MESHAL v. HIGGENBOTHAM et al
MEMORANDUM OPINION. Signed by Judge Emmet G. Sullivan on June 13, 2014. (lcegs4)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
CHRIS HIGGENBOTHAM, et al.,
Case No. 1:09-2178 (EGS)
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
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, 403 U.S. 388 (1971), which allows a victim of
constitutional violations to sue the responsible federal
officers or employees for damages.
The defendants have moved to
dismiss his case, alleging that even if Mr. Meshal’s allegations
are true, he has no right to hold federal officials personally
liable for their roles in his detention by foreign governments
on foreign soil.
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
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.
legislative branch can provide United States citizens with a
remedy for mistreatment by the United States government on
foreign soil; this Court cannot.
motion to dismiss must be GRANTED.
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.
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
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.
Around the same time, U.S. officials planned to intercept
individuals entering Kenya in an attempt to capture al Qaeda
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
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
Id. ¶ 26.
Accordingly, in 2002, the
Department of Defense initiated joint counterterrorism
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.
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.”
On or about January 24, 2007, Mr. Meshal was captured by
Kenyan soldiers and interrogated by Kenyan authorities.
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
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.
was not allowed to use the telephone or have access to an
Id. ¶¶ 54-55, 71, 99.
On approximately February 3,
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.
Id. ¶ ¶ 59-63.
“Tim” is Doe 1.
During the following week, Hersem, Higgenbotham,
and Doe 1 interrogated Mr. Meshal at least four times.
session lasted a full day and took place in a suite in a
building controlled by the FBI.
Id. ¶ 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
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.
Mr. Meshal that his story would have to match Maldonado’s.
The Defendants mistreated Mr. Meshal during the
interrogation sessions. Id. ¶¶ 86-88.
to send Mr. Meshal to Israel, where he said the Israelis would
“make him disappear.”
Id. ¶ 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
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.
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
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.
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.
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.
Id. ¶ 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
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
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,
After a week of incommunicado detention, and
continuing over the next three months, Ethiopian officials
regularly transported Plaintiff and other prisoners to a villa
Id. ¶¶ 140-41, 151.
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
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
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. ¶
When he was not being interrogated, Plaintiff was
handcuffed in his prison cell.
confinement for several days.
He was twice moved into solitary
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.
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. ¶
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
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
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.
Id. ¶¶ 171-213.
Defendants have moved to dismiss all counts of the
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, 403 U.S. 388, 389 (1971); and (2)
Defendants are entitled to qualified immunity.
They also argue
that Mr. Meshal’s TVPA claim must be dismissed because none of
the Defendants were acting under color of foreign law.
reasons explained below, the motion to dismiss will be granted
because binding precedent from this Circuit prohibits either a
TVPA or a Bivens remedy for Mr. Meshal.
STANDARD OF REVIEW
A motion to dismiss under Federal Rule of Civil Procedure
12(b)(6) tests the legal sufficiency of a complaint.
v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002).
must contain “a short and plain statement of the claim showing
that the pleader is entitled to relief, in order to give the
defendant fair notice of what the ... claim is and the grounds
upon which it rests.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555 (2007) (internal quotation marks and citations omitted).
While detailed factual allegations are not necessary, plaintiff
must plead enough facts “to raise a right to relief above the
The Court must construe the complaint
liberally in plaintiff’s favor and grant plaintiff the benefit
of all reasonable inferences deriving from the complaint.
v. MCI Commc’ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994).
However, the Court must not accept plaintiff’s inferences that
are “unsupported by the facts set out in the complaint. . . .
[or] legal conclusions cast in the form of factual allegations.”
Id. “[O]nly a complaint that states a plausible claim for relief
survives a motion to dismiss.”
Ashcroft v. Iqbal, 556 U.S. 662,
A. Plaintiff Has Alleged Deprivations of His Constitutional
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.”
Sacramento v. Lewis, 523 U.S. 833, 841 n.5 (1998); Al-Aulaqi v.
Panetta, Civ. No. 12-1192, 2014 U.S. Dist. LEXIS 46689 *37
(D.D.C. Apr. 4, 2014).
Plaintiff has stated a plausible
violation of both the Fourth and Fifth Amendments.
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, 500 F.2d 267, 280-81 (2d Cir. 1974).
The United States is entirely a creature of the Constitution.
Its power and authority have no other source. It can only act
in accordance with all the limitations imposed by the
Constitution. When the Government reaches out to punish a
citizen who is abroad, the shield which the Bill of Rights and
other parts of the Constitution provide to protect his life
and liberty should not be stripped away just because he
happens to be in another land.
