Case Information
*1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ________________________________
)
AMIR MESHAL, )
)
Plaintiff, )
) Case No. 1:09-2178 (EGS) v. )
)
CHRIS HIGGENBOTHAM, et al., )
)
Defendants. )
________________________________)
MEMORANDUM OPINION
Amir Meshal is an American citizen who alleges that, while
travelling in the Horn of Africa, he was detained, interrogated,
and tortured at the direction of, and by officials in, the
American government in violation of the United States
Constitution. After four months of mistreatment, Mr. Meshal was
returned home to New Jersey. He was never charged with a crime.
Mr. Meshal commenced this suit against various U.S. officials
under
Bivens v. Six Unknown Agents of Federal Bureau of
Narcotics
,
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.
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 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. Only the legislative branch can provide United States citizens with a remedy for mistreatment by the United States government on foreign soil; this Court cannot. Accordingly, defendants’ motion to dismiss must be GRANTED.
I. BACKGROUND
For the purposes of the pending motion to dismiss, the Court accepts as true the following factual allegations in Plaintiff Amir Meshal’s Second Amended Complaint. Mr. Meshal is a U.S. citizen who was born and raised in New Jersey. In November 2006, he travelled to Somalia. Sec. Am. Compl. ¶ 23. A few weeks after his arrival, fighting erupted between the Supreme Council of Islamic Courts, which then controlled portions of Somalia, and the Transitional Federal Government of Somalia. Id. ¶ 34. Plaintiff fled Mogadishu along with thousands of other civilians. Id. ¶ 36. He then attempted to flee from Somalia to Kenya on or about January 3, 2007. Id. ¶ 38.
Around the same time, U.S. officials planned to intercept individuals entering Kenya in an attempt to capture al Qaeda members. By way of background, after the 1998 bombings of the American Embassies in Kenya and Tanzania, the U.S. government deployed civilian and military personnel to the Horn of Africa to identify, arrest, and detain individuals suspected of terrorist activity. Id. ¶ 24. Following the terrorist attacks of September 11, 2001, the U.S. government was of the opinion that Somalia was a potential haven for members of al Qaeda fleeing Afghanistan. ¶ 26. Accordingly, in 2002, the Department of Defense initiated joint counterterrorism *4 operations with nations in the Horn of Africa region, including Kenya and Ethiopia. Id. ¶ 27. Since at least 2004, military personnel and FBI agents have been directly involved in training foreign armies and police units and conducting criminal investigations of individuals with alleged ties to foreign terrorists or terrorist organizations. Id. ¶ 29. According to FBI procedures and policies, FBI officers have no law enforcement authority in foreign countries, but may conduct investigations abroad with the approval of the host government. Id. ¶ 30. Such extraterritorial activities may be conducted “with the written request or approval of the Director of Central Intelligence and the Attorney General or their designees.” ¶ 56.
On or about January 24, 2007, Mr. Meshal was captured by Kenyan soldiers and interrogated by Kenyan authorities. Id. ¶ 46. The following day, he was hooded, handcuffed and flown to Nairobi, where he was taken to the Ruai Police Station and questioned by an officer of Kenya’s Criminal Investigation Department. Id. ¶ 51. The officer told Mr. Meshal that he had to find out what the United States wanted to do with him before he could send him back to the United States. Id . ¶ 52.
Plaintiff was detained at Ruai for approximately one week. He was not allowed to use the telephone or have access to an attorney. Id . ¶¶ 54-55, 71, 99. On approximately February 3, *5 2007, he was escorted outside the police station for an encounter with three Americans, who identified themselves as “Steve,” “Chris,” and “Tim.” Id . ¶ 58. “Steve” is defendant FBI Supervising Special Agent Steve Hersem, and “Chris” is FBI Supervising Special Agent Chris Higgenbotham. “Tim” is Doe 1. Id. ¶ ¶ 59-63. During the following week, Hersem, Higgenbotham, and Doe 1 interrogated Mr. Meshal at least four times. Each session lasted a full day and took place in a suite in a building controlled by the FBI. ¶ 69-70. When he was not being questioned by Defendants, he remained in a cell at a Kenyan police station. Id. ¶ 90.
