Judge Finds Courts Cannot Protect US Citizens Tortured by US Government Officials Abroad

A federal district court dismissed a case that was brought by the American Civil Liberties Union on behalf of a United States citizen and against US government officials who allegedly tortured, abused and subjected him to rendition and incommunicado detention in Kenya, Somalia and Ethiopia. The dismissal was another stark example of how it is nearly impossible for torture victims to push for justice in an American court of law.

Amir 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” and was told that the police 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, according to the US District Court of the District of Columbia’s decision [PDF].

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, threatened Meshal with being transferred 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.”

Meshal was flown by Kenyan officials to Somalia with twelve others on February 9. 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 \regularly transporting him to a villa with other prisoners where he could be interrogated by FBI agents. He remained in detention for three months and was moved into solitary confinement twice.

Finally, 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. US officials never charged him with a crime.

Judge Emmet G. Sullivan, who was appointed by President Bill Clinton, wrote in the decision, “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 Mr. Meshal has alleged against officials of his own government.”

In the past couple of years, Sullivan acknowledged, three federal appeals courts, including the appeals court for the DC Circuit, had rejected cases brought by citizens, including military contractors, who alleged they had been tortured or abused by US government officials. He claimed, “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.”

ACLU National Security Project Director Hina Shamsi reacted, “While we appreciate the court’s outrage at the appalling mistreatment Mr. Meshal suffered at the hands of his own government, we are deeply disappointed at the court’s conclusion that it does not have the power to provide him a remedy.

“It is a sad day for Mr. Meshal and for all Americans, who have a right to expect better of their government and their courts than immunity for terrible government misconduct,” Shamsi added.

The judge’s decision “sends a deeply troubling and negative signal,” Shamsi told Firedoglake. “We’re considering our next steps in this case.”

Meshal was only seeking to hold particular US government officials responsible for the torture and abuse he had experienced. Nonetheless, Sullivan essentially accepted the government’s “national security” argument—that Meshal was “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 abroad.”

“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.’”

In other words, allowing Meshal to sue US government officials would interfere with affairs that were entirely in the control of the Executive Branch and violate separation of powers. US government officials can engage in all manner of conduct against an individual so long as he or she is in the custody of a foreign government.

Jose Padilla, a US citizen who was detained as an enemy combatant and allegedly tortured for three years while he was in US military custody on the mainland, had his case dismissed. A US citizen and government contractor who alleged he had been “illegally detained, interrogated and tortured for nearly ten months on a US military base in Iraq” had his case dismissed. And US citizens Donald Vance and Nathan Ertel, who were US government contractors allegedly detained, arrested and tortured by the US military in Iraq, had their case dismissed.

These were the cases that Sullivan believed were “binding precedent” he had to follow yet he noted that a dissenting opinion in Vance’s case had warned that the judicial branch was “creating a doctrine of constitutional triviality where private actions are permitted only if they cannot possibly offend anyone anywhere.”

Judge Ann Claire Williams added, “That approach undermines our essential constitutional protections in the circumstances when they are often most necessary.” Sullivan added that the court feared this prediction was “arguably correct.”

FBI Supervising Special Agent Chris Higgenbotham forced Meshal to sign forms and told Meshal when he did not want to sign, “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.”

Another Supervising Special Agent, Steve Hersem, told Meshal if he “confessed his connection to al Qaeda” only then would he be granted due process in a civilian court. Otherwise, if he didn’t “confess” he would be transferred to Somalia. Hersem also told Meshal he would “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 grand-kids are going to be affected by what you did.’”

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

The reality is that covert operations in America’s dirty wars are now more sacrosanct to the US government than the rights US citizens are supposed to enjoy.

US government officials deliberately refused to provide Meshal with a probable cause hearing or some form of due process. In fact, one of the only reasons the US Embassy got involved and he was eventually transported back to the US is because McClatchy Newspapers became aware of his detention and published a story under the headline, “American’s rendition may have broken international, US laws.”

If a US media organization had not found out about his mistreatment, how much longer would he have been held and interrogated by FBI agents who were threatening him daily?