Reid v. Covert, 354 U.S. 1, 5-6, (1957) (plurality).
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
See Gerstein v. Pugh, 420 U.S. 103, 125
“The touchstone of [such an inquiry] is
reasonableness.” United States v. Knights, 534 U.S. 112, 118
In the criminal context, a detained individual must
receive a hearing within 48 hours of seizure.
Riverside v. McLaughlin, 500 U.S. 44, 56 (1991).
detained under the USA Patriot Act must receive a probable cause
hearing within seven days.
See 8 U.S.C. § 1226a(a)(5).
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
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,
982 F.2d 57, 61 (2d Cir. 1992). Mr. Meshal claims exactly that.
He alleges that Defendants told him if he confessed his
involvement with al Qaeda he would immediately be returned to
the United States. to face civilian courts, but if he refused to
answer more questions he would be returned to Somalia. Sec. Am.
Compl. ¶ 87. Plaintiff claims that another individual detained
under similar circumstances, Daniel Maldonado, was in fact
returned to the United States to be charged after he confessed
to receiving terrorist training, and alleges Defendants
deliberately kept Plaintiff from returning home because they did
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.
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, 455 F.3d 397, 403 (D.C. Cir. 2006).
substantive due process inquiry “demands an exact analysis of
circumstances before any abuse of power is condemned as
Lewis, 523 U.S. at 850.
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. Id. ¶¶ 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.
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 Bivens analysis, it is enough to conclude that Plaintiff has
plausibly alleged a deprivation of at least some constitutional
rights. Lewis, 523 U.S. at 841, n.5.
at 30; see Chavez v. Martinez, 538 U.S. 760, 779 (2003).
the United States, plaintiffs may state a claim for a
substantive due process violation where they have been verbally
threatened with “the terror of instant and unexpected death at
the whim of [their] . . . custodians,”
Burton v. Livingston,
791 F.2d 97, 100 (8th Cir. 1986), or when the interrogation is
“so terrifying in the circumstances . . . that [it] is
calculated to induce not merely momentary fear or anxiety, but
severe mental suffering.”
(7th Cir. 1989).
Wilkins v. May, 872 F.2d 190, 195
In this case, Plaintiff has alleged that FBI
agents threatened him with torture, disappearance, and death if
he did not immediately confess to his interrogators that he was
These threats were made when Mr. Meshal was
thousands of miles from home, in a foreign prison where he had
no access to any country’s legal system, and with no idea when,
if ever, he would be allowed to see a lawyer, face charges, or
Under these circumstances, accepting the
allegations of the Complaint as true, the Court finds he has
stated a plausible substantive due process claim.
The Court does not determine whether Mr. Meshal would
prevail on his constitutional claims, if he were permitted to
It does, however, hold that he has stated a
“plausible claim for relief” under the Fourth and Fifth
Amendments to the Constitution.
Iqbal, 556 U.S. at 679.
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
In Bivens v. Six Unknown Agents of Federal Bureau of
Narcotics, 403 U.S. 388, 389 (1971), the Supreme Court
established that victims of constitutional violations by a
federal agent have a right to recover damages against the
official in federal court despite the absence of a statute
conferring that right.4
A court follows a two-step process to
determine whether a Bivens remedy is available.
First, it must
consider whether “any alternative, existing process for
protecting the interest amounts to a convincing reason for the
Judicial Branch to refrain from providing a new and freestanding
remedy in damages.” Wilkie v. Robbins, 551 U.S. 537, 550 (2007)
If an alternative remedy does not exist,
the court proceeds to step two: “mak[ing] the kind of remedial
determination that is appropriate for a common-law tribunal,
paying particular heed, however, to any special factors
counselling hesitation before authorizing a new kind of federal
Bush v. Lucas, 462 U.S. 367, 378 (1983); see also
Bivens, 403 U.S. at 396 (a cause of action for damages against
“A Bivens 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, 512 F.3d 644, 652 n.2
(D.C. Cir. 2008), vacated, 555 U.S. 1083 (2008).
federal officials may not lie where there are “special factors
counseling hesitation in the absence of affirmative action by
These special factors “relate not to the merits of
a particular remedy, but to the question of who should decide
whether such a remedy should be provided.” Sanchez-Espinoza v.
Reagan, 770 F.2d 202, 208 (D.C. Cir. 1985) (citations omitted).