On the first day of interrogation, Doe 1 presented a form to Mr. Meshal that notified him he could refuse to answer any questions without a lawyer present. Id. ¶ 71. When Mr. Meshal asked for an attorney, however, Doe 1 said that he was not permitted to make any phone calls. Id. When Mr. Meshal asked if he had a choice not to sign the document because he had no way of contacting an attorney, Higgenbotham responded: “If you want to go home, this will help you get there. If you don’t cooperate with us, you’ll be in the hands of the Kenyans, and they don’t want you.” Id. Higgenbotham also told Mr. Meshal that he was being held “in a ‘lawless country’ and did not have any right to legal representation.” Id. Mr. Meshal was presented with the same document for signature before each subsequent interrogation *6 in Kenya. Id. ¶ 83. Mr. Meshal maintains that he signed the documents because he believed he had no choice and hoped that it would expedite his return to the United States. Id. ¶ 71.
During these interrogation sessions, Mr. Meshal was continuously accused of having received weapons and interrogation resistance training in an al Qaeda camp. Id. ¶ 84. Hersem told Mr. Meshal that “his buddy ‘Beantown,’” a U.S.
citizen named Daniel Maldonado, who Mr. Meshal met in Kenya and who was seized by Kenyan soldiers on or about January 21, 2007, “had a lot to say about [Mr. Meshal].” Id. ¶ 65-67. Hersem told Mr. Meshal that his story would have to match Maldonado’s. [1] Id. ¶ 66.
The Defendants mistreated Mr. Meshal during the interrogation sessions. Id. ¶¶ 86-88. Higgenbotham threatened to send Mr. Meshal to Israel, where he said the Israelis would “make him disappear.” ¶ 86. Hersem told Mr. Meshal that if he confessed his connection to al Qaeda, he would be returned to the United States to face civilian courts there, but if he refused to answer more questions he would be returned to *7 Somalia. Id. ¶ 87. Hersem also told Mr. Meshal that he could send him to Egypt, where he would be imprisoned and tortured if he did not cooperate and admit his connection with al Qaeda, and told him “you made it so that even your grandkids are going to be affected by what you did.” Id. ¶ 88. At one point, Higgenbotham “grabbed” Mr. Meshal and “forced” him to the window of a room, id. ¶ 86; at another, Hersem “vigorously pok[ed]” Mr. Meshal in the chest while yelling at him to confess his connection to al Qaeda. Id. ¶ 87.
Kenyan authorities never interrogated or questioned Mr. Meshal, nor did they provide him with any basis for his detention. Id. ¶¶ 76, 78. On February 7, 2007, a consular affairs officer from the U.S. Embassy in Nairobi, accompanied by a Kenyan man, visited Mr. Meshal in jail. Id. ¶ 103. The consular affairs officer told Mr. Meshal that he was trying to get him home, and that someone would be in touch with his family in New Jersey. Id . Also on or about February 7, 2007, Kenyan courts began hearing habeas corpus petitions allegedly filed by the Muslim Human Rights Forum (MHRF), a Kenyan human rights organization, on behalf of Mr. Meshal and other detainees who were seized fleeing Somalia and held without charge. ¶ 100.
On February 9, 2007, Kenyan officials removed Mr. Meshal from the jail, hooded and handcuffed him, and flew him and twelve others to Somalia. Id. ¶¶ 109-12. There, he was *8 detained in handcuffs in an underground room, with no windows or toilets, referred to as “the cave.” Id. ¶¶ 111-12. Immediately after Mr. Meshal’s rendition, Kenyan authorities presented evidence to the Kenyan court showing that he was no longer in Kenya; the court dismissed the habeas petition for lack of jurisdiction. Id. ¶ 114. Mr. Meshal alleges that Defendants arranged for his removal from Kenya so they could continue to detain and interrogate him without judicial pressure from Kenyan courts. Id. ¶¶ 108, 128.
On or around February 16, 2007, Mr. Meshal was transported, still handcuffed and blindfolded, by plane to Addis Ababa, Ethiopia, and driven to a military barracks where he was detained by the Ethiopian government with others who had been rendered from Kenya to Somalia and Ethiopia. Id. ¶¶ 117-119, 130-137. After a week of incommunicado detention, and continuing over the next three months, Ethiopian officials regularly transported Plaintiff and other prisoners to a villa for interrogation. Id. ¶¶ 140-41, 151. Plaintiff was interrogated by Doe 1, who had interrogated him in Kenya, and Doe Defendant 2, a U.S. official who introduced himself as “Dennis,” and whose name has been filed with the Court under seal. Id. ¶¶ 140-41, 144-45. Apart from a brief initial interrogation upon his arrival, Mr. Meshal was never questioned by Ethiopian officials. Id. ¶¶ 132-33. Doe 1 led all but one of *9 the interrogations of Mr. Meshal in Ethiopia. Id. ¶¶ 146, 149. He was joined at times by Doe 2, who led the final interrogation. Id. ¶ 146. Each time, Doe 1 made Mr. Meshal believe that he and the other FBI agents would send Mr. Meshal home if he was “truthful”. Id. ¶¶ 148-49. Does 1 and 2 refused Mr. Meshal’s repeated requests to speak with a lawyer. Id. ¶ 152. When he was not being interrogated, Plaintiff was handcuffed in his prison cell. He was twice moved into solitary confinement for several days. Id. ¶ 154.
