Federal agents who illegally detain, interrogate and torture American citizens abroad can’t be held accountable for violating the Constitution.
A divided federal appeals court on Friday tossed the lawsuit of a U.S. citizen who claimed the FBI trampled his rights for four months across three African countries while he was traveling overseas.
In so many words, the U.S. Court of Appeals for the District of Columbia Circuit ruled that the man, Amir Meshal, couldn’t sue the federal government for such violations, and punted the issue to someone else.
“If people like Meshal are to have recourse to damages for alleged constitutional violations committed during a terrorism investigation occurring abroad, either Congress or the Supreme Court must specify the scope of the remedy,” Judge Janice Rogers Brown wrote for the 2-to-1 court.
Meshal’s case had drawn support from a number of law professors, along withpresent and former United Nations special rapporteurs on torture, who had hoped the court would help clarify when the U.S. can be made to answer for abuses abroad.
At issue in the case was a 1971 decision by the U.S. Supreme Court, Bivens v. Six Unknown Unnamed Agents, which found for the first time that the Constitution allows citizens to hold liable federal officials who violate their rights — even if Congress hadn’t expressly passed a law to that effect.
In subsequent decisions, however, Bivens liability has been greatly narrowed by the Supreme Court, and even more by lower courts interpreting those decisions.
In Friday’s ruling, the D.C. Circuit recognized the current legal landscape and noted it simply couldn’t be extended to the “unconventional context” of Meshal’s case — a criminal investigation occurring abroad focused on alleged terrorist activity. This meant that his claims had to be dismissed.
“To our knowledge,” Rogers wrote, “no court has previously extended Bivens to cases involving either the extraterritorial application of constitutional protections or in the national security domain, let alone a case implicating both — another signal that this context is a novel one.”
Indeed, all of this may very well be too new for judges to grapple with. And one of Rogers’ main rationales for rejecting Meshal’s suit is that courts are ill-equipped to dabble in the “sensitivities” of national security and foreign policy matters, where the political branches of government occupy the field.
Courts are “generally not suited to second-guess executive officials operating in foreign justice systems,” the judge wrote.
But the court’s recounting of Meshal’s story seemed to offer its own counterargument. As told by the court, Meshal’s case painted a picture of government overreach and egregious constitutional violations — allegations that Rogers herself acknowledged were “quite troubling.”
As outlined in his lawsuit and court filings, Meshal took a trip to Somalia in 2006, where he hoped to “broaden his understanding of Islam” following a period of political instability in the country. Instead, Meshal encountered a climate of violence and hostility that forced him to flee to Kenya, where a coalition of U.S., Kenyan and Ethiopian forces captured him.
That’s when things became turbulent for Meshal. Among other abuses, he claimed FBI agents for months held him without process or access to counsel, put him in solitary confinement, and threatened him with torture, death and extradition to Israel or Egypt — where others “had ways of making him talk” or disappear.
What the FBI agents wanted, according to Meshal, was for him to confess a supposed terrorist connection to al Qaeda. If he relented, FBI agents promised “he would be returned to the United States to face civilian courts.” But after multiple transfers to squalid jails in several countries, the agents gave up their efforts and returned Meshal to the U.S. By then, he had lost 80 pounds.
No criminal charges were ever brought against him. So he sued.
On Friday, the Washington appeals court dismissed Meshal’s case, based in large part on the view that the law offers him no help, and that courts are in no position to intervene — absent congressional or Supreme Court approval — where national security and foreign policy interests are at stake.
To Judge Nina Pillard, who dissented in the case, these “unspecified concerns” are precisely the reason courts should get involved in a case like this. Judges, after all, have “a particular responsibility to assure the vindication of constitutional interests” in the face of official misconduct — especially with increased U.S. involvement abroad.
“Government is most tempted to disregard individual rights during times of exigency,” Pillard wrote. “Presented with cases involving assertions of paramount national interests in apparent tension with individual liberty, the federal courts have proved competent to adjudicate. Removing all consequence for violation of the Constitution treats it as a merely precatory document.”
That’s near the beginning of Pillard’s lengthy and compelling dissent, where she outlines reasons why the government’s fears about courts hearing delicate national security matters are overblown in light of Meshal’s interest in airing out his constitutional claims.
The federal government has “given no reason to believe that the tools available to courts to respond to such concerns would be inadequate in Meshal’s case,” Pillard said.
For Pillard, that case remains more vital than ever.
“United States law enforcement is more active internationally today than ever before, increasing the relevance of Bivens’ remedial and deterrent functions in cases like this one,” she wrote.
One can only hope the Supreme Court will hear her call.