Meshal v. Higgenbotham
| Decision Date | 13 June 2014 |
| Docket Number | Case No. 1:09–2178 EGS |
| Citation | 47 F.Supp.3d 115 |
| Court | U.S. District Court — District of Columbia |
| Parties | Amir Meshal, Plaintiff, v. Chris Higgenbotham, et al., Defendants. |
Arthur B. Spitzer, American Civil Liberties Union of the Nation's Capital, Washington, DC, Hina Shamsi, Jonathan L. Hafetz, Nusrat J. Choudhury, Amerian Civil Liberties Union Foundation, New York, NY, for Plaintiff.
Glenn Stewart Greene, U.S. Department of Justice, Washington, DC, for Defendants.
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, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (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 government. To deny him a judicial remedy under Bivens raises serious concerns about the separation of powers, the role of the judiciary, and whether our courts have the power to protect our own citizens from constitutional violations by our government when those violations occur abroad.
Nevertheless, in the past two years, three federal courts of appeals, including the United States Court of Appeals for the District of Columbia Circuit, have expressly rejected a Bivens remedy for citizens who allege they have been mistreated, and even tortured, by the United States of America in the name of intelligence gathering, national security, or military affairs. This Court is constrained by that precedent. 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.
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. 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. 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.” Id. ¶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, 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. 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: 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 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.” 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 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. 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 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...
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