United States District Court, D. Columbia.
For AMIR MESHAL, Plaintiff: Arthur B. Spitzer, LEAD ATTORNEY, AMERICAN CIVIL LIBERTIES UNION OF THE NATION'S CAPITAL, Washington, DC; Hina Shamsi, PRO HAC VICE, AMERIAN CIVIL LIBERTIES UNION FOUNDATION, New York, NY; Jonathan L. Hafetz, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, New York, NY.
For CHRIS HIGGENBOTHAM, FBI Supervising Special Agent, in his individual capacity, JOHN DOE 2, JOHN DOE 1, STEVE HERSEM, FBI Supervising Special Agent, in his individual capacity, Defendants: Glenn Stewart Greene, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Constitutional and Specialized Tort Litigation, Washington, DC.
For UNITED STATES OF AMERICA, Intervenor: Glenn Stewart Greene, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Constitutional and Specialized Tort Litigation, Washington, DC.
Emmet G. Sullivan, United States District Judge.
Amir Meshal is an American citizen who alleges that, while travelling in the Horn of Africa, he was detained, interrogated, and tortured at the direction of, and by officials in, the American government in violation of the United States Constitution. After four months of mistreatment, Mr. Meshal was returned home to New Jersey. He was never charged with a crime. Mr. Meshal commenced this suit against various U.S. officials under Bivens v. Six Unknown Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), which allows a victim of constitutional violations to sue the responsible federal officers or employees for damages. The defendants have moved to dismiss his case, alleging that even if Mr. Meshal's allegations are true, he has no right to hold federal officials personally liable for their roles in his detention by foreign governments on foreign soil.
The facts alleged in this case and the legal questions presented are deeply troubling. Although Congress has legislated with respect to detainee rights, it has provided no civil remedies for U.S. citizens subject to the appalling mistreatment Mr. Meshal has alleged against officials of his own government. To deny him 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.
Nevertheless, in the past two years, three federal courts of appeals, including the United States Court of Appeals for the District of Columbia Circuit, have expressly rejected a Bivens remedy for citizens
who allege they have been mistreated, and even tortured, by the United States of America in the name of intelligence gathering, national security, or military affairs. This Court is constrained by that precedent. 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. Accordingly, defendants' motion to dismiss must be GRANTED.
For the purposes of the pending motion to dismiss, the Court accepts as true the following factual allegations in Plaintiff Amir Meshal's Second Amended Complaint. Mr. Meshal is a U.S. citizen who was born and raised in New Jersey. In November 2006, he travelled to Somalia. Sec. Am. Compl. ¶ 23. A few weeks after his arrival, fighting erupted between the Supreme Council of Islamic Courts, which then controlled portions of Somalia, and the Transitional Federal Government of Somalia. Id. ¶ 34. Plaintiff fled Mogadishu along with thousands of other civilians. Id. ¶ 36. He then attempted to flee from Somalia to Kenya on or about January 3, 2007. Id. ¶ 38.
Around the same time, U.S. officials planned to intercept individuals entering Kenya in an attempt to capture al Qaeda members. By way of background, after the 1998 bombings of the American Embassies in Kenya and Tanzania, the U.S. government deployed civilian and military personnel to the Horn of Africa to identify, arrest, and detain individuals suspected of terrorist activity. Id. ¶ 24. Following the terrorist attacks of September 11, 2001, the U.S. government was of the opinion that Somalia was a potential haven for members of al Qaeda fleeing Afghanistan. Id. ¶ 26. Accordingly, in 2002, the Department of Defense initiated joint counterterrorism operations with nations in the Horn of Africa region, including Kenya and Ethiopia. Id. ¶ 27. Since at least 2004, military personnel and FBI agents have been directly involved in training foreign armies and police units and conducting criminal investigations of individuals with alleged ties to foreign terrorists or terrorist organizations. Id. ¶ 29. According to FBI procedures and policies, FBI officers have no law enforcement authority in foreign countries, but may conduct investigations abroad with the approval of the host government. Id. ¶ 30. Such extraterritorial activities may be conducted " with the written request or approval of the Director of Central Intelligence and the Attorney General or their designees." Id. ¶ 56.
