A federal district court in Washington will hear arguments this afternoon in the ACLU's lawsuit on behalf of American citizen Amir Meshal. In 2007, FBI agents orchestrated Mr. Meshal's secret detention for four months in East Africa. During that time, Mr. Meshal was threatened with torture and rendered between three different countries – Kenya, Somalia, and Ethiopia – in an attempt to coerce a false confession from him. He was never charged with a crime.
The Supreme Court's 1971 decision in Bivens v. Six Unknown Named Agents gives individuals the right to sue law enforcement officials for violating their constitutional rights. The Justice Department, however, is seeking dismissal of Mr. Meshal's suit against the four FBI agents responsible for his unlawful detention and mistreatment, claiming that "national security" considerations abroad preclude a judicial remedy even for the most flagrant misconduct.
The district court judge, Emmet G. Sullivan, previously heard argument on the government's motion for dismissal more than two years ago. Judge Sullivan scheduled additional argument for today to consider the impact of several recent appeals courts decisions — mainly in Vance v. Rumsfeld, Lebron v. Rumsfeld, and Doe v. Rumsfeld — that denied the right recognized by Bivens (also called a "Bivens remedy") to U.S. citizens suing for illegal detention and torture.
We do not agree with these decisions. But, as we have explained in our filings, Mr. Meshal's case differs fundamentally from those cases. Unlike in those cases, Mr. Meshal was not detained by the military nor was he held in a battlefield or war zone. Instead, as in Bivens, Mr. Meshal was the victim of blatant misconduct by law enforcement agents in the course of a criminal investigation. And critically, as in Bivens, Mr. Meshal has no other remedy if this suit cannot go forward.
The implications of this case are far reaching. If the court accepts the government's arguments for dismissal, it will effectively give U.S. law enforcement — from the FBI to the DEA — carte blanche in their treatment of any of the millions of American citizens who live, work, and travel abroad. No one should be subjected to the kind of abuse Mr. Meshal suffered, regardless of citizenship. And if the Constitution is to retain its meaning and purpose, citizens must have a judicial remedy for abuse at the hands of officials of their own government — including when the conduct occurs outside U.S. borders.
Our earlier post about the case, along with the court filings, are all available here.