Case 1:09-cv-02178-EGS Document 3 Filed 11/10/09 Page 1 of 51

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

AMIR MESHAL, c/o ACLU, 125 Broad St., 18th floor,
New York, NY 10004,

Plaintiff,

v.

No. 09-cv-____

CHRIS HIGGENBOTHAM, FBI Supervising Special

Agent, in his individual capacity;

JURY TRIAL DEMANDED

STEVE HERSEM, FBI Supervising Special Agent, in his individual capacity;

TWO UNKNOWN NAMED EMPLOYEES, OFFICERS, OR AGENTS OF THE UNITED STATES GOVERNMENT, in their individual capacities;

JOHN and JANE DOES 3-10,

Defendants.

COMPLAINT FOR DAMAGES AND DECLARATORY RELIEF (Violation of Fourth and Fifth Amendment Rights, Illegal Interrogation,
Illegal Proxy Detention, Illegal Rendition, Torture)

INTRODUCTION

1. Amir Meshal is a United States citizen who was born and raised in New

Jersey. Mr. Meshal is also a Muslim. In 2006, he decided to visit Mogadishu, the capital

of Somalia, to enrich his study of Islam after the country’s volatile political situation had

largely stabilized.

2. On or about January 24, 2007, while fleeing Somalia with other civilians after

violence had erupted, Mr. Meshal was apprehended in a joint U.S.-Kenyan-Ethiopian

operation along the Somalia-Kenya border. During the next four months and three days,

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he was detained in three different countries without ever being charged, without ever being granted access to counsel, and without ever being presented before a judicial officer. Upon information and belief, Plaintiff’s detention without due process was at the direction or behest of U.S. officials, was carried out with their active and substantial participation, and/or was the result of a conspiracy between the Defendants and foreign officials.
3. While detained, Mr. Meshal was interrogated more than thirty times by U.S. officials who failed to adhere to the most elementary requirements of the Fourth and Fifth Amendments and the Torture Victim Protection Act of 1991 (“TVPA”), 28 U.S.C. § 1350 note. During these interrogations, U.S. officials repeatedly threatened Mr. Meshal with torture, forced disappearance, and other serious harm in order to coerce him to confess to wrongdoing in which he had not engaged and to associations that he did not have.
4. Mr. Meshal was finally returned home on May 27, 2007, after more than four months of illegal detention. He was never charged with a crime and is innocent of all wrongdoing.
5. Mr. Meshal brings this action against two Supervising Special Agents of the United States Federal Bureau of Investigation (“FBI”)—Chris Higgenbotham and Steve Hersem—and two unknown named employees, officers, or agents of the United States government for their role in the violation of Mr. Meshal’s rights under the United States Constitution, including his right to be free from arbitrary detention, illegal rendition, and coercive interrogation methods such as threats of torture, forced disappearance, and other serious harm.
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6. The Constitution does not permit U.S. officials to threaten American citizens with forced disappearance, torture, and other serious harm, or otherwise to interrogate them coercively. Nor does the Constitution permit U.S. officials to evade the elementary commands of due process simply by directing, conspiring, and/or actively and substantially participating with a foreign state to detain, interrogate, or render U.S. citizens in a manner that would be patently unlawful if carried out by those U.S. officials themselves.
7. Mr. Meshal also brings this action against the Defendants for their role in the violation of his rights under the TVPA, 28 U.S.C. § 1350 note. Defendants Higgenbotham and Hersem tortured Mr. Meshal by threatening him with forced disappearance and the infliction of severe physical and mental pain and suffering in the course of interrogations that took place when Mr. Meshal was detained in Kenya in order to coerce him into confessing to things that he had not done and to associations with al Qaeda and individuals connected to al Qaeda that he did not have. The TVPA prohibits U.S. officials from torturing a U.S. citizen during interrogations that are carried out under the actual or apparent authority of a foreign government, through a conspiracy between U.S. officials and foreign officials, and/or through the willful participation of U.S. officials in joint activity with foreign officials.
JURISDICTION AND VENUE 8. This complaint is for compensatory damages based upon civil rights violations committed by officers of the U.S. government, some or all of whom are believed to be officers of the Federal Bureau of Investigation, in violation of the Fourth and Fifth Amendments to the U.S. Constitution and the TVPA.
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9. This Court has jurisdiction over this case pursuant to 28 U.S.C. § 1331. This action is authorized and instituted pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), and the TVPA, 28 U.S.C. § 1350 note.
10. Venue is proper in this district pursuant to 28 U.S.C. § 1391(e)(2). PARTIES
11. Plaintiff Amir Meshal is a United States citizen who resides in Tinton Falls, New Jersey. Mr. Meshal was born in Long Branch, New Jersey, on November 18, 1982, and has lived in New Jersey most of his life.
12. Upon information and belief, at the time of the events giving rise to this action, Defendant Chris Higgenbotham was a Supervising Special Agent of the FBI and was involved in investigating non-Somalis apprehended along the Somali-Kenyan border in a joint U.S-Kenyan-Ethiopian operation in and around December 2006. Defendant Higgenbotham deprived Mr. Meshal of his constitutional and statutory rights by knowingly directing, authorizing, conspiring to effect, and/or actively and substantially participating in Mr. Meshal’s detention and interrogation in Kenya and his rendition to and detention in Somalia and Ethiopia. Defendant Higgenbotham tortured Mr. Meshal by threatening Mr. Meshal with disappearance and severe pain and suffering; coercively and repeatedly interrogated Mr. Meshal; directed, authorized, conspired to effect, and/or actively and substantially participated in Mr. Meshal’s detention without due process; directed, authorized, conspired to effect, and/or actively and substantially participated in Mr. Meshal’s illegal rendition; and otherwise engaged in conduct that created and/or increased known danger, which resulted in serious harm to Mr. Meshal. Upon
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information and belief, Defendant Higgenbotham continues to be employed by the FBI and, in that capacity, works closely with the FBI in the District of Columbia during the course of conducting law enforcement investigations abroad. Defendant Higgenbotham is sued in his individual capacity. The residence of Defendant Higgenbotham is currently unknown to Plaintiff.
13. Upon information and belief, at the time of the events giving rise to this action, Defendant Hersem was a Supervising Special Agent of the FBI and was involved in investigating non-Somalis apprehended along the Somali-Kenyan border in a joint U.S-Kenyan-Ethiopian operation in and around December 2006. Defendant Hersem deprived Mr. Meshal of his constitutional and statutory rights by knowingly directing, authorizing, conspiring to effect, and/or actively and substantially participating in his detention and interrogation in Kenya, and his rendition to, and detention in, Somalia and Ethiopia. Defendant Hersem tortured Mr. Meshal by threatening him with disappearance and severe pain and suffering; coercively and repeatedly interrogated Mr. Meshal; directed, authorized, conspired to effect, and/or actively and substantially participated in Mr. Meshal’s detention without due process; directed, authorized, conspired to effect, and/or actively and substantially participated in Mr. Meshal’s illegal rendition; and otherwise engaged in conduct that created and/or increased known danger, which resulted in serious harm to Mr. Meshal. Upon information and belief, Defendant Hersem continues to be employed by the FBI and, in that capacity, works closely with the FBI in the District of Columbia during the course of conducting law enforcement investigations abroad. Defendant Hersem is sued in his individual capacity. The residence of Defendant Hersem is currently unknown to Plaintiff.
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14. The full names and residences of Defendants John Doe 1 (“Tim”) and John Doe 2 (“Dennis”) are currently unknown to Plaintiff. Upon information and belief, at the time of the events giving rise to this action, one or both of Doe Defendants 1 and 2 were employees of the FBI who individually and together deprived Mr. Meshal of his constitutional rights by knowingly directing, authorizing, conspiring to effect, and/or actively and substantially participating in his detention, interrogation, and rendition in Kenya, Somalia, and Ethiopia. During an approximately four-month period, Doe Defendants 1 and 2 coercively and repeatedly interrogated Mr. Meshal; directed, authorized, conspired to effect, and/or actively and substantially participated in Mr. Meshal’s detention without due process; directed, authorized, conspired to effect, and/or actively and substantially participated in Mr. Meshal’s illegal rendition; and otherwise engaged in conduct that created and/or increased known danger to Mr. Meshal, which resulted in serious harm to him. Upon information and belief, one or both of Doe Defendants 1 and 2 were and may continue to be employed by the FBI, and in that capacity work closely with the FBI in the District of Columbia during the course of conducting law enforcement investigations abroad. Doe Defendants 1 and 2 are sued in their individual capacities. Plaintiff will amend this complaint to allege the true names of the Doe Defendants when ascertained.
15. Defendants John and Jane Does 3-10 are individuals currently unknown to Plaintiff who worked for federal governmental entities and were involved in initiating, ordering, directing, authorizing, conspiring to effect, and/or actively and substantially participating in Mr. Meshal’s torture, illegal detention, interrogation, and rendition in Kenya, Somalia, and Ethiopia, and otherwise engaged in conduct that created and/or
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increased known danger, which resulted in serious harm to Mr. Meshal. Upon information and belief, some or all of Does 3-10 are or were stationed in the District of Columbia.
FACTUAL ALLEGATIONS Amir Meshal’s Travel to Somalia
16. Mr. Meshal is a Muslim, born to parents of Egyptian descent who are naturalized U.S. citizens.
17. As a young adult, Mr. Meshal had an increasing desire to develop his knowledge about and interest in Islam—a desire that ultimately led him to travel to Mogadishu, the capital city of Somalia, which for a time was governed by Islamic law.
18. In 2005, Mr. Meshal traveled to Cairo to live among some members of his extended family. In Cairo, Mr. Meshal worked in sales for a translation company, handling accounts for American and English-speaking clients. Mr. Meshal briefly considered traveling to Saudi Arabia in order to enhance his study of Islam and to live in a country governed by Islamic law. He decided not to do so, however, because he believed that it would be difficult to obtain a visa for travel to Saudi Arabia.
19. In June 2006, Mogadishu and its surrounding areas came under the control of the Supreme Council of Islamic Courts (“SCIC”)—a governing body whose former head, Sheikh Sharif Sheikh Ahmed, is now the president of Somalia and has received the open support of U.S. Secretary of State Hillary Clinton. Between June and December 2006, the SCIC secured control of most of southern Somalia, gained widespread local support, and brought governance and “a degree of peace and security unknown to the south for more than fifteen years.” Somalia: The Tough Part is Ahead, Africa Briefing No. 45,
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(Int’l Crisis Group, Nairobi/Brussels) (Jan. 26, 2007), at 1, http://www.crisisgroup.org/library/documents/africa/horn_of_africa/b45_somalia___the_ tough_part_is_ahead.pdf.
20. In June 2006, Mr. Meshal read an Internet article explaining that the SCIC had gained control of Mogadishu, had established peace, and had instituted Islamic law. Mr. Meshal began thinking about going to Somalia. Over the course of the next few months, he continued to read Internet articles about the implementation of Islamic law in parts of Somalia, including Mogadishu and its surrounding areas.
21. In November 2006, Mr. Meshal decided to go to the parts of Somalia that were governed by Islamic law to experience living in such areas and to deepen his knowledge and understanding of Islam. At that time, Mogadishu and southern Somalia were enjoying a revival under the SCIC, if a precarious one. The SCIC had brought stability and peace to these areas by, among other things, tearing down militia checkpoints, removing weapons from the streets, and reopening the international port and airport for business. Somalia: The Tough Part is Ahead, supra, at 1. Direct U.S. Involvement in the Horn of Africa
22. After the 1998 bombings of the U.S. Embassies in Kenya and Tanzania, the U.S. government deployed civilian and military personnel to the Horn of Africa region. The objectives of this deployment included identifying, arresting, and detaining individuals suspected of ties to terrorist organizations or activity in order to stem the rise of militant Islam in the region.
23. As part of this strategy, following the 1998 embassy bombings, the FBI Office of International Operations (“OIO”), located at FBI Headquarters in the District of
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Columbia, and the FBI Legal Attaché office located in Nairobi, Kenya, coordinated the deployment of FBI personnel to the Horn of Africa region. Federal Bureau of Investigation, Major Investigative and Operational Accomplishments, http://www.fbi.gov/contact/legat/accomplishments.htm (last visited October 27, 2009).
24. Also as part of this strategy, in October 2002, the U.S. government established the Combined Joint Task Force-Horn of Africa (“CJTF-HOA”), which operates in Yemen, Eritrea, Ethiopia, Sudan, Kenya, and Uganda, and which is comprised of about 2,000 people from each military branch of the U.S. Armed Forces, civilian employees, and representatives of coalition countries.
25. Since at least 2004, CJTF-HOA and the FBI have been directly involved in training selected foreign armies and police units, including Kenya’s, in counter-terror and counterinsurgency tactics; they have also participated in the apprehension, detention, and interrogation of individuals alleged to have ties to foreign terrorists or foreign terrorist organizations operating in the region.
26. Foreign governments, inter-governmental entities, human rights organizations, and media have reported that, since the events of September 11, 2001, the U.S. government has increasingly engaged in “proxy detention,” a practice in which individuals alleged or suspected to have ties to foreign terrorists or foreign terrorist organizations are detained by foreign authorities at the behest of, the direction of, and/or with the active and substantial participation of the United States. See Center for Human Rights and Global Justice, On the Record: U.S. Disclosures on Rendition, Secret Detention, and Coercive Interrogation 17-18 (New York: NYU School of Law, 2008).
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Mr. Meshal’s Travel to, and Flight from, Somalia 27. At the end of November 2006, Mr. Meshal sought to travel by plane from
Cairo to Mogadishu. Because there were no direct flights from Cairo to Mogadishu, Mr. Meshal first flew from Cairo to Dubai. In Dubai, Mr. Meshal purchased a ticket to travel by Jubba Airways to Mogadishu. Several days later, he boarded the Jubba Airways flight, which took him to Mogadishu. Mr. Meshal’s journey from Cairo to Mogadishu was uneventful.
28. When Mr. Meshal arrived in Mogadishu on or around November 27, 2006, the city was under the control of the SCIC and enjoying peace, stability, and a revival after years of unrest and instability.
29. Mr. Meshal’s first few weeks in Somalia were uneventful. Approximately a month after his arrival, however, fighting erupted between the SCIC and the U.S.Ethiopia-backed Transitional Federal Government of Somalia (“TFG”), which had been created in 2004 as a government of national unity. The TFG, however, never controlled most of the country, including Mogadishu, and was largely a government in name only.
30. After fighting broke out, Mr. Meshal feared for his personal safety and sought to flee the country.
31. On December 24, 2006, the Ethiopian air force bombed the Mogadishu airport, causing extensive damage. Unable to get on a flight out of the country, Mr. Meshal evacuated Mogadishu with a group of Somalis in pick-up trucks that were headed south towards the Somali town of Kismayo. The trip to Kismayo took approximately five days as the trucks caravanned across rough terrain. The group was a small subset of the many thousands of civilians fleeing the violence in Mogadishu.
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32. Once in Kismayo, Mr. Meshal noticed that there were many other nonSomalis in the town. An armed Somali man, whom Mr. Meshal did not recognize, approached him and said that Ethiopian soldiers were advancing on Kismayo and that the Americans had offered the Ethiopian and Somali forces money in return for any foreigners they captured and handed over to the Americans for detention and interrogation. He advised Mr. Meshal that all foreigners should leave for Kenya by boat.
33. On or about January 3, 2007, Mr. Meshal and approximately forty other foreign civilians—including men and women from Sweden, France, England, Jordan, and Morocco—loaded onto two large boats with small motors and simple rudders for navigation. They set off south toward Ras Kamboni, which borders Kenya at Somalia’s southern-most tip and which offered the hope of access to Kenya and safety.
34. When Mr. Meshal reached Ras Kamboni, armed Somalis ordered him and the other civilians fleeing towards the border onto a truck, which was driven to a forest. The armed Somalis then ordered them to get out of the truck. Mr. Meshal and the other civilians then fled through the dense brush.
35. Citing security concerns, on Wednesday, January 3, 2007, the Kenyan government closed its 682-kilometer border with Somalia and refused entrance to thousands of civilians fleeing the political violence. On that same day, U.S. State Department spokesperson Sean McCormack announced that the United States was working closely with governments in the region to ensure that individuals suspected of terrorist activities would not be able to escape from Somalia. On January 9, 2007, Mr. McCormack stated that the U.S. State Department was in close contact with the Ethiopian
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and Kenyan governments to prevent suspected terrorist operatives from fleeing Somalia and eluding capture. Arrest and Detention in Kenya
36. On or about January 24, 2007, having wandered in the forest for nearly three weeks with four other men in an effort to seek safety in Kenya and find a way home, Mr. Meshal’s group was surrounded by approximately thirty heavily armed Kenyan soldiers. The soldiers physically apprehended Mr. Meshal, stripped him to his underwear, and tightly bound Mr. Meshal’s hands behind his back with thick rope.
37. One soldier asked Mr. Meshal where he was from. Mr. Meshal replied that he was an American citizen. The soldier then seized Mr. Meshal’s U.S. passport, social security card, and approximately $800 in cash.
38. The soldiers took Mr. Meshal and the four others to a nearby village and then transported them by helicopter and truck to a town that Mr. Meshal later learned was the town of Kiunga.
39. Once in Kiunga, Mr. Meshal was taken to a local jail and placed in a small cell. Approximately thirty minutes later, seven or eight Kenyan men dressed in civilian clothing came to the jail, removed Mr. Meshal from the cell, escorted him outside, photographed him, and then interrogated him for approximately forty-five minutes. One of the men asked Mr. Meshal a series of simple questions in English while the others took notes. The interrogator asked Mr. Meshal his name, where he was born, what school he attended, when he had arrived in Somalia, and what he was doing there. The interrogators subsequently returned Mr. Meshal to the cell, where he was held overnight.
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Transfer to Nairobi 40. The following morning, on or about January 25, 2007, eight to ten Kenyans
dressed in civilian clothes came to the Kiunga jail. They placed a black hood over Mr. Meshal’s head and tightly bound his wrists with a plastic zip-tie. They then escorted Mr. Meshal onto a helicopter for a short flight. He overheard that he was being flown to Mombasa. From Mombasa, Mr. Meshal was escorted onto a plane, which flew to Nairobi.
41. Once in Nairobi, Mr. Meshal was placed in the back of a truck with four other men and taken to the Ruai Police Station on the outskirts of Nairobi. A group of Kenyan officials wearing civilian clothing were waiting for Mr. Meshal at the police station’s jail. One of the Kenyan officials identified himself as an officer of Kenya’s Criminal Investigation Department (“CID”). He asked Mr. Meshal only a few basic questions, such as where he was born, what citizenship he held, and why he was in Somalia.
42. Mr. Meshal explained to the CID officer that he was an American citizen and that he had gone to Somalia to further his religious education. The CID officer did not ask any follow-up questions. Mr. Meshal asked the CID officer why he was being held. The officer replied that his main purpose was to get Mr. Meshal out of Kenya and back to the United States as soon as possible. The CID officer also told Mr. Meshal that he had to find out what the United States wanted to do with him before he could send Mr. Meshal back to the United States.
43. On January 26, 2007, U.S. State Department spokesperson Sean McCormack acknowledged that the State Department was aware of news reports claiming that at least
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one American citizen had been apprehended in Kenya and indicated that the State Department was working to verify these reports.
44. Mr. Meshal was detained at the Ruai Police Station for approximately one week in a tiny cell without any further interrogation and without any access to an attorney. During the first four days of his detention, Mr. Meshal wore only his underwear. At that point, a prisoner who was being released gave Mr. Meshal a pair of pants and a shirt. At its most crowded, the small cell held twenty-nine individuals. Mr. Meshal often slept standing up because he had nowhere to sit, let alone lay down. The food and bathroom facilities were woefully inadequate, exacerbating an intestinal infection from which Mr. Meshal was suffering.
45. During Mr. Meshal’s detention in the Ruai Police Station, he was not allowed to use the telephone.
46. On information and belief, sometime between January 27 and February 3, 2007, U.S. government officials learned about Mr. Meshal’s presence and detention in Kenya and ordered, directed, authorized, or approved Mr. Meshal’s interrogation by Defendant Higgenbotham, Defendant Hersem, and Doe Defendants 1 and 2 by, among other things, following the procedures set forth in The Attorney General’s Guidelines for FBI National Security Investigations and Foreign Intelligence Collection, which were in force at the time and provided, inter alia, that “[t]he FBI may conduct investigations abroad, participate with foreign officials in investigations abroad, or otherwise conduct activities outside the United States with the written request or approval of the Director of Central Intelligence and the Attorney General or their designees.” The Attorney General’s Guidelines for FBI National Security Investigations and Foreign Intelligence
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Collection 17 (Oct. 31, 2003) (declassified Aug. 2, 2007). Although the aforementioned guidelines indicate that the Attorney General and the Director of Central Intelligence may have directly issued such orders, upon information and belief, in this case, orders were issued by lower-level government officials who were granted the authority to do so by the Attorney General and the Director of Central Intelligence.
47. Upon information and belief, the U.S. government officials who issued such orders or otherwise directed, authorized, and/or approved Mr. Meshal’s interrogation by Defendant Higgenbotham, Defendant Hersem, and Doe Defendants 1 and 2 were either located in the District of Columbia or received communications from U.S. government officials located in the District of Colombia regarding their approval, authorization, and/or direction of the interrogation of Mr. Meshal. U.S. Interrogations in Kenya
48. On or about February 3, 2007, the Kenyan CID officer who had questioned Mr. Meshal on his first day of detention at the Ruai Police Station returned to the station and told Mr. Meshal that a gentleman from the U.S. Embassy had come to see him. The CID officer escorted Mr. Meshal outside the police station where Mr. Meshal saw three Americans standing next to two dark blue vehicles. The three Americans later identified themselves to Mr. Meshal as “Steve,” “Chris,” and “Tim” (Doe Defendant 1).1 Steve, Chris, and Tim refused to provide their true full names or titles to Mr. Meshal.
49. Upon information and belief, and based on the transcript of the preliminary detention hearing in United States v. Daniel Joseph Maldonado, No. 4:07-mj-00125-1 (S.D. Tex. 2007) (dkt. nos. 16 & 17), and as further described below, “Steve” is
1 For clarity, Doe Defendant 1 will be referred to as “Tim,” the name he provided to Plaintiff.
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Defendant FBI Supervising Agent Steve Hersem, who interrogated Daniel Maldonado in Kenya.
50. Defendant Hersem was a clean-shaven white man, who appeared to be in his late forties and very fit. He stood about 6’ 3” tall and had short blond hair and blue eyes. Each time Defendant Hersem came to interrogate Mr. Meshal, he was dressed in a dark suit and tie and wore reflective sunglasses, which he periodically removed. Defendant Hersem spoke with an American accent, although Mr. Meshal could not discern any specific regional accent.
51. Upon information and belief, and based on the transcript of the preliminary detention hearing in United States v. Daniel Joseph Maldonado, No. 4:07-mj-00125-1 (S.D. Tex. 2007) (dkt. nos. 16 & 17), and as further described below, “Chris” is Defendant FBI Supervising Agent Chris Higgenbotham, who interrogated Daniel Maldonado in Kenya.
52. Defendant Higgenbotham was a white man who appeared to be in his mid-tolate forties. He had brown hair, brown eyes, and a chinstrap beard (i.e., facial hair extending from the hair line of one side of the face to the other, following the jawline). He stood approximately 6’ tall and was much heavier than Defendant Hersem. Defendant Higgenbotham wore prescription glasses, jeans, a button-up shirt, and a khaki vest with pockets. On one occasion, Defendant Higgenbotham told Mr. Meshal that he was from Georgia and that he worked in an FBI office somewhere in Europe. Defendant Higgenbotham also spoke with an American accent, although Mr. Meshal could not discern any specific regional accent.
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53. Tim was a white man and appeared to be in his late thirties or early forties. He stood approximately 6’ tall and had grayish-black hair and a full, low-cut beard. Tim wore jeans, short-sleeve polo-style shirts, and sneakers. On one occasion, Tim told Mr. Meshal that he was from New Jersey. Tim also spoke with an American accent, although Mr. Meshal could not discern any specific regional accent.
54. After the Kenyan CID officer escorted Mr. Meshal outside of the police station, Defendant Hersem immediately asked him to get into the back seat of one of the vehicles—a dark blue Chevrolet Suburban. The CID officer got in the front passenger side and Defendant Higgenbotham sat in the back with Mr. Meshal. Because the Kenyan CID officer had informed Mr. Meshal that U.S. Embassy personnel had come to speak with him, Mr. Meshal believed that he was going to be taken to the U.S. Embassy.
55. Defendant Hersem asked Mr. Meshal how he was doing. Mr. Meshal replied that he was all right, but that the conditions in the prison had been horrible. Mr. Meshal then asked Defendant Hersem whether he would be able to take a shower and get some new clothing before going home. Defendant Hersem laughed and told Mr. Meshal that it was not going to be that easy for him to go home. He told Mr. Meshal that they had been talking to his buddy “Beantown” and that “Beantown” had a lot to say about Mr. Meshal.
56. Mr. Meshal thought that Defendant Hersem was referring to Daniel Maldonado, an American citizen from Boston whom Mr. Meshal met in Kismayo when Mr. Meshal was fleeing the violence in Mogadishu. When Mr. Meshal had met Mr. Maldonado, Mr. Maldonado said that he was from Boston; Mr. Meshal began to call him “Beantown” as a result. Defendant Hersem told Mr. Meshal that his story would have to match up with “Beantown’s” story or else he would know that one of them was lying. If
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Mr. Meshal was lying, Defendant Hersem said, he would not allow Mr. Meshal to go home.
57. Daniel Maldonado had been seized by Kenyan soldiers on or about January 21, 2007. Mr. Maldonado was interviewed by FBI agents on several occasions while detained in Kenya, including on January 28 and January 30, 2007, and admitted to receiving military training in Somalia during December 2007.
58. Members of the Houston Joint Terrorism Task Force had subsequently transported Mr. Maldonado back to the United States between February 9 and 12, 2007, after Mr. Maldonado agreed to cooperate with the FBI agents who interrogated him in Kenya. Mr. Maldonado’s three minor children, who had been detained in Kenya after fleeing Somalia, were also returned to the United States.
59. Between around February 3 and February 10, 2007, U.S. agents interrogated Mr. Meshal on at least four occasions. Each of these interrogation sessions lasted a full day and was carried out on the top floor of the Salonika Villas, a five-story beige building located on Muthangari Road in Nairobi. The suite in which the interrogations occurred had a sitting room, a bedroom, a bathroom, and an efficiency kitchen equipped with a small counter, sink, and dish cabinets.
60. On the first day of interrogation, Tim presented Mr. Meshal with a document and asked him to sign it, telling Mr. Meshal that the document notified him that he could refuse to answer any questions without a lawyer present. When Mr. Meshal asked for an attorney, however, Tim told him that he was not permitted to make any phone calls. Mr. Meshal then asked if he had a choice not to sign the document because he had no way of contacting an attorney. Defendant Higgenbotham responded: “If you want to go home,
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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.” Defendant Higgenbotham also told Mr. Meshal that he was being held in a lawless country and did not have the right to legal representation. Believing that he had no other choice and hoping that it would expedite his safe return to the United States, Mr. Meshal signed the document. Upon information and belief, the document was a “waiver of rights” form of the type commonly used by FBI agents prior to conducting an interrogation in the absence of counsel.
61. After Mr. Meshal signed the form, Defendant Higgenbotham took out a laptop computer and told Mr. Meshal that he needed to take a digital image of his fingerprint. While taking Mr. Meshal’s fingerprint, Defendant Higgenbotham explained to Tim how to use the computer to capture the image. Mr. Meshal believed that Tim was not familiar with the technology. Once Defendant Higgenbotham took the image, he removed a swab kit and explained to Mr. Meshal that he also needed to take a DNA sample. Mr. Meshal asked why they needed a DNA sample. Defendant Higgenbotham replied that they were taking the DNA sample so that if they found pieces of Mr. Meshal’s body blown up, they would be able to identify “who did it.” Mr. Meshal believed that Defendant Higgenbotham was insinuating that Mr. Meshal intended to blow himself up in an act of terrorism. At no time did Defendant Higgenbotham or the other U.S. agents offer any basis for this suspicion that Mr. Meshal might be a suicide bomber.
62. Mr. Meshal was later told by other detainees that the American agents were classifying people seized by the Kenyans at the Kenya-Somalia boarder as “East African al Qaeda.” Throughout his detention and interrogation Mr. Meshal repeatedly explained
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to the U.S. agents that he had never been part of, had never supported, and had never received any training from al Qaeda.
63. During this first day of interrogation, Defendant Hersem, Defendant Higgenbotham, and Tim took turns questioning Mr. Meshal over approximately six hours.
64. The Kenyan CID officer who had accompanied the Americans to the Salonika Villas remained in the bedroom for the first part of Mr. Meshal’s interrogation. He did not demonstrate any interest whatsoever in the interrogation, and did not ask a single question or take any notes. In fact, after approximately two hours, the Kenyan CID officer left the room and did not return for several hours.
65. At some point after the Kenyan CID officer had left the room, Tim gave Mr. Meshal a lined legal pad and asked him to write everything he had said down on paper. Mr. Meshal wrote approximately four pages. When he was finished, Tim took the statement from Mr. Meshal.
66. At approximately 4:00 p.m., the Kenyan CID officer returned to the suite. Tim asked the officer if he wanted to ask any questions. The Kenyan CID officer replied that he did not, revealing again the Kenyan government’s lack of interest in Mr. Meshal.
67. On information and belief, Defendant Hersem, Defendant Higgenbotham, and Tim requested that Kenyan authorities move Mr. Meshal from the Ruai Police Station to a different location closer to the Salonika Villas to facilitate further interrogations.
68. At the end of Mr. Meshal’s first day of interrogation, Defendant Hersem, Defendant Higgenbotham, and Tim took Mr. Meshal to a new prison, accompanied by
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the Kenyan CID agent. As they approached the building, Mr. Meshal noticed a sign identifying it as the Kileleshwa Police Station.
69. At the Kileleshwa Police Station, the Kenyan CID official signed Mr. Meshal into the jail area and escorted him to a cell. There were two cells at the Kileleshwa Police Station separated by a hallway that contained an indoor bathroom. The cells were approximately 15-20 square feet and contained mats and blankets for the detainees. Mr. Meshal shared a cell with one British man and approximately twenty Kenyans, who appeared to have been arrested for petty crimes.
70. U.S. agents interrogated Mr. Meshal at the Salonika Villas on at least three subsequent occasions during the period of his detention at the Kileleshwa Police Station. On each of these occasions, a Kenyan officer took Mr. Meshal from his jail cell and brought him to the U.S. agents who drove him to the interrogation site.
71. During these subsequent interrogations, each of which lasted an entire day (from approximately 9 a.m. to 5 p.m.), Defendant Hersem, Defendant Higgenbotham, and Tim presented Mr. Meshal with a document notifying him that he could refuse to answer any questions without a lawyer present and asked him to sign it. Each time, however, these officials made Mr. Meshal believe that he had no choice other than to sign the document given to him, and therefore Mr. Meshal signed the document. Upon information and belief, the document was a “waiver of rights” form of the type commonly used by FBI agents prior to conducting an interrogation in the absence of counsel. Each time Mr. Meshal asked for an attorney, the U.S. officials told him that he could not make any phone calls.
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72. During these day-long interrogations, Defendant Hersem, Defendant Higgenbotham, and Tim continuously accused Mr. Meshal of having received weapons training in an al Qaeda training camp and of serving as a translator for al Qaeda leadership in Somalia. Each time Mr. Meshal denied the accusations, Defendant Hersem, Defendant Higgenbotham, and Tim became enraged.
73. On one occasion, while Defendant Higgenbotham and Tim were interrogating Mr. Meshal, Defendant Higgenbotham grabbed Mr. Meshal and forced him to the window of the hotel room. Defendant Higgenbotham told him that “Allah is up in the clouds,” and that “the U.S. is almost as powerful as Allah.” He told Mr. Meshal that the agents knew he was hiding something, but that they “had ways of getting the information they want.” Defendant Higgenbotham threatened to send Mr. Meshal to Israel, where he said the Israelis would “make him disappear.”
74. On another occasion, Defendant Hersem approached Mr. Meshal, removed his (Defendant Hersem’s) sunglasses, and proceeded to yell at Mr. Meshal merely inches from his face while vigorously poking him in the chest. He accused Mr. Meshal of having connections to individuals in Dubai who recruit for al Qaeda. Defendant Hersem yelled at Mr. Meshal to confess his connection to al Qaeda. He promised that in return for such a confession that Mr. Meshal would be returned to the United States and would face civilian courts there. When Mr. Meshal asked what would happen if he refused to answer any more questions, Defendant Hersem told him that he would be sent back to Somalia. Tim and Defendant Higgenbotham made similar threats to Mr. Meshal on numerous occasions during their interrogations of Mr. Meshal in Kenya.
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75. On another occasion, while Defendant Hersem was driving Mr. Meshal back to the Kileleshwa Police Station following a day-long interrogation, he told Mr. Meshal that he had spoken with the Egyptians and that they were very interested in speaking with him. Defendant Hersem said that the Egyptians “had ways of making [Mr. Meshal] talk.” Defendant Hersem asked Mr. Meshal whether he had ever seen the movie “Midnight Express,” in which a man who is caught smuggling drugs out of Turkey is thrown into prison and tortured. Defendant Hersem told Mr. Meshal that he could make those same things happen to him if Mr. Meshal did not cooperate and admit his connection with al Qaeda. Defendant Hersem also told Mr. Meshal, “You made it so that even your grandkids are going to be affected by what you did.”
76. When Mr. Meshal was not being interrogated by the U.S. officials, he remained in his cell at the jail of the Kileleshwa Police Station. He was never interrogated or questioned by the Kenyan authorities during this time. Nor did Kenyan authorities ever present any charges against him or provide him with any basis for his detention. Contact with the Muslim Human Rights Forum
77. On or around February 5, 2007, when Mr. Meshal was returned to the Kileleshwa Police Station from his interrogation by Defendant Hersem, Defendant Higgenbotham, and Doe Defendant 1, members of the Muslim Human Rights Forum (“MHRF”), a Kenyan human rights organization, were at the jail seeking information about foreigners and Kenyans who had been picked up near the Somali border and whom the MHRF believed were being detained in contravention of Kenyan law.
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78. Mr. Meshal spoke briefly with a member of the MHRF. Mr. Meshal explained that he was being interrogated by three American agents, at least some of whom he believed worked for the FBI. Mr. Meshal further explained that these agents had threatened him with torture and disappearance and denied him access to a lawyer. The MHRF member informed Mr. Meshal that the MHRF was monitoring his case and that they would bring the issue to the attention of the Kenyan courts.
79. Members of the MHRF visited Mr. Meshal and other detainees being held without charge at the Kileleshwa Police Station several times between February 5 and February 9, 2007. The MHRF’s last visit with Mr. Meshal occurred at approximately 9:00 p.m. on February 9.
80. On information and belief, prior to Mr. Meshal’s rendition from Kenya to Ethiopia via Somalia, the MHRF had filed a habeas corpus petition in Kenyan courts on Mr. Meshal’s behalf arguing that his confinement was illegal under Kenyan law and demanding immediate relief. The maximum period a prisoner could be held without charge under Kenyan law at the time was fourteen days. On information and belief, similar petitions were filed by the MHRF on behalf of other prisoners who had been seized fleeing the violence in Somalia and who were similarly being detained in Kenya without charge. FBI and State Department Contact with Mr. Meshal and His Father
81. On February 6, 2007, while Defendant Higgenbotham, Defendant Hersem and Tim interrogated Mr. Meshal in Kenya, two FBI agents, Charles Stern and Robert Reilly, visited Mr. Meshal’s home in Tinton Falls, New Jersey, and asked Mr. Meshal’s father, Mohammed Meshal, if he knew where Mr. Meshal was. Mohammed explained that he
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had not spoken to his son since December. The agents informed Mohammed that Mr. Meshal had been seized in Kenya near the Somali border and was being detained in Kenya. The agents told Mohammed that they could arrange a phone call between Mohammed and his son.
82. The next day, on February 7, 2007, Agents Stern and Reilly returned to Mohammed Meshal’s house and told him that they would not be able to arrange a call between Mohammed and his son. On information and belief, Defendant Higgenbotham, Defendant Hersem, and Tim prevented, conspired to prevent, and/or actively and substantially participated in preventing Agents Stern and Reilly from arranging a call between Mohammed and Mr. Meshal. On information and belief, Defendant Higgenbotham, Defendant Hersem, and Tim acted at the direction, with the approval, and/or with the knowledge of U.S. government officials located in the District of Columbia, including officials at FBI headquarters.
83. On February 7, 2007, Scott Niederman (spelling based on phonetic “Neederman”), a consular affairs officer from the U.S. Embassy in Nairobi, visited Mr. Meshal in jail for about fifteen minutes. He was accompanied by a Kenyan man dressed in plain clothes. Mr. Niederman told Mr. Meshal that he was trying to get him home, and that someone would be in touch with his family. Mr. Meshal explained to Mr. Niederman that U.S. officials had been interrogating him at a hotel in Nairobi. Mr. Niederman appeared shocked. Mr. Niederman asked Mr. Meshal how he knew that they were Americans. Mr. Meshal replied that they had American accents and identified themselves as U.S. agents. Mr. Niederman asked if they had disclosed which agency they were from. Mr. Meshal replied that he was told by the Kenyans that they were from
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the U.S. Embassy and that at least one agent had identified himself as FBI. Looking confused and concerned, Mr. Niederman asked how they had been treating him. Mr. Meshal explained that they had threatened him with torture, forced disappearance, and other serious harm, and warned him that they would send him to Israel or Egypt to extract information.
84. Mr. Niederman gave Mr. Meshal his business card and said that he didn’t know what was going on, but that if Mr. Meshal was moved, he should contact him immediately. Mr. Niederman’s tone and facial expressions concerned Mr. Meshal.
85. That same night Mr. Niederman called Mohammed Meshal and confirmed that Amir Meshal was being detained in Kenya. Mr. Niederman asked Mohammed to wire money so that a ticket from Nairobi to New York could be purchased for Amir Meshal’s return to the United States.
86. On or about February 8, 2007, Mr. Niederman told Mr. Meshal that he had spoken with his family in New Jersey and was working on getting him home.
87. Mr. Niederman spoke again with Mr. Meshal’s father, Mohammed, on or about February 10, 2007. Mr. Niederman explained to Mohammed that he had lost contact with Mr. Meshal, that he did not know where Mr. Meshal was, and that he could not help him further. Daniel Maldonado’s Return to the United States
88. On or about February 9, 2007, U.S. officials transported Daniel Maldonado and his three children back to the United States. U.S. officials transported Mr. Maldonado to the United States because Mr. Maldonado admitted facts that the U.S. officials believed would support a federal charge against him for receiving military-type
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training from a foreign terrorist organization. Mr. Maldonado subsequently pled guilty and agreed to cooperate with the government in exchange for a reduced sentence.
89. On or around February 20-21, 2007, during Mr. Maldonado’s preliminary detention hearing in the United States District Court for the Southern District of Texas, FBI agent Loretta Eglen-Anderson testified that she and one Agent Gutierrez questioned Mr. Maldonado several times in a safe house in Kenya after he had been questioned for several days by FBI Supervising Special Agents Steve Hersem and Chris Higgenbotham. Preliminary/Detention (Partial Transcript) (Testimony of Loretta Eglen-Anderson Only) at 4, United States v. Daniel Joseph Maldonado, No. 4:07-mj-00125-1, (S.D. Tex. Feb. 20, 2007) (filed Aug. 31, 2007) (dkt. no. 16). Amir Meshal’s Rendition to Somalia and Ethiopia
90. On February 9, Kenyan officials dressed in dark clothes, wearing goggles and carrying guns, arrived at the Kileleshwa Police Station in the middle of the night and removed Mr. Meshal and one other prisoner from the jail cell. The Kenyan officials tightly zip-tied Mr. Meshal’s hands behind his back and then placed Mr. Meshal in a white Peugeot station wagon.
91. Mr. Meshal was transported to the Jomo Kenyatta International Airport and placed on a privately chartered aircraft from Bluebird Aviation along with twelve other individuals identified on the passenger manifest.2 A black hood was placed over Mr. Meshal’s head. He could barely sit in his seat because his hands were still awkwardly handcuffed behind his back.
2 A copy of the manifest has been published at http://www.reprieve.org.uk/static/downloads/2007_03_21_Rendition_Report.pdf.
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92. Mr. Meshal heard one of the Kenyans on the flight mention Somalia. Mr. Meshal was terrified of being returned to Somalia and believed that he would be seriously injured or killed if taken there because of the violence and other abuses that were occurring.
93. After the plane landed, men speaking a language Mr. Meshal believed to be Somali entered the plane and removed the prisoners. They escorted them onto trucks and drove them to a place the prisoners later called “the cave.” At the cave, the soldiers removed Mr. Meshal’s hood and directed him to descend steps to an underground room which was almost completely dark. Armed men snipped the zip-ties that had held Mr. Meshal’s hands behind his back and chained his wrists in front of him.
94. Mr. Meshal remained handcuffed in the cave for two days. He was terrified and thought that he was going to be executed. The cave was approximately twenty-five square feet and did not contain any windows or toilets. The cave was excruciatingly hot and Mr. Meshal had difficulty breathing. Only a little light filtered through from small holes pierced into the door that led to the outside. When guards opened this door, Mr. Meshal noticed that enormous cockroaches were clustered in the corners of the cell and large black millipedes were all over the walls.
95. On or about February 12, 2007, men who appeared to be members of the Somali military came to the cave and ordered all thirteen of the prisoners who had been rendered from Kenya, except four British detainees—Mohammed Ezzouek, Reza Afsharzadagen, Hamza Chentouf, and Shahajan Janjua—to leave the cell. The four British detainees were handed over to British officials in Somalia and were immediately returned to England, where they were released.
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96. The Somalis handed Mr. Meshal and the eight others who remained over to individuals wearing Ethiopian military uniforms. The uniformed men blindfolded Mr. Meshal and brought him to an airport.
97. At the airport, the Ethiopians escorted Mr. Meshal and the others to what appeared to be a storage tent that was patrolled by armed guards.
98. Mr. Meshal remained in this tent with his hands shackled from approximately February 12 to February 16, 2007. Guards brought the prisoners dry biscuits, marmalade, and water once a day. Mr. Meshal was without adequate food or water and was hungry and thirsty all of the time.
99. On or about February 16, 2007, the Ethiopian soldiers took Mr. Meshal and the other prisoners to a plane. The prisoners were all blindfolded. After the plane took off, one of the Ethiopians informed Mr. Meshal that they were being taken to Ethiopia.
100. On information and belief, on or about February 9, 2007, one or more of Defendant Higgenbotham, Defendant Hersem, and Doe Defendants 1 and 2 directed, authorized, conspired to effect, actively and substantially participated in, and/or took affirmative action(s) demonstrating consent and acquiescence to Mr. Meshal’s rendition to Somalia and Ethiopia, despite the manifest danger and risk of harm to Mr. Meshal, because Mr. Meshal had steadfastly maintained his innocence of any terrorist activity and because U.S. officials wished to interrogate him further without affording him guarantees mandated under the Fourth and Fifth Amendments to the U.S. Constitution.
101. On information and belief, Defendant Higgenbotham, Defendant Hersem, and Doe Defendants 1 and 2, acted with the approval or knowledge of U.S. government
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officials located in the District of Columbia, including officials at FBI headquarters, and U.S. government officials located at the FBI Legal Attaché office in Nairobi.
102. According to statements made at the time by two U.S. officials familiar with Mr. Meshal’s case, Daniel Maldonado was returned to the United States because he quickly confessed to involvement with al Qaeda, but Mr. Meshal was not brought back to the United States because he did not admit to such involvement. One U.S. official indicated that Mr. Meshal was not brought home because there was insufficient evidence to charge and jail Mr. Meshal in the United States. Jonathan S. Landay and Shashank Bengali, U.S. Citizen Stuck in Ethiopian Jail: Case Raises Questions About U.S. Policies in Pursuing Terror Suspects, Times Union, Mar. 17, 2007, at A4.
103. Defendant Higgenbotham, Defendant Hersem, and Doe Defendants 1 and 2 knew, or reasonably should have known, that Mr. Meshal would face grave danger and risk of harm if he were rendered to Somalia at that time due to fact that following the December 27, 2006 attack by the U.S.-Ethiopia-backed TFG on the SCIC and the SCIC’s subsequent and abrupt collapse, widespread human rights violations—including kidnapping, torture, beatings, harsh and life-threatening prison conditions, and arbitrary arrest and detention—were occurring in Somalia because of the lack of effective governance institutions, the widespread availability of small arms, and conflicts between armed political factions and warlords over control of territory. U.S. Department of State, Bureau of Democracy, Human Rights, and Labor, Somalia, 2006 (March 6, 2007); Somalia: The Tough Part is Ahead, Africa Briefing No. 45, (Int’l Crisis Group, Nairobi/Brussels) Jan. 26, 2007, at 1.
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104. Defendant, Higgenbotham, Defendant Hersem, and Doe Defendants 1 and 2 also knew, or reasonably shown have known, that Mr. Meshal would face grave danger and risk of serious harm if rendered to Ethiopia because at that time human rights violations were similarly widespread and included, among other things, mistreatment of detainees, poor prison conditions, arbitrary arrest and detention, the detention of thousands of individuals without charge, and lengthy pretrial detention. U.S. Department of State, Bureau of Democracy, Human Rights, and Labor, Ethiopia, 2006 (March 6, 2007).
105. On information and belief, on February 16, 2007, the FBI Legal Attaché office in Nairobi informed the FBI Office of International Operations in the District of Columbia and the FBI Legal Attaché office in Sanaa, Yemen, which is responsible for FBI activity in Ethiopia, that Mr. Meshal was, or would soon be in, Ethiopia. On information and belief, this information was conveyed to initiate and facilitate the further interrogation of Mr. Meshal by U.S. officials, including Tim (Doe Defendant 1), who had interrogated Mr. Meshal in Kenya. Mr. Meshal’s Detention in Ethiopia and Continued Interrogation by the FBI
106. When the flight from Somalia landed in Addis Ababa, Ethiopian soldiers escorted Mr. Meshal and the other prisoners off the plane, placed them in the back of a pick-up truck, and drove them approximately thirty minutes to a facility. Soldiers removed Mr. Meshal’s blindfold. Mr. Meshal saw the facility, which appeared to be a military barracks.
107. Mr. Meshal immediately recognized some of the prisoners as people whom he had encountered in the jungle between Somalia and Kenya after fleeing the violence in
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Mogadishu. There were approximately fifty prisoners being held at the facility, including approximately eleven women and thirteen children.
108. On arrival at the facility, Mr. Meshal was briefly questioned by five or six Ethiopians dressed in civilian clothing. The questioning lasted approximately ten minutes. As in Kenya, the questioning sought only the most basic details from Mr. Meshal.
109. Mr. Meshal tried to ask why he was being held and demanded that he be able to see an attorney. His questions were not answered and his demand to see an attorney was ignored. After this first meeting, Mr. Meshal was never questioned by Ethiopian intelligence, police, or military officers for the remaining three-and-one-half months that he was detained in Ethiopia.
110. The location of the prison facility where Mr. Meshal and the other detainees were held remained secret. Mr. Meshal was placed in a cell with five other prisoners. There were four or five other cells in the facility. Mr. Meshal was prohibited from leaving the cell and had extremely limited access to bathroom facilities.
111. Each day, prisoners were taken out of the prison facility and moved to a different location for interrogation. While most prisoners were returned to the facility at the end of the day, on a few occasions certain prisoners did not return for days and sometimes for weeks. When prisoners returned, some said that they had been interrogated by American officials.
112. During the three-plus months that Mr. Meshal was imprisoned in Ethiopia, U.S. officials actively and substantially participated in the detention and interrogation of individuals in Ethiopia who had fled the violence in Somalia. According to media
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accounts, one hotel in Addis Ababa “swarmed with U.S. intelligence officers during the processing of detainees” in early 2007. Paul Salopek, Renditions Fuel Anger Against U.S., Chicago Tribune, Dec. 4, 2008.
113. As one human rights organization found, when U.S. officials conducting interrogations lost interest in a particular detainee, the detainee was released from custody. Human Rights Watch, “Why Am I Still Here?”: The 2007 Horn of Africa Renditions and the Fate of Those Still Missing (Oct. 2008), http://www.hrw.org/en/node/75257/section/1.
114. On information and belief, U.S. government officials, including officials designated by the Attorney General and the Director of Central Intelligence, ordered, directed, or authorized Doe Defendants 1 and 2, as well as other U.S. agents, to interrogate Mr. Meshal in Ethiopia. On information and belief, these actions were taken pursuant to the procedures set forth on page 17 of The Attorney General’s Guidelines for FBI National Security Investigations and Foreign Intelligence Collection, which were in force at the time and provided that “[t]he FBI may conduct investigations abroad, participate with foreign officials in investigations abroad, or otherwise conduct activities outside the United States with the written request for approval of the Director of Central Intelligence and the Attorney General or their designees.” The Attorney General’s Guidelines for FBI National Security Investigations and Foreign Intelligence Collection, supra, par. 40 at 17.
115. After approximately one week of incommunicado detention, on or about February 23, 2007, Mr. Meshal was taken from the prison facility by an Ethiopian guard
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and driven approximately forty-five minutes to a gated villa where he was subjected to intense interrogation by U.S. agents.
116. Over the next three months, Mr. Meshal was interrogated by U.S. agents at the same gated villa on a regular basis. On each occasion, an Ethiopian named Asafha arrived at the prison at approximately 5:00 a.m. and called out Mr. Meshal’s name. Asafha removed Mr. Meshal from the prison, placed him in a Land Rover, drove Mr. Meshal to the villa, and escorted him inside. Asafah was not present during Mr. Meshal’s interrogations and never asked Mr. Meshal any questions.
117. On the day of his first interrogation by U.S. officials in Ethiopia, Mr. Meshal was blindfolded before exiting the prison. Once at the villa, Mr. Meshal was guarded by an Ethiopian wearing civilian clothing and carrying a handgun until American interrogators requested him by name. Mr. Meshal’s blindfold was not removed until he was brought into a room with the American interrogators.
118. On later occasions, Mr. Meshal was not blindfolded when taken from the prison to the villa for interrogation and arrived at the villa before the American interrogators. On these occasions, Mr. Meshal waited by the garage or driveway of the villa under close watch of an armed Ethiopian guard and saw Asafha drive to the villa in a vehicle carrying American agents. Sometimes Asfaha drove a microbus that carried approximately ten American agents. Other times, Asfaha drove a Land Rover that carried fewer than ten American agents. The windows of the microbus and Land Rover were clear, so Mr. Meshal could see the individuals sitting inside. Mr. Meshal knew that the agents driven by Asfaha to the villa were American because, after their arrival at the villa, he heard them speaking English with American accents. Upon arrival at the villa,
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the agents entered a large room where they waited before separating into smaller groups to interrogate detainees in different rooms in the villa.
119. Only American officials interrogated Mr. Meshal, including Tim (Doe Defendant 1), who had participated in Mr. Meshal’s interrogations in Kenya, an American official who introduced himself to Mr. Meshal as “Dennis” (Doe Defendant 2),3 and an American official who was bald, who did not provide his name, and who participated only in Mr. Meshal’s last interrogation in Ethiopia. No Ethiopian official ever interrogated Mr. Meshal. Tim led each of the interrogations of Mr. Meshal in Ethiopia, except for the final interrogation, and was joined at times by Dennis. Dennis led the final interrogation of Mr. Meshal in Ethiopia and was joined by the abovementioned bald American official during the interrogation.
120. Dennis was a clean-shaven African-American man, who appeared to be in his late forties and was stocky. He stood about 5’ 10” tall and had short black hair. He wore a goatee and had tattoos on his arms. Dennis usually wore slacks or casual pants, a button-down shirt or polo shirt, and black sneakers or boots when he interrogated Mr. Meshal. On one occasion, Dennis wore a Boys & Girls Club of New York t-shirt. During Dennis’s last interrogation of Mr. Meshal, he wore a suit. Dennis told Mr. Meshal that he was from Brooklyn. Dennis spoke with an American accent, although Mr. Meshal could not discern any specific regional accent. Dennis refused to provide his true full name or title to Mr. Meshal.
121. The interrogations of Mr. Meshal that took place during the first two months of his detention in Ethiopia generally lasted a full day or close to a full day. On many of
3 For clarity, Doe Defendant 2 will be referred to as “Dennis,” the name he provided to Plaintiff.
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these occasions, Mr. Meshal was taken from the prison to the interrogation site early in the morning and returned to the prison after dark. Interrogations that took place during the last month of Mr. Meshal’s detention in Ethiopia generally were shorter, typically lasting a few hours or less.
122. On the first day that Mr. Meshal was interrogated by U.S. officials in Ethiopia, Tim asked Mr. Meshal if he was surprised to see him. Tim told Mr. Meshal that he and his colleagues thought Mr. Meshal wasn’t “being truthful” with them in Kenya, which is why Mr. Meshal was now in Ethiopia. Tim also told Mr. Meshal that his truthfulness now would determine whether he ever could go home. Dennis remained in the background while Tim conducted the interrogation.
123. Tim appeared to lead and control all of the interrogations of Mr. Meshal, except the last interrogation. At the beginning of each interrogation that he led, Tim presented Mr. Meshal with a document to sign, which notified him that he could refuse to answer any questions without a lawyer present. Upon information and belief, the document was a “waiver of rights” form of the type commonly used by FBI agents prior to conducting an interrogation in the absence of counsel. Each time, Tim made Mr. Meshal believe that he had no choice except to the sign the document if he ever wanted to go home. Each time, Mr. Meshal signed the document.
124. During the interrogations, Tim constantly suggested that Mr. Meshal was a terrorist or had connections to terrorists. He also asked Mr. Meshal about particular people from the United States and people whom he had encountered while fleeing Somalia. Tim frequently accused Mr. Meshal of lying. Dennis participated in several of
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the interrogations led by Tim; at other times, Dennis remained silent and stood or sat in the background.
125. During the period Mr. Meshal was detained in Ethiopia, other prisoners were also transported to the villa for interrogations. Typically, four or five other prisoners were taken with Mr. Meshal in the Land Rover to the villa where they too were interrogated, each in different rooms. The other prisoners told Mr. Meshal that their interrogations were conducted by non-Ethiopian officials, including the FBI in numerous instances.
126. Mr. Meshal repeatedly asked to speak with a lawyer. Despite these requests, Tim and Dennis directly prohibited and/or actively and substantially participated with Ethiopian officials in prohibiting Mr. Meshal from contacting or otherwise communicating with any attorney during the entire time he was detained in Ethiopia.
127. Mr. Meshal was also denied all access to the International Committee for the Red Cross or any other international humanitarian or human rights organization during the entire time he was detained in Ethiopia.
128. While he was not being interrogated, Mr. Meshal remained in his prison cell handcuffed. Often his hands were cuffed tightly behind his back, making it difficult to sit or lie down. On several occasions, Mr. Meshal was moved to a solitary confinement cell in a nearby courtyard, which was barely large enough to fit Mr. Meshal if he lay down. Mr. Meshal was twice forced to remain in solitary confinement for several days.
129. On three occasions, Mr. Meshal was taken along with a group of other prisoners for closed proceedings before an Ethiopian military tribunal. The first appearance occurred on or around March 16, 2007. At the tribunal, there were three
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military judges, a prosecutor, and Arabic, Swahili, Somali, and English translators. The three-member tribunal asked Mr. Meshal a few basic questions: his name and nationality; where he was arrested; whether he had carried a weapon; and whether he had been in military uniform. When Mr. Meshal asked for a lawyer, one of the judges told him that he had no rights until his status had been determined by the tribunal. The judge also said that he would be classified as “innocent,” as an “enemy combatant,” or as an “unlawful enemy combatant.” No formal charges were ever filed against Mr. Meshal nor was Mr. Meshal ever provided any documentation in connection with the proceeding.
130. A few days after Mr. Meshal’s first appearance before the military tribunal, Mr. Meshal was interrogated. During this interrogation, Tim immediately asked Mr. Meshal about the military tribunal proceeding. After Mr. Meshal described to him what had happened, Tim said that Mr. Meshal would be permitted to go back to the United States if Mr. Meshal told him what he wanted to know. Mr. Meshal asked Tim what more he wanted to know and said that he had told Tim everything. Tim replied that he wanted to know the truth. Tim then interrogated Mr. Meshal again, asking whether he had received explosives training and counter-intelligence training. He also pressed Mr. Meshal to admit that he was connected to al Qaeda. Tim told Mr. Meshal that he would not be allowed to go home unless Mr. Meshal told him what he wanted to hear.
131. Although FBI agents had been regularly interrogating Mr. Meshal in Ethiopia for almost one month, U.S. consular officials did not gain access to Mr. Meshal until on or around March 21, 2007. This consular access did not occur until after McClatchey Newspapers first reported that Mr. Meshal, an American citizen, was being held at a secret location in Ethiopia, and after the fact of Mr. Meshal’s detention in Ethiopia
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became public. See American’s Rendition to an Ethiopian Prison Raises New Questions, McClatchey Newspapers, Mar. 16, 2007. The consular visit occurred at the Ethiopian security headquarters in the presence of one Ethiopian officer and an officer of the FBI Legal Attaché. Mr. Meshal explained to the consular official the circumstances of his detention.
132. Following increasing media attention surrounding Mr. Meshal’s detention, Mr. Meshal’s Congressman, Representative Rush Holt (D-NJ), began to make inquiries about Mr. Meshal’s status and fate to the FBI and State Department and began to call attention to Mr. Meshal’s plight in Congress.
133. On or about March 29 and April 3, 2007, Mr. Meshal was taken to the Ethiopian National Intelligence and Security Service Headquarters in Addis Ababa for his second and third consular visits. Each visit lasted approximately thirty minutes and occurred in the presence of an Ethiopian officer.
134. On or about April 13, 2007, Mr. Meshal was brought before the Ethiopian military tribunal a second time. He appeared along with approximately eleven other prisoners and was again denied access to counsel. The three-member tribunal told Mr. Meshal that it was continuing to assess his status. Again, no formal charges were filed against Mr. Meshal.
135. On or around April 16, 2007, Plaintiff’s father, Mohammed Meshal, contacted the U.S. Ambassador to Ethiopia, Donald Yamamoto, to discuss the proceedings before the Ethiopian military tribunal. Ambassador Yamamoto told him that the outcome of the April 13, 2007 military tribunal proceedings “did not matter” in terms of when Mr. Meshal was to be returned home.
39

