Washington – Appeals Court Says American Can’t Sue FBI Over Abuse Claims

Washington – A U.S. citizen who claims American officials falsely imprisoned and tortured him for several months in Africa can’t sue the FBI agents involved because the conduct took place overseas during a terrorism investigation, a federal appeals court ruled Friday.

The 2-1 ruling from the U.S. Court of Appeals for the District of Columbia Circuit acknowledged that Amir Meshal’s allegations of abuse were “quite troubling,” but said he is without recourse to pursue claims that agents violated his constitutional rights.

“Matters touching on national security and foreign policy fall within an area of executive action where courts hesitate to intrude absent congressional authorization,” Judge Janice Rogers Brown said in upholding a lower court decision that threw out Meshal’s case last year.

Meshal, a New Jersey resident, said he traveled to Mogadishu, Somalia, in 2006 to “broaden his understanding of Islam.” After violence erupted, he and other civilians fled to neighboring Kenya, where he was later arrested by Kenyan authorities and turned over to the FBI.

The lawsuit, which the American Civil Liberties Union filed on Meshal’s behalf, claims U.S. officials sent him back to Somalia and eventually to Ethiopia, where he was imprisoned in secret for several months. He says FBI agents accused him of receiving training from al-Qaida and subjected him to harsh interrogations while denying him access to a lawyer, his family or anyone else.

He was released in May 2007 with no explanation, according to the lawsuit.

While law enforcement officials can be sued for violating a person’s constitutional rights, Brown said courts have been hesitant to allow such lawsuits in cases “involving the military, national security, or intelligence.” Those concerns are heightened when the conduct takes place outside the United States, she said.

The fact that Meshal is a U.S. citizen does not outweigh the court’s reluctance to interfere with matters of national security, Brown said.

Judge Brett Kavanaugh agreed with Brown, but wrote separately to stress that it’s up to Congress, not the courts, to decide whether U.S. officials can be sued for conduct in foreign countries “in connection with the war against al Qaeda and other radical Islamic terrorist organizations.”

In dissent, Judge Cornelia “Nina” Pillard said the government had not supported its claims that allowing the lawsuit would undercut national security and diplomatic relations.

“When the government reaches out to punish a citizen who is abroad, the shield which the Bill of Rights and other parts of the Constitution provide to protect his life and liberty should not be stripped away just because he happens to be in another land,” Pillard said.

Brown and Kavanaugh are Republican appointees. Pillard was appointed by President Barack Obama.

In a statement, Meshal’s lawyer Jonathan Hafetz said he was disappointed by the ruling “which recognizes the gravity of Mr. Meshal’s allegations of unlawful detention and abuse but denies him any remedy.” The ACLU said Meshal is considering an appeal.

A Justice Department spokesman did not immediately respond to a request for comment.

Government officials had argued that allowing the case to go forward could reveal sensitive information about national security threats in Africa and U.S. intelligence sources in the region.

U.S. authorities have said that after interviewing Meshal in Kenya, they determined he was not a threat and had not violated U.S. law. Meshal was 24 when he returned home to New Jersey in 2007.

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