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National security trumps your constitutional rights, at least civilly

The D.C. Circuit recently held in Meshal v. Higgenbotham [1] that an individual cannot sue federal officials for damages stemming from illegal detention practices if the detention occurred abroad. Though the court’s reasoning might have been legitimate, it was also conflated.

The case was brought by an American of Egyptian descent who traveled to Somalia in 2006. When he attempted to leave after fighting broke out in the country, he was detained by U.S.-Kenyan-Ethiopian forces near the Kenyan border [2]. The F.B.I. further detained Meshal over a span of months, using “illicitly questionable” interrogation practices with the understanding that Meshal might be linked to al Qaeda. After he was eventually released, Meshal brought a lawsuit under the 1971 U.S. Supreme Court case, Bivens v. Six Unknown Agents, which allows private individuals to sue the federal government for certain violations [3].

The court regarded the mistaken detention as embarrassing, but ultimately rejected Meshal’s claim, citing to “special factors”. It specifically turned to the upset of the balance of powers. First, Congress has not spoken on the issue. There is nothing in Bivens  that allows the claim to extend extraterritorial under the facts of Meshal’s case. Second, the court noted it was not apt to rule on issues of national security, an area designated to the executive. The court stated, “while Bivens remedies for ill-executed criminal investigations are common, extraterritorial application is virtually unknown.” Further, it continued, “such a different context requires us to think anew.”

While it is reasonable that the court should not rule in an area that Congress has not spoken, the argument that national security is ‘new’ to the court is unfounded. So is the argument that inquiring into national security cases in itself pose a security threat. The dissent noted the majority was wrong to say inquiring into national security cases is a national security risk due to discovery having the potential to disclose sensitive information. [3] The dissent pointed to examples of instances where the court ruled on sensitive information. For example, some cases that press close on national security issues, the prosecution will attempt to protect certain documents from disclosure to defense. The court ultimately makes a decision as to whether the prosecution can instead provide summaries of what the documents purport to say, in order to protect the nation’s security interests. [4]. It almost seems that the court noted national security to bolster the decision to not recognize that someone who experiences torture deserves damages.

Despite this contradiction, perhaps a larger issue is that neither the majority nor the dissent acknowledged that constitutional violations in nearly the exact same instances have been recognized by this court, just not for monetary damages. In criminal cases, the court is not hesitant to consider cases deeply embedded in national security. For example, in 2010, the D.C. Circuit in al-Qurashi v. Obama, 733 F. Supp. 2d 69, 78 (D.D.C. 2010) [5] addressed the defendant’s argument that his statement made to a U.S. government agent in Pakistan was obtained in violation of his Due Process rights. While the court ultimately concluded the fact pattern indicated the statement was voluntary and not obtained in violation of his rights, the court recognized that constitutional rights applied to non-U.S. citizens abroad and it also was willing to consider the facts involved in an alleged mistreatment case abroad.

Despite the valid reason for not venturing into an area where Congress has yet to speak, the opinion implies that even if Congress did act, the court is nevertheless ill-equipped to hear a case that involves national security. The reasoning contradicts the reality that dealing with constitutional cases involving national security is not ‘anew’ to the courts and it is a reality that parallels the increasing awareness of international law and the involvement of the United States abroad. In failing to provide Congress with positive assurance that it can handle a claim like Meshal’s if given the opportunity, it is plausible that Congress may not act. Perhaps the United States is not ready to face the possibility that top U.S. officials may be prosecuted in their own country, not only for justified military attacks that inadvertently kill an American, but for any remote effect his or her action may have on an American abroad. Regardless, it is surprising that the court did not highlight the unfortunate predicament, nor its inability in the current situation to protect the people from our own government’s illegal torture abroad–the very same government that regards ‘liberty’ as its citizen’s most guarded right.


[1] Meshal v. Higgenbotham, — F.3d —, 2015 WL 6405207 (D.C.C. October 23, 2015).

[2] Noah Feldman, Bloomberg View, Judges open black hole in Americans’ rights abroad. (October 30, 2015).

[3] Zoe Tillman, Legal Times, D.C. Circuit Divides Over American’s Claims of Torture. (October 23, 2015).

[4] David Mulock, Jurist, Objecting to Secret Evidence Under FISA. (February 24, 2012).

[5] al-Qurashi v. Obama, 733 F. Supp. 2d 69, 78 (D.D.C. 2010).

[6] United States v. Clarke, 611 F. Supp. 2d 12, 16 (D.D.C. 2009).

[7] Noah Feldman, Bloomberg View, Judges open black hole in Americans’ rights abroad. (October 30, 2015).


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