Emmet Sullivan. (Photo: Diego M. Radzinschi/NLJ.)
A U.S. citizen who claimed he was interrogated and tortured overseas by federal authorities cannot sue over alleged constitutional violations, a judge in Washington ruled.
U.S. District Judge Emmet Sullivan wrote on June 13 that he was “outraged” by plaintiff Amir Meshal’s claims of mistreatment at the hands of the U.S. government. But Sullivan said he was bound by previous court decisions that restrict constitutional claims against the federal government concerning “military affairs, national security, or intelligence gathering.”
Meshal brought his lawsuit under the 1971 U.S. Supreme Court case Bivens v. Six Unknown Agents, which allowed private individuals to sue the federal government for violations of constitutional rights. Sullivan said he feared the “evisceration” of Bivens in recent years meant individuals would only be allowed to file suit “if they cannot possibly offend anyone anywhere,” quoting from another opinion.
The American Civil Liberties Union is representing Meshal. Hina Shamsi, the ACLU’s national security project director, said Monday that Meshal and his lawyers were “considering our next steps.” In a statement, she said Sullivan’s outrage was appreciated, but “we are deeply disappointed at the court’s conclusion that it does not have the power to provide him a remedy.”
A U.S. Department of Justice spokesman declined to comment.
Meshal was raised in New Jersey, according to court documents. In late 2006, he traveled to Somalia. When fighting broke out in that country, he tried to flee to Kenya in January 2007. He was captured by Kenyan authorities, who were cooperating with the United States on counterterrorism operations. About a week later, Meshal was taken to meet with two FBI agents and one man known only as “Tim.”
Meshal said he was denied access to a lawyer, despite being told he had a right to refuse questions without counsel. The agents questioned him about ties to al-Qaida, and they allegedly made threats about his safety if he refused to cooperate. Soon after, he was flown to Somalia and then to Ethiopia—a move Meshal said U.S. officials arranged so they could continue the interrogation without scrutiny from Kenyan courts.
Over the next three months, Meshal said he was regularly questioned by U.S. officials, some of whom are still unnamed defendants in the civil lawsuit Meshal filed. When he wasn’t being interrogated, he said he was handcuffed in a prison cell and spent several days in solitary confinement. He was never charged with a crime.
Shortly after McClatchy Newspapers reported on Meshal’s detention in May 2007, he was released and flown back to the United States. He filed suit in November 2009, alleging violations of his Fourth and Fifth Amendment rights and violations under the federal Torture Victim Protection Act.
In dismissing Meshal’s case, Sullivan cited three decisions published in the past two years by federal courts of appeal across the country, including in Washington. The three cases restrained judges from allowing plaintiffs to bring Bivens claims in cases concerning national security, military affairs and intelligence operations.
Sullivan repeatedly expressed his concern about the courts’ lack of power to address claims such as Meshal’s involving the treatment of U.S. citizens overseas by the federal government.
“To deny [Meshal] 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,” Sullivan wrote (emphasis in original.)
Updated at 1:29 p.m.