Man’s FBI Abuse Claim ‘Doomed’ by Precedent

(CN) - A New Jersey man's "deeply troubling" claim that he was illegally detained and abused by FBI agents in Africa cannot proceed in light of recent rulings, a federal judge reluctantly said.

Amir Meshal sought damages, known as a Bivens remedy, for the four months he claimed he was detained, interrogated and treated harshly by U.S. officials while traveling in Africa in 2007.

The New Jersey native said he was fleeing sectarian violence in Somalia when he was intercepted in Kenya by U.S. counter-terrorism forces seeking to root out al-Qaida members.

He claimed he was hooded, handcuffed and flown to Nairobi, where FBI agents pressured him to waive his right to an attorney. They accused him of receiving weapons and training in an al-Qaida camp, and threatened to send him to Israel or Egypt, where he could be imprisoned and tortured, if he didn't cooperate, Meshal said.

About two weeks after his initial Jan. 24 capture, Meshal said he was flown back to Somalia so that officials could skirt a habeas petition filed on his behalf by a Kenyan human rights group. There, he was allegedly detained in an underground room with no windows or toilets known as "the cave."

He was again transferred on Feb. 16, this time to a secret location in Ethiopia, where FBI agents continued to interrogate him, he claimed.

When he was eventually released in May, Meshal had lost about 80 pounds, according to court documents. He was never charged with a crime.

He sued his interrogators and other government agents, claiming their detention and mistreatment of him violated his constitutional rights as a U.S. citizen.

The government moved for dismissal, arguing that Meshal's claims implicate national security and intelligence - matters properly left to the executive branch. It said continued litigation could risk exposing details about the United States' relations with other countries, including specific terrorist threats and intelligence sources.

Officials also argued that the lawsuit would "enmesh foreign countries and their officials in civil litigation in U.S. courts," which could affect relations with those countries.

U.S. District Judge Emmet Sulllivan in Washington, D.C., noted that courts have traditionally been more willing to intervene "where American citizens' constitutional interests are at stake." However, recent decisions by the 4th, 7th and D.C. Circuits "doom" Meshal's complaint, the judge said in his ruling Friday.

"The facts alleged in this case and the legal questions presented are deeply troubling," Sullivan wrote. "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.

"Nevertheless, in the past two years, three federal courts of appeals, including the United States Court of Appeals for the District of Columbia Circuit, have expressly rejected a Bivens remedy for citizens who allege they have been mistreated, and even tortured, by the United States of America in the name of intelligence gathering, national security, or military affairs. This court is constrained by that precedent," Sullivan concluded.

In each of those rulings, all issued in 2012, the circuits determined that Americans could not sue U.S. officials over their alleged mistreatment, abuse or torture abroad.

The American Civil Liberties Union, which argued Meshal's case, called it a "sad day for Mr. Meshal and for all Americans."

"While we appreciate the court's outrage at the appalling mistreatment Mr. Meshal suffered at the hands of his own government, we are deeply disappointed at the court's conclusion that it does not have the power to provide him a remedy," Hina Shamsi, the ACLU's national security project director, said in a statement.

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