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ACLU Appeals Decision Which Created Immunity for FBI Agents Involved in Torturing US Citizens Abroad

The American Civil Liberties Union has appealed a federal district court’s decision to dismiss a lawsuit brought by an American citizen who alleges he was detained and tortured by FBI agents in Kenya, Somalia and Ethiopia in violation of his constitutional rights.

Judge Emmet G. Sullivan, who was appointed by President Bill Clinton, ruled in June, “The facts alleged in this case and the legal questions presented are deeply troubling.” But, he added, “Although Congress has legislated with respect to detainee rights, it has provided no civil remedies for US citizens subject to the appalling mistreatment [Amir] Meshal has alleged against officials of his own government.”

Sullivan essentially decided the courts are powerless when it comes to protecting US citizens from being tortured by US government officials while they are abroad.

In the organization’s appeal [PDF], the ACLU argues the district court erred in deciding that Meshal had no remedy available to him after FBI agents were directly involved in unlawfully detaining and torturing him during an investigation that took place outside the United States.

The district court correctly recognized that Meshal did not “forefeit the protection” of the US Constitution by “traveling abroad and that US law enforcement agents may not subject a US citizen to months of near-incommunicado detention without access to counsel or any kind of hearing before a judicial officer.” It also understood he had a constitutional right not to be coercively interrogated as a captured US citizen who was threatened with “disappearance, torture and death.”

But the ACLU contends the district court committed errors in judgment when it ignored the fact that the Supreme Court has rejected a “national security” exception.

The district court also inappropriately overlooked Meshal’s citizenship, how Congress has wanted a remedy available to US citizens wrongly imprisoned and tortured by law enforcement officials, how the judiciary has experience handling these exact types of cases and the danger of immunizing law enforcement officials from being held accountable for abuses.

“No US citizen would have the opportunity to bring suit if the case in some way involves national security unless and until Congress enacts a statute providing a remedy,” if the district court’s decision is allowed to stand, the ACLU added.

Meshal was in the Horn of Africa when, on January 24, 2007, Kenyan soldiers captured and interrogated him. 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.”

The police informed him they had to “find out what the United States wanted to do with him before he could send him back to the United States.” He remained in detention without access to a telephone or his attorney for a week.

On February 3, “three Americans,” who turned out to be FBI agents, interrogated Meshal and told him he would be handed over to the Kenyans and remain stuck in a “lawless country” if he did not cooperate. The agents also accused him of “having received weapons and interrogation resistance training in an al Qaeda camp.”

Supervising Special Agent Chris Higgenbotham, one of the officials sued, allegedly threatened Meshal with transfer to Israel where the Israelis would “make him disappear.” Meshal was informed that another US citizen he had met in Kenya, Daniel Maldonado, who was also seized by Kenyan soldiers, “had a lot to say about” him and his story “would have to match.”

Another agent, Supervising Special Agent Steve Hersem, allegedly told Meshal “Egyptian authorities were very interested in speaking with him and ‘had ways of making [him] talk.'” He threatened to subject Meshal to the same torture that the protagonist in Midnight Express experiences if he did not “cooperate and admit his connection with al Qaeda.” Hersem also informed Meshal, “You made it so that even your grandkids are going to be affected by what you did.”

On February 9, Meshal was flown by Kenyan officials to Somalia with twelve others. He was “detained in handcuffs in an underground room with no windows or toilets,” which was referred to as “the cave.” This was allegedly to prevent pressure from Kenyan courts to halt his detention and interrogation by FBI agents.

About a week later, Meshal was transported in handcuffs and a blindfold to Addis Ababa, Ethiopia. He was held there in incommunicado detention for a week before Ethiopian officials started to regularly transport him to a villa with other prisoners where he would be interrogated by FBI agents on a daily basis.

While in Ethiopia, an unidentified FBI agent said he would only be sent home if he was “truthful.” Meshal repeatedly asked to speak to his lawyer but agents denied his requests.

Meshal remained in detention for three months and was moved into solitary confinement twice. Then, on May 24, he was taken to the US Embassy in Addis Ababa and flown back to the US.

He was detained for four months and lost eighty pounds. While allegations against him were certainly made, US officials never charged him with a crime.

The ruling in June provides “absolute immunity” for this type of law enforcement abuse creating what the ACLU calls an “unprecedented and unbounded ‘national security’ and ‘foreign relations’ exception.”

From the district court’s decision:

…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 US 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 US operations.’…

In other words, Sullivan agreed with the government that permitting Meshal to sue officials would interfere with affairs that were entirely in the control of the Executive Branch and violate separation of powers. It also may jeopardize close cooperation between the US and other country—perhaps, even an ongoing arrangement to operate a secret detention facility where the US was providing security officers support.

Whether a US citizen is imprisoned and tortured for four years or even forty years, whether they are strangled in a cell, there is now a precedent where a measure of recourse for such rights violations has been foreclosed.

The appeal brought on behalf of Meshal will be important in trying to regain a means for victims to win some level of justice after they are tortured by US law enforcement officials abroad.

*Photo from the FBI and work of the US federal government and, therefore, in the public domain

CommunityThe Dissenter

ACLU Appeals Decision Which Created Immunity for FBI Agents Involved in Torturing US Citizens Abroad

The American Civil Liberties Union has appealed a federal district court’s decision to dismiss a lawsuit brought by an American citizen who alleges he was detained and tortured by FBI agents in Kenya, Somalia and Ethiopia in violation of his constitutional rights.

Judge Emmet G. Sullivan, who was appointed by President Bill Clinton, ruled in June, “The facts alleged in this case and the legal questions presented are deeply troubling.” But, he added, “Although Congress has legislated with respect to detainee rights, it has provided no civil remedies for US citizens subject to the appalling mistreatment [Amir] Meshal has alleged against officials of his own government.”

Sullivan essentially decided the courts are powerless when it comes to protecting US citizens from being tortured by US government officials while they are abroad.

In the organization’s appeal [PDF], the ACLU argues the district court erred in deciding that Meshal had no remedy available to him after FBI agents were directly involved in unlawfully detaining and torturing him during an investigation that took place outside the United States.

The district court correctly recognized that Meshal did not “forefeit the protection” of the US Constitution by “traveling abroad and that US law enforcement agents may not subject a US citizen to months of near-incommunicado detention without access to counsel or any kind of hearing before a judicial officer.” It also understood he had a constitutional right not to be coercively interrogated as a captured US citizen who was threatened with “disappearance, torture and death.”

But the ACLU contends the district court committed errors in judgment when it ignored the fact that the Supreme Court has rejected a “national security” exception.

The district court also inappropriately overlooked Meshal’s citizenship, how Congress has wanted a remedy available to US citizens wrongly imprisoned and tortured by law enforcement officials, how the judiciary has experience handling these exact types of cases and the danger of immunizing law enforcement officials from being held accountable for abuses.

“No US citizen would have the opportunity to bring suit if the case in some way involves national security unless and until Congress enacts a statute providing a remedy,” if the district court’s decision is allowed to stand, the ACLU added. (more…)

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Kevin Gosztola

Kevin Gosztola

Kevin Gosztola is managing editor of Shadowproof Press. He also produces and co-hosts the weekly podcast, "Unauthorized Disclosure."