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136. On or around May 12, 2007, Mr. Meshal was brought before the Ethiopian military tribunal a third time. He was not individually questioned by the tribunal. Mr. Meshal never received any decision or determination in his case by the military tribunal and no charges were ever filed against him.
137. Prior to and following each of the proceedings before the military tribunal, Tim (Doe Defendant 1) and Dennis (Doe Defendant 2) continued to interrogate Mr. Meshal at the villa.
138. Upon information and belief, Defendant Higgenbotham, Defendant Hersem and Doe Defendants 1 and 2 communicated repeatedly with U.S. government officials in the FBI, the U.S. Department of Justice, and the U.S. Department of State to report on the progress of their interrogations of Mr. Meshal in Kenya and Ethiopia and to discuss whether sufficient evidence existed for federal authorities to transfer Mr. Meshal to the United States for criminal prosecution. Upon information and belief, the FBI officials with whom Defendants Higgenbotham and Hersem and Doe Defendants 1 and 2 communicated about Mr. Meshal included officials in the FBI Office of International Operations in the District of Columbia (“FBI OIO”), other FBI officials located at FBI Headquarters in the District of Columbia, and officials of the FBI Legal Attaché offices in Nairobi, Kenya, and Sanaa, Yemen, both of which are managed by the FBI OIO. Mr. Meshal’s Return to the United States
139. On or about May 24, 2007, an Ethiopian guard came to Mr. Meshal’s cell and informed Mr. Meshal that he would be released. No further explanation was provided. Mr. Meshal was then taken to the U.S. Embassy in Addis Ababa, where he remained overnight. The following day, Mr. Meshal was flown back to the United States via
40

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Frankfurt. He arrived at John F. Kennedy International Airport on May 26, 2007. During the four months and three days that Mr. Meshal was detained abroad, he had lost approximately eighty pounds.
140. On the flight between Frankfurt and New York, Mr. Meshal noticed two men who seemed to be watching him very closely. Upon arrival in the United States, these men followed Mr. Meshal off the flight and, joined by two other men from the flight, immediately escorted Mr. Meshal to a customs office where he was detained for approximately an hour and a half. The customs agents made Mr. Meshal empty his pockets and bag. They questioned him about his travels and his plans upon his return to the United States. At one point, Mr. Meshal heard one of the customs officials yelling into a telephone, asking, “What am I supposed to do with this guy?” Eventually, the customs officials told Mr. Meshal that he was free to leave. Mr. Meshal then met his mother and father at the airport and returned with them to their home in New Jersey.
141. Mr. Meshal was and remains deeply traumatized by his treatment. U.S. officials threatened Mr. Meshal with serious physical and mental abuse, told him that he would be made to “disappear,” and denied him access to counsel and other due process protections. U.S. officials also caused Mr. Meshal to be held, or actively and substantially participated with foreign authorities who caused him to be held, in stark and inhuman conditions without charge or legal basis. As the result of actions by these U.S. officials, Mr. Meshal suffered physical injuries, pain and suffering, severe mental anguish, as well as the loss of income and livelihood.
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Partial Identification of Doe Defendant 1 (“Tim”) 142. On or around April 20, 2009, Mr. Meshal was watching a television news
report about an alleged Somali pirate being brought to New York to face federal charges. The report aired video footage of federal law enforcement officers escorting the defendant out of a federal courthouse in New York and identified the officers as FBI agents. Mr. Meshal immediately recognized the agent standing to the right of the defendant as Tim, the U.S. official who had repeatedly interrogated Mr. Meshal in both Kenya and Ethiopia. Mr. Meshal had a clear memory of Tim’s face and hairline, which permitted Mr. Meshal to recognize Tim on television despite the fact that Tim no longer wore the beard he had maintained in Kenya and Ethiopia. Astounded to see one of his interrogators on American television, Mr. Meshal watched the entire show and then found other channels showing similar video footage of Tim escorting the defendant out of federal court. Each channel identified the agents escorting the defendant as FBI or federal law enforcement officers.
143. Mr. Meshal then conducted an Internet search for “Somali pirate in New York.” Through the search, Mr. Meshal located a photo of Tim standing to the right side of the alleged Somali pirate and escorting him, which matched the video footage he had seen on television. The caption to the photo indicated that the law enforcement agents were FBI officers.
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CAUSES OF ACTION I: FIFTH AMENDMENT (Violation of Substantive Due Process) 144. Defendants’ actions described herein violate the Due Process Clause of the Fifth Amendment to the Constitution, which prohibits any person acting under color of U.S. law from subjecting or conspiring to subject any individual in U.S. custody or control to conduct that “shocks the conscience.” 145. Defendants’ violations of Plaintiff’s Due Process rights give rise to a cause of action for damages directly under the Fifth Amendment, pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). 146. Defendant Higgenbotham and Defendant Hersem are liable for violating Plaintiff’s substantive due process rights because they personally subjected Plaintiff to threats of torture, serious injury, disappearance, and other serious harms during custodial interrogations in Kenya. 147. Doe Defendant 1 (Tim) is also liable for violating Plaintiff’s substantive due process rights because he actively and substantially participated in the coercive interrogations of the Plaintiff in Kenya during which he was threatened with torture, serious injury, disappearance, and other serious harms. 148. Defendant Higgenbotham, Defendant Hersem and Doe Defendant 1 (Tim) are also liable for the violation of Plaintiff’s substantive due process rights because they directed, authorized, approved, conspired to effect, and/or actively and substantially participated in Mr. Meshal’s detention in Kenya without due process and illegal rendition from Kenya to Somalia and Ethiopia. As a result of these decisions, Plaintiff was subjected to treatment that shocks the conscience.
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149. Defendant Higgenbotham, Defendant Hersem, Doe Defendant 1 (Tim), and Doe Defendant 2 (Dennis) are also liable for the violation of Plaintiff’s substantive due process rights in Somalia and Ethiopia because they were aware of the danger and risk of serious harm that Plaintiff faced if rendered to these countries from Kenya, including prolonged arbitrary detention and physical and mental abuse in detention, and because the Defendants took affirmative steps that created and/or increased this danger and risk, which did, in fact, result in serious to harm to Plaintiff.
150. Doe Defendant 1 (Tim) and Doe Defendant 2 (Dennis) are liable for the violation of Plaintiff’s substantive due process rights because they directed, authorized, approved, conspired to effect, and/or actively and substantially participated in Mr. Meshal’s custodial interrogation in Ethiopia and further detention of over three months in that country. As a result of these decisions, Plaintiff was subjected to treatment that shocks the conscience.
151. Each defendant had actual or constructive knowledge that his conduct toward Plaintiff violated his due process rights, and each had actual or constructive knowledge that his actions, orders, or omissions would lead to such violations.
152. Defendants acted under color of official authority in violating Plaintiff’s due process rights.
153. Defendants’ actions were a proximate cause of the violation of Plaintiff’s due process rights. Plaintiff was a foreseeable victim of these acts.
154. Defendants’ violations of Plaintiff’s due process rights caused Plaintiff to suffer damages, including mental and emotional pain and suffering, in an amount to be determined at trial.
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155. Defendants’ violations of Plaintiff’s substantive due process rights were deliberate, willful, intentional, wanton, malicious, and oppressive, and should be punished by an award of punitive damages in an amount to be determined at trial.
II: FIFTH AMENDMENT (Violation of Procedural Due Process) 156. Defendants’ actions described herein violated the rights of Plaintiff under the Due Process Clause of the Fifth Amendment to the United States Constitution by depriving him of liberty without due process of law. 157. Defendants’ orders, authorizations, and other actions violated Plaintiff’s due process rights by: (a) subjecting him to prolonged, arbitrary, and indefinite detention without charges of any kind; (b) denying him access to a court or other meaningful process to challenge the legality of his detention; and (c) denying him access to counsel. 158. Defendants’ actions, authorizations, and other actions depriving Plaintiff of his procedural due process rights give rise to a cause of action for damages directly under the Fifth Amendment, pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). 159. Defendant Higgenbotham and Defendant Hersem are liable for violating Plaintiff’s due process rights because they directed, authorized, conspired to effect, and/or actively and substantially participated in Mr. Meshal’s illegal detention and custodial interrogation in Kenya and his illegal rendition to Somalia and Ethiopia, without due process of law. 160. Defendant Higgenbotham and Defendant Hersem are also liable for the violation Plaintiff’s Fifth Amendment rights because Plaintiff’s arbitrary, prolonged, and
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illegal detention in Somalia and Ethiopia without due process of law was the foreseeable result of Mr. Meshal’s illegal rendition from Kenya to Somalia and Ethiopia.
161. Doe Defendant 1 (Tim) is liable for violating Plaintiff’s Fifth Amendment rights because he directed, authorized, conspired to effect, and/or actively and substantially participated in Plaintiff’s detention and custodial interrogation in Kenya, his illegal rendition to Somalia and Ethiopia, his continued detention in Somalia and Ethiopia for over three months, and his custodial interrogation in Ethiopia, all of which occurred without due process of law.
162. Doe Defendant 2 (Dennis) is liable for violating Plaintiff’s Fifth Amendment rights because he directed, authorized, conspired to effect, and/or actively and substantially participated in Mr. Meshal’s rendition to Somalia and Ethiopia, his continued detention in Somalia and Ethiopia for over three months, and his custodial interrogation in Ethiopia, all of which occurred without due process of law.
163. Each defendant had actual or constructive knowledge that the detention, rendition, and custodial interrogation of Plaintiff violated Plaintiff’s due process rights, and each had actual or constructive knowledge that his actions, orders, practices, and/or omissions would lead to such violations.
164. Defendants acted under color of official authority in violating Plaintiff’s due process rights.
165. Defendants’ actions were a proximate cause of the violation of Plaintiff’s due process rights. Plaintiff was a foreseeable victim of these acts.
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166. Defendants’ violations of Plaintiff’s due process rights caused Plaintiff to suffer damages, including mental and emotional pain and suffering, in an amount to be determined at trial.
167. Defendants’ violations of Plaintiff’s due process rights were deliberate, willful, intentional, wanton, malicious, and oppressive, and should be punished by an award of punitive damages in an amount to be determined at trial.
III: FOURTH AMENDMENT (Unreasonable Search and Seizure) 168. Defendants’ actions described herein violated the rights of Plaintiff under the Fourth Amendment to the Constitution. 169. The actions, orders, authorizations, and other conduct of Defendant Higgenbotham, Defendant Hersem, and Doe Defendant 1 (Tim) and Doe Defendant 2 (Dennis) violated Plaintiff’s Fourth Amendment rights by subjecting him to prolonged, arbitrary, and indefinite detention without probable cause, without charge, and without any other prompt and effective process to challenge the legality of his detention. 170. Defendants’ actions, orders, and authorizations, which deprived Plaintiff of his rights, give rise to a cause of action for damages directly under the Fourth Amendment, pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). 171. Defendant Higgenbotham, Defendant Hersem, Doe Defendant 1 (Tim), and Doe Defendant 2 (Dennis) are liable for violating Plaintiff’s Fourth Amendment rights because they directed, authorized, conspired to effect, or actively and substantially participated in Plaintiff’s prolonged detention without probable cause and because they
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failed to provide him with access to a court or prompt, effective legal process to challenge the legality of his detention.
172. Each defendant had actual or constructive knowledge that his detention of Plaintiff violated Plaintiff’s Fourth Amendment rights, and each had actual or constructive knowledge that his actions, orders, policies, practices, and/or omissions would lead to such violations.
173. Defendants acted under color of official authority in violating Plaintiff’s Fourth Amendment rights.
174. Defendants’ actions were a proximate cause of the violation of Plaintiff’s Fourth Amendment rights. Plaintiff was a foreseeable victim of these acts.
175. Defendants’ violations of Plaintiff’s Fourth Amendment rights caused Plaintiff to suffer damages, including mental and emotional pain and suffering, in an amount to be determined at trial.
176. Defendants’ violations of Plaintiff’s Fourth Amendment rights were deliberate, willful, intentional, wanton, malicious, and oppressive, and should be punished by an award of punitive damages in an amount to be determined at trial.
IV: TORTURE VICTIM PROTECTION ACT OF 1991 28 U.S.C. § 1350, note
177. Defendant Higgenbotham’s and Defendant Hersem’s actions described herein violated the rights of Plaintiff under the Torture Victim Protection Act of 1991, 28 U.S.C. § 1350, note.
178. Defendant Higgenbotham and Defendant Hersem are liable for violating the TVPA because they personally and intentionally subjected Plaintiff to severe mental pain
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and suffering through extreme, outrageous, deliberate and unusually cruel practices during their custodial interrogations of Plaintiff in Kenya. Such practices include threatening to send Mr. Meshal to Israel where he would be made to “disappear”; threatening to send Mr. Meshal to Egypt or another place where he would be tortured in a manner similar to the torture exacted upon the protagonist of the film “Midnight Express”; threatening to send Mr. Meshal to Somalia where law and order had broken down and where Mr. Meshal feared he would be killed; warning Mr. Meshal that they “had ways of getting the information they want” by making him afraid for his life and safety; and threatening Mr. Meshal that “even [his] grandkids” would be negatively affected unless Mr. Meshal admitted to the connections that Defendant Higgenbotham and Defendant Hersem accused him of having.
179. Defendant Higgenbotham and Defendant Hersem intentionally subjected Mr. Meshal to torture in an effort to coerce him into confessing that he was connected to and/or had supported al Qaeda, even though Mr. Meshal had never supported and was not connected to al Qaeda and had repeatedly denied any such support or connection.
180. Defendant Higgenbotham’s and Defendant Hersem’s actions, orders, and authorizations that deprived Plaintiff of his rights give rise to a cause of action for damages directly under the TVPA, 28 U.S.C. § 1350, note.
181. Defendant Higgenbotham and Defendant Hersem each had actual or constructive knowledge that his torture of Plaintiff violated Plaintiff’s rights under the TVPA and each had actual or constructive knowledge that his actions, orders, policies, and/or practices would lead to such violations.
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182. Defendant Higgenbotham and Defendant Hersem acted under actual or apparent authority of the Kenyan government and/or under the color of Kenyan law in conducting their interrogations of Plaintiff.
183. While Mr. Meshal was in nominal or apparent Kenyan custody (but was being detained at the direction, behest, and/or with the active and substantial participation of U.S. officials), Defendant Higgenbotham and Defendant Hersem subjected Mr. Meshal to interrogations during which they tortured Mr. Meshal. In order to conduct these interrogations, Defendant Higgenbotham and Defendant Hersem conspired with Kenyan officials, acted as willful participants in joint activity with Kenyan officials, and/or engaged in actions entwined with Kenyan authorities’ detention of Mr. Meshal.
184. Alternatively, even if Mr. Meshal was under actual Kenyan custody (and was not detained at the direction, behest, and/or with the active and substantial participation of U.S. officials), Defendant Higgenbotham and Defendant Hersem subjected Mr. Meshal to interrogations during which the Defendants tortured Mr. Meshal. In order to conduct these interrogations, Defendant Higgenbotham and Defendant Hersem conspired with Kenyan officials, acted as willful participants in joint activity with Kenyan officials, and/or engaged in actions entwined with Kenyan authorities’ detention of Mr. Meshal.
185. Defendants’ actions were a proximate cause of the violation of Plaintiff’s rights under the TVPA. Plaintiff was a foreseeable victim of these acts.
186. Defendants’ violations of Plaintiff’s rights under the TVPA caused Plaintiff to suffer damages, including severe mental and emotional pain and suffering, in an amount to be determined at trial.
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REQUEST FOR RELIEF

WHEREFORE, Plaintiff respectfully requests that this Court enter a judgment including:

A. Compensatory damages in an amount to be proven at trial;

B. Punitive damages in an amount to be determined at trial;

C. Reasonable attorneys’ fees and costs of suit; and

D. Such other relief as the Court deems just and proper.

PLAINTIFF DEMANDS A JURY TRIAL ON ALL ISSUES SO TRIABLE.

Respectfully submitted,

/s/ Arthur B. Spitzer

Arthur B. Spitzer (D.C. Bar No. 235960) American Civil Liberties Union
of the Nation’s Capital Area 1400 20th Street, N.W., Suite 119 Washington, D.C. 20036 Phone: (202) 457-0800, Fax: (202) 452-1868 artspitzer@aol.com

Jonathan Hafetz (pro hac vice pending) Nusrat J. Choudhury (pro hac vice pending) American Civil Liberties Union Foundation 125 Broad Street, 18th Floor New York, New York 10004 Phone: 212-549-2500, Fax: 212-549-2583 jhafetz@aclu.org nchoudhury@aclu.org

Hope R. Metcalf National Litigation Project of the Allard K.
Lowenstein International Human Rights Clinic Yale Law School P.O. Box 209090 New Haven, CT 0650-9090 Phone: (203) 432-9404, Fax: (203) 432-912 hope.metcalf@yale.edu

November 10, 2009

Counsel for Plaintiff Amir Meshal

51

 
 Case 1:09-cv-02178-EGS Document 12 Filed 12/11/09 Page 1 of 4

UNITED STATES DISTRICT COURT

DISTRICT OF COLUMBIA

_______________________________________

)

AMIR MESHAL,

)

)

Plaintiff,

)

)

v.

)

No. 09-cv-2178 (EGS)

)

CHRIS HIGGENBOTHAM, et al.,

)

)

Defendants.

)

_______________________________________)

UNITED STATES’ MOTION TO INTERVENE AS AN INTERESTED PARTY

Pursuant to 28 U.S.C. § 517, the United States moves to intervene in this matter for the

purpose of submitting a response to Plaintiff’s motion for expedited discovery. A proposed order

is attached. As support for this motion, the United States submits the following:

On November 10, 2009, Plaintiff Amir Meshal filed a Complaint for Damages and

Declaratory Relief against a number of government officers or employees in their individual

capacities. The defendants are Federal Bureau of Investigation (“FBI”) Supervisory Special

Agents (“SSAs”) Chris Higgenbotham and Steve Hersem; two “unknown named employees,

officers, or agents of the United States government” (Doe Defendants 1 and 2); and John and

Jane Does 3-10. All of the defendants are sued in their individual capacities. On November 30,

2009, Plaintiff filed a Motion for Leave to Conduct Limited Expedited Doe Discovery. Plaintiff

moved, pursuant to Fed. R. Civ. P. 26 and 45, for an order allowing Plaintiff to serve a Rule 45

subpoena on the FBI, a non-party, for the production of documents identifying the true names

and identities of Doe Defendants 1 and 2, whom Plaintiff believes to be current or former FBI

agents. Plaintiff would require that the FBI respond to the subpoena within fifteen (15) business

Case 1:09-cv-02178-EGS Document 12 Filed 12/11/09 Page 2 of 4
days of the date of service. 28 U.S.C. § 517 expressly authorizes the Attorney General to send any officer of the
Department of Justice “to attend to the interests of the United States” in any action pending in a state or federal court. Plaintiff’s motion seeks permission to conduct discovery against the United States. However, the United States is not a party to this matter. For this reason, pursuant to 28 U.S.C. § 517, the United States submits this motion to intervene in order to respond to Plaintiff’s motion for expedited discovery. This motion and the United States’ response, which is submitted concurrently for filing in this matter, is submitted solely on behalf of the United States, not on behalf of any individual capacity defendant,1 and does not waive their right to separately object to any discovery sought by Plaintiff. Nor does this motion and response waive the United States’ right to seek to quash or otherwise oppose a subpoena or other discovery request that might eventually be served on the United States by Plaintiff in this action.
CONCLUSION For the foregoing reasons, this Court should grant the United States’ motion to intervene and accept the United States’ response to Plaintiff’s motion for expedited discovery, submitted concurrently, for filing in this matter.
1 SSAs Higgenbotham and Hersem have not yet entered an appearance in this matter but they are in the process of seeking representation by the United States for the claims asserted against them in their individual capacities. See 28 U.S.C. § 50.15.
2

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Dated: December 11, 2009

Respectfully submitted,
ANN M. RAVEL Deputy Assistant Attorney General
TIMOTHY P. GARREN Director, Torts Branch, Civil Division
MARY HAMPTON MASON Senior Trial Counsel, Torts Branch
s/ Glenn S. Greene Trial Attorney, Torts Branch U.S. Department of Justice, Civil Division Constitutional and Specialized Tort Litigation P.O. Box 7146, Ben Franklin Station Washington, D.C. 20044 (202) 616-4143 (phone) (202) 616-4314 (fax) Glenn.Greene@usdoj.gov
ATTORNEYS FOR THE UNITED STATES

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Case 1:09-cv-02178-EGS Document 12 Filed 12/11/09 Page 4 of 4

CERTIFICATE OF SERVICE

I hereby certify that on December 11, 2009, a copy of the foregoing UNITED STATES’ MOTION TO INTERVENE AS AN INTERESTED PARTY was served by first-class mail, postage prepaid, upon the following:

Arthur B. Spitzer (D.C. Bar No. 235960) American Civil Liberties Union of the Nation’s Capital 1400 20th Street, N.W., Suite 119 Washington, D.C. 20036 Phone: (202) 457-0800, Fax: (202) 452-1868 artspitzer@aol.com

Jonathan Hafetz (admitted pro hac vice) Nusrat Choudhury (admitted pro hac vice) American Civil Liberties Union Foundation 125 Broad Street, 18th Floor New York, New York 10004 Phone: (212) 549-2500, Fax: (212) 549-2583 jhafetz@aclu.org nchoudhury@aclu.org

Hope R. Metcalf National Litigation Project Allard K. Lowenstein International Human Rights Clinic Yale Law School 127 Wall Street New Haven, CT 06511 Phone: (203) 432-9404, Fax: (203) 432-9128 hope.metcalf@yale.edu

A courtesy copy was also served on the above counsel by e-mail.