On or about January 24, 2007, Mr. Meshal was captured by Kenyan soldiers and interrogated by Kenyan authorities. Id. ¶ 46. The following day, 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. Id. ¶ 51. The officer told Mr. Meshal that he had to find out what the United States wanted to do with him before he could send him back to the United States. Id. ¶ 52. Plaintiff was detained at Ruai for approximately one week. He was not allowed to use the telephone or have access to an attorney. Id. ¶ ¶ 54-55, 71, 99. On approximately February 3, 2007, he was escorted outside the police station for an encounter with three Americans, who identified themselves as " Steve," " Chris," and " Tim." Id. ¶ 58. " Steve" is defendant FBI Supervising Special Agent Steve Hersem, and " Chris" is FBI Supervising Special Agent Chris Higgenbotham. " Tim" is Doe 1. Id. ¶ ¶ 59-63. During the following week, Hersem, Higgenbotham, and Doe 1 interrogated Mr. Meshal at least four times. Each session lasted a full day and took place in a suite in a building controlled
by the FBI. Id. ¶ 69-70. When he was not being questioned by Defendants, he remained in a cell at a Kenyan police station. Id. ¶ 90.
On the first day of interrogation, Doe 1 presented a form to Mr. Meshal that notified him he could refuse to answer any questions without a lawyer present. Id. ¶ 71. When Mr. Meshal asked for an attorney, however, Doe 1 said that he was not permitted to make any phone calls. Id. When Mr. Meshal asked if he had a choice not to sign the document because he had no way of contacting an attorney, Higgenbotham responded: " 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." Id. Higgenbotham also told Mr. Meshal that he was being held " in a 'lawless country' and did not have any right to legal representation." Id. Mr. Meshal was presented with the same document for signature before each subsequent interrogation in Kenya. Id. ¶ 83. Mr. Meshal maintains that he signed the documents because he believed he had no choice and hoped that it would expedite his return to the United States. Id. ¶ 71.
During these interrogation sessions, Mr. Meshal was continuously accused of having received weapons and interrogation resistance training in an al Qaeda camp. Id. ¶ 84. Hersem told Mr. Meshal that " his buddy 'Beantown,'" a U.S. citizen named Daniel Maldonado, who Mr. Meshal met in Kenya and who was seized by Kenyan soldiers on or about January 21, 2007, " had a lot to say about [Mr. Meshal]." Id. ¶ 65-67. Hersem told Mr. Meshal that his story would have to match Maldonado's. Id. ¶ 66.
The Defendants mistreated Mr. Meshal during the interrogation sessions. Id. ¶ ¶ 86-88. Higgenbotham threatened to send Mr. Meshal to Israel, where he said the Israelis would " make him disappear." Id. ¶ 86. Hersem told Mr. Meshal that if he confessed his connection to al Qaeda, he would be returned to the United States to face civilian courts there, but if he refused to answer more questions he would be returned to Somalia. Id. ¶ 87. Hersem also told Mr. Meshal that he could 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 grandkids are going to be affected by what you did." Id. ¶ 88. At one point, Higgenbotham " grabbed" Mr. Meshal and " forced" him to the window of a room, id. ¶ 86; at another, Hersem " vigorously pok[ed]" Mr. Meshal in the chest while yelling at him to confess his connection to al Qaeda. Id. ¶ 87.
Kenyan authorities never interrogated or questioned Mr. Meshal, nor did they provide him with any basis for his detention. Id. ¶ ¶ 76, 78. On February 7, 2007, a consular affairs officer from the U.S. Embassy in Nairobi, accompanied by a Kenyan man, visited Mr. Meshal in jail. Id. ¶ 103. The consular affairs officer told Mr. Meshal that he was trying to get him home, and that someone would be in touch with his family in New Jersey. Id. Also on or about February 7, 2007, Kenyan courts began hearing habeas corpus petitions allegedly filed by the Muslim Human Rights Forum (MHRF), a Kenyan human rights organization, on behalf of Mr. Meshal and other detainees who were seized fleeing
Somalia and held without charge. Id. ¶ 100.
On February 9, 2007, Kenyan officials removed Mr. Meshal from the jail, hooded and handcuffed him, and flew him and twelve others to Somalia. Id. ¶ ¶ 109-12. There, he was detained in handcuffs in an underground room, with no windows or toilets, referred to as " the cave." Id. ¶ ¶ 111-12. Immediately after Mr. Meshal's rendition, Kenyan authorities presented evidence to the Kenyan court showing that he was no longer in Kenya; the court dismissed the habeas petition for lack of jurisdiction. Id. ¶ 114. Mr. Meshal alleges that Defendants arranged for his removal from Kenya so they could continue to detain and interrogate him without judicial pressure from Kenyan courts. Id. ¶ ¶ 108, 128.
