Meshal v. Higgenbotham, No. 14–5194.

• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)
• Writing for the Court: BROWN, Circuit Judge
• Citation: 804 F.3d 417
• Parties: Amir MESHAL, Appellant v. Chris HIGGENBOTHAM, FBI Supervising Special Agent, in his individual Capacity, et al., Appellees.
• Decision Date: 23 October 2015
• Docket Number: No. 14–5194.

804 F.3d 417

Amir MESHAL, Appellant
v.
Chris HIGGENBOTHAM, FBI Supervising Special Agent, in his individual Capacity, et al., Appellees.

No. 14–5194.

United States Court of Appeals, District of Columbia Circuit.

Argued May 1, 2015.
Decided Oct. 23, 2015.
Rehearing En Banc Denied Feb. 2, 2016.^*

Jonathan Hafetz argued the cause for appellant. With him on the briefs were Arthur B. Spitzer and Hina Shamsi.

William J. Aceves was on the brief for amici curiae U.N. Special Rapporteurs on Torture in support of appellant.

Jessica Ring Amunson was on the brief for amici curiae Law Professors James E. Pfander, Carlos M. Vázquez, and Stephen I. Vladeck in support of appellant.

James J. Benjamin, Jr. and Christopher M. Egleson were on the brief for amicus curiae Donald Borelli in support of appellant.

Agnieszka M. Fryszman was on the brief as amicus curiae The Constitution Project in support of appellant.

Henry C. Whitaker, Attorney, U.S. Department of Justice, argued the cause for appellees. With him on the brief were Ronald C. Machen Jr., U.S. Attorney at the time the brief was filed, and Matthew M. Collette and Mary H. Mason, Attorneys.

Before BROWN, KAVANAUGH and PILLARD, Circuit Judges.

Opinion

Opinion for the Court filed by Circuit Judge BROWN.

Concurring opinion filed by Circuit Judge KAVANAUGH.

Dissenting opinion filed by Circuit Judge PILLARD.

BROWN, Circuit Judge:

Amir Meshal filed this Bivens action, see Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), against several agents of the Federal Bureau of Investigation (“FBI”), claiming they violated his Fourth and Fifth Amendment rights when they detained, interrogated, and tortured him over the course of four months in three African countries. Meshal insists a Bivens remedy in these circumstances is necessary and unexceptional. The government condemns the pro-Bivens rationale applied extraterritorially as unprecedented. The district court found the allegations of federal agents abusing an American citizen abroad quite troubling. So do we. Still, the district court dismissed Meshal's suit, finding a Bivens action unavailable.

Faced with a shifting paradigm in which counterterrorism and criminal investigation merge, we rely on a familiar framework in an unconventional context. No court has countenanced a Bivens action in a case involving the national security and foreign policy context. And, while Bivens remedies for ill-executed criminal investigations are common, extraterritorial application is virtually unknown. We hold that in this particular new setting—where the agents' actions took place during a terrorism investigation and those actions occurred overseas—special factors counsel hesitation in recognizing a Bivens action for money damages.

I

Meshal, a United States citizen and New Jersey resident, traveled to Mogadishu, Somalia in 2006 to “broaden his understanding of Islam after the country's volatile political situation had largely stabilized.”¹ J.A. 15. While he was visiting

804 F.3d 419

the country, violence erupted, forcing Meshal to flee to Kenya along with other civilians.

In January 2007, Meshal was apprehended by Kenyan authorities, in a joint U.S.–Kenyan–Ethiopian operation, and transported to Nairobi. A member of Kenya's Criminal Investigation Department (“CID”) told Meshal that authorities needed to determine “what the United States wanted to do with him” before sending him “back to the United States.” J.A. 31.

Sometime between January 27 and February 3, 2007, U.S. officials learned about Meshal's detention in Kenya and thus began a lengthy, multi-jurisdictional interrogation in which Defendants Chris Higgenbotham, Steve Hersem, John Doe 1, and John Doe 2 (collectively “Defendants”) had significant roles. Meshal claims Defendants followed the procedures detailing how the FBI should “conduct investigations abroad, participate with foreign officials in investigations abroad, or otherwise conduct activities outside the United States with the written [acquiescence or approval] of the Director of Central Intelligence and the Attorney General or their designees.” J.A. 32 (citing The Attorney General's Guidelines for FBI National Security Investigations and Foreign Intelligence Collection 17 (Oct. 31, 2003) (declassified Aug. 2, 2007)).