Dated: December 11, 2009

s/ Glenn S. Greene GLENN S. GREENE Trial Attorney, Torts Branch UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION P.O. Box 7146, Ben Franklin Station Washington, DC 20044 (202) 616-4143 (phone) (202) 616-4314 (fax) Glenn.Greene@usdoj.gov

Case 1:09-cv-02178-EGS Document 12-1 Filed 12/11/09 Page 1 of 1

UNITED STATES DISTRICT COURT

DISTRICT OF COLUMBIA

_______________________________________

)

AMIR MESHAL,

)

)

Plaintiff,

)

)

v.

)

No. 09-cv-2178 (EGS)

)

CHRIS HIGGENBOTHAM, et al.,

)

)

Defendants.

)

_______________________________________)

PROPOSED ORDER

The Court, having considered the United States’ Motion to Intervene as an Interested

Party, hereby ORDERS that:

The United States’ Motion is GRANTED.

Dated this _______________ day of ____________________, 2009

_______________________________ Emmet G. Sullivan United States District Judge

 
 Case 1:09-cv-02178-EGS Document 51 Filed 02/21/12 Page 1 of 63

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

AMIR MESHAL, c/o ACLU, 125 Broad St., 18th floor, New York, NY 10004,

Plaintiff,

v.

No. 09-cv-2178-EGS

CHRIS HIGGENBOTHAM, FBI Supervising Special JURY TRIAL DEMANDED Agent, in his individual capacity;

STEVE HERSEM, FBI Supervising Special Agent, in his individual capacity;

JOHN DOES 1 AND 2, in their individual capacities;

JOHN and JANE DOES 3-10,

Defendants.

SECOND AMENDED COMPLAINT FOR DAMAGES AND DECLARATORY RELIEF (Violation of Fourth and Fifth Amendment Rights, Illegal Interrogation, Illegal Proxy Detention, Illegal Rendition, Torture)

INTRODUCTION

1. Amir Meshal is a United States citizen who was born and raised in New

Jersey. Mr. Meshal is also a Muslim. In 2006, he decided to visit Mogadishu, the capital

of Somalia, to broaden his understanding of Islam after the country’s volatile political

situation had largely stabilized.

2. On or about January 24, 2007, while fleeing Somalia with other civilians after

violence had erupted, Mr. Meshal was apprehended in a joint U.S.-Kenyan-Ethiopian

operation along the Somalia-Kenya border. During the next four months and three days,

he was detained in three different countries without ever being charged, without ever

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being granted access to counsel, and without ever being presented before a judicial officer. Upon information and belief, Plaintiff’s detention without due process was at the direction or behest of U.S. officials, was carried out with their active and substantial participation, and/or was the result of a conspiracy between the Defendants and foreign officials.
3. While detained, Mr. Meshal was interrogated more than thirty times by U.S. officials who failed to adhere to the most elementary requirements of the Fourth and Fifth Amendments and the Torture Victim Protection Act of 1991 (“TVPA”), 28 U.S.C. § 1350 note. During these interrogations, U.S. officials repeatedly threatened Mr. Meshal with torture, forced disappearance, and other serious harm in order to coerce him to confess to wrongdoing in which he had not engaged and to associations that he did not have.
4. Mr. Meshal was finally returned home on May 27, 2007, after more than four months of detention. He was never charged with a crime.
5. Mr. Meshal is innocent of all wrongdoing and was illegally detained during the entire period of his detention in Kenya, Somalia, and Ethiopia.
6. Mr. Meshal brings this action against two Supervising Special Agents of the Federal Bureau of Investigation (“FBI”)—Chris Higgenbotham and Steve Hersem—two other employees, officers, or agents of the United States government (John Does 1 and 2), whose names have been filed under seal, and John or Jane Does 3 to 10, who are employees, officers, or agents of the United States government whose names are as yet unknown, for their role in the violation of Mr. Meshal’s rights under the United States Constitution, including his right to be free from arbitrary detention, illegal rendition, and
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coercive interrogation methods such as threats of torture, forced disappearance, and other serious harm.
7. Mr. Meshal brings this action against the Defendants for their role in the violation of his rights under the Constitution of the United States. The Constitution does not permit U.S. officials to threaten American citizens with forced disappearance, torture, and other serious harm, or otherwise to interrogate them coercively. Nor does the Constitution permit U.S. officials to evade the elementary commands of due process simply by directing, conspiring, and/or actively and substantially participating with foreign officials to detain, interrogate, or render U.S. citizens in a manner that would be patently unlawful if carried out by those U.S. officials themselves.
8. Mr. Meshal also brings this action against the Defendants for their role in the violation of his rights under the TVPA, 28 U.S.C. § 1350 note. Defendants Higgenbotham and Hersem tortured Mr. Meshal by threatening him with forced disappearance and the infliction of severe physical and mental pain and suffering in the course of interrogations that took place when Mr. Meshal was detained in Kenya in order to coerce him into confessing to things that he had not done and to associations with al Qaeda and individuals connected to al Qaeda that he did not have. The TVPA prohibits U.S. officials from torturing a U.S. citizen during interrogations that are carried out under the actual or apparent authority of a foreign government, through a conspiracy between U.S. officials and foreign officials, and/or through the willful participation of U.S. officials in joint activity with foreign officials.
3

