case law update

Federal Employees May Not Be Sued for Violating Constitutional Rights In Antiterrorism Operations Abroad, DC Circuit Rules

Mr. Amir Meshal a United States citizen and resident of New Jersey, traveled to Mogadishu, Somalia in 2006 to further his study of Islam.  In early 2007, Somalia experienced an outbreak of violence causing many civilians to flee the country for neighboring Kenya.

Mr. Meshal was among those who fled.  After entering into Kenya, he was detained by Kenyan security forces and subsequently placed in the custody of agents of the U.S. Federal Bureau of Investigation (“FBI”). 

Mr. Meshal claimed that for the next four months the FBI secretly detained him at sites within Kenya, Somalia, and Ethiopia in conjunction with an antiterrorism operation.  Allegedly, Mr. Meshal was left handcuffed for days in solitary confinement.  At other times, Mr. Meshal was handcuffed and detained in a place known as “the cave” – an underground, windowless room without a toilet.  During a period when he was not in solitary confinement, he had a cell mate who would later testify that Mr. Meshal was extremely distressed and cried after interrogation. 

Mr. Meshal further claimed that during interrogation, he was presented with a Miranda waiver form and told that he could refuse to answer questions without a lawyer; he then requested but was denied access to counsel and the courts.  He also stated that the FBI agents threatened him with torture and death.  Mr. Meshal alleged that he was told he would be extradited to Israel, where the Israelis would arrange for him to “disappear.”  Then, he was told he would be taken to Egypt, where the Egyptians would have “ways of making him talk.”  Later, he was informed that he would suffer the same fate as the main character from the 1978 film “Midnight Express” – an implication that, like the film character, he would be left in horrid conditions and tortured in a Turkish prison until he died - if he did not cooperate.  Mr. Meshal was also promised that if he confessed an affiliation with al Queda, he would be returned to the United States to face civilian courts instead of being placed in the custody of a foreign government. 

Ultimately, Mr. Meshal made no confession and was charged with no crime.  He was returned to the United States and released.  At the time of his release, Mr. Meshal had lost eighty pounds over four months of detention. 

Mr. Meshal filed a “Bivens” lawsuit – a lawsuit whereby Federal Government employees may be personally sued for violations of certain constitutional rights - in the United States District Court for the District of Columbia against his FBI interrogators.  The District Court dismissed the claim because multiple courts of appeal previously “expressly rejected a Bivens remedy for [U.S.] citizens who allege they have been mistreated, and even tortured, by [American officials] in the name of intelligence gathering, national security, or military affairs.”  Mr. Meshal appealed the dismissal to the United States Court of Appeals for the District of Columbia Circuit. 

Mr. Meshal argued that Bivens lawsuits are permitted where an agent of the U.S. Government violates the constitutional rights of a citizen, and that his case fell squarely within that precedent.  However, the Government argued that Bivens lawsuits had been limited where the Government agents were acting in furtherance of military or national security interests. 

The Court of Appeals found that Mr. Meshal’s accusations, if true, implicated the FBI in “quite troubling” behavior, and further agreed with Mr. Meshal that Bivens suits may usually be brought against Federal Government employees who are accused of the type of constitutional violations alleged by Mr. Meshal. 

However, the Court of Appeals also found that Congress had created no tort statutes which would allow his lawsuit to proceed, and that a constitutionally-based Bivens lawsuit could not proceed because “the agents’ actions took place during a terrorism investigation and those actions occurred overseas.”  The Court of Appeals declined to decide whether the anti-terrorism nature of the investigation or the extraterritoriality of the alleged violations would bar a Bivens lawsuit individually, but in conjunction with one another, the two factors barred a Bivens suit.  The Court of Appeals explained that prevailing national security interests, as well as the interest of securing the cooperation of foreign governments and officials while respecting their sovereignty, avoiding diplomatic incident, and protecting intelligence assets and documents counseled against recognizing Bivens arising out of antiterrorism efforts conducted abroad by the Federal Government.  Thus, the District Court’s decision was affirmed. 

A dissenting judge explained:  “[h]ad Meshal suffered these injuries in the United States, there is no dispute that he could have sought redress under Bivens.  If Meshal’s tormentors had been foreign officials, he could have sought a remedy under the Torture Victim Protection Act.  Yet the majority holds that because of unspecified national security and foreign policy concerns, a United States citizen who was arbitrarily detained, tortured, and threatened with disappearance by United States law enforcement agents in Africa must be denied any remedy whatsoever. . . .  I respectfully dissent. . . .  Constitutional damages remedies hold out hope of redress to survivors of what is sometimes truly horrific abuse at the hands of government agents. . . .  Such claims are rarely brought and, due to legal and factual complexities, they almost never succeed.  Yet their existence has enormous value.  As Judge Easterbrook observed for the . . . [United States Court of Appeals for the] Seventh Circuit . . . ‘[p]eople able to exert domination over others often abuse that power; it is a part of human nature that is very difficult to control.’ . . .  The Supreme Court recognized constitutional torts to deter that kind of abuse of power.  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.”

Read the full case: Meshal v. Higgenbotham


This case law update was written by Michael S. Causey, associate attorney, Shaw Bransford & Roth, PC.

For thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases

Posted in Case Law Update

Tags: case law update, michael s causey


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