On or around February 16, 2007, Mr. Meshal was transported, still handcuffed and blindfolded, by plane to Addis Ababa, Ethiopia, and driven to a military barracks where he was detained by the Ethiopian government with others who had been rendered from Kenya to Somalia and Ethiopia. Id. ¶ ¶ 117-119, 130-137. After a week of incommunicado detention, and continuing over the next three months, Ethiopian officials regularly transported Plaintiff and other prisoners to a villa for interrogation. Id. ¶ ¶ 140-41, 151. Plaintiff was interrogated by Doe 1, who had interrogated him in Kenya, and Doe Defendant 2, a U.S. official who introduced himself as " Dennis," and whose name has been filed with the Court under seal. Id. ¶ ¶ 140-41, 144-45. Apart from a brief initial interrogation upon his arrival, Mr. Meshal was never questioned by Ethiopian officials. Id. ¶ ¶ 132-33. Doe 1 led all but one of the interrogations of Mr. Meshal in Ethiopia. Id. ¶ ¶ 146, 149. He was joined at times by Doe 2, who led the final interrogation. Id. ¶ 146. Each time, Doe 1 made Mr. Meshal believe that he and the other FBI agents would send Mr. Meshal home if he was " truthful" . Id. ¶ ¶ 148-49. Does 1 and 2 refused Mr. Meshal's repeated requests to speak with a lawyer. Id. ¶ 152. When he was not being interrogated, Plaintiff was handcuffed in his prison cell. He was twice moved into solitary confinement for several days. Id. ¶ 154.
No charges were ever filed against Mr. Meshal in Ethiopia. Id. ¶ ¶ 155, 160, 162. On three occasions, he was taken for closed proceedings before a military tribunal. Id. After the first proceeding, Doe 1 pressed Mr. Meshal to admit that he was connected to al Qaeda and told him that he would not be allowed to go home unless he told Doe 1 what he wanted to hear. Id. ¶ 156. Although FBI agents had been regularly interrogating Mr. Meshal in Ethiopia for more than a month, U.S. consular officials did not gain access to him until on or about March 21, 2007, after the fact of his detention became public knowledge when McClatchy Newspapers first reported that he was being held at a secret location in Ethiopia. Id. ¶ 157. On or about May 24, 2007, Mr. Meshal was taken to the U.S. Embassy in Addis Ababa and flown to the United States, where he was released. During the four months he was detained abroad, he lost approximately eighty pounds. Id. ¶ ¶ 166-67. He was never charged with a crime.
Plaintiff seeks to hold Defendants individually liable for monetary damages for violations of his constitutional and statutory rights. Count I alleges Defendants violated his Fifth Amendment right to substantive due process by threatening him with disappearance and torture; by directing, approving and participating in his detention in Kenya and his illegal rendition to Somalia and Ethiopia without due process; and by subjecting him to months of custodial interrogation in Africa. Count II alleges Defendants violated Mr. Meshal's Fifth Amendment right to procedural due
process by subjecting him to prolonged and arbitrary detention without charge; denying him access to a court or other processes to challenge his detention; and denying him access to counsel. Count III alleges Defendants violated his Fourth Amendment right to be free from unreasonable seizure without a probable cause hearing. Count IV alleges Defendants violated his rights under the Torture Victim Protection Act (TVPA), 28 U.S.C. § 1350, note. Id. ¶ ¶ 171-213.
Defendants have moved to dismiss all counts of the complaint. They argue that the Court should also dismiss the constitutional claims because (1) " special factors" preclude implying a cause of action under Bivens v. Six Unknown Agents of Federal Bureau of Narcotics, 403 U.S. 388, 389, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971); and (2) Defendants are entitled to qualified immunity. They also argue that Mr. Meshal's TVPA claim must be dismissed because none of the Defendants were acting under color of foreign law. For the reasons explained below, the motion to dismiss will be granted because binding precedent from this Circuit prohibits either a TVPA or a Bivens remedy for Mr. Meshal.
II. STANDARD OF REVIEW
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the legal sufficiency of a complaint. Browning v. Clinton, 292 F.3d 235, 242, 352 U.S. App.D.C. 4 (D.C. Cir. 2002). A complaint must contain " a short and plain statement of the claim showing that the pleader is entitled to relief, in order to give the defendant fair notice of what the ... claim is and the grounds upon which it rests." Bell A. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (internal quotation marks and citations omitted). While detailed factual allegations are not necessary, plaintiff must plead enough facts " to raise a right to relief above the speculative level." Id. The Court must construe the complaint liberally in plaintiff's favor and grant plaintiff the benefit of all reasonable inferences deriving from the complaint. Kowal v. MCI Commc'ns Corp., 16 F.3d 1271, 1276, 305 U.S. App.D.C. 60 (D.C. Cir. 1994). However, the Court must not accept plaintiff's inferences that are " unsupported by the facts set out in the complaint. . . . [or] ...