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JURISDICTION AND VENUE 9. This complaint is for compensatory damages based upon civil rights violations committed by officers of the U.S. government, some or all of whom are believed to be officers of the Federal Bureau of Investigation, in violation of the Fourth and Fifth Amendments to the U.S. Constitution and the TVPA. 10. This Court has jurisdiction over this case pursuant to 28 U.S.C. § 1331. This action is authorized and instituted pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), and the TVPA, 28 U.S.C. § 1350 note. 11. Venue is proper in this district pursuant to 28 U.S.C. § 1391(e)(2).
PARTIES 12. Plaintiff Amir Meshal is a United States citizen who resides in Tinton Falls, New Jersey. Mr. Meshal was born in Long Branch, New Jersey, on November 18, 1982, and has lived in New Jersey most of his life. 13. At the time of the events giving rise to this action, Defendant Chris Higgenbotham was a Supervising Special Agent of the FBI and was involved in investigating non-Somalis apprehended along the Somali-Kenyan border in a joint U.S.Kenyan-Ethiopian operation in and around December 2006. Defendant Higgenbotham deprived Mr. Meshal of his constitutional and statutory rights by knowingly directing, authorizing, conspiring to effect, and/or actively and substantially participating in Mr. Meshal’s detention and interrogation in Kenya and his rendition to, and detention in, Somalia and Ethiopia. Defendant Higgenbotham tortured Mr. Meshal by threatening Mr. Meshal with disappearance and severe pain and suffering; coercively and repeatedly
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interrogated Mr. Meshal; directed, authorized, conspired to effect, and/or actively and substantially participated in Mr. Meshal’s detention without due process; directed, authorized, conspired to effect, and/or actively and substantially participated in Mr. Meshal’s illegal rendition; and otherwise engaged in conduct that created and/or increased known danger, which resulted in serious harm to Mr. Meshal. Upon information and belief, Defendant Higgenbotham continues to be employed by the FBI and, in that capacity, works closely with the FBI in the District of Columbia during the course of conducting law enforcement investigations abroad. Defendant Higgenbotham is sued in his individual capacity. The residence of Defendant Higgenbotham is currently unknown to Plaintiff.
14. At the time of the events giving rise to this action, Defendant Steve Hersem was a Supervising Special Agent of the FBI and was involved in investigating nonSomalis apprehended along the Somali-Kenyan border in a joint U.S.-Kenyan-Ethiopian operation in and around December 2006. Defendant Hersem deprived Mr. Meshal of his constitutional and statutory rights by knowingly directing, authorizing, conspiring to effect, and/or actively and substantially participating in his detention and interrogation in Kenya and his rendition to, and detention in, Somalia and Ethiopia. Defendant Hersem tortured Mr. Meshal by threatening him with disappearance and severe pain and suffering; coercively and repeatedly interrogated Mr. Meshal; directed, authorized, conspired to effect, and/or actively and substantially participated in Mr. Meshal’s detention without due process; directed, authorized, conspired to effect, and/or actively and substantially participated in Mr. Meshal’s illegal rendition; and otherwise engaged in conduct that created and/or increased known danger, which resulted in serious harm to
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Mr. Meshal. Upon information and belief, Defendant Hersem continues to be employed by the FBI and, in that capacity, works closely with the FBI in the District of Columbia during the course of conducting law enforcement investigations abroad. Defendant Hersem is sued in his individual capacity. The residence of Defendant Hersem is currently unknown to Plaintiff.
15. The true, full and accurate name of Defendant John Doe 1 (“Doe Defendant 1”) has been filed with the Court under seal. His current residence is unknown to Plaintiff. At the time of the events giving rise to this action, Doe Defendant 1 was an employee of the FBI who deprived Mr. Meshal of his constitutional rights by knowingly directing, authorizing, conspiring to effect, and/or actively and substantially participating in his detention, interrogation, and rendition in Kenya, Somalia, and Ethiopia. During an approximately four-month period, Doe Defendant 1 coercively and repeatedly interrogated Mr. Meshal; directed, authorized, conspired to effect, and/or actively and substantially participated in Mr. Meshal’s detention without due process; directed, authorized, conspired to effect, and/or actively and substantially participated in Mr. Meshal’s illegal rendition; and otherwise engaged in conduct that created and/or increased known danger to Mr. Meshal, which resulted in serious harm to him. Upon information and belief, Doe Defendant 1 was, and may continue to be, employed by the FBI, and in that capacity work closely with the FBI in the District of Columbia during the course of conducting law enforcement investigations abroad. Doe Defendant 1 is sued in his individual capacity.
16. The name of Defendant John Doe 2 (“Doe Defendant 2”) has been filed with the Court under seal. His current residence is unknown to Plaintiff. Upon information
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and belief, at the time of the events giving rise to this action, Doe Defendant 2 was an employee of the FBI who deprived Mr. Meshal of his constitutional rights by knowingly directing, authorizing, conspiring to effect, and/or actively and substantially participating in his detention and interrogation in Ethiopia and his rendition from Kenya to Somalia and Ethiopia. During a period of over three months, Doe Defendant 2 coercively and repeatedly interrogated Mr. Meshal in Ethiopia and directed, authorized, conspired to effect, and/or actively and substantially participated in Mr. Meshal’s detention without due process. Upon information and belief, Doe Defendant 2 directed, authorized, conspired to effect, and/or actively and substantially participated in Mr. Meshal’s illegal rendition and otherwise engaged in conduct that created and/or increased known danger to Mr. Meshal, which resulted in serious harm to him. Upon information and belief, Doe Defendant 2 was, and may continue to be, employed by the FBI, and in that capacity works closely with the FBI in the District of Columbia during the course of conducting law enforcement investigations abroad. Doe Defendant 2 is sued in his individual capacity.
17. Defendants John and Jane Does 3-10 are individuals currently unknown to Plaintiff who worked for federal governmental entities and were involved in initiating, ordering, directing, authorizing, conspiring to effect, and/or actively and substantially participating in Mr. Meshal’s torture, illegal detention, interrogation, and rendition in Kenya, Somalia, and Ethiopia, and otherwise engaged in conduct that created and/or increased known danger, which resulted in serious harm to Mr. Meshal. Upon information and belief, some or all of John and Jane Does 3-10 are or were stationed in the District of Columbia.
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FACTUAL ALLEGATIONS Amir Meshal’s Travel to Somalia
18. Mr. Meshal is a Muslim, born in the United States to parents of Egyptian descent who are naturalized U.S. citizens.
19. As a young adult, Mr. Meshal had an increasing desire to develop his knowledge about, and interest in, Islam—a desire that ultimately led him to travel to Mogadishu, the capital city of Somalia, which for a time was governed by Islamic law.
20. In 2005, Mr. Meshal traveled to Cairo to live among some members of his extended family. In Cairo, Mr. Meshal worked in sales for a translation company, handling accounts for American and other English-speaking clients. Mr. Meshal briefly considered traveling to Saudi Arabia in order to broaden his understanding of Islam and to live in a country governed by Islamic law. He decided not to do so, however, after learning that it would be difficult to obtain a visa for travel to Saudi Arabia.
21. In June 2006, Mogadishu and its surrounding areas came under the control of the Supreme Council of Islamic Courts (“SCIC”)—a governing body whose former head, Sheikh Sharif Sheikh Ahmed, is now the president of Somalia and has received the open support of U.S. Secretary of State Hillary Clinton. Between June and December 2006, the SCIC secured control of most of southern Somalia, gained widespread local support, and brought governance and “a degree of peace and security unknown to the south for more than fifteen years.” Somalia: The Tough Part is Ahead, Africa Briefing No. 45, (Int’l Crisis Group, Nairobi/Brussels), Jan. 26, 2007, at 1, http://www.crisisgroup.org/library/documents/africa/horn_of_africa/b45_somalia___the_ tough_part_is_ahead.pdf.
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22. In June 2006, Mr. Meshal read an Internet article explaining that the SCIC had gained control of Mogadishu, had established peace, and had instituted Islamic law. Mr. Meshal began thinking about going to Somalia. Over the course of the next few months, he continued to read Internet articles about the implementation of Islamic law in parts of Somalia, including Mogadishu and its surrounding areas.
23. In November 2006, Mr. Meshal decided to go to the parts of Somalia that were governed by Islamic law to experience living in such areas and to deepen his knowledge and understanding of Islam. At that time, Mogadishu and southern Somalia were enjoying a revival under the SCIC. The SCIC had brought stability and peace to these areas by, among other things, tearing down militia checkpoints, removing weapons from the streets, and reopening the international port and airport for business. Somalia: The Tough Part is Ahead, supra, at 1. Direct U.S. Involvement in the Horn of Africa
24. After the 1998 bombings of the U.S. Embassies in Kenya and Tanzania, the U.S. government deployed civilian and military personnel to the Horn of Africa region. The objectives of this deployment included identifying, arresting, and detaining individuals suspected of ties to terrorist organizations or activity in order to stem the rise of militant Islam in the region.
25. As part of this strategy, following the 1998 embassy bombings, the FBI Office of International Operations (“OIO”), located at FBI Headquarters in the District of Columbia, and the FBI Legal Attaché office, located in Nairobi, Kenya, coordinated the deployment of FBI personnel to the Horn of Africa region. Federal Bureau of
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Investigation, Major Investigative and Operational Accomplishments, http://www.fbi.gov/contact/legat/accomplishments.htm (last visited October 27, 2009).
26. In 2002, U.S. Department of Defense officials publicly expressed the United States government’s belief that Somalia was a “potential haven” for members of al Qaeda fleeing Afghanistan and that such terrorists were located in Somalia. U.S. Dep’t of Defense, News Transcript, Background Briefing on the Horn of Africa, Mar. 8, 2002, http://www.defense.gov/transcripts/transcript.aspx?transcriptid=3066.
27. Beginning in October 2002, the U.S. Central Command of the Department of Defense initiated joint counterterrorism operations with nations in the Horn of Africa region. United States Central Command, US CENTCOM History, http://www.centcom.mil/en/about-centcom/our-history/ (last visited Apr. 30, 2010).
28. As part of the strategy of deploying U.S. military and civilian personnel to the Horn of Africa, the U.S. government established the Combined Joint Task Force-Horn of Africa (“CJTF-HOA”) in October 2002. Combined Joint Task Force Horn of Africa, CJTF-HOA Factsheet, http://www.hoa.africom.mil/AboutCJTF-HOA.asp (last visited April 30, 2010). CJTF-HOA operates in Yemen, Eritrea, Ethiopia, Sudan, Kenya, and Uganda, and is comprised of service members from each military branch of the U.S. Armed Forces, civilian employees, and representatives of coalition countries. Id.
29. Since at least 2004, CJTF-HOA and the FBI have been directly involved in training certain foreign armies and police units, including Kenya’s, in counter-terror and counterinsurgency tactics. The FBI also has conducted criminal investigations in Kenya and the Horn of Africa region and, as part of those investigations, has participated in the
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apprehension, detention, and interrogation of individuals alleged to have ties to foreign terrorists or foreign terrorist organizations operating there.
30. According to the procedures governing the FBI Legal Attaché program, because FBI officers “have no law enforcement authority in foreign countries,” FBI investigations in the Horn of Africa region must be conducted “in accordance with local laws and policies and procedures established by the host country.” Office of the Inspector General, U.S. Dep’t of Justice, Audit Report 04-18, Federal Bureau of Investigation Legal Attaché Program 8 (2004) (Redacted and Unclassified); see also Memorandum from Robert S. Mueller III to All Special Agents in Charge, Re: Conducting FBI Investigations Overseas 2 (July 11, 2002) (Unclassified) (“FBI Agents abroad do not have the law enforcement authority they possess in the United States. FBI Agents do not have arrest powers, subpoena powers, or the authority to conduct investigations in other countries without the approval of the host government.”).
31. Foreign governments, inter-governmental entities, human rights organizations, and media have reported that, since the events of September 11, 2001, the U.S. government has increasingly engaged in “proxy detention,” a practice in which individuals alleged or suspected to have ties to foreign terrorists or foreign terrorist organizations are detained by foreign authorities at the behest of, the direction of, and/or with the active and substantial participation of the United States. See Center for Human Rights and Global Justice, On the Record: U.S. Disclosures on Rendition, Secret Detention, and Coercive Interrogation 17-18 (New York: NYU School of Law, 2008).
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Mr. Meshal’s Travel to, and Flight from, Somalia 32. At the end of November 2006, Mr. Meshal sought to travel by plane from
Cairo to Mogadishu. Because there were no direct flights from Cairo to Mogadishu, Mr. Meshal first flew from Cairo to Dubai. In Dubai, Mr. Meshal purchased a ticket to travel by Jubba Airways to Mogadishu. Several days later, he boarded the Jubba Airways flight, which took him to Mogadishu. Mr. Meshal’s journey from Cairo to Mogadishu was uneventful.
33. When Mr. Meshal arrived in Mogadishu on or around November 27, 2006, the city was under the control of the SCIC and was enjoying peace, stability, and a revival after years of unrest and instability.
34. Mr. Meshal’s first few weeks in Somalia were uneventful. Approximately a month after his arrival, however, fighting erupted between the SCIC and the U.S.Ethiopia-backed Transitional Federal Government of Somalia (“TFG”), which had been created in 2004 as a government of national unity. The TFG, however, never controlled most of the country, including Mogadishu, and was largely a government in name only.
35. After fighting broke out, Mr. Meshal feared for his personal safety and sought to flee the country.
36. On December 24, 2006, the Ethiopian air force bombed the Mogadishu airport, causing extensive damage. Unable to get on a flight out of the country, Mr. Meshal evacuated Mogadishu with a group of Somalis in pick-up trucks that were headed south towards the Somali town of Kismayo. The trip to Kismayo took approximately five days as the trucks caravanned across rough terrain. The group was a small subset of the many thousands of civilians fleeing the violence in Mogadishu.
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37. Once in Kismayo, Mr. Meshal noticed that there were many other nonSomalis in the town. An armed Somali man, whom Mr. Meshal did not recognize, approached him and said that Ethiopian soldiers were advancing on Kismayo and that the Americans had offered the Ethiopian and Somali forces money in return for any foreigners they captured and handed over to the Americans for detention and interrogation. He advised Mr. Meshal that all foreigners should leave for Kenya by boat.
38. On or about January 3, 2007, Mr. Meshal and approximately forty other foreign civilians—including men and women from Sweden, France, England, Jordan, and Morocco—loaded onto two large boats with small motors and simple rudders for navigation. They set off south toward Ras Kamboni, which borders Kenya at Somalia’s southernmost tip and which offered the hope of access to Kenya and safety.
39. When Mr. Meshal reached Ras Kamboni, armed Somalis ordered him and the other civilians fleeing towards the border onto a truck, which was driven to a forest. The armed Somalis then ordered them to get out of the truck. Mr. Meshal and the other civilians then fled through the dense brush.
40. Citing security concerns, on Wednesday, January 3, 2007, the Kenyan government closed its 682-kilometer border with Somalia and refused entrance to thousands of civilians fleeing the political violence. On that same day, U.S. State Department spokesperson Sean McCormack announced that the United States was working closely with governments in the region to ensure that individuals suspected of terrorist activities would not be able to escape from Somalia.
41. Based on the belief that al Qaeda operatives had fled Mogadishu and were traveling south towards the Kenyan border, on January 6, American Special Operations
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troops, working with the Kenyan military, set up positions along the border of Somalia and Kenya to capture those fleeing Somalia on the belief that they were al Qaeda members or fighters. Michael Gordon and Mark Mazzetti, U.S. Used Base in Ethiopia to Hunt Al Qaeda, N.Y. Times, Feb. 22, 2007.
42. On January 9, 2007, Mr. McCormack stated that the U.S. State Department was in close contact with the Ethiopian and Kenyan governments to prevent suspected terrorist operatives from fleeing Somalia and eluding capture. He also told the PBS NewsHour, “We have a concern that those terrorist operatives that were in Somalia, operating in Somalia, [sic] not be able to escape and flee and to try to establish safe haven elsewhere.” PBS NewsHour, Transcript, New Summary for January 9, 2007, http://www.pbs.org/newshour/news_summaries/2007/01/summary_09.html.
43. On or before January 22, 2007, the FBI sent a special “jump team” (or “fly team”) to Kenya. Partial Tr. Prelim./Detention Hr’g, United States v. Daniel Joseph Maldonado, No. 4:07-mj-00125-1, 34-35 (S.D. Tex. 2007) (dkt. no. 17). The jump team was one of the “special teams that the FBI formed after the 9/11 attacks” and consisted of “specially trained people that could travel around the world to conduct” law enforcement investigations. Id. at 35.
44. At the time Mr. Meshal was fleeing Somalia for Kenya, the U.S. government was offering financial rewards to Kenyan authorities who captured persons of interest to the United States, and in particular to the FBI. BBC News reported that U.S. government officials offered $5 million for the capture of one suspected al Qaeda member and that the wives of two individuals wanted by the FBI were arrested fleeing Ras Kamboni. Somalia Raids Miss Terror Suspects, BBC News, Jan. 11, 2007.
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45. Non-governmental organizations estimate that approximately 140 to 150 people were arbitrarily detained in Kenya between late December 2006 and February 2007, the period immediately following the outbreak of fighting between the SCIC and TFG in Somalia. See Redress and Reprieve, Kenya and Counter-terrorism: A Time for Change, Redress and Reprieve 4 (2009); see also Amnesty Int’l, AFR 25/006/2007, Horn of Africa: Unlawful Transfers in the ‘War on Terror’ (2007), available at http://amnesty.ca/index_images/resources/horn_of_africa_unlawful_transfers.pdf; Human Rights Watch, “Why Am I Still Here?”: The 2007 Horn of Africa Renditions and the Fate of Those Still Missing 10 (2008), available at http://www.hrw.org/en/reports/2008/09/30/why-am-i-still-here (last visited Apr. 2, 2010). Arrest and Detention in Kenya
46. On or about January 24, 2007, having wandered in the forest for nearly three weeks with four other men in an effort to seek safety in Kenya and find a way home, Mr. Meshal’s group was surrounded by approximately thirty heavily armed Kenyan soldiers. The soldiers physically apprehended Mr. Meshal, stripped him to his underwear, and tightly bound Mr. Meshal’s hands behind his back with rope.
47. One soldier asked Mr. Meshal where he was from. Mr. Meshal replied that he was an American citizen. The soldier then seized Mr. Meshal’s U.S. passport, social security card, and approximately $800 in cash.
48. The soldiers took Mr. Meshal and the four others to a nearby village and then transported them by helicopter and truck to a town that Mr. Meshal later learned was the town of Kiunga.
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49. Once in Kiunga, Mr. Meshal was taken to a local jail and placed in a small cell. Approximately thirty minutes later, seven or eight Kenyan men dressed in civilian clothing came to the jail, removed Mr. Meshal from the cell, escorted him outside, photographed him, and then interrogated him for approximately forty-five minutes. One of the men asked Mr. Meshal a series of simple questions in English while the others took notes. The interrogator asked Mr. Meshal his name, where he was born, what school he attended, when he had arrived in Somalia, and what he was doing there. The interrogators subsequently returned Mr. Meshal to the cell, where he was held overnight. Transfer to Nairobi
50. The following morning, on or about January 25, 2007, eight to ten Kenyans dressed in civilian clothes came to the Kiunga jail. They placed a black hood over Mr. Meshal’s head and tightly bound his wrists with a plastic zip-tie. They then escorted Mr. Meshal onto a helicopter for a short flight. He overheard that he was being flown to Mombasa. From Mombasa, Mr. Meshal was escorted onto a plane, which flew to Nairobi.
51. Once in Nairobi, Mr. Meshal was placed in the back of a truck with four other men and taken to the Ruai Police Station on the outskirts of Nairobi. A group of Kenyan officials wearing civilian clothing were waiting for Mr. Meshal at the police station’s jail. One of the Kenyan officials identified himself as an officer of Kenya’s Criminal Investigation Department (“CID”). He asked Mr. Meshal only a few basic questions, such as where he was born, what citizenship he held, and why he was in Somalia.
52. Mr. Meshal explained to the CID officer that he was an American citizen and that he had gone to Somalia to further his religious education. The CID officer did not
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ask any follow-up questions. Mr. Meshal asked the CID officer why he was being held. The officer replied that his main purpose was to get Mr. Meshal out of Kenya and back to the United States as soon as possible. The CID officer also told Mr. Meshal that he had to find out what the United States wanted to do with him before he could send Mr. Meshal back to the United States.
53. On January 26, 2007, U.S. State Department spokesperson Sean McCormack acknowledged that the State Department was aware of news reports claiming that at least one American citizen had been apprehended in Kenya and indicated that the State Department was working to verify these reports.
54. Mr. Meshal was detained at the Ruai Police Station for approximately one week in a tiny cell without any further interrogation and without any access to an attorney. During the first four days of his detention, Mr. Meshal wore only his underwear. At that point, a prisoner whom Mr. Meshal had met in the jail and who was being released gave Mr. Meshal a pair of pants and a shirt. At its most crowded, the small cell held twenty-nine individuals. Mr. Meshal often slept standing up because he had nowhere to sit, let alone lay down. The food and bathroom facilities were woefully inadequate, exacerbating an intestinal infection from which Mr. Meshal was suffering.
55. During Mr. Meshal’s detention in the Ruai Police Station, he was not allowed to use the telephone.
56. On information and belief, sometime between January 27 and February 3, 2007, U.S. government officials learned about Mr. Meshal’s presence and detention in Kenya and ordered, directed, authorized, or approved Mr. Meshal’s interrogation by Defendant Higgenbotham, Defendant Hersem, and Doe Defendants 1 and 2 by, among
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other things, following the procedures set forth in The Attorney General’s Guidelines for FBI National Security Investigations and Foreign Intelligence Collection, which were in force at the time and provided, inter alia, that “[t]he FBI may conduct investigations abroad, participate with foreign officials in investigations abroad, or otherwise conduct activities outside the United States with the written request or approval of the Director of Central Intelligence and the Attorney General or their designees.” The Attorney General’s Guidelines for FBI National Security Investigations and Foreign Intelligence Collection 17 (Oct. 31, 2003) (declassified Aug. 2, 2007). Although these guidelines indicate that the Attorney General and the Director of Central Intelligence may have directly issued such orders, upon information and belief, in this case, orders were issued by lower-level government officials who were granted the authority to do so by the Attorney General and the Director of Central Intelligence.
57. Upon information and belief, the U.S. government officials who issued such orders or otherwise directed, authorized, and/or approved Mr. Meshal’s interrogation by Defendant Higgenbotham, Defendant Hersem, and Doe Defendants 1 and 2 were either located in the District of Columbia or received communications from U.S. government officials located in the District of Colombia regarding their approval, authorization, and/or direction of the interrogation of Mr. Meshal. U.S. Interrogations in Kenya
58. On or about February 3, 2007, the Kenyan CID officer who had questioned Mr. Meshal on his first day of detention at the Ruai Police Station returned to the station and told Mr. Meshal that a gentleman from the U.S. Embassy had come to see him. The CID officer escorted Mr. Meshal outside the police station where Mr. Meshal saw three
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Americans standing next to two dark blue vehicles. The three Americans later identified themselves to Mr. Meshal as “Steve,” “Chris,” and “Tim,” but refused to provide their true full names or titles to Mr. Meshal.
59. Upon information and belief, and based on the transcripts of the preliminary detention hearing in United States v. Daniel Joseph Maldonado, No. 4:07-mj-00125-1 (S.D. Tex. 2007) (dkt. nos. 16 & 17), and as further described below, “Steve” is Defendant FBI Supervising Agent Steve Hersem, who interrogated Daniel Maldonado in Kenya. Defendant Hersem was a member of the FBI “jump team” or “fly team” that was sent to Nairobi in the beginning of January 2007 to conduct law enforcement investigations. See Partial Tr. Prelim./Detention Hr’g, United States v. Daniel Joseph Maldonado, No. 4:07-mj-00125-1, 35 (S.D. Tex. 2007) (dkt. no. 17) (referring to date of arrival of jump team FBI supervising special agents in Nairobi).
60. Defendant Hersem was a clean-shaven white man who appeared to be in his late forties and very fit. He stood about 6’ 3” tall and had short blond hair and blue eyes. Each time Defendant Hersem came to interrogate Mr. Meshal, he was dressed in a dark suit and tie and wore reflective sunglasses, which he periodically removed. Defendant Hersem spoke with an American accent, although Mr. Meshal could not discern any specific regional accent.
61. Upon information and belief, and based on the transcripts of the preliminary detention hearing in United States v. Daniel Joseph Maldonado, No. 4:07-mj-00125-1 (S.D. Tex. 2007) (dkt. nos. 16 & 17), and as further described below, “Chris” is Defendant FBI Supervising Agent Chris Higgenbotham, who interrogated Daniel Maldonado in Kenya. Defendant Higgenbotham also was a member of the FBI “jump
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team” or “fly team” that was sent to Nairobi in the beginning of January 2007 to conduct law enforcement investigations. Partial Tr. Prelim./Detention Hr’g, United States v. Daniel Joseph Maldonado, No. 4:07-mj-00125-1, 35 (S.D. Tex. 2007) (dkt. no. 17) (referring to date of arrival of jump team FBI supervising special agents in Nairobi).
62. Defendant Higgenbotham was a white man who appeared to be in his mid-tolate forties. He had brown hair, brown eyes, and a chinstrap beard (i.e., facial hair extending from the hair line of one side of the face to the other, following the jawline). He stood approximately 6’ tall and was much heavier than Defendant Hersem. Defendant Higgenbotham wore prescription glasses, jeans, a button-up shirt, and a khaki vest with pockets. On one occasion, Defendant Higgenbotham told Mr. Meshal that he was from Georgia and that he worked in an FBI office somewhere in Europe. Defendant Higgenbotham also spoke with an American accent, although Mr. Meshal could not discern any specific regional accent.
63. The individual who introduced himself to Mr. Meshal as “Tim” is Doe Defendant 1. The true, full, and accurate name of Doe Defendant 1 has been filed with the Court under seal. Doe Defendant 1 was a white man and appeared to be in his late thirties or early forties. He stood approximately 6’ tall and had grayish-black hair and a full, low-cut beard. Doe Defendant 1 wore jeans, short-sleeve polo-style shirts, and sneakers. On one occasion, Doe Defendant 1 told Mr. Meshal that he was from New Jersey. Doe Defendant 1 also spoke with an American accent, although Mr. Meshal could not discern any specific regional accent. Doe Defendant 1 was also an FBI Supervising Agent.
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64. After the Kenyan CID officer escorted Mr. Meshal outside of the police station, Defendant Hersem immediately asked him to get into the back seat of one of the vehicles—a dark blue Chevrolet Suburban. The CID officer got in the front passenger side and Defendant Higgenbotham sat in the back with Mr. Meshal. Because the Kenyan CID officer had informed Mr. Meshal that U.S. Embassy personnel had come to speak with him, Mr. Meshal believed that he was going to be taken to the U.S. Embassy.
65. Defendant Hersem asked Mr. Meshal how he was doing. Mr. Meshal replied that he was all right, but that the conditions in the prison had been horrible. Mr. Meshal then asked Defendant Hersem whether he would be able to take a shower and get some new clothing before going home. Defendant Hersem laughed and told Mr. Meshal that it was not going to be that easy for him to go home. He told Mr. Meshal that they had been talking to his buddy “Beantown,” and that “Beantown” had a lot to say about Mr. Meshal.
66. Mr. Meshal thought that Defendant Hersem was referring to Daniel Maldonado, an American citizen from Boston whom Mr. Meshal met in Kismayo when Mr. Meshal was fleeing the violence in Mogadishu. When Mr. Meshal had met Mr. Maldonado, Mr. Maldonado said that he was from Boston; Mr. Meshal began to call him “Beantown” as a result. Defendant Hersem told Mr. Meshal that his story would have to match up with “Beantown’s” story or else he would know that one of them was lying. If Mr. Meshal was lying, Defendant Hersem said, he would not allow Mr. Meshal to go home.
67. Daniel Maldonado had been seized by Kenyan soldiers on or about January 21, 2007. The FBI jump team in Nairobi responsible for conducting law enforcement investigations in the region was sent to interrogate Mr. Maldonado and coordinated its
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activities with the Houston Division of the FBI. Partial Tr. Prelim./Detention Hr’g, United States v. Daniel Joseph Maldonado, No. 4:07-mj-00125-1, 34-35 (S.D. Tex. 2007) (dkt. no. 17). Mr. Maldonado was interviewed by FBI agents on several occasions while detained in Kenya, including on January 28 and January 30, 2007, and admitted to receiving military training in Somalia during December 2007.
68. Members of the Houston Joint Terrorism Task Force subsequently transported Mr. Maldonado back to the United States between February 9 and 12, 2007, after Mr. Maldonado agreed to cooperate with the FBI agents who interrogated him in Kenya. Mr. Maldonado’s three minor children, who had been detained in Kenya after fleeing Somalia, were also returned to the United States.
69. Between around February 3 and February 10, 2007, U.S. agents interrogated Mr. Meshal on at least four occasions. Each of these interrogation sessions lasted a full day and was carried out on the top floor of the Salonika Villas, a five-story beige building located on Muthangari Road in Nairobi. The suite in which the interrogations occurred had a sitting room, a bedroom, a bathroom, and an efficiency kitchen equipped with a small counter, sink, and dish cabinets.
70. The FBI jump team, which included Defendants Higgenbotham and Hersem, paid for and arranged for the use of the Salonika Villas as an FBI interrogation site for persons of interest to the United States. The Salonika Villas shared the same characteristics as the safe house at which Mr. Maldonado was interrogated by Defendants Hersem and Higgenbotham and other FBI agents, to which Mr. Maldonado was driven in a U.S. vehicle by FBI officials, and which the FBI paid for and arranged to be used as an FBI interrogation site. See Partial Tr. Prelim./Detention Hr’g, United States v. Daniel
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Joseph Maldonado, No. 4:07-mj-00125-1, 4 (S.D. Tex. Feb. 20, 2007) (dkt. no. 16); Partial Tr. Prelim./Detention Hr’g, supra (dkt. no. 17), at 44-45, 58 (testimony of FBI Agent Loretta Eglen-Anderson).
71. On the first day of Mr. Meshal’s interrogation at the Salonika Villas, Doe Defendant 1 presented Mr. Meshal with a document and asked him to sign it, telling Mr. Meshal that the document notified him that he could refuse to answer any questions without a lawyer present. When Mr. Meshal asked for an attorney, however, Doe Defendant 1 told him that he was not permitted to make any phone calls. Mr. Meshal then asked if he had a choice not to sign the document because he had no way of contacting an attorney. Defendant 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.” Defendant Higgenbotham also told Mr. Meshal that he was being held in “a lawless country” and did not have any right to legal representation. Believing that he had no other choice, and hoping that it would expedite his safe return to the United States, Mr. Meshal signed the document. Upon information and belief, the document was a “waiver of rights” (or “advice of rights”) form of the type commonly used by FBI agents prior to conducting an interrogation in the absence of counsel.
72. Defendant Higgenbotham, Defendant Hersem, and Doe Defendant 1 deliberately misrepresented Mr. Meshal’s right to counsel under Kenyan law.
73. After Mr. Meshal signed the form, Defendant Higgenbotham took out a laptop computer and told Mr. Meshal that he needed to take a digital image of his fingerprint. While taking Mr. Meshal’s fingerprint, Defendant Higgenbotham explained to Doe
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Defendant 1 how to use the computer to capture the image. Mr. Meshal believed that Doe Defendant 1 was not familiar with the technology. Once Defendant Higgenbotham took the image, he removed a swab kit and explained to Mr. Meshal that he also needed to take a DNA sample. Mr. Meshal asked why they needed a DNA sample. Defendant Higgenbotham replied that they were taking the DNA sample so that if they found pieces of Mr. Meshal’s body blown up, they would be able to identify “who did it.” Mr. Meshal believed that Defendant Higgenbotham was insinuating that Mr. Meshal intended to blow himself up in an act of terrorism. At no time did Defendant Higgenbotham or the other U.S. agents offer any basis for this suspicion that Mr. Meshal might be a suicide bomber.
74. Mr. Meshal was later told by other detainees that the American agents were classifying people seized by the Kenyans at the Kenya-Somalia boarder as “East African al Qaeda.” Throughout his detention and interrogation Mr. Meshal repeatedly explained to the U.S. agents that he had never been part of, had never supported, and had never received any training from al Qaeda.
75. During this first day of interrogation, Defendant Hersem, Defendant Higgenbotham, and Doe Defendant 1 took turns questioning Mr. Meshal over approximately six hours.
76. The Kenyan CID officer who had accompanied the Americans to the Salonika Villas remained in the bedroom for the first part of Mr. Meshal’s interrogation. He did not demonstrate any interest whatsoever in the interrogation, and did not ask a single question or take any notes. After approximately two hours, the Kenyan CID officer left the room while the interrogation continued and did not return for several hours.
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77. At some point after the Kenyan CID officer had left the room, Doe Defendant 1 gave Mr. Meshal a lined legal pad and asked him to write everything he had said down on paper. Mr. Meshal wrote approximately four pages. When he was finished, Defendant Higgenbotham took the statement from Mr. Meshal.
78. At approximately 4:00 p.m., the Kenyan CID officer returned to the suite. Doe Defendant 1 asked the officer if he wanted to ask any questions. The Kenyan CID officer replied that he did not, revealing again the Kenyan government’s lack of interest in Mr. Meshal.
79. On information and belief, Defendants Hersem, Higgenbotham, and/or Doe Defendant 1 requested that Kenyan authorities move Mr. Meshal from the Ruai Police Station to a different location closer to the Salonika Villas to facilitate further interrogations.
80. At the end of Mr. Meshal’s first day of interrogation, Defendant Hersem, Defendant Higgenbotham, and Doe Defendant 1 took Mr. Meshal to a new prison, accompanied by the Kenyan CID agent. As they approached the building, Mr. Meshal noticed a sign identifying it as the Kileleshwa Police Station.
81. At the Kileleshwa Police Station, the Kenyan CID official signed Mr. Meshal into the jail area and escorted him to a cell. There were two cells at the Kileleshwa Police Station separated by a hallway that contained an indoor bathroom. The cells were approximately 15-20 square feet and contained mats and blankets for the detainees. Mr. Meshal shared a cell with a British man named Mohammed Ezzoueck and approximately twenty Kenyans, who appeared to have been arrested for petty crimes.
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82. U.S. agents interrogated Mr. Meshal at the Salonika Villas on at least three subsequent occasions during the period of his detention at the Kileleshwa Police Station. On each of these occasions, a Kenyan officer took Mr. Meshal from his jail cell and brought him to the U.S. agents, who were waiting at the prison, and who drove him to the interrogation site.
83. During each of these subsequent interrogations, each of which lasted an entire day (from approximately 9 a.m. to 5 p.m.), Defendant Hersem, Defendant Higgenbotham, and Doe Defendant 1 presented Mr. Meshal with a document notifying him that he could refuse to answer any questions without a lawyer present and asked him to sign it. Each time, however, these officials made Mr. Meshal believe that he had no choice other than to sign the document given to him, and therefore Mr. Meshal signed the document. Upon information and belief, the document was the “waiver of rights” (or “advice of rights”) form of the type commonly used by FBI agents prior to conducting an interrogation in the absence of counsel. Each time Mr. Meshal asked for an attorney, the U.S. officials told him that he could not make any phone calls.
84. During these day-long interrogations, Defendant Hersem, Defendant Higgenbotham, and Doe Defendant 1 continually accused Mr. Meshal of having received weapons training and special training to withstand interrogation in an al Qaeda training camp. Each time Mr. Meshal denied the accusations, Defendant Hersem, Defendant Higgenbotham, and Doe Defendant 1 became enraged.
85. In each of their multiple interrogations of Mr. Meshal in Kenya, Defendant Hersem, Defendant Higgenbotham, and Doe Defendant 1 sought to elicit statements from Mr. Meshal for use in a potential future criminal prosecution.
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86. On one occasion, while Defendant Higgenbotham and Doe Defendant 1 were interrogating Mr. Meshal, Defendant Higgenbotham grabbed Mr. Meshal and forced him to the window of the hotel room. Defendant Higgenbotham told him that “Allah is up in the clouds,” and that “the U.S. is almost as powerful as Allah.” He also told Mr. Meshal that the agents knew he was hiding something, but that they “had ways of getting the information they want.” Defendant Higgenbotham threatened to send Mr. Meshal to Israel, where he said the Israelis would “make him disappear.” Mr. Meshal was extremely distraught and feared for his life. His cellmate, Mr. Ezzoueck, observed that Mr. Meshal was extremely distressed and crying when he was returned to his cell at the Kileleshwa Police Station following this interrogation. Mr. Ezzoueck reported his observations to a member of a Kenyan human rights organization, the Muslim Human Rights Forum, who visited him in his cell.
87. On another occasion, Defendant Hersem approached Mr. Meshal, removed his (Defendant Hersem’s) sunglasses, and proceeded to yell at Mr. Meshal merely inches from his face while vigorously poking him in the chest. He accused Mr. Meshal of having connections to individuals in Dubai who recruit for al Qaeda. Defendant Hersem yelled at Mr. Meshal to confess his connection to al Qaeda. He promised that in return for such a confession that Mr. Meshal would be returned to the United States and would face civilian courts there. When Mr. Meshal asked what would happen if he refused to answer any more questions, Defendant Hersem told him that he would be sent back to Somalia. Defendant Higgenbotham and Doe Defendant 1 made similar threats to Mr. Meshal on numerous occasions during their interrogations of Mr. Meshal in Kenya.
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Approximately two weeks before this interrogation, FBI officials had already participated in the rendition of detainees to Somalia and Ethiopia.
88. On another occasion, while Defendant Hersem was driving Mr. Meshal back to the Kileleshwa Police Station following a day-long interrogation, he told Mr. Meshal that he had spoken with the Egyptians and that they were very interested in speaking with Mr. Meshal. Defendant Hersem warned Mr. Meshal that the Egyptians “had ways of making [him] talk.” Defendant Hersem asked Mr. Meshal whether he had ever seen the movie “Midnight Express,” in which a man who is caught smuggling drugs out of Turkey is thrown into prison and tortured. Defendant Hersem told Mr. Meshal that he could make those same things happen to him if Mr. Meshal did not cooperate and admit his connection with al Qaeda. Defendant Hersem also told Mr. Meshal, “You made it so that even your grandkids are going to be affected by what you did.”
89. The FBI’s own legal analysis of permissible interrogation methods from as early as November 2002 recognized that the “[u]se of scenarios designed to convince [a] detainee that death or severe pain is imminent for him or his family” are prohibited by the Constitution and may violate the United States Torture Statute, 18 U.S.C. § 2340. FBI Behavioral Analysis Unit, Legal Analysis of Interrogation Techniques, 1020-21 (Nov. 27, 2002) (Unclassified). The FBI’s own legal analysis further concluded that it is a per se violation of said Torture Statute when an interrogator threatens to send a detainee “either temporarily or permanently to Jordan, Egypt, or another third country to allow those countries to employ interrogation techniques that will enable them to obtain the requisite information,” with the intent “to utilize, outside the U.S., interrogation techniques which would violate [the Torture Statute].” Id. at 1021.
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90. When Mr. Meshal was not being interrogated by the U.S. officials, he remained in his cell at the jail of the Kileleshwa Police Station. He was never interrogated or questioned by the Kenyan authorities during this time. Nor did Kenyan authorities ever present any charges against him or provide him with any basis for his detention.
91. Mr. Meshal was detained in Kenyan jail without charge contrary to Kenyan law because Mr. Meshal was a person of interest to the FBI and because Defendant Higgenbotham, Defendant Hersem, and Doe Defendants 1 and 2 wanted to interrogate him. Contact with the Muslim Human Rights Forum
92. On or around February 5, 2007, when Mr. Meshal was returned to the Kileleshwa Police Station from his interrogation by Defendant Hersem, Defendant Higgenbotham, and Doe Defendant 1, members of the Muslim Human Rights Forum (“MHRF”), a Kenyan human rights organization, were at the jail seeking information about foreigners and Kenyans who had been picked up near the Somali border and whom the MHRF believed were being detained in contravention of Kenyan law.
93. Members of the MHRF visited Mr. Meshal and other detainees being held without charge at the Kileleshwa Police Station several times between February 5 and February 9, 2007. The MHRF’s last visit with Mr. Meshal occurred at approximately 9:00 p.m. on February 9.
94. MHRF members did not identify themselves when entering the jail because they feared that they would not be permitted to enter if Kenyan and United States officials knew they were members of a human rights group and were speaking to
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detainees and informing them of their rights under Kenyan and international law. At times, MHRF members were unable to access the detainees.
95. Mr. Meshal spoke briefly with a member of the MHRF. Mr. Meshal explained that he was being interrogated by three American agents, at least some of whom he believed worked for the FBI. Mr. Meshal further explained that these agents had threatened him with torture and disappearance and denied him access to a lawyer. The MHRF member informed Mr. Meshal that the MHRF was monitoring his case and would press his case before the Kenyan courts.
96. Kenyan police officers told MHRF members that the FBI was in charge of the detention of Mr. Meshal and other detainees who had been seized fleeing Somalia. AlAmin Kimathi, the head of MHRF, stated, “Some very frustrated senior Kenyan police officers just told us point blank, ‘It’s not our operation. Go and ask the Americans. Just call the American Embassy.’” Audio Report: Africa’s Guantanamo, BBC World Service, (Oct. 2008), http://www.bbc.co.uk/worldservice/specials/1658_assignment_2008/page6.shtml; see also Steve Bloomfield, Anger at US ‘Rendition’ of Refugees Who Fled Somalia, The Indep., Mar. 23, 2007, http://www.independent.co.uk/news/world/africa/anger-at-usrendition-of-refugees-who-fled-somalia-441495.html.
97. On a number of occasions, MHRF members also saw U.S. government officials remove detainees from their prison cells and drive them in U.S. vehicles to and from the stations in which they were detained. Muslim Human Rights Forum, Horn of Terror: Revised Edition, 28 (Al-Amin Kimathi & Altan Butt eds. 2008); Audio Report: Africa’s Guantanamo, supra. On February 5, 2007, an MHRF member saw U.S. officials
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drive Mr. Meshal back to the Kileleshwa Police Station in a U.S. Embassy vehicle marked with registration number 29CD389K. Muslim Human Rights Forum, supra at 28.
98. At no point did Kenyan authorities charge Mr. Meshal with a crime. 99. Mr. Meshal was denied access to counsel the entire time he was detained in the Kileleshwa Police Station. Mr. Kimathi of MHRF reported that for detainees “[t]here was no access to any lawyers. They were flatly refused entry.” Audio Report: Africa’s Guantanamo, supra. 100. While Mr. Meshal was being held at the Kileleshwa Police Station, the MHRF filed habeas corpus petitions in Kenyan court on behalf of prisoners who had been seized fleeing the violence in Somalia and who were being detained in Kenya without charge. The petitions asserted that the detainees’ confinement was illegal under Kenyan law and demanded immediate relief. The Kenyan Constitution requires a detainee to be brought before a court within twenty-four hours of arrest or the commencement of his detention if he is reasonably suspected of having committed, or being about to commit, a crime that is not a capital offense. Constitution, Art. 72(3) (2001) (Kenya); The Criminal Procedure Code, (2007) Cap. 75 § 36. If this requirement is not met, Kenyan law requires his release. Constitution, Art. 72(5) (Kenya); The Criminal Procedure Code, Cap. 75 § 36. The time limit for detention without charge under Kenyan law extends to fourteen days for detainees who are reasonably suspected of having committed, or being about to commit, a capital offense. Constitution, Art. 72(3) (Kenya).
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101. On or around February 7, 2007, Kenyan courts began hearing the detainees’ habeas petitions. It was presumed that if the detainees were brought before court and no lawful cause for the detention was shown, the detainees would be released. FBI and State Department Contact with Mr. Meshal and His Father
102. On February 6, 2007, while Defendant Higgenbotham, Defendant Hersem and Doe Defendant 1 continued to interrogate Mr. Meshal in Kenya, two FBI agents, Special Agent Charles Stern and Special Agent Robert Reilly, visited Mr. Meshal’s home in Tinton Falls, New Jersey, and asked Mr. Meshal’s father, Mohammed Meshal, if he knew where Mr. Meshal was. Mohammed explained that he had not spoken to his son since December. The agents informed Mohammed that Mr. Meshal had been seized in Kenya near the Somali border and was being detained in Kenya. The agents told Mohammed that they could arrange a phone call between him and his son.
103. On February 7, 2007, Scott Niederman (spelling based on phonetic “Neederman”), a consular affairs officer from the U.S. Embassy in Nairobi, visited Mr. Meshal in jail for about fifteen minutes. He was accompanied by a Kenyan man dressed in plain clothes. Mr. Niederman told Mr. Meshal that he was trying to get him home, and that someone would be in touch with his family. Mr. Meshal explained to Mr. Niederman that U.S. officials had been interrogating him at a hotel in Nairobi. Mr. Niederman appeared shocked. Mr. Niederman asked Mr. Meshal how he knew that they were Americans. Mr. Meshal replied that they had American accents and identified themselves as U.S. agents. Mr. Niederman asked if they had disclosed which agency they were from. Mr. Meshal replied that he was told by the Kenyans that they were from the U.S. Embassy and that at least one agent had identified himself as FBI. Looking
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confused and concerned, Mr. Niederman asked how they had been treating him. Mr. Meshal explained that they had threatened him with torture, forced disappearance, and other serious harm, and warned him that they would send him to Somalia, or to Israel, or Egypt to extract information.
104. Mr. Niederman gave Mr. Meshal his business card and said that he didn’t know what was going on, but that if Mr. Meshal was moved from the jail, he should contact him immediately. Mr. Niederman’s tone and facial expressions concerned Mr. Meshal.
105. That same day, Agents Stern and Reilly returned to Mohammed Meshal’s house in New Jersey and told him that they would not be able to arrange a call between Mohammed and his son. On information and belief, Defendant Higgenbotham, Defendant Hersem, and Doe Defendant 1 prevented, conspired to prevent, and/or actively and substantially participated in preventing Agents Stern and Reilly from arranging a call between Mohammed Meshal and Mr. Meshal. On information and belief, Defendant Higgenbotham, Defendant Hersem, and Doe Defendant 1 acted at the direction, with the approval, and/or with the knowledge of U.S. government officials located in the District of Columbia, including officials at FBI headquarters.
106. Shortly thereafter Mr. Niederman called Mohammed Meshal and confirmed that Amir Meshal was being detained in Kenya. Mr. Niederman asked Mohammed Meshal to wire money so that a ticket from Nairobi to New York could be purchased for Amir Meshal’s return to the United States.
107. The next day (February 8, 2007), Mr. Niederman, who remained uninformed about the efforts of Defendant Higgenbotham, Defendant Hersem, and Doe Defendant 1
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to have Mr. Meshal rendered to Somalia rather than being sent home, told Mr. Meshal that he had spoken with his family in New Jersey and was working on getting him home. Amir Meshal’s Rendition to Somalia and Ethiopia
108. On February 9, just days after Kenyan courts began hearing the habeas petitions filed by MHRF on behalf of detainees who contested the legality of their confinement, and as at least one court was prepared to grant those petitions, Kenyan officials dressed in dark clothes, wearing goggles, and carrying guns, arrived at the Kileleshwa Police Station in the middle of the night and removed Mr. Meshal and one other prisoner from the jail cell. The Kenyan officials tightly zip-tied Mr. Meshal’s hands behind his back and then forced Mr. Meshal into a white Peugeot station wagon.
109. Mr. Meshal was transported from the jail to the Jomo Kenyatta International Airport and placed on a privately chartered aircraft from Bluebird Aviation along with twelve other individuals identified on the passenger manifest.1 A black hood was placed over Mr. Meshal’s head. He could barely sit in his seat because his hands were still awkwardly handcuffed behind his back.
110. Mr. Meshal heard one of the Kenyans on the flight mention Somalia. Mr. Meshal was terrified of being returned to Somalia and believed that he would be seriously injured or killed if taken there because of the violence and other abuses that were occurring.
111. After the plane landed, men speaking a language Mr. Meshal believed to be Somali entered the plane and removed the prisoners. Mr. Meshal believed (and later learned) that he had been sent back to Somalia, just as Defendant Hersem had threatened 1 A copy of the manifest has been published at http://www.reprieve.org.uk/static/downloads/2007_03_21_Rendition_Report.pdf.
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would happen. The men escorted Mr. Meshal and the other prisoners onto trucks and drove them to a place the prisoners later called “the cave.” At the cave, the soldiers removed Mr. Meshal’s hood and directed him to descend steps to an underground room that was almost completely dark. Armed men snipped the zip-ties that had held Mr. Meshal’s hands behind his back and chained his wrists in front of him.
112. Mr. Meshal remained handcuffed in the cave for two days. He was terrified and thought that he was going to be executed. The cave was approximately twenty-five square feet in size and did not contain any windows or toilets. The cave was excruciatingly hot and Mr. Meshal had difficulty breathing. Only a little light filtered through from small holes pierced into the door that led to the outside. When guards opened this door, Mr. Meshal noticed that enormous cockroaches were clustered in the corners of the cell and large black millipedes were all over the walls.
113. On or about February 10, 2007, Mr. Niederman again spoke with Mr. Meshal’s father, Mohammed. Mr. Niederman explained to Mohammed that he had lost contact with Mr. Meshal, that he did not know where Mr. Meshal was, and that he could not help him further.
114. At the court hearing for consideration of the habeas petitions filed by MHRF on behalf of Mr. Meshal and other detainees being held without charge, which took place following Mr. Meshal’s rendition, Kenyan government authorities presented a February 10, 2007 flight manifest indicating that Mr. Meshal and other prisoners rendered with him were passengers on a Blue Bird Aviation flight from Kenya to Baidoa, Somalia, and thus were no longer located within the jurisdiction of the court. The habeas cases were accordingly dismissed.
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115. On or about February 12, 2007, men who appeared to be members of the Somali military came to the cave and ordered all thirteen of the prisoners who had been rendered from Kenya, except four British detainees—Mohammed Ezzoueck, Reza Afsharzadagen, Hamza Chentouf, and Shahajan Janjua—to leave the cell. The four British detainees were handed over to British officials in Somalia and were immediately returned to England, where they were released.
116. The Somalis handed Mr. Meshal and the eight others who remained over to individuals wearing Ethiopian military uniforms. The uniformed men blindfolded Mr. Meshal and brought him to an airport.
117. At the airport, the Ethiopians escorted Mr. Meshal and the others to what appeared to be a storage tent that was patrolled by armed guards.
118. Mr. Meshal remained in this tent with his hands shackled from approximately February 12 to February 16, 2007. Guards brought the prisoners dry biscuits, marmalade, and water once a day. Mr. Meshal was without adequate food or water and was hungry and thirsty all of the time.
119. On or about February 16, 2007, the Ethiopian soldiers took Mr. Meshal and the other prisoners to a plane. The prisoners were all blindfolded. After the plane took off, one of the Ethiopians informed Mr. Meshal that they were being taken to Ethiopia. Daniel Maldonado’s Return to the United States and the Defendants’ Roles in Mr. Meshal’s Rendition
120. On or about February 9, 2007, the same day Mr. Meshal was rendered to Somalia, U.S. officials transported Daniel Maldonado and his three children back to the United States from Kenya. U.S. officials transported Mr. Maldonado to the United States, rather than directing, ordering, authorizing, approving, or otherwise acquiescing to
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his rendition to Somalia and/or Ethiopia because Mr. Maldonado admitted facts that the U.S. officials believed would support a federal charge against him for receiving militarytype training from a foreign terrorist organization. Mr. Maldonado subsequently pled guilty and agreed to cooperate with the government in exchange for a reduced sentence.
121. According to statements made at the time by two U.S. officials familiar with Mr. Meshal’s case, Daniel Maldonado was returned to the United States because he quickly confessed to involvement with al Qaeda, but Mr. Meshal was not brought back to the United States because he did not admit to such involvement. One U.S. official indicated that Mr. Meshal was not brought home because there was insufficient evidence to charge and jail Mr. Meshal in the United States. Jonathan S. Landay and Shashank Bengali, U.S. Citizen Stuck in Ethiopian Jail: Case Raises Questions About U.S. Policies in Pursuing Terror Suspects, [Albany] Times Union, Mar. 17, 2007, at A4.
122. In addressing the rendition of detainees from Kenya to Somalia and Ethiopia, a senior Western government official based in Kenya stated publicly, “They’ve concealed their role, but you can assume the Americans were behind all these renditions. By sending prisoners to Ethiopia, they had a convenient place to interrogate people.” U.S. Interrogates Terror Suspects in Ethiopian Jails, Spiegel Online, Jun. 11, 2007, http://www.spiegel.de/international/world/0,1518,487893,00.html. A U.S. human rights group that extensively investigated the events found that the United States, at minimum, was “complicit” in the rendition of detainees from Kenya to Somalia and Ethiopia. Steve Bloomfield, Testimony: Kenyan Men Recently Released From an Ethiopian Jail Say U.S. Intelligence Officials Interrogated Them, Newsweek, Nov. 19, 2008.
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123. In light of the role of Defendant Higgenbotham, Defendant Hersem, and Doe Defendant 1 in the Kenya jump team, their intensive involvement in the investigation and interrogation of Mr. Meshal in Kenya, the operations of the FBI in the CJTF-HOA counter-terrorism effort in Kenya at the time, including the close partnership between the FBI jump team members and Kenyan authorities in conducting these law enforcement operations, on or about February 9, 2007, one or more of Defendant Higgenbotham, Defendant Hersem, and Doe Defendants 1 and 2 directed, authorized, conspired to effect, actively and substantially participated in, and/or took affirmative action(s) demonstrating consent and acquiescence to Mr. Meshal’s rendition to Somalia and Ethiopia. One or more of Defendant Higgenbotham, Defendant Hersem, and Doe Defendants 1 and 2 took such action, despite the manifest danger and risk of harm to Mr. Meshal, because Mr. Meshal had steadfastly maintained his innocence of any terrorist activity and because U.S. officials wished to interrogate him further without affording him the guarantees to U.S. citizens mandated under the Fourth and Fifth Amendments to the U.S. Constitution.
124. On information and belief, Defendant Higgenbotham, Defendant Hersem, and Doe Defendants 1 and 2, acted with the approval or knowledge of U.S. government officials located in the District of Columbia, including officials at FBI headquarters, and U.S. government officials located at the FBI Legal Attaché office in Nairobi.
125. Defendant Higgenbotham, Defendant Hersem, and Doe Defendants 1 and 2, who were very familiar with the situation in the region, knew, or reasonably should have known, that Mr. Meshal would face grave danger and risk of harm if he were rendered to Somalia at that time. Defendant Higgenbotham, Defendant Hersem, and Doe Defendants 1 and 2, for example, knew, or reasonably should have known, that following the
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December 27, 2006 attack by the U.S.-Ethiopia-backed TFG on the SCIC and the SCIC’s subsequent and abrupt collapse, widespread human rights violations were occurring in Somalia because of the lack of effective governance institutions, the widespread availability of small arms, and conflicts between armed political factions and warlords over control of territory. Bureau of Democracy, Human Rights, & Labor, U.S. Dep’t of State, Country Reports on Human Rights Practices—2006: Somalia (March 6, 2007); Somalia: The Tough Part is Ahead, Africa Briefing No. 45, (Int’l Crisis Group, Nairobi/Brussels), Jan. 26, 2007, at 1.
126. Defendant Higgenbotham, Defendant Hersem, and Doe Defendants 1 and 2, also knew, or reasonably should have known, that the widespread human rights violations taking place in Somalia at the time included kidnapping, torture, beatings, harsh and lifethreatening prison conditions, and arbitrary arrest and detention. Country Reports on Human Rights Practices—2006: Somalia, supra.
127. Defendant Higgenbotham, Defendant Hersem, and Doe Defendants 1 and 2 also knew, or reasonably should have known, that Mr. Meshal would face grave danger and risk of serious harm if rendered to Ethiopia because at that time human rights violations were similarly widespread and included, among other things, widespread mistreatment of detainees, poor prison conditions, arbitrary arrest and detention, the detention of thousands of individuals without charge, and lengthy pretrial detention. Bureau of Democracy, Human Rights, & Labor, U.S. Dep’t of State, Country Reports on Human Rights Practices—2006: Ethiopia (March 6, 2007).
128. Defendant Higgenbotham, Defendant Hersem, and Doe Defendants 1 and 2 also knew, or reasonably shown have known, that Ethiopia was more permissive of
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detention without charge than Kenya and that the detention of Mr. Meshal and others there would not face the judicial pressure it had faced from the Kenyan courts. They knew, or reasonably should have known, that if Mr. Meshal was rendered to Ethiopia, FBI agents could ensure Mr. Meshal’s continued detention, and could continue to interrogate him without confronting the prospect that a court would order his release, or that Mr. Meshal would be afforded access to counsel.
129. On information and belief, on February 16, 2007, the FBI Legal Attaché office in Nairobi informed the FBI Office of International Operations in the District of Columbia and the FBI Legal Attaché office in Sanaa, Yemen, which is responsible for FBI activity in Ethiopia, that Mr. Meshal was, or would soon be, in Ethiopia. On information and belief, this information was conveyed to initiate and facilitate the further interrogation of Mr. Meshal by U.S. officials, including Doe Defendant 1, who had interrogated Mr. Meshal in Kenya.
129A. While Mr. Meshal was detained in Kenya, officials of the U.S. embassy in Addis Ababa were made aware of Mr. Meshal’s situation. Prior to Mr. Meshal’s arrival in Ethiopia, these officials were informed that Mr. Meshal was being transferred to Ethiopia to further interrogations by U.S. officials. Assistant Legal Attaché (Sanaa) Carlos Fernandez informed Regional Security Office Michael Bishop, who in turn informed Daniel Gershator, the Chief Consul in the U.S. embassy in Addis Ababa. Mr. Meshal’s Detention in Ethiopia and Continued Interrogation by the FBI
130. When the flight from Somalia landed in Addis Ababa, Ethiopian soldiers escorted Mr. Meshal and the other prisoners off the plane, placed them in the back of a pick-up truck, and drove them approximately thirty minutes to a facility. Soldiers
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removed Mr. Meshal’s blindfold. Mr. Meshal saw the facility, which appeared to be a military barracks.
131. Mr. Meshal immediately recognized some of the prisoners as people whom he had encountered in the jungle between Somalia and Kenya after fleeing the violence in Mogadishu. There were approximately fifty prisoners being held at the facility, including approximately eleven women and thirteen children who had been rendered from Kenya to Ethiopia. Paul Salopek, Renditions Fuel Anger Against U.S., Chicago Tribune, Dec. 4, 2008, available at http://www.chicagotribune.com/news/nationworld/chishadow_war3dec04,0,84409,full.story; U.S. Interrogates Terror Suspects in Ethiopian Jails, Spiegel Online, Jun. 11, 2007, http://www.spiegel.de/international/world/0,1518,487893,00.html.
132. On arrival at the facility, Mr. Meshal was briefly questioned by five or six Ethiopians dressed in civilian clothing. The questioning lasted approximately ten minutes. As in Kenya, the questioning sought only the most basic details from Mr. Meshal.
133. Mr. Meshal tried to ask why he was being held and demanded that he be able to see an attorney. His questions were not answered and his demand to see an attorney was ignored. After this first meeting, Mr. Meshal was never questioned by Ethiopian intelligence, police, or military officers for the remaining three-and-one-half months that he was detained in Ethiopia.
134. The location of the prison facility where Mr. Meshal and the other detainees were held remained secret. Mr. Meshal was placed in a cell with five other prisoners.
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There were four or five other cells in the facility. Mr. Meshal was prohibited from leaving the cell and had extremely limited access to bathroom facilities.
135. Each day, prisoners were taken out of the prison facility and moved to a different location for interrogation. While most prisoners were returned to the facility at the end of the day, on a few occasions certain prisoners did not return for days and sometimes for weeks. When prisoners returned, all said that they had been interrogated by American officials.
136. The Ethiopian government served as the detaining authority for persons of interest to the United States. Human Rights Watch, “Why Am I Still Here?”: The 2007 Horn of Africa Renditions and the Fate of Those Still Missing” 16 (2008).
137. During the three-plus months that Mr. Meshal was imprisoned in Ethiopia, U.S. officials, including FBI agents, actively and substantially participated in the detention and interrogation of individuals in Ethiopia who had fled the violence in Somalia. According to media accounts, one hotel in Addis Ababa “swarmed with U.S. intelligence officers during the processing of detainees” in early 2007 and “many exprisoners have described being interrogated by American agents using names such as ‘Dennis’ or ‘Tom.’” Paul Salopek, Renditions Fuel Anger Against U.S., Chicago Tribune, Dec. 4, 2008, available at http://www.chicagotribune.com/news/nationworld/chishadow_war3dec04,0,84409,full.story. FBI agents interrogated detainees who were believed by the U.S. government to be involved in “terrorist attacks and current threats of terrorism.” Anthony Mitchell, U.S. Agents Visit Ethiopian Secret Jails, Assoc. Press,
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Apr. 3, 2007. One Western diplomat who was working in the region at the time stated the he saw “the United States as playing a guiding role” in the detentions. Id.
138. When, for example, U.S. officials conducting interrogations lost interest in a particular detainee, the detainee was released from custody. Human Rights Watch, supra at 16.
139. On information and belief, U.S. government officials, including officials designated by the Attorney General and the Director of Central Intelligence, ordered, directed, or authorized Doe Defendants 1 and 2, as well as other U.S. agents, to interrogate Mr. Meshal in Ethiopia. On information and belief, these actions were taken pursuant to the procedures set forth on page 17 of The Attorney General’s Guidelines for FBI National Security Investigations and Foreign Intelligence Collection, which were in force at the time and provided that “[t]he FBI may conduct investigations abroad, participate with foreign officials in investigations abroad, or otherwise conduct activities outside the United States with the written request for approval of the Director of Central Intelligence and the Attorney General or their designees.” The Attorney General’s Guidelines for FBI National Security Investigations and Foreign Intelligence Collection 17 (Oct. 31, 2003) (declassified Aug. 2, 2007).
140. After approximately one week of incommunicado detention, on or about February 23, 2007, Mr. Meshal was taken from the prison facility by an Ethiopian guard and driven approximately forty-five minutes to a gated villa where he was subjected to intense interrogation by U.S. agents.
141. Over the next three months, Mr. Meshal was interrogated by U.S. agents at the same gated villa on a regular basis. On each occasion, an Ethiopian named Asafah
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arrived at the prison at approximately 5:00 a.m. and called out Mr. Meshal’s name. Asafah removed Mr. Meshal from the prison, placed him in a Toyota Land Cruiser, drove him to the villa, and escorted him inside. Asafah was not present during Mr. Meshal’s interrogations and never asked Mr. Meshal any questions.
142. On the day of his first interrogation by U.S. officials in Ethiopia, Mr. Meshal was blindfolded before exiting the prison. Once at the villa, Mr. Meshal was guarded by an Ethiopian wearing civilian clothing and carrying a handgun until American interrogators requested him by name. Mr. Meshal’s blindfold was not removed until he was brought into a room with the American interrogators.
143. On later occasions, Mr. Meshal was not blindfolded when taken from the prison to the villa for interrogation and arrived at the villa before the American interrogators. On these occasions, Mr. Meshal waited by the garage or driveway of the villa under close watch of an armed Ethiopian guard and saw Asafah drive to the villa in a vehicle carrying American agents. Sometimes Asafah drove a microbus that carried approximately ten American agents. Other times, Asafah drove a Land Cruiser that carried fewer than ten American agents. The windows of the microbus and Land Cruiser were clear, so Mr. Meshal could see the individuals sitting inside. Mr. Meshal knew that the agents driven by Asafah to the villa were American because, after their arrival at the villa, he heard them speaking English with American accents. Upon arrival at the villa, the agents entered a large room where they waited before separating into smaller groups to interrogate detainees in different rooms in the villa.
144. Only American officials interrogated Mr. Meshal, including Doe Defendant 1, who had participated in Mr. Meshal’s interrogations in Kenya, an American official who
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introduced himself to Mr. Meshal as “Dennis” and an American official who was bald, who did not provide his name, and who participated only in Mr. Meshal’s last interrogation in Ethiopia. No Ethiopian official ever interrogated Mr. Meshal.
145. The individual who introduced himself to Mr. Meshal as “Dennis” is Doe Defendant 2. The true, full, and accurate name of Doe Defendant 2 has been filed with the Court under seal. Doe Defendant 2 was a clean-shaven African-American man, who appeared to be in his late forties and was stocky. He stood about 5’ 10” tall and had short black hair. Doe Defendant 2 usually wore slacks or casual pants, a button-down shirt or polo shirt, and black sneakers or boots when he interrogated Mr. Meshal. On one occasion, Doe Defendant 2 wore a Boys & Girls Club of New York t-shirt. During Doe Defendant 2’s last interrogation of Mr. Meshal, he wore a suit. Doe Defendant 2 told Mr. Meshal that he was from Brooklyn. Doe Defendant 2 spoke with an American accent, although Mr. Meshal could not discern any specific regional accent. Doe Defendant 2 refused to provide his true full name or title to Mr. Meshal. Doe Defendant 2 was a FBI officer and a member of the Joint Terrorism Task Force.
146. Doe Defendant 1 led each of the interrogations of Mr. Meshal in Ethiopia, except for the final interrogation, and was joined at times by Doe Defendant 2. Doe Defendant 2 led the final interrogation of Mr. Meshal in Ethiopia and was joined by the above-mentioned bald American official during the interrogation.
147. The interrogations of Mr. Meshal that took place during the first two months of his detention in Ethiopia generally lasted a full day or close to a full day. On many of these occasions, Mr. Meshal was taken from the prison to the interrogation site early in the morning and returned to the prison after dark. Interrogations that took place during
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the last month of Mr. Meshal’s detention in Ethiopia generally were shorter, typically lasting a few hours or less.
148. On the first day that Mr. Meshal was interrogated by U.S. officials in Ethiopia, Doe Defendant 1 asked Mr. Meshal if he was surprised to see him. Doe Defendant 1 told Mr. Meshal that he and his fellow FBI agents thought Mr. Meshal wasn’t “being truthful” with them in Kenya, which is why Mr. Meshal was now in Ethiopia. Doe Defendant 1 also told Mr. Meshal that his truthfulness now would determine whether he could ever go home. Doe Defendant 2 remained in the background while Doe Defendant 1 conducted the interrogation.
149. Doe Defendant 1 appeared to lead and control all of the interrogations of Mr. Meshal, except the last interrogation. At the beginning of each interrogation that he led, Doe Defendant 1 presented Mr. Meshal with a document to sign, which notified him that he could refuse to answer any questions without a lawyer present. Upon information and belief, the document was a “waiver of rights” (or “advice of rights”) form of the type commonly used by FBI agents prior to conducting an interrogation in the absence of counsel. Each time, Doe Defendant 1 made Mr. Meshal believe that he had no choice except to the sign the document if he ever wanted to go home and that he and other FBI agents would determine whether and when Mr. Meshal could go home. Each time, Mr. Meshal signed the document.
150. During the interrogations, Doe Defendant 1 constantly suggested that Mr. Meshal was a terrorist or had connections to terrorists, had received weapons training and special training to withstand interrogations in an al Qaeda training camp, and had served as a translator for al Qaeda leadership in Somalia. He also asked Mr. Meshal about
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particular people from the United States and people whom he had encountered while fleeing Somalia. Doe Defendant 1 frequently accused Mr. Meshal of lying. Doe Defendant 2 participated in several of the interrogations led by Doe Defendant 1; at other times, Doe Defendant 2 remained silent and stood or sat in the background.
151. During the period in which Mr. Meshal was detained in Ethiopia, other prisoners were also transported to the villa for interrogations. Typically, four or five other prisoners were taken with Mr. Meshal in the Land Cruiser to the villa, where they too were interrogated, each in different rooms. The other prisoners told Mr. Meshal that their interrogations were conducted by non-Ethiopian officials, including the FBI in numerous instances.
152. Mr. Meshal repeatedly asked to speak with a lawyer. Despite these requests, Doe Defendants 1 and 2 directly prohibited and/or actively and substantially participated with Ethiopian officials in prohibiting Mr. Meshal from contacting, or otherwise communicating with, any attorney during the entire time he was detained in Ethiopia.
153. Mr. Meshal was also denied all access to the International Committee for the Red Cross or any other international humanitarian or human rights organization during the entire time he was detained in Ethiopia.
154. While he was not being interrogated, Mr. Meshal remained in his prison cell and handcuffed. Often his hands were cuffed tightly behind his back, making it difficult to sit or lie down. On several occasions, Mr. Meshal was moved to a solitary confinement cell in a nearby courtyard, which was barely large enough to fit Mr. Meshal if he lay down. Mr. Meshal was twice forced to remain in solitary confinement for several days.
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155. On three occasions, Mr. Meshal was taken along with a group of other prisoners for closed proceedings before an Ethiopian military tribunal. The first appearance occurred on or around March 16, 2007. At the tribunal, there were three military judges, a prosecutor, and Arabic, Swahili, Somali, and English translators. The three-member tribunal asked Mr. Meshal a few basic questions: his name and nationality; where he was arrested; whether he had carried a weapon; and whether he had been in military uniform. When Mr. Meshal asked for a lawyer, one of the judges told him that he had no rights until his status had been determined by the tribunal. The judge also said that he would be classified as “innocent,” as an “enemy combatant,” or as an “unlawful enemy combatant.” No formal charges were ever filed against Mr. Meshal, nor was Mr. Meshal ever provided any documentation in connection with the proceeding.
156. A few days after Mr. Meshal’s first appearance before the military tribunal, Mr. Meshal was interrogated. During this interrogation, Doe Defendant 1 immediately asked Mr. Meshal about the military tribunal proceeding. After Mr. Meshal described to him what had happened, Doe Defendant 1 said that Mr. Meshal would be permitted to go back to the United States if Mr. Meshal told him what he wanted to know. Mr. Meshal asked Doe Defendant 1 what more he wanted to know and said that he had told Doe Defendant 1 everything. Doe Defendant 1 replied that he wanted to know the truth. Doe Defendant 1 then interrogated Mr. Meshal again, asking whether he had received explosives training and counter-intelligence training. He also pressed Mr. Meshal to admit that he was connected to al Qaeda. Doe Defendant 1 told Mr. Meshal that he would not be allowed to go home unless Mr. Meshal told him what he wanted to hear.
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157. Although U.S. consular officials in the embassy in Addis Ababa had been fully informed for approximately one month that Mr. Meshal was detained in Ethiopia and that FBI agents were regularly interrogating him, U.S. consular officials did not seek access to Mr. Meshal until after McClatchey Newspapers first reported that Mr. Meshal, an American citizen, was being held at a secret location in Ethiopia, and after the fact of Mr. Meshal’s detention in Ethiopia became public. See American’s Rendition to an Ethiopian Prison Raises New Questions, McClatchey Newspapers, Mar. 16, 2007. Mr. Meshal was provided a consular visit on March 21, 2007 at the Ethiopian security headquarters in the presence of one Ethiopian officer and an officer of the FBI Legal Attaché. Mr. Meshal explained to the consular official the circumstances of his detention.
158. Following increasing media attention surrounding Mr. Meshal’s detention, Mr. Meshal’s Congressman, Representative Rush Holt (D-NJ), began to make inquiries about Mr. Meshal’s status and fate to the FBI and State Department and began to call attention to Mr. Meshal’s plight in Congress.
159. On or about March 29 and April 3, 2007, Mr. Meshal was taken to the Ethiopian National Intelligence and Security Service Headquarters in Addis Ababa for his second and third consular visits. Each visit lasted approximately thirty minutes and occurred in the presence of an Ethiopian officer.
160. On or about April 13, 2007, Mr. Meshal was brought before the Ethiopian military tribunal a second time. He appeared along with approximately eleven other prisoners and was again denied access to counsel. The three-member tribunal told Mr.
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Meshal that it was continuing to assess his status. Again, no formal charges were filed against Mr. Meshal.
161. On or around April 16, 2007, Plaintiff’s father, Mohammed Meshal, contacted the U.S. Ambassador to Ethiopia, Donald Yamamoto, to discuss the proceedings before the Ethiopian military tribunal. Ambassador Yamamoto told him that the outcome of the April 13, 2007 military tribunal proceedings “did not matter” in terms of when Mr. Meshal was to be returned home.
162. On or around May 12, 2007, Mr. Meshal was brought before the Ethiopian military tribunal a third time. He was not individually questioned by the tribunal. Mr. Meshal never received any decision or determination in his case by the military tribunal and no charges were ever filed against him.
163. Prior to, and following, each of the proceedings before the military tribunal, Doe Defendants 1 and 2 continued to interrogate Mr. Meshal at the villa.
164. Defendant Higgenbotham, Defendant Hersem, and Doe Defendants 1 and 2 intentionally prolonged Mr. Meshal’s detention in Ethiopia in order to conduct further interrogations of Mr. Meshal without affording him the rights due to American citizens under the Fourth and Fifth Amendments to the Constitution. Upon information and belief, Doe Defendants 1 and 2 were speaking to Defendants Higgenbotham and Hersem about Mr. Meshal during this time.
165. Upon information and belief, Defendant Higgenbotham, Defendant Hersem and Doe Defendants 1 and 2 communicated repeatedly with U.S. government officials in the FBI, the U.S. Department of Justice, and the U.S. Department of State to report on the progress of their interrogations of Mr. Meshal in Kenya and Ethiopia and to discuss
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whether sufficient evidence existed for federal authorities to transfer Mr. Meshal to the United States for criminal prosecution. Defendants also informed officials of the U.S. embassy in Addis Ababa about their interrogations. Upon information and belief, the FBI officials with whom Defendants Higgenbotham and Hersem and Doe Defendants 1 and 2 communicated about Mr. Meshal included officials in the FBI Office of International Operations in the District of Columbia, other FBI officials located at FBI Headquarters in the District of Columbia, and officials of the FBI Legal Attaché offices in Nairobi, Kenya, and Sanaa, Yemen, both of which are managed by the FBI OIO.
165A. At no point during Mr. Meshal’s detention in Ethiopia did any official of the U.S. embassy in Addis Ababa attempt to assist Mr. Meshal in obtaining counsel, although these officials were aware that Mr. Meshal was being interrogated by U.S. officials in Ethiopia. Mr. Meshal’s Return to the United States
166. On or about May 24, 2007, an Ethiopian guard came to Mr. Meshal’s cell and informed Mr. Meshal that he would be released. No further explanation was provided. Mr. Meshal was then taken to the U.S. Embassy in Addis Ababa. That night, Mr. Meshal was flown back to the United States via Frankfurt. He arrived at John F. Kennedy International Airport on May 26, 2007. During the four months and three days that Mr. Meshal was detained abroad, he had lost approximately eighty pounds.
167. On the flight between Frankfurt and New York, Mr. Meshal noticed two men who seemed to be watching him very closely. Upon arrival in the United States, these men followed Mr. Meshal off the flight and, joined by two other men from the flight, immediately escorted Mr. Meshal to a customs office where he was detained for
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approximately an hour and a half. The customs agents made Mr. Meshal empty his pockets and bag. They questioned him about his travels and his plans upon his return to the United States. At one point, Mr. Meshal heard one of the customs officials yelling into a telephone, asking, “What am I supposed to do with this guy?” Eventually, the customs officials told Mr. Meshal that he was free to leave. Mr. Meshal then met his mother and father at the airport and returned with them to their home in New Jersey.
168. Mr. Meshal was and remains deeply traumatized by his treatment. U.S. officials threatened Mr. Meshal with serious physical and mental abuse, told him that he would be made to “disappear,” and denied him access to counsel and other due process protections. U.S. officials also caused Mr. Meshal to be held, or actively and substantially participated with foreign authorities who caused him to be held, in stark and inhuman conditions without charge or legal basis. As the result of actions by these U.S. officials, Mr. Meshal suffered physical injuries, pain and suffering, and severe mental anguish, as well as the loss of income and livelihood. Partial Identification of Doe Defendant 1
169. On or around April 20, 2009, Mr. Meshal was watching a television news report about an alleged Somali pirate being brought to New York to face federal charges. The report aired video footage of federal law enforcement officers escorting the defendant out of a federal courthouse in New York and identified the officers as FBI agents. Mr. Meshal immediately recognized the agent standing to the right of the defendant as Doe Defendant 1, the U.S. official who had repeatedly interrogated Mr. Meshal in both Kenya and Ethiopia. Mr. Meshal had a clear memory of Doe Defendant 1’s face and hairline, which permitted Mr. Meshal to recognize Doe Defendant 1 on
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television despite the fact that Doe Defendant 1 no longer wore the beard he had maintained in Kenya and Ethiopia. Astounded to see one of his interrogators on American television, Mr. Meshal watched the entire show and then found other channels showing similar video footage of Doe Defendant 1 escorting the defendant out of federal court. Each channel identified the agents escorting the defendant as FBI or federal law enforcement officers.
170. Mr. Meshal then conducted an Internet search for “Somali pirate in New York.” Through the search, Mr. Meshal located a photo of Doe Defendant 1 standing to the right side of the alleged Somali pirate and escorting him, which matched the video footage he had seen on television. The caption to the photo indicated that the law enforcement agents were FBI officers. Filing of this Lawsuit and Amendment of the Complaint
170A. On November 10, 2009, Mr. Meshal filed this lawsuit against the Defendants. 170B. On May 10, 2010, Mr. Meshal filed an amended complaint. 170C. On October 16, 2011, a U.S. government official contacted Mr. Meshal’s counsel by email. He wrote: “As a US government official posted to Addis Ababa during Amir Meshal’s detainment and interrogation in Ethiopia, I feel a responsibility to point out an incorrect allegation in Mr. Meshal’s complaint dated May 10th, 2010. Mr. Meshal’s complaint alleges that Department of State Consular officials were not informed of his circumstances and presence in Ethiopia until March 21, 2007. This is wholly inaccurate. Prior to Mr. Meshal’s arrival in Ethiopia in February 2007, most of the senior embassy staff were briefed on the situation. Most notably, Dan Gershator,
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chief of the Consular Section, was fully informed that a US citizen was being transferred to the custody of the Ethiopians to further US interrogations of this US citizen.”
170D. On December 7, 2011, the same U.S. government official again wrote to Mr. Meshal’s counsel by email: “Your assertion that U.S. officials used foreign proxies to detain Mr. Meshal when said foreign governments would not normally have detained your client is absolutely correct.” The U.S. official also wrote that U.S. consular officials in Addis Ababa did not seek access to Mr. Meshal upon his arrival in Ethiopia, as they have done for every other U.S. citizen arrested in that country for the last seven years, and that the “FBI/JTTF was given carte blanche to do as they pleased with Mr. Meshal.”
CAUSES OF ACTION I: FIFTH AMENDMENT (Violation of Substantive Due Process) 171. Defendants’ actions described herein violate the Due Process Clause of the Fifth Amendment to the Constitution, which prohibits any person acting under color of U.S. law from subjecting or conspiring to subject any individual in U.S. custody or control to conduct that “shocks the conscience.” 172. Defendants’ violations of Plaintiff’s Due Process rights give rise to a cause of action for damages directly under the Fifth Amendment, pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). 173. Defendant Higgenbotham and Defendant Hersem are liable for violating Plaintiff’s substantive due process rights because they personally subjected Plaintiff to threats of torture, serious injury, disappearance, and other serious harms during custodial interrogations in Kenya.
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174. Doe Defendant 1 is also liable for violating Plaintiff’s substantive due process rights because he actively and substantially participated in the coercive interrogations of the Plaintiff in Kenya, during which he was threatened with torture, serious injury, disappearance, and other serious harms.
175. Defendant Higgenbotham, Defendant Hersem and Doe Defendant 1 are also liable for the violation of Plaintiff’s substantive due process rights because they directed, authorized, approved, conspired to effect, and/or actively and substantially participated in Mr. Meshal’s detention in Kenya without due process and his illegal rendition from Kenya to Somalia and Ethiopia. As a result of these decisions, Plaintiff was subjected to treatment that shocks the conscience.
176. Defendant Higgenbotham, Defendant Hersem, and Doe Defendants 1 and 2 are also liable for the violation of Plaintiff’s substantive due process rights in Somalia and Ethiopia because they were aware of the danger and risk of serious harm that Plaintiff faced if rendered to these countries from Kenya, including prolonged arbitrary detention and physical and mental abuse in detention, and because the Defendants took affirmative steps that created and/or increased this danger and risk, which did, in fact, result in serious to harm to Plaintiff.
177. Doe Defendants 1 and 2 are liable for the violation of Plaintiff’s substantive due process rights because they directed, authorized, approved, conspired to effect, and/or actively and substantially participated in Mr. Meshal’s custodial interrogation in Ethiopia and further detention of over three months in that country. As a result of these decisions, Plaintiff was subjected to treatment that shocks the conscience.
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178. Each defendant had actual or constructive knowledge that his conduct toward Plaintiff violated his due process rights, and each had actual or constructive knowledge that his actions, orders, or omissions would lead to such violations.
179. Defendants acted under color of official authority in violating Plaintiff’s due process rights.
180. Defendants’ actions were a proximate cause of the violation of Plaintiff’s due process rights. Plaintiff was a foreseeable victim of these acts.
181. Defendants’ violations of Plaintiff’s due process rights caused Plaintiff to suffer damages, including mental and emotional pain and suffering, in an amount to be determined at trial.
182. Defendants’ violations of Plaintiff’s substantive due process rights were deliberate, willful, intentional, wanton, malicious, and oppressive, and should be punished by an award of punitive damages in an amount to be determined at trial.
II: FIFTH AMENDMENT (Violation of Procedural Due Process) 183. Defendants’ actions described herein violated the rights of Plaintiff under the Due Process Clause of the Fifth Amendment to the United States Constitution by depriving him of liberty without due process of law. 184. Defendants’ orders, authorizations, and other actions violated Plaintiff’s due process rights by: (a) subjecting him to prolonged, arbitrary, and indefinite detention without charges of any kind; (b) denying him access to a court or other meaningful process to challenge the legality of his detention; and (c) denying him access to counsel.
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185. Defendants’ actions, authorizations, and other actions depriving Plaintiff of his procedural due process rights give rise to a cause of action for damages directly under the Fifth Amendment, pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).
186. Defendant Higgenbotham and Defendant Hersem are liable for violating Plaintiff’s due process rights because they directed, authorized, conspired to effect, and/or actively and substantially participated in Mr. Meshal’s illegal detention and custodial interrogation in Kenya and his illegal rendition to Somalia and Ethiopia, without due process of law.
187. Defendant Higgenbotham and Defendant Hersem are also liable for the violation Plaintiff’s Fifth Amendment rights because Plaintiff’s arbitrary, prolonged, and illegal detention in Somalia and Ethiopia without due process of law was the foreseeable result of Mr. Meshal’s illegal rendition from Kenya to Somalia and Ethiopia.
188. Doe Defendant 1 is liable for violating Plaintiff’s Fifth Amendment rights because he directed, authorized, conspired to effect, and/or actively and substantially participated in Plaintiff’s detention and custodial interrogation in Kenya, his illegal rendition to Somalia and Ethiopia, his continued detention in Somalia and Ethiopia for over three months, and his custodial interrogation in Ethiopia, all of which occurred without due process of law.
189. Doe Defendant 2 is liable for violating Plaintiff’s Fifth Amendment rights because he directed, authorized, conspired to effect, and/or actively and substantially participated in Mr. Meshal’s rendition to Somalia and Ethiopia, his continued detention in
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Somalia and Ethiopia for over three months, and his custodial interrogation in Ethiopia, all of which occurred without due process of law.
190. Each defendant had actual or constructive knowledge that the detention, rendition, and custodial interrogation of Plaintiff violated Plaintiff’s due process rights, and each had actual or constructive knowledge that his actions, orders, practices, and/or omissions would lead to such violations.
191. Defendants acted under color of official authority in violating Plaintiff’s due process rights.
192. Defendants’ actions were a proximate cause of the violation of Plaintiff’s due process rights. Plaintiff was a foreseeable victim of these acts.
193. Defendants’ violations of Plaintiff’s due process rights caused Plaintiff to suffer damages, including mental and emotional pain and suffering, in an amount to be determined at trial.
194. Defendants’ violations of Plaintiff’s due process rights were deliberate, willful, intentional, wanton, malicious, and oppressive, and should be punished by an award of punitive damages in an amount to be determined at trial.
III: FOURTH AMENDMENT (Detention without Prompt Judicial Hearing) 195. Defendants’ actions described herein violated the rights of Plaintiff under the Fourth Amendment to the Constitution. 196. The actions, orders, authorizations, and other conduct of Defendant Higgenbotham, Defendant Hersem, and Doe Defendants 1 and 2 violated Plaintiff’s Fourth Amendment rights by subjecting him to prolonged, arbitrary, and indefinite
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detention without probable cause, without charge, and without any other prompt and effective process to challenge the legality of his detention.
197. Defendants’ actions, orders, and authorizations, which deprived Plaintiff of his rights, give rise to a cause of action for damages directly under the Fourth Amendment, pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).
198. Defendant Higgenbotham, Defendant Hersem, and Doe Defendants 1 and 2 are liable for violating Plaintiff’s Fourth Amendment rights because they directed, authorized, conspired to effect, or actively and substantially participated in Plaintiff’s prolonged detention without probable cause, and because they failed to provide him with access to a court or prompt, effective legal process to challenge the legality of his detention.
199. Each defendant had actual or constructive knowledge that his detention of Plaintiff violated Plaintiff’s Fourth Amendment rights, and each had actual or constructive knowledge that his actions, orders, policies, practices, and/or omissions would lead to such violations.
200. Defendants acted under color of official authority in violating Plaintiff’s Fourth Amendment rights.
201. Defendants’ actions were a proximate cause of the violation of Plaintiff’s Fourth Amendment rights. Plaintiff was a foreseeable victim of these acts.
202. Defendants’ violations of Plaintiff’s Fourth Amendment rights caused Plaintiff to suffer damages, including mental and emotional pain and suffering, in an amount to be determined at trial.
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203. Defendants’ violations of Plaintiff’s Fourth Amendment rights were deliberate, willful, intentional, wanton, malicious, and oppressive, and should be punished by an award of punitive damages in an amount to be determined at trial.
IV: TORTURE VICTIM PROTECTION ACT OF 1991 28 U.S.C. § 1350, note
204. Defendant Higgenbotham’s and Defendant Hersem’s actions described herein violated the rights of Plaintiff under the Torture Victim Protection Act of 1991, 28 U.S.C. § 1350, note.
205. Defendants Higgenbotham and Hersem are liable for violating the TVPA because they personally and intentionally subjected Plaintiff to severe mental pain and suffering through extreme, outrageous, deliberate, and unusually cruel practices during their custodial interrogations of Plaintiff in Kenya. Such practices include threatening to send Mr. Meshal to Israel where he would be made to “disappear”; threatening to send Mr. Meshal to Egypt or another place where he would be tortured in a manner similar to the torture exacted upon the protagonist of the film, “Midnight Express”; threatening to send Mr. Meshal to Somalia, where law and order had broken down and where Mr. Meshal feared he would be killed (and where Mr. Meshal was subsequently rendered); warning Mr. Meshal that they “had ways of getting the information they want” by making him afraid for his life and safety; and threatening Mr. Meshal that “even [his] grandkids” would be negatively affected unless Mr. Meshal admitted to the connections that Defendant Higgenbotham and Defendant Hersem accused him of having.
206. Defendants Higgenbotham and Hersem intentionally subjected Mr. Meshal to torture in an effort to coerce him into confessing that he was connected to and/or had
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supported al Qaeda, even though Mr. Meshal had never supported, and was not connected to, al Qaeda and had repeatedly denied any such support or connection.
207. Defendant Higgenbotham’s and Defendant Hersem’s actions, orders, and authorizations that deprived Plaintiff of his rights give rise to a cause of action for damages directly under the TVPA, 28 U.S.C. § 1350, note.
208. Defendants Higgenbotham and Hersem each had actual or constructive knowledge that his torture of Plaintiff violated Plaintiff’s rights under the TVPA ,and each had actual or constructive knowledge that his actions, orders, policies, and/or practices would lead to such violations.
209. Defendants Higgenbotham and Hersem acted under actual or apparent authority of the Kenyan government and/or under the color of Kenyan law in conducting their interrogations of Plaintiff.
210. While Mr. Meshal was in nominal or apparent Kenyan custody (but was being detained at the direction, behest, and/or with the active and substantial participation of U.S. officials), Defendants Higgenbotham and Hersem subjected Mr. Meshal to interrogations during which they tortured Mr. Meshal. In order to conduct these interrogations, Defendants Higgenbotham and Hersem conspired with Kenyan officials, acted as willful participants in joint activity with Kenyan officials, and/or engaged in actions entwined with Kenyan authorities’ detention of Mr. Meshal.
211. Alternatively, even if Mr. Meshal was under actual Kenyan custody (and was not detained at the direction, behest, and/or with the active and substantial participation of U.S. officials), Defendants Higgenbotham and Hersem subjected Mr. Meshal to interrogations during which they tortured Mr. Meshal. In order to conduct these
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Case 1:09-cv-02178-EGS Document 51 Filed 02/21/12 Page 62 of 63
interrogations, Defendants Higgenbotham and Hersem conspired with Kenyan officials, acted as willful participants in joint activity with Kenyan officials, and/or engaged in actions entwined with Kenyan authorities’ detention of Mr. Meshal.
212. Defendants’ actions were a proximate cause of the violation of Plaintiff’s rights under the TVPA. Plaintiff was a foreseeable victim of these acts.
213. Defendants’ violations of Plaintiff’s rights under the TVPA caused Plaintiff to suffer damages, including severe mental and emotional pain and suffering, in an amount to be determined at trial.
REQUEST FOR RELIEF
WHEREFORE, Plaintiff respectfully requests that this Court enter a judgment including: A. Compensatory damages in an amount to be proven at trial; B. Punitive damages in an amount to be determined at trial; C. Reasonable attorneys’ fees and costs of suit; and D. Such other relief as the Court deems just and proper.
PLAINTIFF DEMANDS A JURY TRIAL ON ALL ISSUES SO TRIABLE.
Respectfully submitted, /s/ Nusrat Choudhury Nusrat J. Choudhury Ben Wizner American Civil Liberties Union Foundation 125 Broad Street, 18th Floor New York, NY 10004 Phone: 212-549-2500, Fax: 212-549-2583 nchoudhury@aclu.org bwizner@aclu.org
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Case 1:09-cv-02178-EGS Document 51 Filed 02/21/12 Page 63 of 63