No charges were ever filed against Mr. Meshal in Ethiopia. Id. ¶¶ 155, 160, 162. On three occasions, he was taken for closed proceedings before a military tribunal. Id. After the first proceeding, Doe 1 pressed Mr. Meshal to admit that he was connected to al Qaeda and told him that he would not be allowed to go home unless he told Doe 1 what he wanted to hear. Id. ¶ 156. Although FBI agents had been regularly interrogating Mr. Meshal in Ethiopia for more than a month, U.S. consular officials did not gain access to him until on or about March 21, 2007, after the fact of his detention became public knowledge when McClatchy Newspapers first reported that he was being held at a secret location in Ethiopia. Id. ¶ 157. On or about May 24, 2007, Mr. Meshal was taken to the U.S. Embassy in Addis Ababa and flown to the United States, where he was released. During the four months he was detained abroad, he lost *10 approximately eighty pounds. Id. ¶¶ 166-67. He was never charged with a crime.
Plaintiff seeks to hold Defendants individually liable for monetary damages for violations of his constitutional and statutory rights. Count I alleges Defendants violated his Fifth Amendment right to substantive due process by threatening him with disappearance and torture; by directing, approving and participating in his detention in Kenya and his illegal rendition to Somalia and Ethiopia without due process; and by subjecting him to months of custodial interrogation in Africa. Count II alleges Defendants violated Mr. Meshal’s Fifth Amendment right to procedural due process by subjecting him to prolonged and arbitrary detention without charge; denying him access to a court or other processes to challenge his detention; and denying him access to counsel. Count III alleges Defendants violated his Fourth Amendment right to be free from unreasonable seizure without a probable cause hearing. Count IV alleges Defendants violated his rights under the Torture Victim Protection Act (TVPA), 28 U.S.C. § 1350, note. ¶¶ 171-213.
Defendants have moved to dismiss all counts of the
complaint. They argue that the Court should also dismiss the
constitutional claims because (1) “special factors” preclude
implying a cause of action under
Bivens v. Six Unknown Agents of
Federal Bureau of Narcotics
,
II. STANDARD OF REVIEW
A motion to dismiss under Federal Rule of Civil Procedure
12(b)(6) tests the legal sufficiency of a complaint.
Browning
v. Clinton
,
III. ANALYSIS
A. Plaintiff Has Alleged Deprivations of His Constitutional Rights
In analyzing a
Bivens
claim, a court must first “identify
the exact contours of the underlying right said to have been
violated” and determine “whether the plaintiff has alleged a
deprivation of a constitutional right at all.”
Cnty. of
Sacramento v. Lewis
,
It has been “well settled” for over fifty years that “the
Bill of Rights has extraterritorial application to the conduct
abroad of federal agents directed at United States citizens.”
United States v. Toscanino
,
Reid v. Covert,
Plaintiff has alleged that Defendants violated his Fourth
Amendment rights by detaining him for four months without a
probable cause hearing. The Fourth Amendment requires a
“prompt” hearing to assess the sufficiency of evidence
supporting detention.
See Gerstein v. Pugh
,
Plaintiff has plausibly alleged that his detention without a hearing for four months – particularly when Defendants told him over and over that they had the power to send him back to the United States at any time – is unreasonable. [2]
*14 Mr. Meshal also asserts that Defendants deprived him of his Fifth Amendment right to substantive due process by, inter alia , coercively interrogating him during his detention and extraordinary rendition, including threatening him with torture, disappearance and death. Sec. Am. Compl. ¶¶ 86-88. [3]
To state a substantive due process claim, a plaintiff must
assert that government officials were so “deliberately
indifferent” to his constitutional rights that the officials’
conduct “shock[s] the . . . conscience.”
