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By Patrick Gregory
Oct. 23 — A U.S. citizen allegedly tortured by federal agents while abroad in African countries can't sue for damages, the U.S. Court of Appeals for the District of Columbia Circuit held Oct. 23.
“The decision effectively gives federal officials carte blanche to illegally detain and abuse American citizens merely by invoking national security and foreign affairs,” Jonathan Hafetz, ACLU Cooperating Counsel, Brooklyn, N.Y., who argued for Meshal, told Bloomberg BNA in an Oct. 23 e-mail.
Allowing a Bivens claim in a foreign policy and national security context would be unprecedented, the court said in a decision by Judge Janice Rogers Brown, joined by Judge Brett M. Kavanaugh.
A Bivens claim is “an implied private action, directly under the Constitution, for damages against federal officials alleged to have violated a citizen's Fourth Amendment rights” to protection against unreasonable searches and seizures.
Here, federal agents' alleged behavior occurred overseas and “took place during a terrorism investigation,” the court said.
Therefore, “special factors counsel hesitation” in allowing a Bivens claim here, the court said. The ruling affirmed the district court's dismissal.
The ruling is significant because, unlike “prior Bivens lawsuits that have been barred because of national security or foreign relations concerns,” this one involves “ordinary law enforcement officials,” Andrew Kent, a professor at Fordham University School of Law, New York, who focuses on foreign relations and national security law, told Bloomberg BNA by e-mail Oct. 25.
The ruling's acceptance “without question” of the federal government's national security and foreign relations concerns is the “part of the majority's opinion that will have potentially the most impact,” Alexander A. Reinert, a professor at the Benjamin N. Cardozo School of Law, New York, told Bloomberg BNA by e-mail Oct. 24.
That's “because history teaches that national security is an expansive concept without judicial oversight,” Reinert, who focuses on constitutional law and criminal law, said.
Dissenting, Judge Cornelia T. L. Pillard said she would reverse the dismissal.
Where “FBI agents arbitrarily detain a United States citizen overseas and threaten him with disappearance and death during months of detention without charges,” merely reciting national security interests doesn't “foreclose a constitutional damages remedy,” she said.
Hafetz said, “As the dissent makes clear, the opinion flies in the face of longstanding precedent guaranteeing American citizens their day in court when agents of their own government run roughshod over their basic constitutional rights.”
The ruling ensures that a U.S. “citizen allegedly tortured by his own government for no apparent purpose will never have his day in court,” Reinert said.
Reinert said “the dissent has the better of the argument here.”
“For a country nurtured on the rule of law and the concept that all are equal before the law, one cannot help but experience profound sadness at this result,” Reinert said.
In a separate concurrence, Kavanaugh said courts shouldn't use Bivens actions to “unilaterally recognize new limits that restrict U.S. officers' wartime activities.”
But Reinert said the Fourth Amendment claim here “is a straightforward application of” Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), and doesn't involve a new context despite involving extraterritorial conduct.
The “relevant question is whether the extraterritorial nature of the claims changes anything about the basic premise of Bivens, and it does not,” he said.
Even “if this were a new context,” a “court's role in assessing whether ‘special factors' counsel hesitation in extending Bivens has to be more searching” than it was here, Reinert said.
Otherwise, “the judiciary will be abdicating its part in policing the outer boundaries of executive overreaching,” he said.
“The majority even acknowledges that the government provides no real explanation for how a Bivens remedy would interfere with national security and foreign relations interests, yet still finds it inappropriate” to allow such a remedy here, Reinert said.
Kent said the ruling “is consistent with prior precedent in the D.C. Circuit and four other federal courts of appeals.”
“Five courts of appeals have previously held that, even when a plaintiff has no other remedy for allegedly unconstitutional actions by U.S. officials, the courts will not find by implication in the Constitution a right to sue for money damages in cases involving sensitive issues of national security, military operations or foreign relations,” he said.
But “the decision is significant” because “it involves claims by a U.S. citizen,” Kent said.
Unlike “noncitizens who have few if any constitutional rights when the U.S. acts against them outside the United States, U.S. citizens have constitutional rights worldwide,” he said.
Many “argue that courts should generally provide a remedy whenever there is a deprivation of constitutional rights,” Kent said.
It's also significant because other rulings barring Bivens lawsuits in national security or foreign relations contexts “have involved suits against military or intelligence officials, or against very senior U.S. officials like the FBI Director, the Attorney General, or the Secretary of Defense,” he said.
But here the court applied that case law to “a lawsuit against ordinary, low level law enforcement agents from the FBI,” Kent said.
“We are considering our options” on whether to appeal, Hafetz said.
The U.S. Supreme Court is unlikely to “allow damages suits in these circumstances,” Kent said.
But it hasn't “heard a case which would allow it to squarely hold as such,” Kent said.
“I think it is reasonably likely to do so in the future,” Kent said.
If the high court takes such a case, “I think it will be one like this that involves a U.S. citizen,” Kent said.
U.S. citizen and New Jersey resident Amir Meshal alleged that while in Kenya in 2007, several Federal Bureau of Investigation agents secretly detained him, the court said.
The agents allegedly threatened Meshal “with torture and death,” and then transferred him “to Somalia, where he was detained in handcuffs in an underground room, with no windows or toilets,” the court said.
The district court found those allegations “quite troubling,” the court said.
“So do we,” the court said.
The court considered whether allowing the Bivens claim “to proceed would extend the remedy to a new context.”
No court had ever allowed a Bivens remedy in “cases involving either the extraterritorial application of constitutional protections or in the national security domain,” the court said.
The “presumption against extraterritoriality is a settled principle” applied by the U.S. Supreme Court, the court said.
Moreover, the federal government argued that sensitive information could be revealed during the litigation, the court said.
Further, allowing the litigation to proceed “might affect the enthusiasm of foreign states to cooperate in joint actions,” the court said.
These national security and foreign policy concerns raised a separation of powers concern, the court said.
“Matters touching on national security and foreign policy fall within an area of executive action where courts hesitate to intrude absent congressional authorization,” the court said.
It is therefore up to Congress or the high court to specify any possible remedy “for alleged constitutional violations committed during a terrorism investigation occurring abroad,” the court said.
A spokesperson for the Department of Justice, which argued for the federal agents, declined to comment Oct. 23.
To contact the reporter on this story: Patrick L. Gregory in Washington at email@example.com.
To contact the editor responsible for this story: Jeffrey D. Koelemay at firstname.lastname@example.org.
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