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.’”
at 8, (quoting Bivens, 403 U.S. at 410 (Harlan, J.,
They dispute, however, whether “special factors
counsel hesitation” in implying a Bivens cause of action on
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.” 683 F.3d 390, 396 (D.C. Cir. 2012)
(quoting Saleh v. Titan Corp., 580 F.3d 1, 16 (D.C. Cir. 2009).
Accordingly, Plaintiff’s TVPA claim must be DISMISSED.
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, 484 U.S. 518,
Defendants argue that Mr. Meshal is essentially
attacking the nation’s foreign policy, specifically joint
operations in the Horn of Africa and executive policies which
permit FBI agents to conduct and participate in investigations
Id. at 12.
They claim that, if allowed to go forward,
Mr. Meshal’s claims would interfere with the management of our
country’s relations with other sovereigns, a power
constitutionally allocated to the executive branch.
Id. at 13.
Defendants argue that this is not the judiciary’s role, impinges
on bedrock separation of powers principles, and would “undermine
the Government’s ability to speak with one voice in this area.”
Id. (quoting Munaf v. Geren, 128 S.Ct. 2207, 2226 (2008)).
related argument, Defendants claim the litigation would threaten
national security by necessitating inquiry into, inter alia,
specific terrorist threats, substances and sources of
intelligence, and the extent to which other countries cooperate
with the United States.
Id. at 13-14.
Defendants also argue
that this litigation would “enmesh foreign countries and their
officials in civil litigation in U.S. courts,” which could
impact relations with those countries.
Id. at 16.
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 . . . .
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 Bivens remedy here: the Court would be performing its
traditional role of protecting the constitutional rights of a
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.”
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
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
Id. at 14-15.
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. . . .
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
Bivens, 403 U.S. at 394-95 (citing Weeks v. United
States, 232 U.S. 383, 386 (1914); United States v. Lee, 106 U.S.
196, 219 (1882) (emphasis added)).
Even when such conduct is
committed overseas, the judiciary has historically concluded it
still has a role in applying the protections of the Constitution
to U.S. citizens. See Reid v. Covert, 354 U.S. at 5-6 (plurality
opinion)(“When the Government reaches out to punish a citizen
who is abroad, the shield which the Bill of Rights and other
parts of the Constitution provide to protect his life and
liberty should not be stripped away just because he happens to
be in another land.”).
In Sanchez-Espinoza v. Reagan, 770 F.2d 202, 209 (D.C. Cir.
1985), this Circuit declined to imply a Bivens remedy for
In that case, the plaintiffs claimed that
as a result of American support, the Contras carried out
widespread attacks on Nicaraguan civilians.
The D.C. Circuit
relied heavily on the fact that the plaintiffs were foreign
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.
770 F.2d at 208-209 (internal citations omitted).
See also Arar
v. Ashcroft, 585 F.3d 559, 575-76 (2d Cir. 2009) (foreign
nationals may not seek damages against U.S. officials for
actions abroad, relying on Sanchez-Espinoza); In re Iraq &
Afghanistan Detainees Litig., 479 F.Supp.2d 85, 105-106 (D.D.C.
2007) (same), aff=d Ali v. Rumsfeld, 649 F.3d 762 (D.C. Cir.
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.”
Id. at 1542-43.
Likewise, in Abu Ali v. Ashcroft, 350 F.Supp.2d 28, 61 (D.D.C.
2004), the district court found that an American citizen
indefinitely detained in a Saudi Arabian prison, allegedly at
the behest of U.S. authorities, could challenge his detention in
a habeas proceeding.
The district court acknowledged the
considerable authority of the executive branch in diplomatic
relations, and noted that such authority would “cabin the
Court’s inquiry” so as not to intrude on executive functions.
Ultimately, however, the court found “there is simply no
authority or precedent . . . for [the government=s] suggestion
that the executive=s prerogative over foreign affairs can
overwhelm to the point of extinction the basic constitutional
rights of citizens of the [U.S.] to freedom from unlawful
detention by the executive.”
Id. at 61-62.
Finally, in Hamdi
v. Rumsfeld, 542 U.S. 507, 535-36 (2004), the Supreme Court
rejected the argument that separation of powers principles
prohibit the judiciary from examining the indefinite detention
of American citizens by their own governments, even when the
detainee is captured on a foreign battlefield fighting against
the U.S., and even when he has been designated an enemy
“[T]he position that the courts must forgo any
examination of the individual case . . . serves only to condense
power into a single branch of government.”
535-36 (emphasis in original).
Hamdi, 542 U.S. at
“We have long since made clear
that a state of war is not a blank check for the President when
it comes to the rights of the Nation’s citizens.”
