Terrorism

• Pages: 96-99

96 Volume 21, July–September 2015 international law update

© 2015 International Law Group, LLC. All rights reserved. ISSN 1089-5450, ISSN 1943-1287 (on-line) | www.internationallawupdate.com

TERRORISM

Where U.S. citizen was allegedly

detained and tortured by U.S. agents

in Africa, District of Columbia

Circuit reviews whether Bivens applies

extraterritorially

In 2006, Amir Meshal, a United States citizen

and New Jersey resident, traveled to Mogadishu,

Somalia. While he was in Somalia, violence erupted

and Meshal ed to Kenya. In a joint U.S.-Kenyan-

Ethiopian operation, in January 2007, Meshal was

apprehended by Kenyan authorities and transported

to Nairobi. He was told by a member of Kenya’s

Criminal Investigation Department (“CID”) that

the authorities need to determine “what the United

states wanted to do with him” before sending him

“back to United States”.

Meshal’s interrogation, in which Defendants

Chris Higgenbotham, Steve Hersem, John Doe 1,

and John Doe 2 (collectively “Defendants”) had

signicant roles, began when U.S. ocials learned

about his detention in Kenya. Meshal claimed that

for the next four months Defendants detained

him in secret, denied him access to counsel and

the courts, and threatened him with torture and

death. Meshal also claimed that defendant Hersme

promised him that if he confessed his connection to

al Qaeda, he would be returned to the United States

to face civilian courts instead of being returned to

Somalia.

Meshal alleged that he was transferred between

three African countries without legal process:

from Kenya to Somalia, where he was detained

in handcus in an underground room; then to

Addis Ababa, Ethiopia, where he was detained in a

military barrack. While in Ethiopia the Ethiopian

ocials regularly transported Meshal to a villa for

interrogation where Doe 1 and 2 repeatedly refused

his requests to speak to a lawyer. Eventually, the

FBI released Meshal, he returned to United States,

and had never been charged with a crime.

Meshal then led a Bivens action (see Bivens

v. Six Unknown Named Agents of Fed. Bureau

of Narcotics, 403 U.S. 388 (1971)), against the

Defendants, claiming they violated his Fourth

and Fifth Amendment rights when they detained,

interrogated, and tortured him over the course of

four months in three African countries. In deciding

Defendants’ motion to dismiss, the district court

found Meshal had properly stated Fourth and Fifth

Amendment claims, however, it dismissed the case

concluding that a Bivens action was unavailable to

Meshal because both this court, and several other

circuits, had “expressly rejected a Bivens remedy for

[U.S.] citizens who allege they have been mistreated,

and even tortured, by [American ocials] in the

name of intelligence gathering, national security,

or military aairs.” Meshal v. Higgenbotham, 47 F.

Supp. 3d 115, 11617 (D.D.C. 2014).

e Court of Appeals for the District of

Columbia Circuit arms the district court’s

judgment of dismissal.

e issue is whether an American citizen has a

cause of action under the Fourth Amendment for

tortious acts of federal ocers that occurred in a

foreign country.

e Court started its analysis from the fact that

federal tort causes of action are ordinarily created

by Congress, not by the courts. However, the causes

of actions created by the Congress are allowing

plaintis to recover for tortious acts by federal

ocers, but do not allow plaintis to recover for

tortious acts occurring in a foreign country. Having

no statutory cause of action, Meshal had sued

directly under the Constitution, relying on the

decision in Bivens.

“In 1971, the Supreme Court recognized

an implied private action, directly under the

Constitution, for damages against federal

ocials alleged to have violated a citizen’s Fourth

Amendment rights. Bivens, 403 U.S. 388. e

case began when Webster Bivens sued Bureau of

Narcotics Agents in federal court, alleging facts the

Court ‘fairly read’ as claiming Bivens’ ‘arrest was

made without probable cause.’ Id. at 389. Because

the alleged constitutional violation had already

occurred, Justice Harlan noted that, ‘[f]or people

in Bivens’ shoes, it [was] damages or nothing.’ Id. at

410 (Harlan, J., concurring in judgment).”

“e Court recognized a federal damages

remedy apart from the availability of state common