Monday, June 16, 2014

No Damage Claim for U.S. Citizen Tortured in Africa

Judge Emmet G. Sullivan (D.D.C.) on Friday dismissed a case brought by a U.S. citizen against FBI agents for torturing and mistreating him as a terrorist suspect in Africa in violation of his constitutional rights

The plaintiff, Amir Meshal, was visiting Somalia in November 2006.  When fighting erupted there, Meshal fled to Kenya.  Upon arrival, he was captured by Kenyan soldiers, detained, and later interrogated repeatedly by FBI agents, who used threats, accusations that Meshal was a terrorist, and physical force to intimidate him.  Later, Meshal was transferred to Somalia, then Ethiopia, where interrogations by FBI agents continued.  Throughout, Meshal was denied outside communication (until U.S. consular officials later gained access to him), access to an attorney, and access to foreign courts.  In all, Meshal was detained abroad for four months.  He was never charged with a crime.

Meshal filed a Bivens suit for damages against the agents, but Judge Sullivan dismissed the case.  Judge Sullivan was highly critical of the U.S. government's treatment of Meshal and of the federal courts' refusal to hear Bivens claims by other U.S. citizens mistreated by government agents.  But he nevertheless concluded that the D.C. Circuit's ruling in Doe, the Fourth Circuit's ruling in Lebron, and the Seventh Circuit's ruling in Vance compelled him to dismiss Meshal's case.  DoeLebron, and Vance all also involved U.S. citizens suing government officers for violations of constitutional right in similar circumstances.  The circuit courts all ruled that "special factors" counseled against a Bivens remedy, however, because they all arose in the context of the military and national security.

Given the state of the law, there is no chance of a successful appeal.  But that didn't stop Judge Sullivan from delivering a full-throated condemnation of the agents' actions, the courts' rulings, and Congress's failure to create a remedy for U.S. citizens who are mistreated in these situations:

The facts alleged in this case and the legal questions presented are deeply troubling.  Although Congress has legislated with respect to detainee rights, it has provided no civil remedies for U.S. citizens subject to the appalling mistreatment Mr. Meshal has alleged against officials of his own government.  To deny him a judicial remedy under Bivens raises serious concerns about the separation of powers, the role of the judiciary, and whether our courts have the power to protect our own citizens from constitutional violations by our government when those violations occur abroad.

 

https://lawprofessors.typepad.com/conlaw/2014/06/no-damage-claim-for-us-citizen-tortured-in-africa.html

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