January 18, 2012

Jonathan Hafetz 169 Hicks Street Brooklyn, NY 11201 Phone: 917-355-6896 hafetzj@yahoo.com
Arthur B. Spitzer (D.C. Bar No. 235960) American Civil Liberties Union
of the Nation’s Capital Area 1400 20th Street, N.W., Suite 119 Washington, D.C. 20036 Phone: (202) 457-0800, Fax: (202) 452-1868 artspitzer@aol.com
Hope R. Metcalf National Litigation Project of the Allard K.
Lowenstein International Human Rights Clinic Yale Law School P.O. Box 209090 New Haven, CT 0650-9090 Phone: (203) 432-9404, Fax: (203) 432-9128 hope.metcalf@yale.edu
Counsel for Plaintiff Amir Meshal

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 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

________________________________

)

AMIR MESHAL,

)

)

Plaintiff,

)

)

v.

)

)

CHRIS HIGGENBOTHAM, et al.,

)

)

Defendants.

)

________________________________)

Case No. 1:09-2178 (EGS)

MEMORANDUM OPINION 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 (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

1

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.
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I. BACKGROUND 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
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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,
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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
5

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. 1 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
1 Maldonado was taken back to the U.S. from Kenya and charged in U.S. courts with receiving military-type training from a foreign terrorist organization. Sec. Am. Compl. ¶ 120. According to one U.S. official, Mr. Meshal was not brought home because there was insufficient evidence to detain or charge him in the United States. Id. ¶ 121.
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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
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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
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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
9

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 (1971); and (2)
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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 (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 Atl. Corp. v. Twombly, 550 U.S. 544, 555 (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 (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] legal conclusions cast in the form of factual allegations.”
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Id. “[O]nly a complaint that states a plausible claim for relief survives a motion to dismiss.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).
III. ANALYSIS A. Plaintiff Has Alleged Deprivations of His Constitutional
Rights In analyzing a Bivens claim, a court must first “identify the exact contours of the underlying right said to have been violated” and determine “whether the plaintiff has alleged a deprivation of a constitutional right at all.” Cnty. of Sacramento v. Lewis, 523 U.S. 833, 841 n.5 (1998); Al-Aulaqi v. Panetta, Civ. No. 12-1192, 2014 U.S. Dist. LEXIS 46689 *37 (D.D.C. Apr. 4, 2014). Plaintiff has stated a plausible violation of both the Fourth and Fifth Amendments. It has been “well settled” for over fifty years that “the Bill of Rights has extraterritorial application to the conduct abroad of federal agents directed at United States citizens.” United States v. Toscanino, 500 F.2d 267, 280-81 (2d Cir. 1974). The United States is entirely a creature of the Constitution. Its power and authority have no other source. It can only act in accordance with all the limitations imposed by the Constitution. 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.
Reid v. Covert, 354 U.S. 1, 5-6, (1957) (plurality).
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Plaintiff has alleged that Defendants violated his Fourth
Amendment rights by detaining him for four months without a
probable cause hearing. The Fourth Amendment requires a
“prompt” hearing to assess the sufficiency of evidence
supporting detention. See Gerstein v. Pugh, 420 U.S. 103, 125
(1975). “The touchstone of [such an inquiry] is
reasonableness.” United States v. Knights, 534 U.S. 112, 118
(2001). In the criminal context, a detained individual must
receive a hearing within 48 hours of seizure. County of
Riverside v. McLaughlin, 500 U.S. 44, 56 (1991). Non-citizens
detained under the USA Patriot Act must receive a probable cause
hearing within seven days. See 8 U.S.C. § 1226a(a)(5).
Plaintiff has plausibly alleged that his detention without a
hearing for four months – particularly when Defendants told him
over and over that they had the power to send him back to the United States at any time – is unreasonable.2
2 The Second Circuit has recognized that the Fourth Amendment attaches “where the cooperation between the United States and law enforcement officials is designed to evade constitutional requirements applicable to American officials.” U.S. v. Maturo, 982 F.2d 57, 61 (2d Cir. 1992). Mr. Meshal claims exactly that. He alleges that Defendants told him if he confessed his involvement with al Qaeda he would immediately be returned to the United States. to face civilian courts, but if he refused to answer more questions he would be returned to Somalia. Sec. Am. Compl. ¶ 87. Plaintiff claims that another individual detained under similar circumstances, Daniel Maldonado, was in fact returned to the United States to be charged after he confessed to receiving terrorist training, and alleges Defendants deliberately kept Plaintiff from returning home because they did
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Mr. Meshal also asserts that Defendants deprived him of his
Fifth Amendment right to substantive due process by, inter alia,
coercively interrogating him during his detention and
extraordinary rendition, including threatening him with torture, disappearance and death. Sec. Am. Compl. ¶¶ 86-88. 3
To state a substantive due process claim, a plaintiff must
assert that government officials were so “deliberately
indifferent” to his constitutional rights that the officials’
conduct “shock[s] the . . . conscience.” Estate of Phillips v.
Dist. of Columbia, 455 F.3d 397, 403 (D.C. Cir. 2006). Every
substantive due process inquiry “demands an exact analysis of
circumstances before any abuse of power is condemned as
conscience shocking.” Lewis, 523 U.S. at 850.
The parties have cited no case law examining the precise
substantive due process rights of a U.S. citizen coercively
interrogated while on foreign soil. The government concedes,
however, that coercive interrogation, standing alone, may give
rise to a substantive due process claim. Defs.’ Mot. to Dismiss
not have enough information to charge him. Id. ¶¶ 120-21. These allegations do not suggest that it was “unreasonable” for Mr. Meshal to expect a probable cause hearing; to the contrary, Defendants deliberately refused to provide him access to one. 3 Mr. Meshal has also alleged other violations of his Fifth Amendment rights; however, it is unnecessary to determine whether each and every one would go forward. For the purpose of the Bivens analysis, it is enough to conclude that Plaintiff has plausibly alleged a deprivation of at least some constitutional rights. Lewis, 523 U.S. at 841, n.5.
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at 30; see Chavez v. Martinez, 538 U.S. 760, 779 (2003). Within the United States, plaintiffs may state a claim for a substantive due process violation where they have been verbally threatened with “the terror of instant and unexpected death at the whim of [their] . . . custodians,” Burton v. Livingston, 791 F.2d 97, 100 (8th Cir. 1986), or when the interrogation is “so terrifying in the circumstances . . . that [it] is calculated to induce not merely momentary fear or anxiety, but severe mental suffering.” Wilkins v. May, 872 F.2d 190, 195 (7th Cir. 1989). In this case, Plaintiff has alleged that FBI agents threatened him with torture, disappearance, and death if he did not immediately confess to his interrogators that he was a terrorist. These threats were made when Mr. Meshal was thousands of miles from home, in a foreign prison where he had no access to any country’s legal system, and with no idea when, if ever, he would be allowed to see a lawyer, face charges, or return home. Under these circumstances, accepting the allegations of the Complaint as true, the Court finds he has stated a plausible substantive due process claim.
The Court does not determine whether Mr. Meshal would prevail on his constitutional claims, if he were permitted to assert them. It does, however, hold that he has stated a “plausible claim for relief” under the Fourth and Fifth Amendments to the Constitution. Iqbal, 556 U.S. at 679.
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B. Binding Precedent Deprives Mr. Meshal of a Remedy for the Alleged Deprivations of His Constitutional Rights. 1. Mr. Meshal Has No Other Remedies: It is “Damages or Nothing.” In Bivens v. Six Unknown Agents of Federal Bureau of
Narcotics, 403 U.S. 388, 389 (1971), the Supreme Court established that victims of constitutional violations by a federal agent have a right to recover damages against the official in federal court despite the absence of a statute conferring that right.4 A court follows a two-step process to determine whether a Bivens remedy is available. First, it must consider whether “any alternative, existing process for protecting the interest amounts to a convincing reason for the Judicial Branch to refrain from providing a new and freestanding remedy in damages.” Wilkie v. Robbins, 551 U.S. 537, 550 (2007) (citations omitted). If an alternative remedy does not exist, the court proceeds to step two: “mak[ing] the kind of remedial determination that is appropriate for a common-law tribunal, paying particular heed, however, to any special factors counselling hesitation before authorizing a new kind of federal litigation.” Bush v. Lucas, 462 U.S. 367, 378 (1983); see also Bivens, 403 U.S. at 396 (a cause of action for damages against
4 “A Bivens suit is the federal counterpart of a claim brought pursuant to 42 U.S.C. § 1983 against a state or local officer/employee for the violation of the claimant's constitutional rights.” Rasul v. Myers, 512 F.3d 644, 652 n.2 (D.C. Cir. 2008), vacated, 555 U.S. 1083 (2008).
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federal officials may not lie where there are “special factors counseling hesitation in the absence of affirmative action by Congress.”). These special factors “relate not to the merits of a particular remedy, but to the question of who should decide whether such a remedy should be provided.” Sanchez-Espinoza v. Reagan, 770 F.2d 202, 208 (D.C. Cir. 1985) (citations omitted).
The parties agree that Mr. Meshal has no alternative remedy for his constitutional claims. “Without [Bivens], Meshal has no recourse and the judiciary will be powerless to vindicate the constitutional rights of a U.S. citizen against illegal detention and mistreatment by officials of his own government. Here, as in Bivens, it is ‘damages or nothing.’” 5 Pl.’s Opp’n at 8, (quoting Bivens, 403 U.S. at 410 (Harlan, J., concurring)). They dispute, however, whether “special factors counsel hesitation” in implying a Bivens cause of action on these facts.
5 Plaintiff has also alleged a violation of the Torture Victim Protection Act, 28 U.S.C. § 1350, note (“TVPA”), which, if successful, would provide a partial, limited remedy against two of the individual Defendants for the use of torturous interrogation techniques. Sec. Am. Compl. ¶¶ 204-13. The TVPA, however, is not available to Mr. Meshal. In Doe v. Rumsfeld, this Circuit reaffirmed that the TVPA “[does] not include as possible defendants either American government officers or private U.S. persons.” 683 F.3d 390, 396 (D.C. Cir. 2012) (quoting Saleh v. Titan Corp., 580 F.3d 1, 16 (D.C. Cir. 2009). Accordingly, Plaintiff’s TVPA claim must be DISMISSED.
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2. The Special Factors Counseling Hesitation Defendants argue that “matters implicating national security and intelligence operations, particularly those involving foreign governments, are ‘the province and responsibility of the Executive.’” Defs.’ Mot. to Dismiss Pl.’s Am. Compl. at 11 (quoting Dep’t of Navy v. Egan, 484 U.S. 518, 529-30 (1988)). Defendants argue that Mr. Meshal is essentially attacking the nation’s foreign policy, specifically joint operations in the Horn of Africa and executive policies which permit FBI agents to conduct and participate in investigations abroad. Id. at 12. They claim that, if allowed to go forward, Mr. Meshal’s claims would interfere with the management of our country’s relations with other sovereigns, a power constitutionally allocated to the executive branch. Id. at 13. Defendants argue that this is not the judiciary’s role, impinges on bedrock separation of powers principles, and would “undermine the Government’s ability to speak with one voice in this area.” Id. (quoting Munaf v. Geren, 128 S.Ct. 2207, 2226 (2008)). In a related argument, Defendants claim the litigation would threaten national security by necessitating inquiry into, inter alia, specific terrorist threats, substances and sources of intelligence, and the extent to which other countries cooperate with the United States. Id. at 13-14. Defendants also argue that this litigation would “enmesh foreign countries and their
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officials in civil litigation in U.S. courts,” which could impact relations with those countries. Id. at 16.
Plaintiff responds that no special factors counsel hesitation in this case. First, he argues that he does not challenge the nation’s foreign policy. “[R]ather, this suit concerns only the manner in which four federal law enforcement officers treated a U.S. citizen . . . . Recognizing a judicial remedy here would not prevent the government from carrying out counter-terrorism operations in the Horn of Africa . . . . It would require only that U.S. officials abide by the Constitution in their treatment of U.S. citizens during the course of those operations[.]” Pl.’s Opp’n at 9-10. Plaintiff maintains that separation of powers principles underscore why this Court should permit a Bivens remedy here: the Court would be performing its traditional role of protecting the constitutional rights of a U.S. citizen. Id. at 10-11. Plaintiff contends that Defendants should not be able to escape their constitutional obligations to American citizens “by directing or colluding with foreign actors or hiding behind the fig-leaf of a foreign custodian.” Id. at 11. In response to Defendants’ predictions that the litigation would entail a broad-based inquiry into matters of national security and foreign affairs, Plaintiff argues that while the litigation “may require some inquiry into the Defendants’ relationship and communication with foreign officials,” the
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focus of the litigation is on conduct by U.S. officials against a U.S. citizen. Id. at 14. Plaintiff further argues that the judiciary has the experience and institutional competence to conduct necessary inquiries into cooperation between the United States and foreign governments, as well as matters involving national security. Id. at 14-15.
3. The Judiciary’s Traditional Ability to Protect the Rights of American Citizens
In Bivens, the Supreme Court held that a damages remedy exists in the rare case in which “[t]he mere invocation of federal power by a federal law enforcement official will normally render futile any attempt to resist. . . . In such case, there is no safety for the citizen, except in the protection of judicial tribunals, for rights which have been invaded by the officers of the government, professing to act in its name.” Bivens, 403 U.S. at 394-95 (citing Weeks v. United States, 232 U.S. 383, 386 (1914); United States v. Lee, 106 U.S. 196, 219 (1882) (emphasis added)). Even when such conduct is committed overseas, the judiciary has historically concluded it still has a role in applying the protections of the Constitution to U.S. citizens. See Reid v. Covert, 354 U.S. at 5-6 (plurality opinion)(“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
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liberty should not be stripped away just because he happens to
be in another land.”).
In Sanchez-Espinoza v. Reagan, 770 F.2d 202, 209 (D.C. Cir.
1985), this Circuit declined to imply a Bivens remedy for
Nicaraguan citizens. In that case, the plaintiffs claimed that
as a result of American support, the Contras carried out
widespread attacks on Nicaraguan civilians. The D.C. Circuit
relied heavily on the fact that the plaintiffs were foreign
nationals:
Just as the special needs of the armed forces require the courts to leave to Congress the creation of damage remedies against military officers for allegedly unconstitutional treatment of soldiers, so also the special needs of foreign affairs must stay our hand in the creation of damage remedies against military and foreign policy officials for allegedly unconstitutional treatment of foreign subjects causing injury abroad. . . . [T]he danger of foreign citizens= using the courts in situations such as this to obstruct the foreign policy of our government is sufficiently acute that we must leave to Congress the judgment whether a damage remedy should exist. 770 F.2d at 208-209 (internal citations omitted). See also Arar
v. Ashcroft, 585 F.3d 559, 575-76 (2d Cir. 2009) (foreign
nationals may not seek damages against U.S. officials for
actions abroad, relying on Sanchez-Espinoza); In re Iraq &
Afghanistan Detainees Litig., 479 F.Supp.2d 85, 105-106 (D.D.C. 2007) (same), aff=d Ali v. Rumsfeld, 649 F.3d 762 (D.C. Cir.
2011).
21

By contrast, where American citizens’ constitutional interests are at stake, courts have traditionally been far less willing to allow foreign policy concerns to extinguish the role of the judiciary. In Ramirez de Arellano v. Weinberger, 745 F.2d 1500 (D.C. Cir. 1984), this Circuit allowed a U.S. citizen to sue for declaratory and injunctive relief when the U.S. military seized his ranch in Honduras. The Court held that “[w]hile separation of powers concerns may outweigh judicial adjudication in the typical case involving a foreign act of state, the prudential balance may shift decidedly when [U.S.] citizens assert constitutional violations by [U.S.] officials. . . . [T]eaming up with foreign agents cannot exculpate officials of the United States from liability to [U.S.] citizens for the United States officials’ unlawful acts.” Id. at 1542-43. Likewise, in Abu Ali v. Ashcroft, 350 F.Supp.2d 28, 61 (D.D.C. 2004), the district court found that an American citizen indefinitely detained in a Saudi Arabian prison, allegedly at the behest of U.S. authorities, could challenge his detention in a habeas proceeding. The district court acknowledged the considerable authority of the executive branch in diplomatic relations, and noted that such authority would “cabin the Court’s inquiry” so as not to intrude on executive functions. Id. Ultimately, however, the court found “there is simply no authority or precedent . . . for [the government=s] suggestion
22

that the executive=s prerogative over foreign affairs can overwhelm to the point of extinction the basic constitutional rights of citizens of the [U.S.] to freedom from unlawful detention by the executive.” Id. at 61-62. Finally, in Hamdi v. Rumsfeld, 542 U.S. 507, 535-36 (2004), the Supreme Court rejected the argument that separation of powers principles prohibit the judiciary from examining the indefinite detention of American citizens by their own governments, even when the detainee is captured on a foreign battlefield fighting against the U.S., and even when he has been designated an enemy combatant. “[T]he position that the courts must forgo any examination of the individual case . . . serves only to condense power into a single branch of government.” Hamdi, 542 U.S. at 535-36 (emphasis in original). “We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens.” Id. at 536 (emphasis added).
In short, when the constitutional rights of American citizens are at stake, courts have not hesitated to consider such issues on their merits even when the U.S. government is allegedly working with foreign governments to deprive citizens of those rights. United States v. Yousef, 327 F.3d 56, 145 (D.C. Cir. 2003) (for suppression purposes, courts must inquire into statements elicited in overseas interrogation conducted by
23

foreign police to determine whether U.S. agents actively participated in the questioning, or used the foreign for the interrogation in order to circumvent constitutional requirements such as Miranda); United States v. Toscanino, 500 F.2d 267, 281 (2d Cir. 1974) (trial court must conduct an evidentiary inquiry to determine whether the defendant was brought into the jurisdiction of court through abduction at the hands of foreign officials at the behest of U.S.); Berlin Democratic Club v. Rumsfeld, 410 F. Supp. 144, 155 (D.D.C. 1976) (plaintiffs were entitled to discovery of facts which would show that the German government wiretapped American citizens at the direction of the United States).
4. Doe, Lebron, and Vance Notwithstanding our courts’ long history of providing judicial access to citizens whose rights are violated by our government, in the last two years, three courts of appeals, including this Circuit, have dismissed Bivens actions by U.S. citizens alleging constitutional violations by U.S. government officials. In Lebron v. Rumsfeld, 670 F.3d 540 (4th Cir. 2012), cert. denied, 132 S. Ct. 2751 (2012), the Fourth Circuit refused to recognize a Bivens remedy for Jose Padilla, an American citizen detained as an enemy combatant and allegedly tortured for three years while in U.S. military custody. The circuit rejected
24

Padilla’s claims against seven defendants, high ranking policy makers as well as the two former commanders of the Naval Consolidated Brig in which he was held. It found that under separation of powers principles, the Constitution assigned the legislature plenary control over the military establishment, and the President control over national security and military affairs as Commander in Chief. Lebron, 670 F.3d at 549 (citing U.S. Const. art. II, § 2, cl. 1); see also Dep’t of Navy v. Egan, 484 U.S. 518, 530 (1988) (judges “traditionally have been reluctant to intrude upon the authority of the Executive in military and national security affairs”); Winter v. NRDC, Inc., 555 U.S. 7, 24, 26 (2008) (courts must afford “great deference” to what “the President – the Commander in Chief – has determined . . . to [be essential to] national security”). The Lebron court explicitly found the question of citizenship not to be dispositive, as “[t]he source of hesitation is the nature of the suit and the consequences flowing from it, not just the identity of the plaintiff.” 670 F.3d at 554. The court found that the plaintiff’s lawsuit would intrude into military affairs, in violation of the separation of powers. Id. at 550. It also found troubling that the lawsuit challenged the government’s detainee policies, both as applied to Padilla and much more generally.
25

In short, Padilla’s complaint seeks . . . to have the judiciary review and disapprove sensitive military decisions made after extensive deliberations within the executive branch as to what the law permitted, what national security required, and how best to reconcile competing values. It takes little enough imagination to understand that a judicially devised damages action would expose past executive deliberations affecting sensitive matters of national security to the prospect of searching judicial scrutiny.
Id. at 551. The Lebron court recognized that people may “not
agree with [these] policies. [People] may debate whether they
were or were not the most effective counterterrorism strategy.
But the forum for such debates is not the civil cause of action
pressed in the case at bar. The fact that Padilla disagrees
with policies allegedly formulated or actions allegedly taken
does not entitle him to demand the blunt deterrent of money
damages under Bivens to promote a different outcome.” Id. at
552.
In Doe v. Rumsfeld, 683 F.3d 390 (D.C. Cir. 2012) pet. for
reh’g en banc denied, 2012 U.S. App. LEXIS 15717 (D.C. Cir. July
30, 2012), the D.C. Circuit refused to allow a Bivens remedy for
a U.S. citizen, a government contractor who alleged he was
illegally detained, interrogated, and tortured for nearly ten
months on a U.S. military base in Iraq before being released
without charges. The Doe court began with the observation that
courts have been reluctant to extend Bivens remedies to new
contexts, and “[t]he Supreme Court has never implied a Bivens
26

remedy in a case involving the military, national security, or intelligence . . . caution[ing] that matters intimately related to . . . national security are rarely proper subjects for judicial intervention.” Id. at 394-95 (internal citations and quotation marks omitted). With respect to intelligence gathering, the court observed that the D.C. Circuit had recently declined to recognize a Bivens cause of action in Wilson v. Libby, in which undercover CIA operative Valerie Plame and her husband Joseph Wilson sought a Bivens remedy from Bush Administration officials who deliberately revealed her identity. “[T]he required judicial intrusion into national security and intelligence matters was . . . a special factor counseling hesitation because such intrusion would subject sensitive operations and operatives to judicial and public scrutiny.” Id. (citing Wilson v. Libby, 535 F.3d 697, 710 (D.C. Cir. 2008)) (quotation marks omitted). Finally, the Circuit rejected the plaintiff’s argument that his United States citizenship distinguished his case from Arar v. Ashcroft and Ali v. Rumsfeld, in which the courts rejected non-citizens’ Bivens claims against American officials based on alleged torture in the United States and abroad, noting that “[Doe’s] citizenship does not alleviate the . . . special factors counseling hesitation.” Id. at 396.
27

Most recently, in Vance v. Rumsfeld, 701 F.3d 193 (7th Cir. 2012) (en banc), cert. denied, 133 S. Ct. 2796 (2013), a divided Seventh Circuit, sitting en banc, reversed a panel judgment and dismissed the Bivens claims of two government contractors, both American citizens, who were allegedly arrested, detained and tortured by the U.S. military in Iraq. One was detained for about one month, the other for three months; as in Doe, neither was ever charged with a crime. The circuit began by noting that the Supreme Court “has never created or even favorably mentioned a non-statutory right of action for damages on account of conduct that occurred outside the borders of the United States.” Id. at 198-99. Like the Doe and Lebron courts, the Vance court found plaintiffs’ American citizenship not “dispositive one way or the other,” id. at 203; the principal point was that civilian courts should not interfere with the military chain of command or with “[m]atters intimately related to national security.” Id. at 199-200.
Several judges wrote separately to explain their disagreement with the reasoning and/or dissent from the outcome of the Vance decision. They observed that Congress has legislated remedies for U.S. citizens to sue foreign officials for damages, and non-citizens to sue anyone who has committed a tort in violation of the law of nations, but not for U.S. citizens to sue U.S. officials.
28