Estate of Phillips v.
Dist. of Columbia
,
The parties have cited no case law examining the precise substantive due process rights of a U.S. citizen coercively interrogated while on foreign soil. The government concedes, however, that coercive interrogation, standing alone, may give rise to a substantive due process claim. Defs.’ Mot. to Dismiss not have enough information to charge him. ¶¶ 120-21.
These allegations do not suggest that it was “unreasonable” for
Mr. Meshal to expect a probable cause hearing; to the contrary,
Defendants deliberately refused to provide him access to one.
[3]
Mr. Meshal has also alleged other violations of his Fifth
Amendment rights; however, it is unnecessary to determine
whether each and every one would go forward. For the purpose of
the analysis, it is enough to conclude that Plaintiff has
plausibly alleged a deprivation of at least
some
constitutional
rights.
Lewis
,
at 30;
see Chavez v. Martinez
,
The Court does not determine whether Mr. Meshal would
prevail on his constitutional claims, if he were permitted to
assert them. It does, however, hold that he has stated a
“plausible claim for relief” under the Fourth and Fifth
Amendments to the Constitution.
Iqbal
,
B. Binding Precedent Deprives Mr. Meshal of a Remedy for the Alleged Deprivations of His Constitutional Rights. 1. Mr. Meshal Has No Other Remedies: It is “Damages or Nothing.”
In
Bivens v. Six Unknown Agents of Federal Bureau of
Narcotics
,
The parties agree that Mr. Meshal has no alternative remedy
for his constitutional claims. “Without [
Bivens]
, Meshal has no
recourse and the judiciary will be powerless to vindicate the
constitutional rights of a U.S. citizen against illegal
detention and mistreatment by officials of his own government.
Here, as in
Bivens
, it is ‘damages or nothing.’”
[5]
Pl.’s Opp’n
at 8, (quoting
Bivens
,
*18
2. The Special Factors Counseling Hesitation
Defendants argue that “matters implicating national
security and intelligence operations, particularly those
involving foreign governments, are ‘the province and
responsibility of the Executive.’” Defs.’ Mot. to Dismiss Pl.’s
Am. Compl. at 11 (quoting
Dep’t of Navy v. Egan
,
Plaintiff responds that no special factors counsel hesitation in this case. First, he argues that he does not challenge the nation’s foreign policy. “[R]ather, this suit concerns only the manner in which four federal law enforcement officers treated a U.S. citizen . . . . Recognizing a judicial remedy here would not prevent the government from carrying out counter-terrorism operations in the Horn of Africa . . . . It would require only that U.S. officials abide by the Constitution in their treatment of U.S. citizens during the course of those operations[.]” Pl.’s Opp’n at 9-10. Plaintiff maintains that separation of powers principles underscore why this Court should permit a remedy here: the Court would be performing its traditional role of protecting the constitutional rights of a U.S. citizen. Id. at 10-11. Plaintiff contends that Defendants should not be able to escape their constitutional obligations to American citizens “by directing or colluding with foreign actors or hiding behind the fig-leaf of a foreign custodian.” at 11. In response to Defendants’ predictions that the litigation would entail a broad-based inquiry into matters of national security and foreign affairs, Plaintiff argues that while the litigation “may require some inquiry into the Defendants’ relationship and communication with foreign officials,” the *20 focus of the litigation is on conduct by U.S. officials against a U.S. citizen. Id. at 14. Plaintiff further argues that the judiciary has the experience and institutional competence to conduct necessary inquiries into cooperation between the United States and foreign governments, as well as matters involving national security. at 14-15.
3. The Judiciary’s Traditional Ability to Protect the Rights of American Citizens
In
Bivens
, the Supreme Court held that a damages remedy
exists in the rare case in which “[t]he mere invocation of
federal power by a federal law enforcement official will
normally render futile any attempt to resist. . . . In such
case, there is no safety for
the citizen
, except in the
protection of judicial tribunals, for rights which have been
invaded by the officers of the government, professing to act in
its name.” ,
In
Sanchez-Espinoza v. Reagan
,
Just as the special needs of the armed forces require the courts to leave to Congress the creation of damage remedies against military officers for allegedly unconstitutional treatment of soldiers, so also the special needs of foreign affairs must stay our hand in the creation of damage remedies against military and foreign policy officials for allegedly unconstitutional treatment of foreign subjects causing injury abroad. . . . [T]he danger of foreign citizens = using the courts in situations such as this to obstruct the foreign policy of our government is sufficiently acute that we must leave to Congress the judgment whether a damage remedy should exist.
