Maybe the Supreme Court will help.

Photographer: Uriel Sinai/Getty Images

A Black Hole for Americans' Rights Abroad

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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Can an American detained and allegedly tortured by the FBI at black sites outside the U.S. sue for damages? A panel of the U.S. Court of Appeals for the D.C. Circuit said no last week, on the ground that the violations of the citizen’s rights took place abroad. The distinction is mistaken, and the decision is wrong. The Constitution should protect the rights of U.S. citizens against the illegal actions of U.S. government no matter where they happen to be.

The American who brought the case is Amir Meshal, a Minnesotan of Egyptian descent who traveled to Somalia in 2006. According to his lawyers, purpose of this trip was “to broaden his understanding of Islam.” Authorities thought otherwise. In 2007, Meshal left Somalia amid fighting and was grabbed near the Kenyan border as part of joint U.S.-Kenyan-Ethiopian operations.

The odyssey that followed, according to Meshal's lawsuit, played out according to a script by now familiar from other reports, not to mention the movies. Meshal was held incommunicado for four months in Kenya, Somalia and Ethiopia. Agents with the Federal Bureau of Investigation participated in harsh interrogations. Meshal was handcuffed in an underground room known as “the cave,” and threatened with torture and being made to disappear permanently. Ultimately he was released, some 80 pounds lighter, without being charged with a crime.

If you doubt that the law-enforcement-oriented FBI, as opposed to the Central Intelligence Agency, could’ve been involved with this kind of thing, think again. In several well-publicized cases involving noncitizens, FBI agents participated in months-long interrogations of detained, incommunicado subjects. Once they’d gotten enough information, the suspects were then read their Miranda rights, and the same agents got them to confess for use at trial. Apparently, Meshal either didn’t confess or he wasn’t a terrorist -- or both.

Meshal, aided by the American Civil Liberties Union, sued the agents in what’s called a Bivens action, the name for a suit brought directly under the Constitution when government officials have violated a citizen’s rights. The name comes from the 1971 U.S. Supreme Court case recognizing this kind of suit. In the archetypal Bivens case, the citizen sues for a violation of Fourth Amendment rights, which includes unlawful search and seizure -- and unlawful detention.

A Bivens suit is unusual because it isn’t authorized by Congress in a statute; it’s inferred by the courts from the very nature of the Constitution itself. Consequently, the Supreme Court has allowed such suits cautiously. In particular, the court hasn’t allowed Bivens suits when citizens are detained for national security reasons rather than detained for trial.

The D.C. Circuit decision, by archconservative Judge Janice Rogers Brown, acknowledged that this national security exception wasn’t a good enough reason to deny Meshal’s suit. After all, other detainees have been brought to trial after a two-step interrogation process.

What’s more, in a pretrial decision, the court must assume that all of a plaintiff’s factual allegations are true. Brown noted that according to Meshal, he was presented with a “Miranda-like” waiver form. Thus Meshal credibly alleged that he might have been brought to trial.

Brown relied on a different argument to dismiss Meshal’s suit: She held that Bivens actions can’t be brought for constitutional violations that occur abroad. This is where the decision went badly awry.

When it comes to statutes, courts apply a legal presumption against laws applying abroad. But this presumption isn’t relevant to a Bivens suit, which proceeds under the Constitution.

The Constitution may or may not apply to U.S. government actions abroad against noncitizens. But when it comes to the protections of criminal procedure, the Supreme Court has held that the Constitution does protect U.S. citizens outside the country from U.S. government violations of their rights. The classic 1957 case, Reid v. Covert, involved the trial procedures of the Fifth and Sixth amendments. Meshal alleged Fifth Amendment violations.

Brown therefore couldn’t say that Meshal’s rights hadn’t been violated. Instead, she said the Supreme Court had never applied the Bivens action to conduct abroad -- and the court wouldn’t extend the practice, especially in the light of background national security concerns.

In a separate concurrence, Judge Brett Kavanaugh argued that the real question was who should decide whether the suit should be allowed: Congress or the courts? He concluded that although Congress should perhaps create a remedy for Meshal, the courts shouldn’t.

The trouble with this powerful argument is that it proves too much. If the courts can’t or shouldn’t decide that a suit may proceed under the Constitution, then the Bivens precedent itself is wrongly decided.

Kavanaugh may think that. But he isn’t on the Supreme Court -- at least not yet -- and so he’s bound to follow Bivens. And Bivens makes it very clear that the answer to the “who decides” question is the courts.

The dissent was written by Judge Cornelia Pillard, who was appointed by President Barack Obama and is sometimes mentioned as a potential successor to Ruth Bader Ginsburg. (Although, in that scenario, the Senate would have to be magically filled with moderate Republicans.)

Pillard pointed out the absurdity of denying Meshal a day in court because he was detained abroad. If Meshal had been detained and tortured by the Kenyan or Ethiopian governments, she noted, he could’ve sued them under the Torture Victims Protection Act. The domestic analogue to the TVPA is a Bivens action. It makes no sense to create a special legal vacuum that protects the FBI if it violates citizens’ rights abroad.

Any American who carries a passport is a little less safe today. The D.C. Circuit should go en banc and reverse the panel. Failing that, this is an issue for the Supreme Court. It can apply its Bivens precedent and protect citizens against torture by the U.S. government, wherever it happens.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
Stacey Shick at sshick@bloomberg.net