[I]f it were true that there is no Bivens theory under which a U.S. citizen may sue an official of the U.S. government . . . who tortures that citizen on foreign land under the control of the United States . . . then U.S. citizens will be singled out as the only ones without a remedy under U.S. law. . . . . Only by acknowledging the Bivens remedy is it possible to avoid treating U.S. citizens worse than we treat others. The fear of offense to our allies that the majority fears dissipates as soon as we look at the broader picture. Vance, 701 F.3d at 209 (Wood, J., concurring) (discussing TVPA
and Alien Tort Statute, 28 U.S.C. § 1350); see also id. at 218-
20 (Hamilton, J., dissenting). The Vance concurrence and
dissents argue that citizenship matters: The government has a
well-established obligation to protect its own citizens’
constitutional rights abroad. Id. at 221-22 (Hamilton, J.,
dissenting). And they maintain that Bivens must provide a
remedy against, at the very least, the individual officers who
are alleged to have committed the mistreatment.
Every government institution errs . . . . The point of judicial participation is not infallibility but independence and neutrality, something executive entities do not have when evaluating their own officers' conduct . . . . I cannot agree that the separation of powers bars a citizen’s recovery from a rogue officer affirmatively acting to subvert the law. That is a quintessential scenario where Bivens should function to enforce individual rights.
See id. at 230-31 (Williams, J., dissenting); see also id. at
207-08 (Wood, J., concurring); id. at 222-24 (Hamilton, J.,
dissenting).
29

5. Doe, Lebron, and Vance Doom Mr. Meshal’s Claims Mr. Meshal struggles to distinguish this case from Doe, Vance, and Lebron. First, he argues that these cases only prohibit Bivens actions against the military, or on the battlefield. Pl.’s Resp. to Defs.’ Dec. 5, 2012 Notice of Suppl. Authority, 1-3. The cases cannot be read that narrowly. Each case states that the same special factors compelling hesitation in military cases also compel hesitation in cases involving national security and intelligence. Lebron, 670 F.3d at 549 (noting that judges “traditionally have been reluctant to intrude upon the authority of the Executive in military and national security affairs,” and courts must afford “great deference” to what “the President – the Commander in Chief – has determined . . . is essential to national security.”) (citations omitted); Doe, 683 F.3d at 395 (“In the context of national security and intelligence, the Court has cautioned that matters . . . are rarely proper subjects for judicial intervention.”) (internal citations and quotation marks omitted); Vance, 701 F.3d at 199-200, 203 (finding plaintiffs’ American citizenship not “dispositive one way or another,” – either way, civilian courts should not interfere with the military chain of command or with matters intimately related to national security). The cases hold that implying a Bivens cause of action in any of these types of cases would intrude into the affairs of the
30

legislative and executive branches, in violation of the separation of powers. Lebron, 670 F.3d at 550; Doe, 683 F.3d at 394-95; Vance, 701 F.3d at 198-99.
In this case, Mr. Meshal alleges that Defendants acted in accordance with guidelines established by the executive branch. Specifically, he alleges that Defendants were part of the Combined Joint Task Force-Horn of Africa, a joint counterterrorism operation with nations in the Horn of Africa region, which was established by the U.S. government and includes military employees, civilian employees, including FBI agents, and representatives of coalition countries. Defs.’ Mot. to Dismiss at 12; see also Second Amended Compl. ¶¶ 24-30, 56. A central theme of Mr. Meshal’s claims is that Defendants in this case acted with the cooperation of the foreign governments which held him in their prisons, transferred him between nations, and permitted Defendants access to him. See generally Second Am. Compl. As the government points out, these claims have the potential to implicate “national security threats in the Horn of Africa region; substance and sources of intelligence; the extent to which each government in the region participates in or cooperates with U.S. operations to identify, apprehend, detain, and question suspected terrorists on their soil; [and] the actions taken by each government as part of any participation or cooperation with U.S. operations.” Mot. to
31

Dismiss at 13. They involve the same separation of powers concerns which were decisive in Lebron, Doe, and Vance.
Second, Mr. Meshal tries to distinguish Lebron, Doe, and Vance by arguing that he only brings this action against the “non-supervisory law enforcement officers directly involved in his detention and mistreatment,” and does not seek to hold remote superiors liable for his constitutional abuses. Pl.’s Response to Notice of Supp. Auth., ECF #59 at 2; see also Pl.’s Response to Notice of Supp. Auth., ECF #57 at 2-3. He therefore claims that his lawsuit would not require the Court to intrude into the functions of the other branches of government. Id. at 2; see also ECF #59 at 2. This argument also cannot survive. Lebron and Vance also included defendants who were directly responsible for their torture; the plaintiffs in those cases argued they implemented the policies “devised and authorized” by the cabinet officials at the highest levels of government. Lebron, 670 F.3d at 547; see also Vance, 701 F.3d at 196, (plaintiffs sued “persons who conducted or approved their detention and interrogation, and many others who had supervisory authority over those persons”). Neither court differentiated among the defendants in denying a Bivens remedy; as the Lebron court stated: “The source of hesitation is the nature of the suit and the consequences flowing from it,” not the identity of the parties to the lawsuit. 670 F.3d at 554; see also Vance,
32

701 F.3d at 198-99 (no right of action against either the soldiers who mistreated plaintiffs or their remote supervisors).
Even if the defendants’ place in the chain of command were relevant under Vance, Doe, and Lebron, the Second Amended Complaint makes clear that this case is about far more than Mr. Meshal’s own experiences. The Complaint explicitly alleges that Mr. Meshal’s detention, transfer, and interrogation were part of a much larger trend: the government’s “increasing[] engage[ment] in ‘proxy detention,’ a practice in which individuals alleged or suspected to have ties to foreign terrorists or foreign terrorist organizations are detained by foreign authorities at the behest of, the direction of, and/or with the active and substantial participation of the United States.” Second Am. Compl. ¶ 31. Central to Mr. Meshal’s complaint are his allegations that Kenyan, Somalian, and Ethiopian officials were substantial participants in his detention and transfer between countries. Id. ¶¶ 56-59, 76-82, 108-12, 115-19, 123-25, 130-37. He alleges that they were also partners in the similar treatment of many other people of interest to the United States. Id. ¶¶ 122-23, 134-39. Moreover, he claims that his treatment and the similar treatment of others was authorized by and/or conducted with full awareness of other U.S. officials, “including officials designated by the Attorney General and the Director of Central Intelligence.” Id. ¶ 139; see also ¶¶ 56-57, 129A, 122,
33

134-37, 165A, 170C, 170D. Like the complaints in Lebron, Doe, and Vance, “it takes little enough imagination to understand that a judicially devised damages action would expose past executive deliberations affecting sensitive matters of national security” as well as sensitive matters of diplomatic relations, “to the prospect of searching judicial scrutiny.” Lebron, 670 F.3d at 551. In these circumstances, special factors counsel hesitation in the judicial creation of damages remedies. Id.; see also Doe, 683 F.3d at 394; Vance, 701 F.3d at 199-200.
Finally, Mr. Meshal argues that Vance is distinguishable because the plaintiff in that case had access to other, “albeit partial” remedies for his injuries, while for Mr. Meshal, it is “damages or nothing.” ECF #59 at 3 (noting that the Vance plaintiffs could seek monetary damages under the Military Claims Act or the Foreign Claims Act). Plaintiff acknowledges that the Doe plaintiff had no alternative remedy but seeks to distinguish that decision on grounds that Congress had deliberately acted to deprive military detainees of a private right of action by passing the Detainee Treatment Act. ECF #57 at 4. He argues that Congress has not affirmatively acted to foreclose a private right of action for plaintiffs such as himself, and accordingly, the judiciary is free to create a Bivens remedy. Id.
Again, this argument cannot survive Doe, which holds that as long as special factors counseling hesitation exist,
34

congressional action or inaction is irrelevant to the creation of a Bivens remedy. On the one hand, the existence of a statute that provides a partial remedy to a plaintiff seeking a Bivens remedy precludes a Bivens cause of action, even though the statute does not provide complete relief. Doe, 683 F.3d at 396 (citing Bush v. Lucas, 462 U.S. 367, 380, 388 (1983)). On the other hand, “the absence of statutory relief for a constitutional violation . . . does not by any means necessarily imply that courts should award money damages against the officers responsible for the violation.” Id. (quoting Schweiker v. Chilicky, 487 U.S. 412, 421-22 (1988)). When Congress has acted to legislate in a subject matter area, “congressional inaction can also inform [the judiciary’s] understanding of Congress’s intent” with respect to creation of a Bivens remedy. Doe, 683 F.3d at 397 (explaining that where Congress has legislated in an area but failed to provide a private cause of action for damages, “[i]t would be inappropriate for this Court to presume to supplant Congress’s judgment in a field so decidedly entrusted to its purview.”).
Congress has legislated with respect to detainee rights both in the United States and abroad. See inter alia, Torture Victim Protection Act, 28 U.S.C. § 1350, note; Military Claims Act, 10 U.S.C. § 2733; Foreign Claims Act 10 U.S.C. § 2734; and Federal Anti-Torture Statute, 18 U.S.C. § 2340. Some of these
35

statutes provide private causes of action for money damages; others authorize criminal prosecution. The fact that none of these acts extends a cause of action for detainees similarly situated to Mr. Meshal to sue federal officials in federal court does not lead to the conclusion, as Mr. Meshal argues, that Congress intended the judiciary to recognize such a cause of action. On the contrary, under Doe, “evidence of congressional inaction . . . supports our conclusion that this is not a proper case for the implication of a Bivens remedy.” Doe, 683 F.3d at 397.
IV. CONCLUSION When Bivens was decided over forty years ago, it was
intended for cases in which “[t]he mere invocation of federal power by a federal law enforcement official will normally render futile any attempt to resist . . . . In such case, there is no safety for the citizen, except in the protection of the judicial tribunals, for rights which have been invaded by the officers of the government, professing to act in its name.” Bivens, 403 U.S. at 394-95 (citations omitted). Mr. Meshal has come to court seeking the protection of judicial tribunals as the only way to provide for his safety. Under Lebron, Doe, and Vance, however, when a citizen’s rights are violated in the context of military affairs, national security, or intelligence gathering Bivens is powerless to protect him. As one of the Vance
36

dissenters predicted, this evisceration of Bivens risks

“creating a doctrine of constitutional triviality where private

actions are permitted only if they cannot possibly offend anyone

anywhere. That approach undermines our essential constitutional

protections in the circumstances when they are often most

necessary.” Vance, 701 F.3d at 230 (Williams, J., dissenting).

In issuing today’s opinion, the Court fears that this prediction

is arguably correct.

This Court is outraged by Mr. Meshal’s “appalling (and,

candidly, embarrassing) allegations” of mistreatment by the

United States of America. Doe v. Rumsfeld, Case No. 08-cv-1902,

2012 U.S. Dist. LEXIS 127184, *5 (D.D.C. Sept. 7, 2012).

Nevertheless, this Court is not writing on a clean slate;

rather, it is constrained by binding precedent. Only Congress

or the President can provide a remedy to U.S. citizens under

such circumstances. Accordingly, Defendants’ motion to dismiss

is GRANTED. An appropriate order accompanies this Memorandum

Opinion.

SIGNED: June

Emmet G. Sullivan United States District Judge
13, 2014

37

 
 Meshal v. Higgenbotham, 804 F.3d 417 (2015) 420 U.S.App.D.C. 1
804 F.3d 417 United States Court of Appeals,
District of Columbia Circuit.
Amir MESHAL, Appellant v.
Chris HIGGENBOTHAM, FBI Supervising Special Agent, in his individual Capacity, et al., Appellees.
No. 14–5194. |
Argued May 1, 2015. |
Decided Oct. 23, 2015. |
Rehearing En Banc Denied Feb. 2, 2016.*
Synopsis Background: Detainee, an American citizen who was detained abroad, brought Bivens action against Federal Bureau of Investigation (FBI) agents and other United States officials, alleging defendants violated his Fourth and Fifth Amendment rights when they detained, interrogated, and tortured him over the course of four months in three African countries. The United States District Court for the District of Columbia, Emmet G. Sullivan, J., 47 F.Supp.3d 115, granted defendants’ motion to dismiss. Detainee appealed.
The Court of Appeals, Brown, Circuit Judge, held that the Court would decline to recognize detainee’s claims against government officials who allegedly detained, interrogated, and tortured him in three African countries as a new Bivens action.
Affirmed.
Kavanaugh, Circuit Judge, filed a concurring opinion.
Pillard, Circuit Judge, filed a dissenting.
*418 Appeal from the United States District Court for the District of Columbia (No. 1:09–cv–02178).
Attorneys and Law Firms
1

Jonathan Hafetz argued the cause for appellant. With him on the briefs were Arthur B. Spitzer and Hina Shamsi.
William J. Aceves was on the brief for amici curiae U.N. Special Rapporteurs on Torture in support of appellant.
Jessica Ring Amunson was on the brief for amici curiae Law Professors James E. Pfander, Carlos M. Vázquez, and Stephen I. Vladeck in support of appellant.
James J. Benjamin, Jr. and Christopher M. Egleson were on the brief for amicus curiae Donald Borelli in support of appellant.
Agnieszka M. Fryszman was on the brief as amicus curiae The Constitution Project in support of appellant.
Henry C. Whitaker, Attorney, U.S. Department of Justice, argued the cause for appellees. With him on the brief were Ronald C. Machen Jr., U.S. Attorney at the time the brief was filed, and Matthew M. Collette and Mary H. Mason, Attorneys.
Before BROWN, KAVANAUGH and PILLARD, Circuit Judges.
Opinion
Opinion for the Court filed by Circuit Judge BROWN.
Concurring opinion filed by Circuit Judge KAVANAUGH.
Dissenting opinion filed by Circuit Judge PILLARD.
BROWN, Circuit Judge:
**2 Amir Meshal filed this Bivens action, see Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), against several agents of the Federal Bureau of Investigation (“FBI”), claiming they violated his Fourth and Fifth Amendment rights when they detained, interrogated, and tortured him over the course of four months in three African countries. Meshal insists a Bivens remedy in these circumstances is necessary and unexceptional. The government condemns the pro-Bivens

Meshal v. Higgenbotham, 804 F.3d 417 (2015) 420 U.S.App.D.C. 1
rationale applied extraterritorially as unprecedented. The district court found the allegations of federal agents abusing an American citizen abroad quite troubling. So do we. Still, the district court dismissed Meshal’s suit, finding a Bivens action unavailable.
Faced with a shifting paradigm in which counterterrorism and criminal investigation merge, we rely on a familiar framework in an unconventional context. No court has countenanced a Bivens action in a case involving the national security and foreign policy context. And, while Bivens remedies for ill-executed criminal investigations are common, extraterritorial application is virtually unknown. We hold that in this particular new setting—where the agents’ actions took place during a terrorism investigation and those actions occurred overseas—special factors counsel hesitation in recognizing a Bivens action for money damages.
I
Meshal, a United States citizen and New Jersey resident, traveled to Mogadishu, Somalia in 2006 to “broaden his understanding of Islam after the country’s volatile political situation had largely stabilized.”1 J.A. 15. While he was visiting **3 *419 the country, violence erupted, forcing Meshal to flee to Kenya along with other civilians.
In January 2007, Meshal was apprehended by Kenyan authorities, in a joint U.S.–Kenyan–Ethiopian operation, and transported to Nairobi. A member of Kenya’s Criminal Investigation Department (“CID”) told Meshal that authorities needed to determine “what the United States wanted to do with him” before sending him “back to the United States.” J.A. 31.
Sometime between January 27 and February 3, 2007, U.S. officials learned about Meshal’s detention in Kenya and thus began a lengthy, multi-jurisdictional interrogation in which Defendants Chris Higgenbotham, Steve Hersem, John Doe 1, and John Doe 2 (collectively “Defendants”) had significant roles. Meshal claims Defendants followed the procedures detailing how the FBI should “conduct investigations abroad, participate with foreign officials in investigations abroad, or otherwise conduct activities outside the United States with the written [acquiescence
2

or approval] of the Director of Central Intelligence and the Attorney General or their designees.” J.A. 32 (citing THE ATTORNEY GENERAL’S GUIDELINES FOR FBI NATIONAL SECURITY INVESTIGATIONS AND FOREIGN INTELLIGENCE COLLECTION 17 (Oct. 31, 2003) (declassified Aug. 2, 2007)).
For the next four months, Meshal claims Defendants detained him in secret, denied him access to counsel and the courts, and threatened him with torture and death. He says he was threatened with extradition to Israel where the Israelis would “make [Meshal] disappear,” J.A. 41; and with rendition to Egypt, where they “had ways of making him talk,” J.A. 42. Defendant Hersem also intimated that Meshal would suffer the same fate as the protagonist in the movie Midnight Express2—a movie where a foreign prisoner is brutally beaten and confined in horrid conditions in a Turkish prison for refusing to cooperate. Hersem said, “You made it so that even your grandkids are going to be affected by what you did,” but promised that if Meshal confessed his connection to al Qaeda, he would be returned to the United States to face civilian courts instead of being returned to Somalia. J.A. 41. Meshal believes the agents hoped to extract a confession to terrorist activity as a prelude to prosecution. The alleged threats had an effect; Meshal’s cellmate observed that Meshal was “extremely distressed and crying” after returning to his cell from one of the interrogations. J.A. 41.
Meshal also alleges he was transferred between three African countries without legal process: from Kenya to Somalia, where he was detained in handcuffs in an underground room, with no windows or toilets, a place referred to as “the cave,” J.A. 48–49; then flown blindfolded to Addis Ababa, Ethiopia, where he was detained in a military barracks. Over the next three months, Ethiopian officials regularly transported Meshal and other prisoners to a villa for interrogation where Does 1 and 2 repeatedly refused Meshal’s requests to speak to a lawyer. When he was not being interrogated, Meshal was handcuffed in his prison cell, and spent several days in solitary confinement.
Eventually, the FBI released Meshal, and he returned to the United States. **4 *420 During the four months he was detained abroad, he lost approximately eighty pounds. He was never charged with a crime.
Meshal filed a Bivens action specifically alleging detention without a hearing for four months violated his Fourth Amendment rights and that the threats of torture

Meshal v. Higgenbotham, 804 F.3d 417 (2015) 420 U.S.App.D.C. 1
and disappearance violated his due process rights. In deciding Defendants’ motion to dismiss, the district court found Meshal had properly stated Fourth and Fifth Amendment claims.3 Yet the court dismissed the case, concluding a Bivens action was unavailable to Meshal because both this court, and several other circuits, had “expressly rejected a Bivens remedy for [U.S.] citizens who allege they have been mistreated, and even tortured, by [American officials] in the name of intelligence gathering, national security, or military affairs.” Meshal v. Higgenbotham, 47 F.Supp.3d 115, 116–17 (D.D.C.2014).
II
A
Federal tort causes of action are ordinarily created by Congress, not by the courts. Congress has created numerous tort causes of action allowing plaintiffs to recover for tortious acts by federal officers. See, e.g., Federal Tort Claims Act, 28 U.S.C. §§ 2671 et seq.; Torture Victim Protection Act, 28 U.S.C. § 1350 Note. But Congress has not created a tort cause of action that applies to this case. The Federal Tort Claims Act, for example, explicitly exempts claims against federal officers for acts occurring in a foreign country. See 28 U.S.C. § 2680(k). The Torture Victim Protection Act provides a cause of action only against foreign officials, not U.S. officials. See 28 U.S.C. § 1350 Note, § 2(a). Having no statutory cause of action, Meshal has sued directly under the Constitution, relying on the Supreme Court’s decision in Bivens.
In 1971, the Supreme Court recognized an implied private action, directly under the Constitution, for damages against federal officials alleged to have violated a citizen’s Fourth Amendment rights. Bivens, 403 U.S. 388, 91 S.Ct. 1999. The case began when Webster Bivens sued Bureau of Narcotics Agents in federal court, alleging facts the Court “fairly read” as claiming Bivens’ “arrest was made without probable cause.” Id. at 389, 91 S.Ct. 1999. Because the alleged constitutional violation had already occurred, Justice Harlan noted that, “[f]or people in Bivens’ shoes, it [was] damages or nothing.” Id. at 410,
3

91 S.Ct. 1999 (Harlan, J., concurring in judgment).
The Court recognized a federal damages remedy apart from the availability of state common law remedies. See id. at 394–95, 91 S.Ct. 1999. Noting Congress had not specifically provided a remedy for violations of constitutional rights and that “the Fourth Amendment does not in so many words provide for its enforcement by an award of money damages for the consequences of its violation,” id. at 396–97, 91 S.Ct. 1999, the Court nevertheless relied on the rule that “where legal rights have been invaded ... federal courts may use any available remedy to make good the wrong done.” Id. at 396, 91 S.Ct. 1999. Importantly, although no federal statute **5 *421 provided Bivens a right to sue for the invasion of his Fourth Amendment rights, the Court recognized a cause of action because it found “no special factors [counselled] hesitation in the absence of affirmative action by Congress.” Id.
Since Bivens, the Supreme Court has proceeded cautiously in implying additional federal causes of action for money damages. In the decade immediately following the ruling, the Court extended Bivens’ reach to claims involving employment discrimination in violation of the Due Process Clause, Davis v. Passman, 442 U.S. 228, 243–45, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979), and cruel and unusual punishment by prison officials in violation of the Eighth Amendment, Carlson v. Green, 446 U.S. 14, 19–23, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980). But over time, the Court gradually retreated from Bivens, rejecting any “automatic entitlement” to the remedy, and noting that “any freestanding damages remedy for a claimed constitutional violation has to represent a judgment about the best way to implement a constitutional guarantee....” Wilkie v. Robbins, 551 U.S. 537, 550, 127 S.Ct. 2588, 168 L.Ed.2d 389 (2007).
The best way to implement a particular constitutional guarantee, the Court decided, was to let Congress determine whether it warranted a cause of action. See id. at 562, 127 S.Ct. 2588. Finding either that Congress had provided an alternative remedy or that special factors counseled hesitation, the Court declined to recognize a Bivens action for: 1) a federal employee’s claim that his federal employer demoted him in violation of the First Amendment, Bush v. Lucas, 462 U.S. 367, 368–69, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983); 2) a claim by military personnel that military superiors violated various constitutional provisions, Chappell v. Wallace, 462 U.S. 296, 298–300, 103 S.Ct. 2362, 76 L.Ed.2d 586 (1983); 3) a claim by Social Security disability benefits recipients

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420 U.S.App.D.C. 1
that benefits had been denied in violation of the Fifth Amendment, Schweiker v. Chilicky, 487 U.S. 412, 414, 108 S.Ct. 2460, 101 L.Ed.2d 370 (1988); 4) a former bank employee’s suit against a federal agency, claiming he lost his job due to agency action violating due process, FDIC v. Meyer, 510 U.S. 471, 484–86, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994); 5) a prisoner’s Eighth Amendment-based suit against a private corporation managing a federal prison, Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 73–74, 122 S.Ct. 515, 151 L.Ed.2d 456 (2001); 6) landowners’ claims that government officials unconstitutionally interfered with their property rights, Wilkie, 551 U.S. at 554–61, 127 S.Ct. 2588; and 7) a prisoner’s Eighth Amendment claim against private prison employees, Minneci v. Pollard, ––– U.S. ––––, 132 S.Ct. 617, 623–26, 181 L.Ed.2d 606 (2012).
We, too, have tread carefully before recognizing Bivens causes of action when plaintiffs have invoked them in new contexts, especially in cases within the national security arena. In Wilson v. Libby, 535 F.3d 697 (D.C.Cir.2008), we declined to recognize a Bivens action for a Central Intelligence Agency operative and her husband to recover damages for injuries they allegedly suffered when her covert status was disclosed. We held that the Privacy Act’s comprehensive remedial scheme was a “special factor” counseling hesitation before creating a Bivens remedy. Id. at 706–07. We also noted that, “if we were to create a Bivens remedy, the litigation ... would inevitably require judicial intrusion into matters of national security and sensitive intelligence information.” Id. at 710. In Ali v. Rumsfeld, 649 F.3d 762 (D.C.Cir.2011), we were asked to recognize a Bivens action by noncitizen plaintiffs suing the former Secretary of Defense and three high-ranking Army officers for formulating **6 *422 and implementing policies that allegedly caused the torture and degrading treatment of plaintiffs. We disavowed the availability of Bivens because special factors, such as the “danger of obstructing U.S. national security policy,” counseled hesitation. Id. at 773 (quoting Rasul v. Myers, 563 F.3d 527, 532 n. 5 (D.C.Cir.2009)). In Doe, we refused to create a Bivens action for a contractor, a U.S. citizen, who claimed the U.S. military wrongfully detained him in Iraq. We noted that recognizing a Bivens cause of action “is not something to be undertaken lightly,” and we again found national security was a special factor counseling serious hesitation. 683 F.3d at 394.
Other circuits have also refrained from recognizing Bivens causes of action in the national security context. The Second Circuit, sitting en banc, concluded a dual
4

citizen of Canada and Syria could not bring a Bivens action for a claim that the United States transferred him to Syria in order to subject him to torture and interrogation. See Arar v. Ashcroft, 585 F.3d 559 (2d Cir.2009). The Fourth Circuit refused to recognize a Bivens action for plaintiff Jose Padilla, who sued former high-level policy-makers in the Department of Defense based on his status as an enemy combatant. See Lebron v. Rumsfeld, 670 F.3d 540 (4th Cir.2012). And the Seventh Circuit, sitting en banc, rejected the availability of Bivens for American citizen plaintiffs claiming they had been subjected to interrogation and mistreatment while in military detention. See Vance v. Rumsfeld, 701 F.3d 193 (7th Cir.2012). In each of these decisions, courts recognized that cases involving national security and the military counseled hesitation in recognizing a Bivens cause of action where Congress has not done so. See id. at 199–200; Lebron, 670 F.3d at 548–49; Arar, 585 F.3d at 575–76.
B
Meshal asks us to paddle upstream against this deep current of authority. He contends his suit involves only core Bivens claims—Fourth and Fifth Amendment claims made against particular law enforcement officers for actions taken during a criminal investigation—so there is nothing new here. Conversely, the government contends this case implicates a new Bivens context for two reasons: (i) Meshal’s claims involve alleged conduct undertaken as part of the FBI’s counterterrorism responsibilities involving a national security investigation of terrorist activity: and (ii) the alleged acts of the federal officers occurred abroad.
We begin with some caveats. As we understand it, the Supreme Court has taken a case-by-case approach in determining whether to recognize a Bivens cause of action. See Wilkie, 551 U.S. at 550, 554, 127 S.Ct. 2588; Anya Bernstein, Congressional Will and the Role of the Executive in Bivens Actions: What Is Special About Special Factors?, 45 IND. L. REV. 719, 720 (2012). We therefore need not decide, categorically, whether a Bivens action can lie against federal law enforcement officials conducting non-terrorism criminal investigations against American citizens abroad. Nor do we decide whether a Bivens action is available for plaintiffs claiming

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wrongdoing committed by federal law enforcement officers during a terrorism investigation occurring within the United States. Our holding is context specific.4
*423 **7 Because of the procedural posture, we must reject the government’s characterization that this case involved only a national security investigation, as distinct from an investigation that was both a national security and criminal investigation. In reviewing the grant of a motion to dismiss, we assume the truth of all well-pleaded factual allegations and construe reasonable inferences from those allegations in the plaintiff’s favor. See Doe, 683 F.3d at 391. The complaint alleges that Defendants Hersem and Higgenbotham were members of the FBI “jump team” or “fly team,” the terms for those agents sent to Africa in 2007 “to conduct law enforcement investigations.” J.A. 33. On the first day of Meshal’s interrogation in Kenya and Ethiopia, Doe 1 presented Meshal with a document and asked him to sign it, “telling [Meshal] the document notified him that he could refuse to answer any questions without a lawyer present.” J.A. 37, 60. The presence of Miranda-like waiver forms usually signifies a criminal prosecution.5 Meshal’s experience was not unique. Kenyan authorities also arrested Daniel Maldonado, and FBI agents interrogated him in Kenya around the same time they held and interrogated Meshal. After Maldonado confessed, he pled guilty in federal district court to involvement in terrorist activities. J.A. 35–36; see Partial Tr. Prelim./Detention Hr’g, United States v. Maldonado, No. 4:07–mj–00125–1, 34–35 (S.D.Tex.2007) (Dkt. No. 17). Drawing the inferences from the complaint in Meshal’s favor, the agents’ actions suggest a criminal investigation for terrorism, not purely intelligence-gathering. Even so, a criminal investigation into potential terrorism implicates some of the same special factor concerns as national security policy.
C
This case requires us to examine whether allowing a Bivens action to proceed would extend the remedy to a new context. See Iqbal, 556 U.S. at 675, 129 S.Ct. 1937; Malesko, 534 U.S. at 68, 122 S.Ct. 515; Wilkie, 551 U.S. at 575, 127 S.Ct. 2588 (Ginsburg, J., concurring in part and dissenting in part); see also Arar, 585 F.3d at 572 (“ ‘Context’ is not defined in the case law.”). The Supreme
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Court has never defined what constitutes a new “context” for Bivens purposes, but in reviewing the case law, some patterns emerge. First, the Court considers a Bivens claim “new” when a plaintiff invokes a constitutional amendment outside the three amendments previously approved. Compare Bivens, 403 U.S. 388, 91 S.Ct. 1999 (recognizing remedy for Fourth Amendment claims), with Bush, 462 U.S. 367, 103 S.Ct. 2404 (refusing to recognize a Bivens remedy for a First Amendment violation). But even if the plaintiff alleges the same type of constitutional violation, it does not automatically invoke the same context for Bivens purposes. Compare Passman, 442 U.S. 228, 99 S.Ct. 2264 (recognizing a Bivens remedy where plaintiff alleges employment discrimination under the Fifth Amendment’s Due Process Clause), with Schweiker, 487 U.S. 412, 108 S.Ct. 2460 **8 *424 (rejecting the availability of a Bivens remedy for social security claimants alleging a violation of due process under the Fifth Amendment). In addition, the Court considers a Bivens claim “new” when it involves a new category of defendants. See Minneci, 132 S.Ct. 617 (private prison employee); Malesko, 534 U.S. 61, 122 S.Ct. 515 (private prison corporation); Meyer, 510 U.S. 471, 114 S.Ct. 996 (federal agency); Chappell, 462 U.S. 296, 103 S.Ct. 2362 (military defendants).
Meshal is correct that the claims here do not involve a different constitutional amendment or a new category of defendants. See Engel v. Buchan, 710 F.3d 698, 708 (7th Cir.2013) (noting the case involved an FBI agent “accused of violating the constitutional rights of a person targeted for a criminal investigation and prosecution,” and noting those facts “parallel [ ] Bivens itself”). And Meshal correctly notes that Bivens remedies typically are available when based on actions taken by law enforcement officers during criminal proceedings. See Sutton v. United States, 819 F.2d 1289, 1293 (5th Cir.1987) (acknowledging “the classic Bivens-style tort, in which a federal law enforcement officer uses excessive force, contrary to the Constitution or agency guidelines”). Yet viewed “[a]t a sufficiently high level of generality, any claim can be analogized to some other claim for which a Bivens action is afforded, just as at a sufficiently high level of particularity, every case has points of distinction.” Arar, 585 F.3d at 572. Like the Second Circuit in Arar, we construe “context” as it is commonly used in law: “to reflect a potentially recurring scenario that has similar legal and factual components.” Id.
The context of this case is a potential damages remedy for alleged actions occurring in a terrorism investigation conducted overseas by federal law enforcement officers.

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Not only does Meshal’s claim involve new circumstances—a criminal terrorism investigation conducted abroad—it also involves different legal components—the extraterritorial application of constitutional protections. Such a different context requires us to think anew. To our knowledge, no court has previously extended Bivens to cases involving either the extraterritorial application of constitutional protections6 or in the national security domain,7 let alone a case implicating **9 *425 both—another signal that this context is a novel one.
Meshal downplays the extraterritorial aspect of this case. But the extraterritorial aspect of the case is critical. After all, the presumption against extraterritoriality is a settled principle that the Supreme Court applies even in considering statutory remedies. See, e.g., Kiobel v. Royal Dutch Petroleum Co., ––– U.S. ––––, 133 S.Ct. 1659, 1664, 185 L.Ed.2d 671 (2013); Morrison v. National Australia Bank Ltd., 561 U.S. 247, 130 S.Ct. 2869, 2877, 177 L.Ed.2d 535 (2010). If Congress had enacted a general tort cause of action applicable to Fourth Amendment violations committed by federal officers (a statutory Bivens, so to speak), that cause of action would not apply to torts committed by federal officers abroad absent sufficient indication that Congress meant the statute to apply extraterritorially. See Morrison, 130 S.Ct. at 2877. Whether the reason for reticence is concern for our sovereignty or respect for other states, extraterritoriality dictates constraint in the absence of clear congressional action.
D
Once we identify a new context, the decision whether to recognize a Bivens remedy requires us to first consider whether an alternative remedial scheme is available and next determine whether special factors counsel hesitation in creating a Bivens remedy. See Wilkie, 551 U.S. at 550, 127 S.Ct. 2588.
Meshal has no alternative remedy; the government does not claim otherwise. See Meshal, 47 F.Supp.3d at 122 (“The parties agree that Mr. Meshal has no alternative remedy for his constitutional claims.”). Meshal, backed by a number of law professors appearing as amici curiae, argues that, when the choice is between damages or
6

nothing, a Bivens cause of action must lie. The Supreme Court, however, has repeatedly held that “even in the absence of an alternative” remedy, courts should not afford Bivens remedies if “any special factors counsel[ ] hesitation.” Wilkie, 551 U.S. at 550, 127 S.Ct. 2588; see also Schweiker, 487 U.S. at 421–22, 108 S.Ct. 2460. Cf. Wilson, 535 F.3d at 708–09. Put differently, even if the choice is between Bivens or nothing, if special factors counsel hesitation, the answer may be nothing. See Andrew Kent, Are Damages Different?: Bivens and National Security, 87 S. CAL. L. REV. 1123, 1151 (2014) (“Kent”) (noting “the Court’s Bivens doctrine has long tolerated denying Bivens even when there is no other effective remedy”).
The “special factors” counseling hesitation in recognizing a common law damages action “relate not to the merits of the particular remedy, but to the question of who should decide whether such a remedy should be provided.” Sanchez–Espinoza v. Reagan, 770 F.2d 202, 208 (D.C.Cir.1985) (Scalia, J.). Where an issue “involves a host of considerations that must be weighed and appraised,” its resolution “is more appropriately for those who write the laws, rather than for those who interpret them.” Bush, 462 U.S. at 380, 103 S.Ct. 2404.
Two special factors are present in this case. We do not here decide whether either factor alone would preclude a Bivens remedy, but both factors together do so. First, special factors counseling hesitation have foreclosed Bivens remedies in cases “involving the military, national security **10 *426 or intelligence.” Doe, 683 F.3d at 394. Second, the Supreme Court has never “created or even favorably mentioned a non-statutory right of action for damages on account of conduct that occurred outside the borders of the United States.” Vance, 701 F.3d at 198–99.
Adding to the general reticence of courts in cases involving national security and foreign policy, the government offers a laundry list of sensitive issues they say would be implicated by a Bivens remedy. Further litigation, the government claims, would involve judicial inquiry into “national security threats in the Horn of Africa region,” the “substance and sources of intelligence,” and whether procedures relating to counterterrorism investigations abroad “were correctly applied.” Br. for the Appellees at 25–26, Meshal v. Higgenbotham, No. 14–5194, 2015 WL 661324 (D.C.Cir. Feb. 13, 2015). The government also alleges Bivens litigation would require discovery “from both foreign counterterrorism officials, and U.S. intelligence officials up and down the chain of command, as well as evidence

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concerning the conditions at alleged detention locations in Ethiopia, Somalia, and Kenya.” Id. at 26.
Unlike other cases where a plaintiff challenges U.S. policy, the plaintiff here challenges only the individual actions of federal law enforcement officers. At oral argument, the government had few concrete answers concerning what sensitive information might be revealed if the litigation continued. Oral Arg. Recording 28:00–28:22; 29:52–29:59; 36:47–37:10. Why would an inquiry into whether the Defendants threatened Meshal with torture or death require discovery from U.S. intelligence officials up and down the chain of command? Why would an inquiry into Meshal’s allegedly unlawful detention without a judicial hearing reveal the substance or source of intelligence gathered in the Horn of Africa? What would make it necessary for the government to identify other national security threats? Neither party knows exactly what discovery will entail because no similar Bivens claim has survived the motion to dismiss stage. Still, to some extent, the unknown itself is reason for caution in areas involving national security and foreign policy—where courts have traditionally been loath to create a Bivens remedy.
At the end of the day, we find the absence of any Bivens remedy in similar circumstances highly probative. Matters touching on national security and foreign policy fall within an area of executive action where courts hesitate to intrude absent congressional authorization. See Dep’t of Navy v. Egan, 484 U.S. 518, 530, 108 S.Ct. 818, 98 L.Ed.2d 918 (1988). Thus, if there is to be a judicial inquiry—in the absence of congressional authorization—in a case involving both the national security and foreign policy arenas, “it will raise concerns for the separation of powers in trenching on matters committed to the other branches.” Christopher v. Harbury, 536 U.S. 403, 417, 122 S.Ct. 2179, 153 L.Ed.2d 413 (2002). The weight of authority against expanding Bivens,8 combined with our recognition that tort remedies in cases involving matters of national security and foreign policy are generally left to the **11 *427 political branches, counsels serious hesitation before recognizing a common law remedy in these circumstances.
There are also practical factors counseling hesitation. One of the questions raised by Meshal’s suit is the extent to which Defendants orchestrated his detention in foreign countries. The Judiciary is generally not suited to “second-guess” executive officials operating in “foreign justice systems.” Munaf v. Geren, 553 U.S. 674, 702, 128 S.Ct. 2207, 171 L.Ed.2d 1 (2008). And judicial intrusion
7

into those decisions could have diplomatic consequences. See Br. for the Appellees at 26 (allowing Bivens here would expose “the substance of diplomatic and confidential communications between the United States and foreign governments” regarding joint terrorism investigations). Moreover, allowing Bivens suits involving both national security and foreign policy areas will “subject the government to litigation and potential law declaration it will be unable to moot by conceding individual relief, and force courts to make difficult determinations about whether and how constitutional rights should apply abroad and outside the ordinary peacetime contexts for which they were developed.” Kent, at 1173. Even if the expansion of Bivens would not impose “the sovereign will of the United States onto conduct by foreign officials in a foreign land,” Dissent at 18, the actual repercussions are impossible to parse. We cannot forecast how the spectre of litigation and the potential discovery of sensitive information might affect the enthusiasm of foreign states to cooperate in joint actions or the government’s ability to keep foreign policy commitments or protect intelligence. Just as the special needs of the military requires courts to leave the creation of damage remedies against military officers to Congress, so the special needs of foreign affairs combined with national security “must stay our hand in the creation of damage remedies.” Sanchez–Espinoza, 770 F.2d at 208–09.
III
A
Meshal claims his U.S. citizenship outweighs the national security and foreign policy sensitivities implicated by permitting a Bivens claim. We are not unsympathetic. American citizenship has inherent value. See Tuaua v. United States, No. 13–5272, slip op. at 14 (D.C.Cir. June 5, 2015) (citing Kennedy v. Mendoza–Martinez, 372 U.S. 144, 160, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963)). Even so, the “source of hesitation” in the Bivens special factor analysis “is the nature of the suit and the consequences flowing from it, not just the identity of the plaintiff.” Lebron, 670 F.3d at 554; see also Vance, 701 F.3d at 203.

