terrorists” — ones that often seem unable to stay gainfully employed, much less capable of carrying out terrorist attacks. The FBI’s favorite targets are impressionable Muslim men with mental health issues — ones its agents and informants radicalize right into jail cells.
It all starts at our nation’s airports. If Muslims want to travel in and out of the United States (or just travel within the US), federal agents are always on hand to pressure them into becoming informants. Veiled threats are made and these targets are subjected to invasive searches and other harassment every time they set foot in an airport.
In some cases, Muslim men were placed on the “no fly” list simply for refusing to become government informants. A lawsuit filed in 2014 accused the FBI of retaliating against several Muslims who resisted the FBI’s overtures. The district court ruled against the plaintiffs but the Second Circuit Court of Appeals revived the lawsuit in 2018, saying the men had sufficiently alleged violations of the Religious Freedom Restoration Act (RFRA). The government can’t target people simply because of their chosen religion, but that’s exactly what appears to be happening.
The case made its way to the Supreme Court and the nation’s top court has sided [PDF] with the plaintiffs. The lawsuit can proceed and the FBI agents can be held accountable for violating the RFRA.
The government tried to argue the statute does not provide for lawsuits against federal officers in the personal capacity. Wrong, says the Supreme Court. The statute clearly states lawsuits can be brought against individuals, rather than their agency or the federal government as a whole.
We first have to determine if injured parties can sue Government officials in their personal capacities. RFRA’s text provides a clear answer: They can. Persons may sue and obtain relief “against a government,” §2000bb–1(c), which is defined to include “a branch, department, agency, instrumentality, and official (or other person acting under color of law) of the United States.” §2000bb–2(1) (emphasis added).
The Government urges us to limit lawsuits against officials to suits against them in their official, not personal, capacities. A lawsuit seeking damages from employees in their individual capacities, the Government argues, is not really “against a government” because relief “can be executed only against the official’s personal assets.” Kentucky v. Graham, 473 U. S. 159, 166 (1985).
The problem with this otherwise plausible argument is that Congress supplanted the ordinary meaning of “government” with a different, express definition. […] A “government,” under RFRA, extends beyond the term’s plain meaning to include officials. And the term “official” does not refer solely to an office, but rather to the actual person “who is invested with an office.”
The Court then looks at whether or not damages can be pursued. This isn’t a normal case alleging First or Fourth Amendment violations. The government argued this means damages can’t be awarded. Again, the Supreme Court says the government is wrong.
A damages remedy is not just “appropriate” relief as viewed through the lens of suits against Government employees. It is also the only form of relief that can remedy some RFRA violations. For certain injuries, such as respondents’ wasted plane tickets, effective relief consists of damages, not an injunction. […] it would be odd to construe RFRA in a manner that prevents courts from awarding such relief. Had Congress wished to limit the remedy to that degree, it knew how to do so.
If federal agencies want the law changed to shield them from accountability, they’ll have to ask Congress to “fix” this perceived “wrong.” The Court isn’t going to get into the business of legislating from the bench (at least not in this case).
To be sure, there may be policy reasons why Congress may wish to shield Government employees from personal liability, and Congress is free to do so. But there are no constitutional reasons why we must do so in its stead.
It’s an 8-0 shutout in favor of the plaintiffs who are now allowed — six years after they filed their lawsuit — to start holding the FBI accountable for its violation of their religious rights.