How the F.B.I. Can Detain, Render and Threaten
Without Risk
By Patrick G. Eddington
November 04, 2015 "Information
Clearing House" - "NYT"
- AT exactly 5 p.m. on March 13, 2007, just as I was preparing
to leave my cubicle in Washington for the day, I got a phone call
from the journalist Jonathan Landay of McClatchy Newspapers. To this
day, I remember his exact words.
“One of your congressman’s constituents is being held
in an Ethiopian intelligence service prison, and I think your former
employer is neck-deep in this.”
The congressman was Rush Holt, then a Democratic
representative from New Jersey, for whom I worked for 10 years
starting in 2004. The constituent was Amir Mohamed Meshal of Tinton
Falls, N.J., who alleges that he was illegally taken to Ethiopia,
where he was threatened with torture by American officials. My
“former employer” was the Central Intelligence Agency, but it soon
became apparent that the agency “neck-deep in this” was the
Federal Bureau of Investigation.
Eight years after Mr. Meshal’s rendition, his case
ended up before a three-judge panel of the United States Court of
Appeals for the District of Columbia. The questions hanging over the
proceeding were: can the United States government allow, or even
facilitate, the rendition of an American citizen to another country
for interrogation? And can United States officials themselves
conduct rendition and interrogations of American citizens, including
threats of torture, on foreign soil?
According to a
decision handed down last week, the answers appear to be yes. If
this decision stands, it will mean that an American citizen overseas
who is unlawfully targeted by the United States government for
rendition, interrogation and detention with the help of a local
government will have no form of redress in the courts.
Mr. Landay’s 2007 phone call triggered Representative
Holt’s involvement — and thus mine — in Mr. Meshal’s case. For
months, I was on the phone daily or conversing via email with
representatives of the F.B.I. and the State Department, trying to
piece together how he ended up being held in a jail cell in
Ethiopia.
Mr. Meshal had originally traveled to Egypt in 2005
to visit family members, but subsequently went to Somalia,
ostensibly to provide humanitarian aid to what was then known as the
Islamic Courts Union, the Islamist rebels opposed to the existing
pro-United States Somali government. After the Ethiopian government
helped drive the I.C.U. into retreat, Mr. Meshal was caught up in a
wave of refugees who fled to neighboring Kenya, and was detained by
Kenyan authorities in early January 2007.
After being interrogated by F.B.I. agents in Kenya,
Mr. Meshal was rendered by Kenyan authorities back to Somalia, and
then handed to soldiers who took him to Ethiopia, a country he had
never visited. At the time, State Department officials in Kenya
formally protested the Kenyan government’s rendition action.
However, F.B.I. agents were able to almost
immediately gain access to Mr. Meshal in Ethiopia. In my mind, that
raised the very real prospect that either the F.B.I. or another
element of the United States intelligence community asked its Kenyan
counterparts to ship Mr. Meshal to Ethiopia for further questioning.
Mr. Meshal said that during his ordeal he was
interrogated more than 30 times by American officials, who
continually accused him of receiving terrorist training at Al Qaeda
camps. They denied his requests for access to a phone so that he
could contact a lawyer and, he says, frequently threatened him with
torture and told him that he would “disappear” if he didn’t
cooperate.
After Representative Holt waged a campaign to have
him freed and reunited with his family, Mr. Meshal was released in
May 2007 and returned to the United States. To this day, Mr. Meshal
has never been charged with a terrorism-related offense by the
United States government.
In 2009, Mr. Meshal sued four F.B.I. agents who he
claimed had detained and threatened him, violating his Fourth and
Fifth Amendment rights. Mr. Meshal’s attorneys sought relief through
what is known as a Bivens claim, which is based on a 1971 Supreme
Court
case in which the court found that American citizens could seek
monetary damages for violations of the Fourth Amendment.
Obama administration lawyers argued that Bivens did
not apply to Mr. Meshal’s case because the incident took place
overseas and involved unspecified “national security” concerns.
Both the district and appeals courts that have thus
far heard Mr. Meshal’s case have accepted the government’s framing
of the case and denied his claim. They have also argued that
Congress has never created a specific tort cause of action —
essentially, a legal basis to sue — for Americans wrongfully
detained in the so-called war on terror.
These arguments are legal dodges that deny Mr. Meshal
his constitutional rights and institutionalize detention and
rendition. Using the cloak of “national security” is particularly
egregious since Mr. Meshal has never been charged with any federal
crime. That certainly seemed to be the view of Judge Nina Pillard,
the dissenting voice in the appellate court’s opinion.
“Had Meshal suffered these injuries in the United
States, there is no dispute that he could have sought redress under
Bivens,” Judge Pillard wrote. “If Meshal’s tormentors had been
foreign officials, he could have sought a remedy under the Torture
Victim Protection Act. Yet the majority holds that because of
unspecified national security and foreign policy concerns, a United
States citizen who was arbitrarily detained, tortured, and
threatened with disappearance by United States law enforcement
agents in Africa must be denied any remedy whatsoever.”
Mr. Meshal will almost certainly have to take his
case to the full Circuit Court of Appeals for the District of
Columbia; it is highly unlikely the Supreme Court would even
consider the case otherwise, assuming Mr. Meshal loses on appeal.
Mr. Meshal has fallen into a legal black hole, where
the light of justice is extinguished in the name of national
security. The appellate court decision means that American citizens
have no means available to hold the government accountable for
violating their constitutional rights, simply because the United
States conveniently denied those rights in another country of its
choosing.
Patrick G. Eddington is a policy analyst
specializing in homeland security and civil liberties at the Cato
Institute.
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