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At no point has the Supreme Court intimated that citizenship trumps other special factors counseling hesitation in creating a Bivens remedy.
B
Meshal, and several law professors as amici, claim two congressional actions amounted to statutory ratification of Bivens. They further claim courts have consistently misinterpreted these legislative actions, and, consequently, have taken an unduly narrow view of Bivens.
In 1973, Congress rejected a Department of Justice proposal to substitute the federal government as the defendant in all intentional tort suits against federal officers, including those raising constitutional claims, as part of the Federal Tort Claims Act. See James E. Pfander & David Baltmanis, Rethinking Bivens: Legitimacy and Constitutional Adjudication, 98 GEO. L.J. 117, 131 & n. 79 (2009) (“Pfander & **12 *428 Baltmanis”); see also S. REP. NO. 93–588, at 3 (1973). In 1988 Congress again rejected a DOJ proposal to funnel all liability into claims brought against the government rather than individual federal officers. See Pfander & Baltmanis, at 135 n. 100; Carlos M. Vázquez & Stephen I. Vladeck, State Law, the Westfall Act, and the Nature of the Bivens Question, 161 U. PA. L.REV. 509, 566–70 (2013) (“Vázquez & Vladeck”). Congress instead passed the Westfall Act, providing that the FTCA would be the exclusive remedy for federal officials sued for “scope-of-employment” torts. Federal Employees Liability Reform and Tort Compensation Act of 1988, Pub.L. No. 100–694, § 5, 102 Stat. 4563, 4564 (codified at 28 U.S.C. § 2679(b)). In addition to creating detailed procedures for converting state torts claims against individual officers into FTCA claims against the United States, the Westfall Act provided an exception to the exclusive-remedy provision, stating it would not “extend or apply to a civil action ... which is brought for a violation of the Constitution of the United States.” 28 U.S.C. § 2679(b)(2)(A). Thus, Congress expressly granted an exemption from the FTCA for Bivens suits. See Hui v. Castaneda, 559 U.S. 799, 807, 130 S.Ct. 1845, 176 L.Ed.2d 703 (2010) (“Notably, Congress also provided an exception for constitutional violations.”); H.R. Rep. 100–700, at 6, 1988 U.S.C.C.A.N. 5945, 5950 (“Since the Supreme Court’s
8

decision in [Bivens ], the courts have identified [a constitutional] tort as a more serious intrusion of the rights of an individual that merits special attention. Consequently, [the Westfall Act] would not affect the ability of victims of constitutional torts to seek personal redress from Federal employees who allegedly violate their Constitutional rights.”).
But whether Congress, in rejecting Justice Department proposals and providing a FTCA exemption, meant to ratify Bivens is open to doubt. Congress may have viewed Bivens and federal tort claims as “parallel, complementary causes of action,” Carlson, 446 U.S. at 20, 100 S.Ct. 1468, and intended, through the Westfall Act, to “solidify the Bivens remedy,” Pfander & Baltmanis, at 121–22. Or Congress could have thought “Bivens was a constitutionally required decision,” Carlson, 446 U.S. at 33 n. 2, 100 S.Ct. 1468 (Rehnquist, J., dissenting), thus believing it could not legislate away Bivens remedies. We normally presume Congress legislates consistently with constitutional commands, see United States v. X–Citement Video, Inc., 513 U.S. 64, 73, 115 S.Ct. 464, 130 L.Ed.2d 372 (1994), so mere congressional acquiescence to Bivens may not be the same as congressional ratification. And even if Congress did somehow ratify Bivens,9 we would be left with yet another question: Did Congress intend to ratify Bivens’ scope as it was in 1988 or more broadly? See Vázquez & Vladeck, at 579. If Congress intended to ratify Bivens only as it existed in 1988 then this would be an easy case.
There are no definitive answers to these competing visions of congressional action. We are not foreclosing either interpretation, but in a case where the thumb is heavy on the scale against recognizing a Bivens remedy, uncertain interpretations of what Congress did in 1973 and 1988 cannot overcome the weight of authority against expanding Bivens. In any event, **13 *429 if the courts, as amici argue, have radically misunderstood the nature and scope of Bivens remedies, a course correction must come from the Supreme Court, which has repeatedly rejected calls for a broad application of Bivens. See supra, at Part IIC. Because we follow its lead, we will ship our oars until that Court decides the scope of the remedy it created.
If people like Meshal are to have recourse to damages for alleged constitutional violations committed during a terrorism investigation occurring abroad, either Congress or the Supreme Court must specify the scope of the remedy.

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IV
Because Meshal has not stated a valid cause of action, the judgment of dismissal is
Affirmed.
KAVANAUGH, Circuit Judge, concurring:
The United States is at war against al Qaeda and other radical Islamic terrorist organizations. Shortly after al Qaeda’s attacks on the United States on September 11, 2001, Congress authorized this war. President Bush and President Obama have aggressively commanded the U.S. war effort.
The terrorists’ stated goals are, among other things, to destroy the State of Israel, to drive the United States from its posts in the Middle East, to replace more moderate Islamic leadership in nations such as Saudi Arabia, and to usher in radical Islamic control throughout the Greater Middle East. In pursuing their objectives, the terrorists have repeatedly attacked U.S. persons and property, both in foreign countries and in the U.S homeland.
The war continues. No end is in sight.
In waging this war, the United States has wielded a wide array of federal assets, including the military, the CIA, the FBI, and other U.S. intelligence and law enforcement agencies. The traditional walls dividing military, intelligence, and law enforcement operations have given way to a more integrated war effort. As President Bush and President Obama have explained, the United States employs military, intelligence, and law enforcement personnel in an often unified effort to detect, surveil, capture, kill, detain, interrogate, and prosecute the enemy.
In this case, U.S. law enforcement officers detained and interrogated Meshal in a foreign country. They suspected that Meshal might be an al Qaeda terrorist. Meshal alleges that he was mistakenly detained and then abused. He has brought a tort suit against the individual officers under Bivens, and he seeks damages presumably in the hundreds of thousands of dollars from those officers in their
9

individual capacities.
The Bivens doctrine allows parties to maintain certain constitutional tort suits against federal officers in their individual capacities, even in the absence of an express congressionally created cause of action. The classic Bivens case entails a suit alleging an unreasonable search or seizure by a federal officer in violation of the Fourth Amendment. See Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). Since Bivens, however, the Supreme Court has been reluctant to extend the implied Bivens cause of action to new contexts. The Court has emphasized that it is ordinarily Congress’s role, not the Judiciary’s, to create and define the scope of federal tort remedies. As the Court has explained, Bivens carved out only a narrow exception **14 *430 to that bedrock separation of powers principle.
Here, Meshal proceeded under Bivens because Congress has not created a cause of action for his alleged injury. As the Court today spells out, Congress has enacted a number of related tort causes of action. For example, the Federal Tort Claims Act provides a cause of action for torts committed by federal officials. But that law exempts torts committed in a foreign country. So it does not help Meshal. The Torture Victim Protection Act provides a cause of action for torture committed by foreign officials. But the statute exempts U.S. officials, a point that President George H.W. Bush stressed when signing the legislation in 1992. See 28 U.S.C. §§ 2671 et seq.; id. § 1350 Note; see also Statement on Signing the Torture Victim Protection Act of 1991, 1 Pub. Papers 437–38 (Mar. 12, 1992). So that law likewise does not help Meshal. The bottom line is that neither of those statutes, nor any other, creates a cause of action against U.S. officials for torts committed abroad in these circumstances. See 28 U.S.C. § 2680(k); id. § 1350 Note, § 2(a).
Lacking any statutory cause of action, Meshal has sued under Bivens. The Department of Justice, speaking ultimately as the representative of President Obama, has vigorously argued that the implied Bivens cause of action cannot be stretched to cover Meshal’s case. According to the Department of Justice, Bivens does not apply here because the alleged conduct occurred during a national security investigation in a foreign country, a setting different in multiple important respects from the heartland Bivens case. Faithfully following existing Supreme Court precedent, Judge Emmet Sullivan agreed with the Department of Justice and dismissed Meshal’s suit. The

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Court today affirms, and I fully join its thorough and well-reasoned opinion.
I add this concurrence to underscore a few points in response to the dissent.
The fundamental divide between the majority opinion and the dissent arises over a seemingly simple question: Who Decides? In particular, who decides whether to recognize a cause of action against U.S. officials for torts they allegedly committed abroad in connection with the war against al Qaeda and other radical Islamic terrorist organizations? In my view, the answer is Congress, not the Judiciary.
In confining the coverage of statutes such as the Federal Tort Claims Act and the Torture Victim Protection Act, Congress has deliberately decided not to fashion a cause of action for tort cases like Meshal’s. Given the absence of an express cause of action, the dissent seizes upon Bivens. How does the dissent deal with the Supreme Court’s oft-repeated caution against extending Bivens to new contexts? The dissent argues that this case does not present a new context.
On that point, I respectfully but strongly disagree with the dissent. Most importantly, the alleged conduct in this case occurred abroad. So far as the parties have been able to uncover, never before has a federal court recognized a Bivens action for conduct by U.S. officials abroad. Never. In statutory cases, we employ a presumption against extraterritoriality. There is no persuasive reason to adopt a laxer extraterritoriality rule in Bivens cases. It would be grossly anomalous, in my view, to apply Bivens extraterritorially when we would not apply an identical statutory cause of action for constitutional torts extraterritorially. Cf. Kiobel v. Royal Dutch Petroleum Co., ––– U.S. ––––, 133 S.Ct. 1659, 1664, 185 L.Ed.2d 671 (2013); Morrison v. National Australia **15 *431 Bank Limited, 561 U.S. 247, 255, 130 S.Ct. 2869, 177 L.Ed.2d 535 (2010).
This case is far from the Bivens heartland for another reason as well. It involves a national security investigation during a congressionally authorized war, not a simple arrest for securities fraud, drug trafficking, or the like. Other courts of appeals have refused to recognize Bivens actions for alleged conduct that occurred during national security investigations, even for conduct that occurred in U.S. territory. See Lebron v. Rumsfeld, 670 F.3d 540 (4th Cir.2012); Arar v. Ashcroft, 585 F.3d 559 (2d Cir.2009); see also Vance v. Rumsfeld, 701 F.3d 193
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(7th Cir.2012). We should do the same in this case, especially because the conduct here occurred in a foreign country. The dissent responds that the Government has not demonstrated that this case is national-security-related. But U.S. officials were attempting to seize and interrogate suspected al Qaeda terrorists in a foreign country during wartime. If this case is not national-security-related, it is hard to see what is. The dissent counters that the U.S. had not designated Meshal as an enemy combatant. But that misses the key point: The U.S. was conducting an investigation to determine whether Meshal was an enemy combatant. In this war, the U.S. seeks to proactively confront terrorist threats before they fully materialize. Close calls may arise in labeling an investigation as national-security-related. Not here.
The confluence of those two factors—extraterritoriality and national security—renders this an especially inappropriate case for a court to supplant Congress and the President by erecting new limits on the U.S. war effort. Make no mistake. If we were to recognize a Bivens action in this case, U.S. officials undoubtedly would be more hesitant in investigating and interrogating suspected al Qaeda members abroad. Of course, some might argue that would be a good thing. Maybe so, maybe not. Either way, it is not our decision to make. Congress and the President possess the authority to restrict the actions of U.S. officials during wartime, including by approving new tort causes of action. And in this war, they have done so by enacting new statutes such as the Detainee Treatment Act and the Military Commissions Act. But they have not created a tort cause of action for this kind of case. In my view, we would disrespect Congress and the President, and disregard our proper role as judges, if we were to recognize a Bivens cause of action here.
* * *
In justiciable cases, courts should not hesitate to enforce constitutional and statutory constraints on wartime activities. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 72 S.Ct. 863, 96 L.Ed. 1153 (1952); Hamdan v. United States, 696 F.3d 1238 (D.C.Cir.2012) (Kavanaugh, J.). But courts should not—under the guise of Bivens—unilaterally recognize new limits that restrict U.S. officers’ wartime activities. As Justice Jackson stated in his canonical concurrence in Youngstown, courts “should indulge the widest latitude of interpretation to sustain” the President’s command of “the instruments of national force, at least when turned against the outside world for the security of our society.” 343 U.S. at 645, 72

Meshal v. Higgenbotham, 804 F.3d 417 (2015) 420 U.S.App.D.C. 1
S.Ct. 863 (Jackson, J., concurring). If I were a Member of Congress, I might vote to enact a new tort cause of action to cover a case like Meshal’s. But as judges, we do not get to make that decision. For those reasons, I respectfully disagree with the dissent and fully join the Court’s opinion.
PILLARD, Circuit Judge, dissenting:
As the majority observes, the allegations in this case are deeply troubling. See Maj. **16 *432 Op. at 418. For purposes of this decision, we must assume the truth of the facts Meshal alleges. The defendant FBI officers arbitrarily detained Meshal in secret in three different countries for four months without charges, denied him access to counsel and the courts, coercively interrogated him, and threatened him with disappearance and death. Id. at 418–20. They did so to “coerce him to confess to wrongdoing in which he had not engaged and to associations he did not have.” J.A. 16 (Complaint ¶ 3). Neither the United States nor any other government ever charged Meshal with a crime. Maj. Op. at 419–20. Our concurring colleague asserts that “U.S. officials were indisputably attempting to seize and interrogate suspected al Qaeda terrorists in a foreign country during wartime,” Conc. Op. at 430, but there is zero basis here on which we could conclude that these defendants had grounds for treating this plaintiff as a suspected al Qaeda terrorist, or that they acted pursuant to the President’s war powers. To the contrary, the government never designated Meshal an enemy combatant, and it eventually released him and returned him to the United States. Maj. Op. at 419. Neither defendants nor this panel doubts that Meshal properly stated Fourth and Fifth Amendment claims. See J.A. 14; Maj. Op. at 419–20. The only issue is whether, if the allegations were true, they would have consequences.
Had Meshal suffered these injuries in the United States, there is no dispute that he could have sought redress under Bivens. 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.
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I would reverse the judgment dismissing Meshal’s case and remand for further proceedings for the following two reasons:
First, congressional action supports a constitutional damages claim where, as here, it would not intrude on the unique disciplinary structure of the military and where there is no comprehensive regulation or alternative remedy in place; and
Second, where FBI agents arbitrarily detain a United States citizen overseas and threaten him with disappearance and death during months of detention without charges, those agents’ mere recitation of foreign policy and national security interests does not foreclose a constitutional damages remedy.
I am unpersuaded that adjudicating Meshal’s constitutional damages claim would necessarily pose unacceptable risks to the national security and foreign policy of the United States. The government has submitted no certification or declaration of any authoritative diplomatic or national security officer to substantiate defendants’ sweeping national security and diplomatic relations claims. Defendants instead rely on generalized assertions that any litigation of Meshal’s Bivens claim would involve unacceptable risks. Such assertions do not, in my view, constitute the kind of “special factors” that justify eliminating the Bivens remedy in a case like this one.
Courts have no power to make national security policy or conduct foreign affairs and, in fulfilling our own constitutional duty, the Article III courts must not imperil the foreign relations or national security of the United States. But no less today than when the Supreme Court decided Bivens, “the judiciary has a particular responsibility to assure the vindication of constitutional interests such as those **17 *433 embraced by the Fourth Amendment.” Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 407, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) (Harlan, J., concurring in judgment). Government is most tempted to disregard individual rights during times of exigency. Judicial scrutiny becomes particularly important when executive officials assert that individual rights must yield to national security and foreign policy imperatives. Presented with cases involving assertions of paramount national interests in apparent tension with individual liberty, the federal courts have proved competent to adjudicate. Removing all consequence for violation of the Constitution treats it as a merely precatory document. See Davis v. Passman, 442

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U.S. 228, 242, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979). We should not do so without more justification than was presented here.
Our responsibility in cases pitting claims of individual constitutional liberties against national security is to discern how the judiciary can meet its responsibility without either second-guessing the sound judgments of the political branches, or rubber-stamping every invocation of the capacious and malleable concept of “national security” at the expense of the liberty of the people. The fundamental character of our separation of powers prevents us from simply ceding to executive prerogatives: “[I]t would turn our system of checks and balances on its head to suggest that a citizen could not make his way to court with a challenge to the factual basis for his detention by his Government, simply because the Executive opposes making available such a challenge.” Hamdi v. Rumsfeld, 542 U.S. 507, 536–37, 124 S.Ct. 2633, 159 L.Ed.2d 578 (2004).
To meet that responsibility, courts have demanded that governmental assertions of national security interests be authoritative and specific. We have used special procedures and mechanisms to consider those interests and accord them appropriate respect without abdicating our constitutional duties to adjudicate claims of violation of individual constitutional rights. Measures such as courts’ inspection of evidence under seal or even in camera, coding to anonymize valuable and sensitive information, security clearances of counsel and court personnel, and other special accommodations have helped to preserve courts’ ability to adjudicate in the face of countervailing executive imperatives. Courts developed the state secrets privilege to safeguard against damaging litigation disclosures of national security information. That doctrine’s requirements are designed to ensure that it not be lightly invoked, and to tailor its impact on countervailing rights. Defendants here contend that they need not submit to any such controls. Rather, they would have us categorically turn away claims that ostensibly touch on national security and foreign policy. No precedent of the Supreme Court, this court, or any other United States court requires that result.
The United States government itself elsewhere cites the availability of Bivens claims as fulfilling our treaty obligations to provide remedies for arbitrary detention and torture wherever it may occur, in peace or conflict. See infra pp. 438–39. Yet defendants would deny that promise, leaving Meshal with no remedy whatsoever—whether under state or federal law,
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constitutional, administrative, or otherwise. Their position is that an American citizen who ventures beyond our borders has no legal remedy against arbitrary and prolonged detention and mistreatment at the hands of FBI agents—so long as those agents were sent overseas to protect United States interests.
*434 **18 Because I cannot conclude that either the Supreme Court or our court has ever read the Constitution and laws of the United States to support that result, and I am not persuaded that defendants have provided us with grounds to do so here, I respectfully dissent.
I.
Meshal’s case is unlike those in which the Supreme Court or this court has declined to recognize a Bivens remedy. Here, as the majority acknowledges, Meshal is suing the typical Bivens defendant. Maj. Op. at 423. When FBI agents violate a suspect’s Fourth and Fifth Amendment rights by detaining him without charges and threatening him with torture, disappearance, and death, a Bivens remedy is ordinarily available. See id.
Defendants are not among the types of nongovernmental or organizational actors beyond the reach of Bivens: they are not a private corporation, cf. Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 73–74, 122 S.Ct. 515, 151 L.Ed.2d 456 (2000), its employees, cf. Minneci v. Pollard, ––– U.S. ––––, 132 S.Ct. 617, 623–26, 181 L.Ed.2d 606 (2012), or a federal governmental agency, cf. FDIC v. Meyer, 510 U.S. 471, 484–86, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994). See Maj. Op. at 421, 427.
These claims, if allowed to proceed under Bivens, would not sidestep any comprehensive scheme or alternative remedy addressing the conduct at issue. Maj. Op. at 8; cf. Wilkie v. Robbins, 551 U.S. 537, 553–62, 127 S.Ct. 2588, 168 L.Ed.2d 389 (2007); Schweiker v. Chilicky, 487 U.S. 412, 414, 424–29, 108 S.Ct. 2460, 101 L.Ed.2d 370 (1988); Bush v. Lucas, 462 U.S. 367, 388, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983); Wilson v. Libby, 535 F.3d 697, 706–08 (D.C.Cir.2008).
Meshal’s claims also do not implicate the unique demands of military discipline. He is not a service member or military contractor, his claims did not arise in the theater

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of war, nor are the defendant’s asserted security interests those of the military, its chain of command, or alternate disciplinary structure. Cf. United States v. Stanley, 483 U.S. 669, 683–84, 107 S.Ct. 3054, 97 L.Ed.2d 550 (1987); Chappell v. Wallace, 462 U.S. 296, 303–06, 103 S.Ct. 2362, 76 L.Ed.2d 586 (1983); Doe v. Rumsfeld, 683 F.3d 390, 394–96 (D.C.Cir.2012); Lebron v. Rumsfeld, 670 F.3d 540, 549–51, 553 (4th Cir.2012); Vance v. Rumsfeld, 701 F.3d 193, 199–203 (7th Cir.2012) (en banc).
The foreign affairs implications that arise when an alien sues United States officials are absent here. Meshal is an American citizen, born and raised in New Jersey, to whom the constitutional protections asserted here apply both at home and when he goes overseas as a civilian tourist. Reid v. Covert, 354 U.S. 1, 5–10, 77 S.Ct. 1222, 1 L.Ed.2d 1148 (1957) (plurality) (rejecting “the idea that when the United States acts against citizens abroad it can do so free of the Bill of Rights”); Maj. Op. at 422–23 n. 4; Oral Arg. Tr. at 19 (defendants’ counsel acknowledging constitutional rights of United States citizens abroad). Conflict within Somalia displaced Meshal and other civilians, but Meshal does not allege he was arrested or detained in any zone in which the United States was engaged in war or military hostilities. J.A. 13.
Precedent does not permit us categorically to rule out any civil remedy for these alleged wrongs. In my view, defendants’ national security and foreign policy “special factors” are overstated and under-explained. I do not read the Supreme Court’s cases to hold that “the thumb is heavy on the scale against recognizing a Bivens remedy” in a situation such as this **19 *435 one. Maj Op. at 428. To the contrary, the Supreme Court’s holding in Bivens that damages are an appropriate remedy for a Fourth Amendment violation remains the law of the land. And no one disputes that a Fifth Amendment claim for arbitrary detention and coercive interrogation under threats of disappearance and death would be cognizable under Bivens if it occurred in the United States. See Wilkins v. May, 872 F.2d 190, 194 (7th Cir.1989) (Posner, J.) (recognizing Bivens Fifth Amendment due process claim in “a case in which a person who had been arrested but not charged or convicted was brutalized while in custody”), cert. denied, 493 U.S. 1026, 110 S.Ct. 733, 107 L.Ed.2d 752 (1990); see also Hernandez v. United States, 757 F.3d 249, 271, 277 (5th Cir. 2014) (recognizing Bivens Fifth Amendment claim extraterritorially for “conscience-shocking conduct”).
Defendants assert that any judicial consideration of
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Meshal’s claims would interfere with foreign policy and national security, but they have failed to make the case. In the district court, defendants’ counsel said “I don’t know how the foreign government is alleged to have been involved in this particular operation.” J.A. 14. At oral argument in our court, as the majority notes, counsel for defendants “had few concrete answers concerning what sensitive information might be revealed if the litigation continued.” Maj. Op. at 425.
The only authority defendants cite for any threat to national security is the district court’s recapitulation of defendants’ own contentions in their lower-court briefs that litigation of Meshal’s claims “implicate national security threats in the Horn of Africa region” and “substance and sources of intelligence.” See Appellee Br. 11, 13, 24–27, 36–37; Br. in Supp. of Mot. to Dismiss at 13–14. They assert that adjudication would require the public release of sensitive national security information, but they provide no basis for us to evaluate that assertion. Defendants also have done nothing to explain why the more targeted tools available to courts to protect such information, such as confidential or in camera processes or the state secrets privilege, would be inadequate here.
II.
I explain my conclusion by following the “familiar sequence” the Supreme Court employs to consider whether any “alternative, existing processes,” or “special factors” justify denying Meshal’s Bivens claim. Wilkie, 551 U.S. at 550, 127 S.Ct. 2588.
A.
Precedent directs us to consider first “whether any alternative, existing process for protecting the [constitutionally recognized] interest amounts to a convincing reason for the Judicial Branch to refrain” from superimposing a Bivens remedy on that process. Minneci, 132 S.Ct. at 621 (quoting Wilkie, 551 U.S. at 550, 127

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S.Ct. 2588) (brackets in original). Nobody contends that there is any “alternative, existing process” for protecting Meshal’s constitutional rights. See Maj. Op. at 424–25; Conc. Op. at 432–33. The parties and the court agree that, in these circumstances, it is Bivens or nothing. See Davis, 442 U.S. at 246, 99 S.Ct. 2264. Unlike plaintiffs in the cases in which the Supreme Court has held that Bivens is unavailable, Meshal has no alternative state tort remedy, cf. Minneci, 132 S.Ct. at 623, 626 (state tort remedy for alleged Eighth Amendment claims against private prison employees); Wilkie, 551 U.S. at 551, 127 S.Ct. 2588 (state tort remedy for alleged unconstitutional interference with property rights); Malesko, 534 U.S. at 73–74, 122 S.Ct. 515 (state tort remedy for alleged Eighth Amendment **20 *436 claims against private prison corporation), and Congress has not provided any other remedy or comprehensive scheme to displace Bivens here, cf., e.g., Schweiker, 487 U.S. at 424–27, 108 S.Ct. 2460 (Social Security Act); Bush, 462 U.S. at 380–81, 388, 103 S.Ct. 2404 (comprehensive federal civil service regulation); Wilson, 535 F.3d at 705–08 (Privacy Act); Chappell, 462 U.S. at 304, 103 S.Ct. 2362 (recognizing “unique disciplinary structure of the military establishment” as “special factor”).
The majority acknowledges that Congress at various times has acted in ways that appear to have ratified Bivens, but ultimately concludes that congressional acquiescence is “open to doubt,” and so treats the congressional activity in the area as a draw. Maj. Op. at 427–28. The basis of the majority’s doubt is unpersuasive: my colleagues wonder whether Congress has preserved Bivens for almost half a century only because it thought it had to. Id. at 427–28. But the Supreme Court from Bivens onward has emphasized that Congress may displace the constitutional common-law remedy. In the face of that invitation to legislate, Congress has consistently preserved a place for judicially recognized Bivens claims.
In particular, as the majority acknowledges, even as Congress periodically amended the Federal Tort Claims Act (FTCA), which provides an exclusive federal statutory remedy against the government for state common-law torts by United States officials, Congress purposely left intact the judicially fashioned Bivens remedy for constitutional torts by those same officials. Congress in the 1974 amendments to the FTCA “made it crystal clear that Congress views FTCA and Bivens as parallel, complementary causes of action.” Carlson v. Green, 446 U.S. 14, 19–20, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980) (citing 28 U.S.C. § 2680(h)). And again, in
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1988 when the Westfall Act amended the FTCA to immunize federal officials from personal liability for common law torts committed within the scope of their employment and substitute the United States as the sole defendant to those claims, Congress specified that such substitution-and-immunity does not apply to claims “brought for a violation of the Constitution of the United States.” 28 U.S.C. § 2679(b)(2)(A). Congress designed the Westfall Act so as “not to affect the ability of victims of constitutional torts to seek personal redress from Federal employees who allegedly violate their Constitutional rights”—a type of violation that is “a more serious intrusion on the rights of an individual that merits special attention.” H.R.Rep. No. 100–700, at 6 (1988), reprinted in 1988 U.S.C.C.A.N. 5945, 5949–50. Congress has preserved constitutional damages claims even where they are parallel to and thus sometimes overlap with FTCA claims that provide a limited federal statutory vehicle for enforcing the substantive protections of state tort law; there is no basis to read that longstanding acceptance of Bivens as signaling congressional intent to eliminate constitutional damages claims when no overlapping or substitute claim exists.
The majority recognizes all of that, Maj. Op. at 427–28, but wonders whether Congress may have preserved Bivens only out of concern that the remedy is constitutionally compelled, id. at 427–28. There is no basis for any such conclusion. The concurrence finds compelling that Congress has not codified any alternative remedy for Meshal’s harms. Conc. Op. at 432. But congressional restraint cuts the other way. As noted above, when Congress was making the relevant amendments to the FTCA, the Supreme Court had already repeatedly reiterated its own understanding that the judicially recognized remedy could be displaced by a congressional substitute **21 *437 See, e.g., Bush, 462 U.S. at 378–79, 103 S.Ct. 2404; Carlson, 446 U.S. at 18–20, 100 S.Ct. 1468; Davis, 442 U.S. at 245–47, 99 S.Ct. 2264; Bivens, 403 U.S. at 397, 91 S.Ct. 1999. Despite addressing many other related types of claims, Congress has enacted no alternative that would displace a claim like Meshal’s. Against that backdrop, Congress’s acquiescence cannot be read as misguided submission to, let alone rejection of, Bivens in these circumstances.
Defendants point out that the FTCA explicitly affords no tort remedy for injuries “arising in a foreign country.” 28 U.S.C. § 2680(k). They contend the exception shows Congress’s intention to deny a constitutional tort remedy to individuals injured abroad by United States agents. But the reason Congress excluded extraterritorial claims from

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the FTCA was not to deny all damages liability for tort-like harms inflicted by United States agents overseas. That exclusion is specific to the FTCA, under which liability is determined “in accordance with the [tort] law of the place where the act or omission occurred,” 28 U.S.C. § 1346(b)(1), i.e. by the common law of the various states. Congress “was unwilling to subject the United States to liabilities depending upon the laws of a foreign power.” United States v. Spelar, 338 U.S. 217, 221, 70 S.Ct. 10, 94 L.Ed. 3 (1949). The exemption shows only that the FTCA aimed to incorporate the tort law of Texas or Illinois but not of Kenya or Ethiopia. The concerns animating the FTCA’s extraterritorial carve-out are inapplicable where the United States Constitution, not any foreign country’s law, supplies the rule of decision.
The majority also asserts that “if Congress really desired a ratification of Bivens,” it would have “place[d] Bivens causes of actions in a separate statutory provision,” such as 28 U.S.C. § 1331 or 42 U.S.C. § 1983. Maj. Op. at 428 n. 9. But Congress did not need to do that. Section 1331 provides general federal question jurisdiction. It is the very provision upon which Webster Bivens’s claim proceeded. Bivens, 403 U.S. at 398, 91 S.Ct. 1999 (Harlan, J., concurring in judgment). As Justice Harlan noted, Section 1331 “is sufficient to empower a federal court to grant a traditional remedy at law” for a Fourth Amendment violation. Id. at 405, 91 S.Ct. 1999.1 Demanding a showing that Congress created an analogue to Section 1983 for claims against federal officials also goes too far; had Congress done so, there would be no need for Bivens. See Lebron, 670 F.3d at 548 (acknowledging that “[w]e do not require congressional action before recognizing a Bivens claim, as that would be contrary to Bivens itself”). And once the Court decided Bivens, there was no need for a Section 1983–like statutory vehicle. Defendants point to other statutes providing remedies to detainees abused at the hands of government officials to argue that Congress could have created a cause of action for plaintiffs in Meshal’s position, but chose not to do so. They contend that congressional action “in this field” that creates no damages remedy for Meshal is a “special factor[ ] that counsel[s] hesitation.” Appellee Br. 39. The majority correctly places no reliance on that argument **22 *438 The additional congressional action defendants identify is wholly consistent with Congress’s acquiescence to Bivens for claims like Meshal’s.
The Military Claims Act and Foreign Claims Act provide an administrative compensation system for individuals harmed by military officials or contractors at home or
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abroad. See 10 U.S.C. § 2733 (Military Claims Act); id. § 2734 (Foreign Claims Act). Defendants do not contend that any such claims process is available to a civilian harmed by nonmilitary United States agents overseas, so it is unclear how those statutes could imply any congressional disinclination toward Meshal’s Bivens claim. Indeed, the fact that Congress provided a remedy to persons in special-factors military cases excluded from Bivens’ reach suggests congressional solicitude for persons who would otherwise lack compensation. See Vance, 701 F.3d at 200–01 (enumerating statutes governing the treatment of military detainees to conclude that “[u]nlike Webster Bivens, they are not without recourse”); Doe, 683 F.3d at 396–97.
The same can be said of defendants’ invocation of the Torture Victim Protection Act, which authorizes United States residents to sue foreign officials for abusive treatment under color of foreign law. 28 U.S.C. § 1350 Note. Defendants and the concurrence, Conc. Op. at 432–33, assert that the Torture Victim Protection Act’s damages remedy for United States residents harmed by foreign officials implies that Congress considered and eschewed a parallel remedy for the same harms inflicted by United States agents. But that statute may well reflect Congress’s awareness that, against United States agents, a remedy already exists under Bivens.2 Neither defendants nor my concurring colleague offer any reason why we should infer that Congress’s creation of a new remedy against foreign officials communicates its disapproval of the sole available remedy for torture of a United States citizen at the hands of United States nonmilitary agents. Their position appears to be that if Kenyan or Ethiopian officials had worked alongside United States agents to torture Meshal, Congress would have wanted him to have a remedy in United States courts against the foreign agents under the Torture Victim Protection Act, but to have no chance of any parallel relief against the Americans inflicting the same torture. That inference is counterintuitive, to say the least.
The executive branch in fact publicly insists that victims of arbitrary detention or torture, both of which Meshal alleges, do have a remedy under our law. The remedy the government touts is Bivens litigation in federal court. The Convention Against Torture and other treaties prohibit the United States from engaging in torture, forced disappearances, and arbitrary detentions.3 As the State Department acknowledged **23 *439 in 2014, the United States is bound by the terms of the Convention Against Torture for actions committed either domestically or abroad, whether during a time of conflict or peace.4 Both

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the Convention Against Torture and the International Covenant on Civil and Political Rights (ICCPR) obligate the United States to provide remedies, including “compensation,” for violations of their respective guarantees.5 In 2006, the State Department assured the United Nations Committee Against Torture that victims of torture can sue United States officials for damages under the Constitution and cited Bivens to support that point. See United States Written Responses to Questions Asked by the United Nations Committee Against Torture, ¶ 5 (Apr. 28, 2006), available at http://www.state.gov/j/drl/rls/68554.htm; see also Vance, 701 F.3d at 208–09 (Wood, J., concurring in judgment); id. at 219 (Hamilton, J., dissenting); Arar v. Ashcroft, 585 F.3d 559, 619 (2d Cir.2009) (en banc) (Parker, J., dissenting).
Denying Meshal the recourse that the United States has asserted he has—the ability to bring a Bivens action—leads to an inexplicable result: civil remedies are available to most victims of torture, except a United States citizen tortured by United States agents abroad. An American subjected to arbitrary arrest and coercive interrogation by federal officials within the United States would typically have a civil remedy under Bivens. See Maj. Op. at 423. The majority leaves open whether a United States citizen abused by federal agents abroad as part of an investigation not implicating national security would be able to bring a Bivens action and offers no reason why such a suit would be barred. See Maj. Op. at 418, 425. A United States citizen tortured by foreign officials could file suit under the Torture Victim Protection Act. See 28 U.S.C. § 1350 Note. A foreign citizen tortured by United States officials within the United States could file suit under the Federal Tort Claims Act and the Alien Tort Statute. See 28 U.S.C. § 1346(b)(1); id. § 1350. And a foreign citizen tortured by American agents acting abroad could seek redress under the Alien Tort Statute or in his nation’s courts. Yet, under defendants’ view, a United States citizen tortured by American agents acting abroad has no recourse in his own nation’s courts. It makes no sense that Congress would have selectively denied to Americans abused abroad by United States agents the remedies it has extended to all others. The far more tenable conclusion is that Congress recognized that citizens already **24 *440 had a remedy under Bivens for such wrongs.
The Constitution includes a Bill of Rights because the Framers ultimately recognized that a Congress responsive to the will of the majority would not always adequately protect individual rights that might be unpopular with
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majorities. Bivens, 403 U.S. at 407, 91 S.Ct. 1999 (Harlan, J., concurring in judgment) (“[I]t must also be recognized that the Bill of Rights is particularly intended to vindicate the interests of the individual in the face of the popular will as expressed in legislative majorities.”). Adjudication of claims of individual rights has always been the distinctive province of the Article III courts. The genius of Bivens is precisely that it fulfilled a rights-protective function that the Framers knew was unrealistic to leave only with a majoritarian Congress, even while the Court acknowledged Congress’s power to displace Bivens by crafting an alternative remedy or “comprehensive statutory scheme” in its stead. See Schweiker, 487 U.S. at 424–27, 108 S.Ct. 2460; Bush, 462 U.S. at 388, 103 S.Ct. 2404. Because Congress has not done so here, it has provided no ground for dismissing Meshal’s Bivens claims.
B.
Our second task in considering whether Meshal may proceed with his Bivens claim is to “make the kind of remedial determination that is appropriate for a common-law tribunal, paying particular heed, however, to any special factors counselling hesitation before authorizing a new kind of federal litigation,” Wilkie, 551 U.S. at 550, 127 S.Ct. 2588 (internal quotation marks omitted), in “the absence of affirmative action by Congress,” Carlson, 446 U.S. at 18, 100 S.Ct. 1468 (quoting Bivens, 403 U.S. at 396, 91 S.Ct. 1999). The majority concludes that two factors counsel decisively against recognizing a remedy here: foreign policy and national security concerns. Maj. Op. at 425–26. Defendants have not persuasively shown that either of those factors precludes a Bivens action in the circumstances alleged here. Moreover, there is no reason to conclude that a federal district court could not resolve whatever national security concerns might arise.
1.