Id. at 536
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, 327 F.3d 56, 145
(D.C. Cir. 2003) (for suppression purposes, courts must inquire
statements elicited in overseas interrogation conducted by
foreign police to determine whether U.S. agents actively
participated in the questioning, or used the foreign for the
interrogation in order to circumvent constitutional requirements
such as Miranda);
United States v. Toscanino, 500 F.2d 267, 281
(2d Cir. 1974) (trial court must conduct an evidentiary inquiry
to determine whether the defendant was brought into the
jurisdiction of court through abduction at the hands of foreign
officials at the behest of U.S.); Berlin Democratic Club v.
Rumsfeld, 410 F. Supp. 144, 155 (D.D.C. 1976) (plaintiffs were
entitled to discovery of facts which would show that the German
government wiretapped American citizens at the direction of the
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 Bivens actions by U.S.
citizens alleging constitutional violations by U.S. government
In Lebron v. Rumsfeld, 670 F.3d 540 (4th Cir. 2012), cert.
denied, 132 S. Ct. 2751 (2012), the Fourth Circuit refused to
recognize a Bivens remedy for Jose Padilla, an American citizen
detained as an enemy combatant and allegedly tortured for three
years while in U.S. military custody.
The circuit rejected
Padilla’s claims against seven defendants, high ranking policy
makers as well as the two former commanders of the Naval
Consolidated Brig in which he was held.
It found that under
separation of powers principles, the Constitution assigned the
legislature plenary control over the military establishment, and
the President control over national security and military
affairs as Commander in Chief.
Lebron, 670 F.3d at 549 (citing
U.S. Const. art. II, § 2, cl. 1); see also Dep’t of Navy v.
Egan, 484 U.S. 518, 530 (1988) (judges “traditionally have been
reluctant to intrude upon the authority of the Executive in
military and national security affairs”); Winter v. NRDC, Inc.,
555 U.S. 7, 24, 26 (2008) (courts must afford “great deference”
to what “the President – the Commander in Chief – has determined
. . . to [be essential to] national security”).
court explicitly found the question of citizenship not to be
dispositive, as “[t]he source of hesitation is the nature of the
suit and the consequences flowing from it, not just the identity
of the plaintiff.”
670 F.3d at 554.
The court found that the
plaintiff’s lawsuit would intrude into military affairs, in
violation of the separation of powers.
Id. at 550.
found troubling that the lawsuit challenged the government’s
detainee policies, both as applied to Padilla and much more
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
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.”
In Doe v. Rumsfeld, 683 F.3d 390 (D.C. Cir. 2012) pet. for
reh’g en banc denied, 2012 U.S. App. LEXIS 15717 (D.C. Cir. July
30, 2012), the D.C. Circuit refused to allow a Bivens remedy for
a U.S. citizen, a government contractor who alleged he was
illegally detained, interrogated, and tortured for nearly ten
months on a U.S. military base in Iraq before being released
The Doe court began with the observation that
courts have been reluctant to extend Bivens remedies to new
contexts, and “[t]he Supreme Court has never implied a Bivens
remedy in a case involving the military, national security, or
intelligence . . . caution[ing] that matters intimately related
to . . . national security are rarely proper subjects for
Id. at 394-95 (internal citations and
quotation marks omitted).
With respect to intelligence
gathering, the court observed that the D.C. Circuit had recently
declined to recognize a Bivens cause of action in Wilson v.
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.”
(citing Wilson v. Libby, 535 F.3d 697, 710 (D.C. Cir. 2008))
(quotation marks omitted).
Finally, the Circuit rejected the
plaintiff’s argument that his United States citizenship
distinguished his case from Arar v. Ashcroft and Ali v.
Rumsfeld, in which the courts rejected non-citizens’ Bivens
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
Id. at 396.
Most recently, in Vance v. Rumsfeld, 701 F.3d 193 (7th Cir.
2012) (en banc), cert. denied, 133 S. Ct. 2796
divided Seventh Circuit, sitting en banc, reversed a panel
judgment and dismissed the Bivens claims of two government
contractors, both American citizens, who were allegedly
arrested, detained and tortured by the U.S. military in Iraq.
One was detained for about one month, the other for three
months; as in Doe, neither was ever charged with a crime.
circuit began by noting that the Supreme Court “has never
created or even favorably mentioned a non-statutory right of
action for damages on account of conduct that occurred outside
the borders of the United States.”
Id. at 198-99.