For the next four months, Meshal claims Defendants detained him in secret, denied him access to counsel and the courts, and threatened him with torture and death. He says he was threatened with extradition to Israel where the Israelis would “make [Meshal] disappear,” J.A. 41; and with rendition to Egypt, where they “had ways of making him talk,” J.A. 42. Defendant Hersem also intimated that Meshal would suffer the same fate as the protagonist in the movie Midnight Express² —a movie where a foreign prisoner is brutally beaten and confined in horrid conditions in a Turkish prison for refusing to cooperate. Hersem said, “You made it so that even your grandkids are going to be affected by what you did,” but promised that if Meshal confessed his connection to al Qaeda, he would be returned to the United States to face civilian courts instead of being returned to Somalia. J.A. 41. Meshal believes the agents hoped to extract a confession to terrorist activity as a prelude to prosecution. The alleged threats had an effect; Meshal's cellmate observed that Meshal was “extremely distressed and crying” after returning to his cell from one of the interrogations. J.A. 41.

Meshal also alleges he was transferred between three African countries without legal process: from Kenya to Somalia, where he was detained in handcuffs in an underground room, with no windows or toilets, a place referred to as “the cave,” J.A. 48–49; then flown blindfolded to Addis Ababa, Ethiopia, where he was detained in a military barracks. Over the next three months, Ethiopian officials regularly transported Meshal and other prisoners to a villa for interrogation where Does 1 and 2 repeatedly refused Meshal's requests to speak to a lawyer. When he was not being interrogated, Meshal was handcuffed in his prison cell, and spent several days in solitary confinement.

Eventually, the FBI released Meshal, and he returned to the United States.

804 F.3d 420

During the four months he was detained abroad, he lost approximately eighty pounds. He was never charged with a crime.

Meshal filed a Bivens action specifically alleging detention without a hearing for four months violated his Fourth Amendment rights and that the threats of torture and disappearance violated his due process rights. In deciding Defendants' motion to dismiss, the district court found Meshal had properly stated Fourth and Fifth Amendment claims.³ Yet the court dismissed the case, concluding a Bivens action was unavailable to Meshal because both this court, and several other circuits, had “expressly rejected a Bivens remedy for [U.S.] citizens who allege they have been mistreated, and even tortured, by [American officials] in the name of intelligence gathering, national security, or military affairs.” Meshal v. Higgenbotham, 47 F.Supp.3d 115, 116–17 (D.D.C.2014).

II

A

Federal tort causes of action are ordinarily created by Congress, not by the courts. Congress has created numerous tort causes of action allowing plaintiffs to recover for tortious acts by federal officers. See, e.g., Federal Tort Claims Act, 28 U.S.C. §§ 2671 et seq.; Torture Victim Protection Act, 28 U.S.C. § 1350 Note. But Congress has not created a tort cause of action that applies to this case. The Federal Tort Claims Act, for example, explicitly exempts claims against federal officers for acts occurring in a foreign country. See 28 U.S.C. § 2680(k). The Torture Victim Protection Act provides a cause of action only against foreign officials, not U.S. officials. See 28 U.S.C. § 1350 Note, § 2(a). Having no statutory cause of action, Meshal has sued directly under the Constitution, relying on the Supreme Court's decision in Bivens.

In 1971, the Supreme Court recognized an implied private action, directly under the Constitution, for damages against federal officials alleged to have violated a citizen's Fourth Amendment rights. Bivens, 403 U.S. 388, 91 S.Ct. 1999. The case began when Webster Bivens sued Bureau of Narcotics Agents in federal court, alleging facts the Court “fairly read” as claiming Bivens' “arrest was made without probable cause.” Id. at 389, 91 S.Ct. 1999. Because the alleged constitutional violation had already occurred, Justice Harlan noted that, “[f]or people in Bivens' shoes, it [was] damages or nothing.” Id. at 410, 91 S.Ct. 1999 (Harlan, J., concurring in judgment).

The Court recognized a federal damages remedy apart from the availability of state common law remedies. See id. at 394–95, 91 S.Ct. 1999. Noting Congress had not specifically provided a remedy for violations of constitutional rights and that “the Fourth Amendment does not in so many words provide for its enforcement by an award of money damages for the consequences of its violation,” id. at 396–97, 91 S.Ct. 1999, the Court nevertheless relied on the rule that “where legal rights have been invaded ... federal courts may use any...