By contrast, where American citizens’ constitutional interests are at stake, courts have traditionally been far less willing to allow foreign policy concerns to extinguish the role of the judiciary. In Ramirez de Arellano v. Weinberger, 745 F.2d 1500 (D.C. Cir. 1984), this Circuit allowed a U.S. citizen to sue for declaratory and injunctive relief when the U.S.
military seized his ranch in Honduras. The Court held that
“[w]hile separation of powers concerns may outweigh judicial
adjudication in the typical case involving a foreign act of
state, the prudential balance may shift decidedly when [U.S.]
citizens assert constitutional violations by [U.S.] officials. .
. . [T]eaming up with foreign agents cannot exculpate officials
of the United States from liability to [U.S.] citizens for the
United States officials’ unlawful acts.” at 1542-43.
Likewise, in
Abu Ali v. Ashcroft
,
In short, when the constitutional rights of American
citizens are at stake, courts have not hesitated to consider
such issues on their merits even when the U.S. government is
allegedly working with foreign governments to deprive citizens
of those rights.
United States v. Yousef
,
4. Doe, Lebron , and Vance
Notwithstanding our courts’ long history of providing judicial access to citizens whose rights are violated by our government, in the last two years, three courts of appeals, including this Circuit, have dismissed actions by U.S. citizens alleging constitutional violations by U.S. government officials.
In
Lebron v. Rumsfeld
,
Egan
,
In short, Padilla’s complaint seeks . . . to have the judiciary review and disapprove sensitive military decisions made after extensive deliberations within the executive branch as to what the law permitted, what national security required, and how best to reconcile competing values. It takes little enough imagination to understand that a judicially devised damages action would expose past executive deliberations affecting sensitive matters of national security to the prospect of searching judicial scrutiny.
Id. at 551. The Lebron court recognized that people may “not agree with [these] policies. [People] may debate whether they were or were not the most effective counterterrorism strategy. But the forum for such debates is not the civil cause of action pressed in the case at bar. The fact that Padilla disagrees with policies allegedly formulated or actions allegedly taken does not entitle him to demand the blunt deterrent of money damages under Bivens to promote a different outcome.” at 552.
In
Doe v. Rumsfeld
,
Libby
, in which undercover CIA operative Valerie Plame and her
husband Joseph Wilson sought a
Bivens
remedy from Bush
Administration officials who deliberately revealed her identity.
“[T]he required judicial intrusion into national security and
intelligence matters was . . . a special factor counseling
hesitation because such intrusion would subject sensitive
operations and operatives to judicial and public scrutiny.”
Id.
(
citing Wilson v. Libby
,
Rumsfeld , in which the courts rejected non-citizens’ claims against American officials based on alleged torture in the United States and abroad, noting that “[Doe’s] citizenship does not alleviate the . . . special factors counseling hesitation.” at 396.
Most recently, in
Vance v. Rumsfeld,
Several judges wrote separately to explain their disagreement with the reasoning and/or dissent from the outcome of the Vance decision. They observed that Congress has legislated remedies for U.S. citizens to sue foreign officials for damages, and non-citizens to sue anyone who has committed a tort in violation of the law of nations, but not for U.S.
citizens to sue U.S. officials.
*29 [I]f it were true that there is no Bivens theory under which a U.S. citizen may sue an official of the U.S. government . . . who tortures that citizen on foreign land under the control of the United States . . . then U.S. citizens will be singled out as the only ones without a remedy under U.S. law. . . . . Only by acknowledging the Bivens remedy is it possible to avoid treating U.S. citizens worse than we treat others. The fear of offense to our allies that the majority fears dissipates as soon as we look at the broader picture.
Vance
,
Every government institution errs . . . . The point of judicial participation is not infallibility but independence and neutrality, something executive entities do not have when evaluating their own officers' conduct . . . . I cannot agree that the separation of powers bars a citizen’s recovery from a rogue officer affirmatively acting to subvert the law. That is a quintessential scenario where should function to enforce individual rights.
See id. at 230-31 (Williams, J., dissenting); see also id. at 207-08 (Wood, J., concurring); id. at 222-24 (Hamilton, J., dissenting).
5.
Doe, Lebron, and Vance Doom Mr. Meshal’s Claims
Mr. Meshal struggles to distinguish this case from
Doe
,
Vance
, and
Lebron.