Like the Doe
and Lebron courts, the Vance court found plaintiffs’ American
citizenship not “dispositive one way or the
other,” id. at 203;
the principal point was that civilian courts should not
interfere with the military chain of command or with “[m]atters
intimately related to national security.”
Id. at 199-200.
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.
[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, 701 F.3d at 209 (Wood, J., concurring) (discussing TVPA
and Alien Tort Statute, 28 U.S.C. § 1350); see also id. at 21820 (Hamilton, J., dissenting).
The Vance concurrence and
dissents argue that citizenship matters: The government has a
well-established obligation to protect its own citizens’
constitutional rights abroad.
Id. at 221-22 (Hamilton, J.,
And they maintain that Bivens must provide a
remedy against, at the very least, the individual officers who
are alleged to have committed the mistreatment.
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 Bivens should function to enforce individual
See id. at 230-31 (Williams, J., dissenting); see also id. at
207-08 (Wood, J., concurring); id. at 222-24 (Hamilton, J.,
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 Bivens actions against the military, or on the
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, 683 F.3d at 395 (“In the context of national
security and intelligence, the Court has cautioned that matters
. . . are rarely proper subjects for judicial intervention.”)
(internal citations and quotation marks omitted); Vance, 701
F.3d at 199-200, 203 (finding plaintiffs’ American citizenship
not “dispositive one way or another,” – either way,
courts should not interfere with the military chain of command
or with matters intimately related to national security).
cases hold that implying a Bivens cause of action in any of
these types of cases would intrude into the affairs of the
legislative and executive branches, in violation of the
separation of powers.
Lebron, 670 F.3d at 550; Doe, 683 F.3d at
394-95; Vance, 701 F.3d at 198-99.
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.
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.”
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.
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.
claims that his lawsuit would not require the Court to intrude
into the functions of the other branches of government.
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, 670 F.3d at 547; see also Vance, 701 F.3d at 196,
(plaintiffs sued “persons who conducted or approved their
detention and interrogation, and many others who had supervisory
authority over those persons”).
Neither court differentiated
among the defendants in denying a Bivens remedy; as the Lebron
court stated: “The source of hesitation is the nature of the
suit and the consequences flowing from it,” not the identity of
the parties to the lawsuit.
670 F.3d at 554; see also Vance,
701 F.3d at 198-99 (no right of action against either the
soldiers who mistreated plaintiffs or their remote supervisors).
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.”
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
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.
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
Id. ¶ 139; see also ¶¶ 56-57, 129A, 122,
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.”
F.3d at 551.
In these circumstances, special factors counsel
hesitation in the judicial creation of damages remedies.
see also Doe, 683 F.3d at 394; Vance, 701 F.3d at 199-200.
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.
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 Bivens remedy.
Again, this argument cannot survive Doe, which holds that
as long as special factors counseling hesitation exist,
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 Bivens cause of action, even though the
statute does not provide complete relief.
Doe, 683 F.3d at 396
(citing Bush v. Lucas, 462 U.S. 367, 380, 388 (1983)).
other hand, “the absence of statutory relief for a
constitutional violation . . .
does not by any means
necessarily imply that courts should award money damages against
the officers responsible for the violation.”
Schweiker v. Chilicky, 487 U.S. 412, 421-22 (1988)).
Congress has acted to legislate in a subject matter area,
“congressional inaction can also inform [the judiciary’s]
understanding of Congress’s intent” with respect to creation of
a Bivens remedy.
Doe, 683 F.3d at 397 (explaining that where
Congress has legislated in an area but failed to provide a
private cause of action for damages, “[i]t would be
inappropriate for this Court to presume to supplant Congress’s
judgment in a field so decidedly entrusted to its purview.”).
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
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
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
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.”
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
Bivens is powerless to protect him.
As one of the Vance
dissenters predicted, this evisceration of Bivens risks
“creating a doctrine of constitutional triviality where private
actions are permitted only if they cannot possibly offend anyone
That approach undermines our essential constitutional
protections in the circumstances when they are often most
Vance, 701 F.3d at 230 (Williams, J., dissenting).
In issuing today’s opinion, the Court fears that this prediction
is arguably correct.
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,
2012 U.S. Dist. LEXIS 127184, *5 (D.D.C. Sept. 7, 2012).
Nevertheless, this Court is not writing on a clean slate;
rather, it is constrained by binding precedent.
or the President can provide a remedy to U.S. citizens under
Accordingly, Defendants’ motion to dismiss
An appropriate order accompanies this Memorandum
Emmet G. Sullivan
United States District Judge
June 13, 2014
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