First, he argues that these cases only
prohibit actions against the military, or on the
battlefield. Pl.’s Resp. to Defs.’ Dec. 5, 2012 Notice of
Suppl. Authority, 1-3. The cases cannot be read that narrowly.
Each case states that the same special factors compelling
hesitation in military cases also compel hesitation in cases
involving national security and intelligence.
Lebron
, 670 F.3d
at 549 (noting that judges “traditionally have been reluctant to
intrude upon the authority of the Executive in military and
national security affairs,” and courts must afford “great
deference” to what “the President – the Commander in Chief – has
determined . . . is essential to national security.”) (citations
omitted);
Doe
,
In this case, Mr. Meshal alleges that Defendants acted in accordance with guidelines established by the executive branch. Specifically, he alleges that Defendants were part of the Combined Joint Task Force-Horn of Africa, a joint counterterrorism operation with nations in the Horn of Africa region, which was established by the U.S. government and includes military employees, civilian employees, including FBI agents, and representatives of coalition countries. Defs.’ Mot. to Dismiss at 12; see also Second Amended Compl. ¶¶ 24-30, 56. A central theme of Mr. Meshal’s claims is that Defendants in this case acted with the cooperation of the foreign governments which held him in their prisons, transferred him between nations, and permitted Defendants access to him. See generally Second Am. Compl. As the government points out, these claims have the potential to implicate “national security threats in the Horn of Africa region; substance and sources of intelligence; the extent to which each government in the region participates in or cooperates with U.S. operations to identify, apprehend, detain, and question suspected terrorists on their soil; [and] the actions taken by each government as part of any participation or cooperation with U.S. operations.” Mot. to *32 Dismiss at 13. They involve the same separation of powers concerns which were decisive in Lebron , Doe , and Vance .
Second, Mr. Meshal tries to distinguish Lebron , Doe , and Vance by arguing that he only brings this action against the “non-supervisory law enforcement officers directly involved in his detention and mistreatment,” and does not seek to hold remote superiors liable for his constitutional abuses. Pl.’s Response to Notice of Supp. Auth., ECF #59 at 2; see also Pl.’s Response to Notice of Supp. Auth., ECF #57 at 2-3. He therefore claims that his lawsuit would not require the Court to intrude into the functions of the other branches of government. at 2; see also ECF #59 at 2. This argument also cannot survive. Lebron and Vance also included defendants who were directly responsible for their torture; the plaintiffs in those cases argued they implemented the policies “devised and authorized” by the cabinet officials at the highest levels of government.
Lebron
,
Even if the defendants’ place in the chain of command were
relevant under
Vance
,
Doe
, and
Lebron
, the Second Amended
Complaint makes clear that this case is about far more than Mr.
Meshal’s own experiences. The Complaint explicitly alleges that
Mr. Meshal’s detention, transfer, and interrogation were part of
a much larger trend: the government’s “increasing[] engage[ment]
in ‘proxy detention,’ a practice in which individuals alleged or
suspected to have ties to foreign terrorists or foreign
terrorist organizations are detained by foreign authorities at
the behest of, the direction of, and/or with the active and
substantial participation of the United States.” Second Am.
Compl. ¶ 31. Central to Mr. Meshal’s complaint are his
allegations that Kenyan, Somalian, and Ethiopian officials were
substantial participants in his detention and transfer between
countries.
Id.
¶¶ 56-59, 76-82, 108-12, 115-19, 123-25, 130-37.
He alleges that they were also partners in the similar treatment
of many other people of interest to the United States.
Id.
¶¶
122-23, 134-39. Moreover, he claims that his treatment and the
similar treatment of others was authorized by and/or conducted
with full awareness of other U.S. officials, “including
officials designated by the Attorney General and the Director of
Central Intelligence.” ¶ 139;
see also
¶¶ 56-57, 129A, 122,
*34
134-37, 165A, 170C, 170D. Like the complaints in
Lebron
,
Doe
,
and
Vance
, “it takes little enough imagination to understand
that a judicially devised damages action would expose past
executive deliberations affecting sensitive matters of national
security” as well as sensitive matters of diplomatic relations,
“to the prospect of searching judicial scrutiny.”
Lebron
, 670
F.3d at 551. In these circumstances, special factors counsel
hesitation in the judicial creation of damages remedies.
Id.
;
see also Doe
,
Finally, Mr. Meshal argues that Vance is distinguishable because the plaintiff in that case had access to other, “albeit partial” remedies for his injuries, while for Mr. Meshal, it is “damages or nothing.” ECF #59 at 3 (noting that the Vance plaintiffs could seek monetary damages under the Military Claims Act or the Foreign Claims Act). Plaintiff acknowledges that the Doe plaintiff had no alternative remedy but seeks to distinguish that decision on grounds that Congress had deliberately acted to deprive military detainees of a private right of action by passing the Detainee Treatment Act. ECF #57 at 4. He argues that Congress has not affirmatively acted to foreclose a private right of action for plaintiffs such as himself, and accordingly, the judiciary is free to create a remedy.
Again, this argument cannot survive
Doe
, which holds that
as long as special factors counseling hesitation exist,
*35
congressional action or inaction is irrelevant to the creation
of a
Bivens
remedy. On the one hand, the existence of a statute
that provides a partial remedy to a plaintiff seeking a
Bivens
remedy precludes a cause of action, even though the
statute does not provide complete relief.
Doe
,
Congress has legislated with respect to detainee rights both in the United States and abroad. See inter alia , Torture Victim Protection Act, 28 U.S.C. § 1350, note; Military Claims Act, 10 U.S.C. § 2733; Foreign Claims Act 10 U.S.C. § 2734; and Federal Anti-Torture Statute, 18 U.S.C. § 2340. Some of these *36 statutes provide private causes of action for money damages; others authorize criminal prosecution. The fact that none of these acts extends a cause of action for detainees similarly situated to Mr. Meshal to sue federal officials in federal court does not lead to the conclusion, as Mr. Meshal argues, that Congress intended the judiciary to recognize such a cause of action. On the contrary, under Doe , “evidence of congressional inaction . . . supports our conclusion that this is not a proper case for the implication of a Bivens remedy.” Doe , 683 F.3d at 397.
IV. CONCLUSION
When
Bivens
was decided over forty years ago, it was
intended for cases in which “[t]he mere invocation of federal
power by a federal law enforcement official will normally render
futile any attempt to resist . . . . In such case, there is no
safety for the citizen, except in the protection of the judicial
tribunals, for rights which have been invaded by the officers of
the government, professing to act in its name.”
Bivens
, 403
U.S. at 394-95 (citations omitted). Mr. Meshal has come to
court seeking the protection of judicial tribunals as the only
way to provide for his safety. Under
Lebron
,
Doe
, and
Vance
,
however, when a citizen’s rights are violated in the context of
military affairs, national security, or intelligence gathering
is powerless to protect him. As one of the
Vance
*37
dissenters predicted, this evisceration of risks
“creating a doctrine of constitutional triviality where private
actions are permitted only if they cannot possibly offend anyone
anywhere. That approach undermines our essential constitutional
protections in the circumstances when they are often most
necessary.”
Vance
,
This Court is outraged by Mr. Meshal’s “appalling (and,
candidly, embarrassing) allegations” of mistreatment by the
United States of America.
Doe v. Rumsfeld
, Case No. 08-cv-1902,
SIGNED: Emmet G. Sullivan
United States District Judge
June 13, 2014
Notes
[1] Maldonado was taken back to the U.S. from Kenya and charged in U.S. courts with receiving military-type training from a foreign terrorist organization. Sec. Am. Compl. ¶ 120. According to one U.S. official, Mr. Meshal was not brought home because there was insufficient evidence to detain or charge him in the United States. Id. ¶ 121.
[2] The Second Circuit has recognized that the Fourth Amendment
attaches “where the cooperation between the United States and
law enforcement officials is designed to evade constitutional
requirements applicable to American officials.”
U.S. v. Maturo
,
[4] “A suit is the federal counterpart of a claim brought
pursuant to 42 U.S.C. § 1983 against a state or local
officer/employee for the violation of the claimant's
constitutional rights.”
Rasul v. Myers
,
[5] Plaintiff has also alleged a violation of the Torture Victim
Protection Act, 28 U.S.C. § 1350, note (“TVPA”), which, if
successful, would provide a partial, limited remedy against two
of the individual Defendants for the use of torturous
interrogation techniques. Sec. Am. Compl. ¶¶ 204-13. The TVPA,
however, is not available to Mr. Meshal. In
Doe v. Rumsfeld
,
this Circuit reaffirmed that the TVPA “[does] not include as
possible defendants either American government officers or
private U.S. persons.”