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The fact that the conduct Meshal complains of occurred abroad should not vitiate all remedy here. Defendants point to allegations that they harmed Meshal during an investigation “allegedly undertaken jointly with foreign government officials, and while plaintiff was detained by foreign governments.” Appellee Br. 21. It is not clear why those facts, although potentially relevant to how his lawsuit would need to be litigated and managed, see infra Part II.B.4, should foreclose the suit. United States law enforcement cooperation with foreign governments around the world has become commonplace. Defendants have not explained how litigation of Meshal’s claim would pose foreign policy difficulties. See J.A. 13–14; Oral Arg. Tr. at 30 (defendants’ counsel referring generally to “our relationship with foreign governments” as the sensitive national security issue raised by Meshal’s claims).
Our government’s power is defined and limited by the Constitution. “It can only act in accordance with all the limitations imposed by the Constitution. 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. This is not a novel concept. To the contrary, it is as old as government.” **25 *441 Reid, 354 U.S. at 6, 77 S.Ct. 1222. Fidelity to the Constitution should have prevented the FBI’s alleged mistreatment of Meshal in Kenya, Somalia, and Ethiopia. Judicial recognition of a claim against those nonmilitary law enforcement officers for having acted in ways long known to be contrary to the Constitution cannot fairly be condemned as “courts ... unilaterally recogniz[ing] new limits that restrict officers’ wartime activities.” Cf. Conc. Op. at 431 (emphasis in original).
In denying Meshal a remedy under Bivens, the majority contends that the fact that Meshal’s mistreatment occurred outside the United States is a “special factor” counseling against a constitutional damages claim. See Maj. Op. at 418, 424–26; Conc. Op. at 432–33 (describing the foreign location of the alleged abuse as the “[m]ost important[ ]” factor). The court relies for support on the presumption against extraterritorial application of statutes. See Maj. Op. at 424–25 (citing Kiobel v. Royal Dutch Petroleum Co., –––U.S. ––––, 133 S.Ct. 1659, 1664, 185 L.Ed.2d 671 (2013); Morrison v. Nat’l Australia Bank Ltd., 561 U.S. 247, 255, 130 S.Ct. 2869, 177 L.Ed.2d 535 (2010)). It is well established that Congress has the power to regulate actions of United States citizens outside the territory of the United States and, given the proliferation
17

of transnational conduct, it increasingly does so. The presumption sets only a default rule of statutory construction to aid courts in determining whether Congress intended to legislate with respect to foreign occurrences. See Kiobel, 133 S.Ct. at 1665; Morrison, 561 U.S. at 255, 130 S.Ct. 2869. However, that presumption has no relevance to Meshal’s Bivens claims to enforce constitutional provisions that all agree apply abroad, especially given that the very genesis of Bivens lies in the acknowledged inactivity of Congress.
Even if we were to assume an analogue to the presumption against statutory extraterritoriality for Bivens claims, it would be inapposite here because the factors that animate such a presumption are absent. Entertaining Meshal’s suit poses no risk of “impos[ing] the sovereign will of the United States” onto conduct by foreign officials in a foreign land. Kiobel, 133 S.Ct. at 1667. Application of the United States Constitution to govern interactions between Americans would not control the subjects of an independent sovereign or clash with its law, sending the controversial message that United States law “rule[s] the world.” Cf. id. at 1664 (quoting Microsoft Corp. v. AT & T Corp., 550 U.S. 437, 454, 127 S.Ct. 1746, 167 L.Ed.2d 737 (2007)). This case involves pursuit of purely retrospective relief by our citizen under our Constitution against our government’s criminal investigators. The Supreme Court in Kiobel—a case by aliens against foreign defendants to enforce international norms—noted the inapplicability of the presumption against extraterritoriality when overseas conduct touches and concerns the United States with sufficient force. See id. at 1669; see also Morrison, 561 U.S. at 264–65, 130 S.Ct. 2869. Meshal’s claims powerfully touch and concern the United States. Defendants have failed to show that any other nation has any conflicting interest in this case or that our foreign relations would be affected were it to proceed.
Defendants relatedly assert that adjudicating Meshal’s allegations that defendants at times worked together with foreign agents to detain and transport Meshal requires federal courts to intrude on foreign justice systems and would upset diplomatic relations. Appellee Br. at 21, 24–26; see Maj. Op. at 426–27. But we have rejected the position that the cooperation of foreign law enforcement with United States agents renders a claim too sensitive to adjudicate: **26 *442 “[T]eaming up with foreign agents cannot exculpate officials of the United States from liability to United States citizens for the United States officials’ unlawful acts.” Ramirez de Arellano v. Weinberger, 745 F.2d 1500, 1542–43 (D.C.Cir.1984) (en

Meshal v. Higgenbotham, 804 F.3d 417 (2015)
420 U.S.App.D.C. 1
banc), rev’d on other grounds, 471 U.S. 1113, 105 S.Ct. 2353, 86 L.Ed.2d 255 (1985); cf. also Johnson v. Eisentrager, 339 U.S. 763, 795, 70 S.Ct. 936, 94 L.Ed. 1255 (1950) (Black, J., dissenting) (“The Court is fashioning wholly indefensible doctrine if it permits the executive branch, by deciding where its prisoners will be tried and imprisoned, to deprive all federal courts of their power to protect against a federal executive’s illegal incarcerations.”); Abu Ali v. Ashcroft, 350 F.Supp.2d 28, 50, 54 (D.D.C.2004) (circumstances in which “a citizen is allegedly being detained at the direction of the United States in another country without any opportunity at all to vindicate his rights” amount to “an exceptional situation that demands particular attention to the rights of the citizen”). Many of the Guantanamo detainees were captured by foreign governments and handed over to the United States, yet courts regularly review the facts and circumstances of the detainees’ capture and detention when they adjudicate habeas claims. See Rasul v. Bush, 542 U.S. 466, 470–72, 483–84, 124 S.Ct. 2686, 159 L.Ed.2d 548 (2004); see, e.g., Anam v. Obama, 696 F.Supp.2d 1, 5–7 (D.D.C.2010).
Our court has identified foreign policy implications as potential “special factors” in cases involving foreign plaintiffs but has specified that such concerns are removed when the plaintiff is a United States citizen. In Doe, we acknowledged that the plaintiff’s “United States citizenship does remove concerns ... about the effects that allowing a Bivens action would have on foreign affairs” even as we declined on other grounds to recognize a Bivens claim against the Secretary of Defense by a United States-citizen military contractor in Iraq. 683 F.3d at 396; cf. Sanchez–Espinoza v. Reagan, 770 F.2d 202, 208–09 (D.C.Cir.1985) (noting, in special-factors analysis of Nicaraguans’ Bivens challenge to United States’ support of the Nicaraguan Contras, the “danger of foreign citizens using the courts ... to obstruct the foreign policy of our government”).
The majority cites Munaf v. Geren, 553 U.S. 674, 702, 128 S.Ct. 2207, 171 L.Ed.2d 1 (2008), for the broad proposition that United States courts may not “second guess executive officials operating in foreign justice systems,” Maj. Op. at 426, but that case does not support defendants’ foreign-policy objection to Meshal’s Bivens claims. The Court in Munaf unanimously held that United States citizens held by multinational forces have a right to seek habeas corpus relief in United States courts, 553 U.S. at 686–88, 128 S.Ct. 2207, notwithstanding that the participation of cooperating foreigners in the circumstances of confinement might be exposed. Munaf
18

also concerned a contest over which of two sovereigns should prosecute criminal suspects of interest to both—a contest absent here, where no prosecution occurred and no other sovereign has claimed an interest in Meshal’s civil case. See id. at 697–98, 128 S.Ct. 2207. The Supreme Court’s conclusion—that the United States government’s decision not to “shelter [American] fugitives from the criminal justice system of the sovereign with authority to prosecute them” was beyond judicial review, id. at 705, 128 S.Ct. 2207—has no relevance here. It fails to provide even indirect support for defendants’ much broader contention that a “foreign policy” factor weighs against any adjudication of rights abuses arising from investigations involving international cooperation.
*443 2.
**27 Defendants also have not shown how the “special factor” of national security prevents recognition of a Bivens claim here. See Oral Arg. Tr. at 23 (defendants’ counsel claiming that it “is the mere prospect of [national security related] litigation inquiry that raises” national security sensitivities). The executive and legislative branches have primary authority over national security matters, but their authority is not entirely insulated from the courts, which play a vital role in protecting constitutional rights. The Supreme Court has long “made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens,” and underscored that, “[w]hatever power the United States Constitution envisions for the Executive in its exchanges with other nations or with enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake.” Hamdi, 542 U.S. at 536, 124 S.Ct. 2633. Because “[n]ational security tasks ... are carried out in secret ..., it is far more likely that actual abuses will go uncovered than that fancied abuses will give rise to unfounded and burdensome litigation.” Mitchell v. Forsyth, 472 U.S. 511, 522, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). Courts must take care in accepting assertions of necessity based on national security, because, as the Supreme Court has observed, “the label of ‘national security’ may cover a multitude of sins.” Id. at 524, 105 S.Ct. 2806.
The law enforcement investigations in Turkmen v. Hasty,

Meshal v. Higgenbotham, 804 F.3d 417 (2015)
420 U.S.App.D.C. 1
789 F.3d 218 (2d Cir.2015), were at least as related to the investigation of suspected terrorism as the investigation at issue here, but the Second Circuit found no bar to Bivens claims. See id. at 233–37. The Turkmen plaintiffs were detained in the wake of the September 11th attacks and held until the government could clear them of any involvement with terrorism. Id. at 226–27. The fact that the investigation concerned terrorism did not preclude the court from recognizing a Bivens remedy. The court acknowledged that “[i]t might well be that national security concerns motivated the Defendants to take action, but that is of little solace to those who felt the brunt of that decision. The suffering endured by those who were imprisoned merely because they were caught up in the hysteria of the days immediately following 9/11 is not without a remedy.” Id. at 264. The national security character of the investigation was not dispositive there, nor should it be here.
I appreciate the majority’s efforts to cabin its holding to cases touching on national security and arising abroad. See Maj. Op. at 418, 425–26; see also Oral Arg. Tr. at 28, 30 (government disclaiming any rule barring all Bivens claims involving counter-terrorism investigations, or all claims based on overseas conduct). But I fear that relying on general national security concerns unconnected to military operations goes too far toward eliminating Bivens altogether. On its own, national security is a malleable concept. According to one scholar who exhaustively canvassed the field, “[d]espite its appearance throughout history and its use in relation to statutory authorities ... ‘national security’ is rarely defined,” and when Congress and the executive branch define it, they do so broadly; the Supreme Court, for its part, “has acknowledged that the term is frustratingly broad, [and that it gives] rise to important constitutional concerns.” Laura K. Donohue, The Limits of National Security, 48 AM. CRIM. L. REV. 1573, 1579–84 (2011). Defendants provide no principle limiting their proffered “national security” rationale for defeating Bivens liability and shielding federal agents from constitutional accountability. The boundlessness **28 *444 of their position is particularly problematic when “[n]o end is in sight” to the war against terrorism. Conc. Op. at 431. Defendants’ open-ended invocation of “ national security” to defeat Bivens is unprecedented.
All of the cases defendants cite as dismissing Bivens claims for national security reasons are readily distinguishable from this one as involving the military. See Doe, 683 F.3d 390; Vance, 701 F.3d 193; Lebron, 670 F.3d 540. Both Doe and Vance concerned abuses allegedly committed by military officials and challenged
19

military decisions about operations in the theater of war. Doe, 683 F.3d at 392; Vance, 701 F.3d at 195–96, 199. Those decisions hinged, in part, on the fact that the plaintiffs were the functional equivalent of members of the armed services. For example, plaintiff Doe was a defense contractor detailed to a Marine unit on the Iraqi–Syrian border who was detained by the military and determined by a Detainee Status Board to be a threat to the Multi–National Forces in Iraq. See Doe, 683 F.3d at 391–92. Although Doe was “a contractor and not an actual member of the military,” we saw “no way in which this affects the special factors analysis” of Stanley and Chappell, which was based on the exclusive system of military justice and discipline. See Doe, 683 F.3d at 393–94. Notably, in Doe, we referred collectively to the “military, intelligence, and national security” aspect of the case, never invoking “national security” alone or as it might relate to a criminal investigation. Id. at 394. Vance, too, involved claims of military contractors “performing much the same role as soldiers.” 701 F.3d at 198–99. They were detained by military personnel in a combat zone on suspicion of supplying weapons to groups opposed to the United States. The Seventh Circuit refused to recognize a Bivens remedy for their claims, reasoning that “[t]he Supreme Court’s principal point was that civilian courts should not interfere with the military chain of command.” Id. at 199.
In Lebron, plaintiff Jose Padilla was “convicted of conspiring with others within the United States to support al Qaeda’s global campaign of terror” before he sued military policymakers and military officers for his prior military detention as an enemy combatant. 670 F.3d at 544. Although Padilla was neither a service member nor a contractor functioning as one, the defect in his suit, as in Doe and Vance, was that he sued the military and his claims threatened to “interfere[ ] with military and intelligence operations on a wide scale.” Id. at 553.
Meshal’s suit does not arise out of or seek to scrutinize military service or military activity—he is not a service member or military contractor nor is he challenging any conduct of military officials. He was detained by FBI agents during the course of a national-security related law enforcement operation. Unlike its treatment of Bivens claims arising from and challenging military actions, the Supreme Court has never hesitated to recognize the viability of a damages suit against federal agents engaged in law enforcement activities or responsible for supervising prisoners. Compare Chappell, 462 U.S. at 300, 103 S.Ct. 2362, with Bivens, 403 U.S. at 397–98, 91 S.Ct. 1999, and Carlson, 446 U.S. at 17–19, 100 S.Ct.

Meshal v. Higgenbotham, 804 F.3d 417 (2015) 420 U.S.App.D.C. 1
1468.
3.
Even accepting that the intersection of foreign policy and national security concerns might sometimes amount to “special factors” counseling decisively against a Bivens claim, defendants have failed utterly to explain why those factors should be dispositive here. Defendants’ contention that litigating Meshal’s claims could jeopardize **29 *445 national security has been made in a cursory fashion, and only in legal briefing. Defendants repeatedly assert, for example, that Meshal’s suit would “enmesh the judiciary in the evaluation of national security threats in the Horn of Africa region” and compromise “the substance and sources of intelligence.” Appellee Br. 13, 24, 25, 37. That is insufficient. The scope or urgency of the national security threat in the Horn of Africa has not been shown to be incompatible with remedying violations of Americans’ Fourth and Fifth Amendment rights.
The government’s assertion of national security interests here is quite different from the assertion that persuaded the Fourth Circuit in Lebron to decline to recognize a Bivens claim. There, the court noted that Congress and the executive had acted in concert in support of the power over military affairs that constituted a “special factor.” Lebron, 670 F.3d at 549. Congress enacted the Authorization for the Use of Military Force, and the President formally designated Padilla as an enemy combatant pursuant to that authorization. Id. Here, no designation was made, and no military power asserted. The concurrence characterizes FBI activities in foreign countries as part of an “integrated war effort” under the national security umbrella of the President’s war power, and suggests that defendants were privileged to act as they did because they “suspected that Meshal was an al Qaeda terrorist.” Conc. Op. at 431. But defendants do not claim that they acted pursuant to presidential war powers, nor have they provided any grounds for treating Meshal as a terrorist.
If Article III judges must sometimes cede our rights-protective role in deference to the political branches on matters of national security, we should do so only with a responsible official’s authoritative and specific assurance of the imperative of doing so.
20

“[H]istory and common sense teach us that an unchecked system of detention carries the potential to become a means for oppression and abuse....” Hamdi, 542 U.S. at 530, 124 S.Ct. 2633. Not every Justice Department lawyer assigned to represent individual defendants sued under Bivens, see 28 C.F.R. § 50.15, has the authority to invoke the prerogatives of the Commander in Chief.
Before declining to recognize a cause of action because of national security concerns, the court should require the government to provide a concrete, plausible, and authoritative explanation as to why the suit implicates national security concerns. That judges cannot “forecast” on our own whether or how this suit might affect national security, see Maj. Op. at 426, only underscores why we must require that the government take responsibility for invoking any such rationale. If this case indeed raises national security concerns, our law provides the United States with the opportunity to advance them, and gives courts more nuanced and focused ways to address such concerns.
In order to invoke the state secrets evidentiary privilege, for example, the head of the department with control over a matter must personally consider the issue and make a formal claim of privilege. United States v. Reynolds, 345 U.S. 1, 7–8, 73 S.Ct. 528, 97 L.Ed. 727 (1953). Courts give careful scrutiny to such assertions. See, e.g., Al–Haramain Islamic Found., Inc. v. Bush, 507 F.3d 1190, 1203 (9th Cir.2007) (“Simply saying ‘military secret,’ ‘national security’ or ‘terrorist threat’ or invoking an ethereal fear that disclosure will threaten our nation is insufficient to support the privilege. Sufficient detail must be—and has been—provided for us to make a meaningful examination.”). Here, by contrast, defendants have provided **30 *446 no affidavit or certification from a high-level government official explaining how Meshal’s suit would implicate national security. Defendants’ broad claim that this case implicates national security is entirely unsupported and conjectural. It does not justify refusing to recognize a Bivens claim here.
4.
If Meshal were permitted to press his claim, it is entirely possible that during the proceedings a national-security related issue would arise, and that such an issue might

Meshal v. Higgenbotham, 804 F.3d 417 (2015)
420 U.S.App.D.C. 1
prove to be an obstacle to the suit. But that is no reason to halt his suit at the threshold. As the majority notes, Maj. Op. at 425, defendants’ counsel at argument was unable to explain how litigating Meshal’s claim might reveal national security information or be insusceptible of management through the many other doctrines designed to enable litigation consistent with national security interests. See Oral Arg. Tr. at 23, 25.
Federal courts frequently decide cases raising national security issues and are well equipped to handle them. Among the responsibilities of Article III courts is the duty to evaluate the factual and legal bases of the government’s detention of United States citizens designated as enemy combatants, Hamdi, 542 U.S. at 509, 536, 124 S.Ct. 2633, to adjudicate habeas petitions brought by enemy combatants detained at Guantanamo Bay, Boumediene v. Bush, 553 U.S. 723, 732, 128 S.Ct. 2229, 171 L.Ed.2d 41 (2008), and to decide whether federal agents were engaged in a “joint venture” with foreign law enforcement officials to circumvent Miranda warnings, United States v. Abu Ali, 528 F.3d 210, 226–28 (4th Cir.2008). The judiciary has a wide range of tools to address national security concerns as they arise during the course of a lawsuit. In light of those tools, defendants have failed to show that there is a reason to deny categorically Meshal’s constitutional tort claims.
Under the state-secrets privilege, for example, the government can withhold information from discovery if disclosure of that information would imperil national security or foreign policy. See, e.g., Reynolds, 345 U.S. at 7–8, 73 S.Ct. 528; Halkin v. Helms, 690 F.2d 977, 990 (D.C.Cir.1982). Once the government properly invokes the privilege, a plaintiff cannot defeat it even if his suit would fail without the privileged material. See, e.g., Reynolds, 345 U.S. at 11, 73 S.Ct. 528; Halkin, 690 F.2d at 990. The state-secrets privilege is designed precisely to prevent disclosure of information that would impair the nation’s defense capabilities or diplomatic interests.
Courts have developed a variety of additional procedures for managing cases that implicate sensitive issues. See Federal Judicial Center, National Security Case Studies: Special Case–Management Challenges (June 25, 2013) (hereinafter “FJC”). Courts are equipped to evaluate classified and sensitive evidence while maintaining secrecy. Classified or secret evidence is often submitted to courts under seal, and courts can issue opinions without disclosing that evidence. See, e.g., Nat’l Council of Resistance of Iran v. Dep’t of State, 251 F.3d 192, 202 (D.C.Cir.2001) (“We acknowledge that in reviewing the
21

whole record, we have included the classified material. As we noted above ... we will not and cannot disclose the contents of the record.”); U.S. Info. Agency v. Krc, 989 F.2d 1211, 1220 n. 4 (D.C.Cir.1993) (“[Secret] information has been submitted to the court under seal and cannot be discussed in this opinion.”). Court personnel and non-government attorneys may be eligible for security clearances that permit them to view and use classified documents and materials for purposes of litigating claims touching on national security. See, **31 *447 e.g., In re Nat’l Sec. Agency Telecomms. Records Litig., 595 F.Supp.2d 1077, 1089 (N.D.Cal.2009); see also United States v. Moussaoui, 591 F.3d 263, 267 (4th Cir.2010); FJC at 416, 422 (collecting examples). Courts can assign codes or aliases in a case to enable witnesses to testify about secret matters in a way in which the judge, jury, and attorneys will understand, but the public will not. See FJC at 407–08. Secure video connections can enable depositions and recorded testimony from witnesses living abroad. FJC at 64, 130–31, 187. Defendants have given no reason to believe that the tools available to courts to respond to such concerns would be inadequate in Meshal’s case.
* * *
Constitutional damages remedies hold out hope of redress to survivors of what is sometimes truly horrific abuse at the hands of government agents. Witness this case. Such claims are rarely brought and, due to legal and factual complexities, they almost never succeed. Yet their existence has enormous value. As Judge Easterbrook observed for the en banc Seventh Circuit in Vance, “[p]eople able to exert domination over others often abuse that power; it is a part of human nature that is very difficult to control.” 701 F.3d at 205. The Supreme Court recognized constitutional torts to deter that kind of abuse of power. United States law enforcement is more active internationally today than ever before, increasing the relevance of Bivens’ remedial and deterrent functions in cases like this one. Because I do not believe that precedent supports eliminating Meshal’s suit or that defendants made a showing that any congressional action or special factors should preclude it, I respectfully dissent.
All Citations
804 F.3d 417, 420 U.S.App.D.C. 1

Meshal v. Higgenbotham, 804 F.3d 417 (2015) 420 U.S.App.D.C. 1

Footnotes

*

Circuit Judge Millett did not participate in this matter.

1

When reviewing whether the district court properly granted a motion to dismiss, we assume the truth of all well-pleaded factual

allegations in the complaint. Doe v. Rumsfeld, 683 F.3d 390, 391 (D.C.Cir.2012) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678–79, 129

S.Ct. 1937, 173 L.Ed.2d 868 (2009)).

2

See MIDNIGHT EXPRESS (Columbia Pictures 1978).

3

Meshal pled additional Fifth Amendment claims that the district court did not address. Those claims related to his “prolonged

extrajudicial detention and his forcible rendition to two dangerous situations.” Br. of Appellant at 20 n. 4, Meshal v.

Higgenbotham, No. 14–5194 (D.C.Cir. Dec. 15, 2014). We need not discuss these additional claims, which were raised only in a

footnote in Meshal’s initial brief. See Hutchins v. District of Columbia, 188 F.3d 531, 539 n. 3 (D.C.Cir.1999).

4

Nor do we question whether constitutional protections generally apply to American citizens outside the United States when

dealing with their government. See Reid v. Covert, 354 U.S. 1, 6–10, 77 S.Ct. 1222, 1 L.Ed.2d 1148 (1957) (applying Fifth and Sixth

Amendment rights to U.S. citizens facing military trial for murder overseas); Al Bahlul v. United States, 767 F.3d 1, 65 n. 3

(D.C.Cir.2014) (Kavanaugh, J., concurring in part) (“As a general matter, the U.S. Constitution applies to U.S. citizens

worldwide[.]”).

5

See FeiFei Jiang, Dancing the Two–Step Abroad: Finding A Place for Clean Team Evidence in Article III Courts, 47 COLUM. J.L. &

SOC. PROBS. 453, 453 (2014) (“Federal agents often employ a two-step interview process for suspects in extraterritorial terrorism

investigations. Agents conduct the first interview without Miranda warnings for the purpose of intelligence-gathering. Separate

‘clean team’ agents then give the suspect Miranda warnings prior to the second stage of the interview, which they conduct for

law enforcement purposes.”).

6

We considered a Bivens claim involving actions occurring overseas in In re Sealed Case, 494 F.3d 139 (D.C.Cir.2007). There, a Drug

Enforcement Agency officer stationed in Burma alleged a State Department official violated his Fourth Amendment rights when

the official sent a classified cable transcribing a telephone call plaintiff had made to a subordinate. Id. at 141. In response, the

government invoked the state secrets doctrine, which, when the district court applied the doctrine, essentially barred plaintiff’s

Bivens claim. On appeal, we noted the government had not challenged the application of the Fourth Amendment to actions

occurring overseas, and we assumed, without analysis, Bivens applied. Id. at 143 (“The district court ruled that it was settled,

indisputable law that the Fourth Amendment protects American citizens abroad, ... and the United States does not challenge that

ruling on appeal.”). Consequently, In re Sealed Case did not establish that Bivens is available for all claims involving incidents

occurring abroad.

7

Neither Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985), nor Ashcroft v. al-Kidd, 563 U.S. 731, 131 S.Ct.

2074, 179 L.Ed.2d 1149 (2011), help Meshal’s cause. Although both cases involved Bivens claims in the national security context,

in neither case did the Court explicitly consider whether to imply a Bivens cause of action. The Court instead, as has become its

practice in some Bivens cases, seemed to assume without deciding that the claims were actionable under Bivens. See, e.g., Wood

v. Moss, ––– U.S. ––––, 134 S.Ct. 2056, 2066, 188 L.Ed.2d 1039 (2014) (assuming without deciding Bivens applied to a First

Amendment viewpoint discrimination claim); Reichle v. Howards, ––– U.S. ––––, 132 S.Ct. 2088, 2093 n. 4, 182 L.Ed.2d 985 (2012)

(same for First Amendment retaliatory arrest claim); Iqbal, 556 U.S. at 675, 129 S.Ct. 1937 (same for First Amendment free

exercise claim). Moreover, neither case involved extraterritoriality.

8

Even one of Meshal’s amici suggests that our prior decisions saying no to Bivens in cases involving national security prevents the

panel from creating a Bivens action here. See Steve Vladeck, Meshal: The Last, Best Hope for National Security Bivens Claims?,

JUST SECURITY (June. 17, 2014, 4:09 PM), http://justsecurity.org-/11784/meshal (“Of course, that these three circuit-level

decisions (especially the D.C. Circuit’s decision in Doe ) compel the result in the district court in Meshal says nothing about

whether the en banc D.C. Circuit or Supreme Court would necessarily agree.”).

22

Meshal v. Higgenbotham, 804 F.3d 417 (2015) 420 U.S.App.D.C. 1

9

If Congress really desired a ratification of Bivens, its actions were not a model of clarity. Congress did not place Bivens causes of

action in a separate statutory provision as it did for federal questions and constitutional violations committed by state actors. See

28 U.S.C. § 1331; 42 U.S.C. § 1983. Instead, it merely created an exception to FTCA immunity for constitutional violations. See 28

U.S.C. § 2679(b)(2)(A).

1

Damages are the traditional remedy at law, Bivens, 403 U.S. at 395, 91 S.Ct. 1999, and are less intrusive and thus more readily

reconciled with national security prerogatives than an injunction disrupting ongoing official activities. Cf. Women Prisoners of D.C.

Dep’t of Corr. v. District of Columbia, 93 F.3d 910, 921–22 (D.C.Cir.1996) (injunctive relief “was never regarded as relief of first

resort” because, “in tort actions, the standard formulation of the common law ... is that equitable relief, such as an injunction,

will be granted only when plaintiff’s legal remedies are inadequate”).

2

In the Detainee Treatment Act of 2005, Congress enacted a limited, good-faith immunity provision shielding United States agents

from damages liability in lawsuits brought by alien detainees. See 42 U.S.C. § 2000dd–1(a). Such immunity further hints that

Congress contemplated that United States agents would face some kind of liability in United States courts when they mistreat

their own citizens. See Vance, 701 F.3d at 219–20 (Hamilton, J., dissenting).

3

See Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, art. 2(1), Dec. 10, 1984, S.

Treaty Doc. 100–20 (1988), 1465 U.N.T.S. 85 (“Each State Party shall take effective legislative, administrative, judicial or other

measures to prevent acts of torture in any territory under its jurisdiction.”); Comm. against Torture, General Comment No. 2 on

Implementation of Article 2 by States Parties, U.N. Doc. CAT/C/GC/2, at ¶ 16 (Jan. 24, 2008) (construing “any territory” language

in Convention Against Torture to include “other areas over which a State exercises factual or effective control”); International

Covenant on Civil and Political Rights, art. 7, Dec. 16, 1966, S. Exec. Doc. C, D, E, F, 95–2 (1978), 999 U.N.T.S. 171 (“No one shall

be subjected to torture or to cruel, inhuman or degrading treatment or punishment.”); Geneva Convention Relative to the

Protection of Civilian Persons in Time of War, arts. 3, 32, 147, Aug. 12, 1949, 75 U.N.T.S. 287 (prohibiting cruel and inhuman

treatment and torture).

4

Comm. Against Torture, Concluding Observations on the Third to Fifth Periodic Reports of United States of America, U.N. Doc.

CAT/C/USA/CO/3–5 (Nov. 20, 2014), at ¶¶ 5, 10, 14 (noting United States official policy that “U.S. personnel are legally

prohibited” under Convention “from engaging in torture or cruel, inhuman” treatment “at all times, and in all places”); see also

CAT, art. 2(1); ICCPR, art. 7; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, 2004 I.C.J.

136, ¶ 109 (2004); Human Rights Comm., General Comment No. 31 on the Nature of the General Legal Obligation Imposed on

State Parties to the Covenant, U.N. Doc CCPR/C/21/Rev. 1/Add. 13, ¶ 10 (May 26, 2004).

5

Convention Against Torture, art. 14(1); ICCPR, arts. 2(3), 9(5), 14(6).

23

 
 CLOSED,JURY,STAYED,TYPE−L
U.S. District Court District of Columbia (Washington, DC) CIVIL DOCKET FOR CASE #: 1:09−cv−02178−EGS

MESHAL v. HIGGENBOTHAM et al Assigned to: Judge Emmet G. Sullivan Case in other court: USCA, 14−05194 Cause: 28:1331 Federal Question: Other Civil Rights
Plaintiff

Date Filed: 11/10/2009 Date Terminated: 06/16/2014 Jury Demand: Plaintiff Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Defendant

AMIR MESHAL

represented by Arthur B. Spitzer AMERICAN CIVIL LIBERTIES UNION OF THE DISTRICT OF COLUMBIA 915 15th Street, NW 2nd Floor Washington, DC 20005 (202) 601−4266 Fax: (202) 457−0805 Email: artspitzer@gmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Benjamin E. Wizner AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street 19th Floor New York, NY 10004 (212) 519−7860 Fax: (212) 549−2651 Email: bwizner@aclu.org TERMINATED: 02/21/2012

Benjamin Elihu Wizner AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street 17th Floor New York, NY 10004 (212) 519−7860 TERMINATED: 02/21/2012 PRO HAC VICE

Hina Shamsi AMERICAN CIVIL LIBERTIES UNION FOUNDATION National Security Project 125 Broad Street 18th floor New York, NY 10004 (212) 284−7321 Fax: (212) 549−2654 Email: hshamsi@aclu.org ATTORNEY TO BE NOTICED

Jonathan Hafetz AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street 18th Floor New York, NY 10004

V. Defendant CHRIS HIGGENBOTHAM FBI Supervising Special Agent, in his individual capacity
Defendant STEVE HERSEM FBI Supervising Special Agent, in his individual capacity
Defendant TWO UNKNOWN NAMED EMPLOYEES, OFFICERS, OR AGENTS OF THE UNITED STATES GOVERNMENT in their individual capacities TERMINATED: 05/10/2010 Defendant JOHN AND JANE DOES 3−10 Defendant JOHN DOE 1
Defendant JOHN DOE 2
Intervenor

(212) 549−2500 Email: jhafetz@aclu.org ATTORNEY TO BE NOTICED
Nusrat J. Choudhury AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street 18th Floor New York, NY 10004 (212) 519−7876 Fax: (212) 549−2583 Email: nchoudhury@aclu.org TERMINATED: 03/25/2014 PRO HAC VICE
represented by Glenn Stewart Greene U.S. DEPARTMENT OF JUSTICE Constitutional and Specialized Tort Litigation P.O. Box 7146 Washington, DC 20044 (202) 616−4143 Fax: (202) 616−4314 Email: glenn.greene@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Glenn Stewart Greene (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Glenn Stewart Greene (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Glenn Stewart Greene (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Glenn Stewart Greene (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

UNITED STATES OF AMERICA

represented by Glenn Stewart Greene (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 11/10/2009 11/10/2009
11/10/2009
11/10/2009 11/10/2009
11/10/2009
11/19/2009 11/20/2009 11/20/2009 11/22/2009 11/23/2009 11/23/2009 11/30/2009
12/01/2009

# Docket Text
1 MOTION for Leave to File Complaint without listing his home address by AMIR MESHAL. (Attachments: # 1 Text of Proposed Order)(jf, ) (Entered: 11/19/2009)
2 ORDER granting without prejudice to further review by the assigned judge 1 MOTION for Leave to File Complaint without listing his home address\. Signed by Chief Judge Royce C. Lamberth on 11/10/09. (See Order for Full Detail) (jf, ) (Entered: 11/19/2009)
3 COMPLAINT against CHRIS HIGGENBOTHAM, STEVE HERSEM, TWO UNKNOWN NAMED EMPLOYEES, OFFICERS, OR AGENTS OF THE UNITED STATES GOVERNMENT, JOHN AND JANE DOES 3−10 ( Filing fee $ 350, receipt number 4616025546) filed by AMIR MESHAL. (Attachments: # 1 Civil Cover Sheet)(jf, ) (Entered: 11/19/2009)
SUMMONS (4) Issued as to CHRIS HIGGENBOTHAM, STEVE HERSEM, U.S. Attorney and U.S. Attorney General (jf, ) (Entered: 11/19/2009)
4 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Jonathan Hafetz, :Firm− American Civil Liberties Union Foundation, :Address− 125 Broad St, 17th floor, New York, NY 10004. Phone No. − 212−284−7321. Fax No. − 212−549−2583 by AMIR MESHAL (Attachments: # 1 Declaration, # 2 Text of Proposed Order)(jf, ) (Entered: 11/19/2009)
5 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Nusrat J. Choudhury, :Firm− American Civil Liberties Union Foundation, :Address− 125 Broad St, 17th floor, New York, NY 10004. Phone No. − 212−519−7876. Fax No. − 212−549−2583 by AMIR MESHAL (Attachments: # 1 Declaration, # 2 Text of Proposed Order)(jf, ) (Entered: 11/19/2009)
6 SEALED DOCUMENT filed by AMIR MESHAL. (This document is SEALED and only available to authorized persons.)(zdr) (Entered: 11/20/2009)
MINUTE ORDER granting 4 and 5 motions for admission pro hac vice for Jonathan Hafetz and Nusrat Choudhury. Signed by Judge Emmet G. Sullivan on November 20, 2009. (lcegs2) (Entered: 11/20/2009)
7 NOTICE of Filing Sealed Document by AMIR MESHAL (Spitzer, Arthur) (Entered: 11/20/2009)
8 ENTERED IN ERROR.....RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the US Attorney. (Spitzer, Arthur) Modified on 11/23/2009 (jf, ). (Entered: 11/22/2009)
9 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the US Attorney, served on 11/19/2009, answer due 1/18/2010. (jf, ) (Entered: 11/23/2009)
NOTICE OF CORRECTED DOCKET ENTRY: Document No. re 8 Summons Returned Executed as to US Attorney for DC was entered in error and refiled by the Clerk's Office with the service date.(jf, ) (Entered: 11/23/2009)
10 MOTION for Discovery −− motion for leave to conduct limited expedited Doe discovery by AMIR MESHAL (Attachments: # 1 Exhibit 1 − transcript of Texas hearing, # 2 Exhibit 2 − photograph of defendant Doe 1, # 3 proposed order)(Spitzer, Arthur) (Entered: 11/30/2009)
11 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on Attorney General. Date of Service Upon Attorney General 11/25/2009. (Spitzer, Arthur) (Entered: 12/01/2009)

12/11/2009 12/19/2009 12/19/2009 12/22/2009 12/23/2009
12/23/2009 12/31/2009 01/11/2010 01/12/2010 01/12/2010 01/13/2010
01/13/2010
01/15/2010 01/19/2010
01/20/2010 01/25/2010
01/25/2010

12 MOTION to Intervene by UNITED STATES (Attachments: # 1 Text of Proposed Order, # 2 Response to Discovery Motion)(znmw, ) (Entered: 12/14/2009)
13 Memorandum in opposition to re 12 MOTION to Intervene : NON−OPPOSITION filed by AMIR MESHAL. (Spitzer, Arthur) (Entered: 12/19/2009)
14 REPLY to opposition to motion re 10 MOTION for Discovery −− motion for leave to conduct limited expedited Doe discovery filed by AMIR MESHAL. (Spitzer, Arthur) (Entered: 12/19/2009)
MINUTE ORDER granting 12 United States' unopposed motion to intervene for the purpose of responding to 10 plaintiff's motion for expedited Doe discovery. Signed by Judge Emmet G. Sullivan on December 22, 2009. (lcegs2) (Entered: 12/22/2009)
15 WITHDRAWN PURSUANT TO MINUTE ORDER FILED 12/31/09.....REPLY re 10 MOTION for Discovery −− motion for leave to conduct limited expedited Doe discovery filed by UNITED STATES. (Greene, Glenn) Modified on 1/4/2010 (jf, ). (Entered: 12/23/2009)
16 ERRATA re United States' Reply by UNITED STATES 10 MOTION for Discovery −− motion for leave to conduct limited expedited Doe discovery filed by AMIR MESHAL. (Greene, Glenn) (Entered: 12/23/2009)
MINUTE ORDER directing the United States government to withdraw 15 reply to motion for discovery. The Court will disregard the reply. Signed by Judge Emmet G. Sullivan on December 31, 2009. (lcegs2 ) (Entered: 12/31/2009)
SUMMONS (2) REISSUED as to STEVE HERSEM, CHRIS HIGGENBOTHAM. (kb) (Entered: 01/11/2010)
17 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to STEVE HERSEM served on 1/11/2010, answer due 3/12/2010. (Choudhury, Nusrat) (Entered: 01/12/2010)
18 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to CHRIS HIGGENBOTHAM served on 1/11/2010, answer due 3/12/2010. (Choudhury, Nusrat) (Entered: 01/12/2010)
19 ERRATA to Summons Return Executed as to Defendant Hersem (Corrected docket number on attached Declaration of James Puzo) by AMIR MESHAL 17 Summons Returned Executed as to Federal Defendant. (Choudhury, Nusrat) (Entered: 01/13/2010)
20 ERRATA Summons Return Executed as to Defendant Higgenbotham (Corrected docket number and date of service on attached Declaration of James Puzo) by AMIR MESHAL 18 Summons Returned Executed as to Federal Defendant. (Choudhury, Nusrat) (Entered: 01/13/2010)
MINUTE ORDER. The court sua sponte schedules a hearing on Plaintiff's Motion to Conduct Limited Expedited Discovery 10 on January 20, 2010 at 2:30 p.m. Signed by Judge Emmet G. Sullivan on January 15, 2010. (lcegs4) (Entered: 01/15/2010)
MINUTE ORDER. Due to unforeseen circumstances, it is necessary to reschedule the motions hearing currently scheduled for January 20, 2010. The motions hearing will now take place on January 25, 2010 at 11:00 a.m. in Courtroom 24A. The Court regrets any inconvenience to the parties. Signed by Judge Emmet G. Sullivan on January 19, 2010. (lcegs1) (Entered: 01/19/2010)
Set/Reset Hearings: Motion Hearing set for 1/25/2010 11:00 AM in Courtroom 24A before Judge Emmet G. Sullivan. (clv, ) (Entered: 01/20/2010)
Minute Entry for proceedings held before Judge Emmet G. Sullivan: Motion Hearing held on 1/25/2010 re 10 motion for leave to conduct limited expedited discovery heard. Order to be presented. (Court Reporter CATALINA KERR.) (clv, ) (Entered: 01/25/2010)
MINUTE ORDER. The Court has considered 10 plaintiff's Motion for Limited Expedited Doe Discovery, the response and reply thereto, and the arguments set forth in open court at the motions hearing in this matter on January 25, 2010. For the

01/26/2010 01/26/2010 02/01/2010 02/04/2010 02/08/2010 02/09/2010 02/18/2010
02/18/2010 02/18/2010 02/19/2010
02/19/2010

reasons stated in open court, and pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), the government is directed to serve the Complaint upon the two "federal agents who it is indicated by the records of the [Federal Bureau of Investigation] participated in" some or all of the actions ascribed in the Complaint to Defendants Doe 1 and Doe 2. Bivens, 403 U.S. at 389 n. 2. The government is directed to effect service upon the two agents by Monday, February 1, 2010, or to file a motion for reconsideration focusing strictly on Bivens' applicability to the government's service of Does 1 and 2. If a motion for reconsideration is filed, plaintiff is directed to file his response by February 8, 2010 and the government shall file its reply by February 10, 2010. Signed by Judge Emmet G. Sullivan on January 25, 2010. (lcegs4) (Entered: 01/25/2010)
Set/Reset Deadlines: Government is directed to effect service upon the two agents or file a motion for reconsideration by 2/1/2010; Responses due by 2/8/2010; Replies due by 2/10/2010. (clv, ) (Entered: 01/26/2010)
MINUTE ORDER granting 5 Motion for Leave to Appear Pro Hac Vice. Nusrat J. Choudhury is granted leave to appear pro hac vice in the above−captioned case. Signed by Judge Emmet G. Sullivan on January 26, 2010. (lcegs4) (Entered: 01/26/2010)
21 Unopposed MOTION for Protective Order (Stipulated) In Response to the Court's Minute Order of January 25, 2010 by UNITED STATES (Attachments: # 1 Text of Proposed Order Exhibit A)(Greene, Glenn) (Entered: 02/01/2010)
22 PROTECTIVE ORDER setting forth procedures for handling confidential material; allowing designated material to be filed under seal. Signed by Judge Emmet G. Sullivan on 2/3/10. (clv, ) (Entered: 02/04/2010)
23 Unopposed MOTION for an Order Directing the Clerk of Court to Issue Summonses for "John Doe 1" and "John Doe 2" in Compliance with the February 4, 2010, Stipulated protective Order re 22 Protective Order by AMIR MESHAL (Attachments: # 1 Text of Proposed Order)(Spitzer, Arthur) (Entered: 02/08/2010)
24 ORDER granting 23 Plaintiff's Unopposed Motion for Clerk to Issue Summonses for John Does 1 and 2, as directed in attached order. Signed by Judge Emmet G. Sullivan on February 9, 2010. (lcegs4) (Entered: 02/09/2010)
25 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. TWO UNKNOWN NAMED EMPLOYEES, OFFICERS, OR AGENTS OF THE UNITED STATES GOVERNMENT served on 2/17/2010, answer due 3/10/2010 (Attachments: # 1 Declaration of Service on Doe 1, # 2 Declaration of Service on Doe 2)(Spitzer, Arthur) (Entered: 02/18/2010)
27 SEALED Return of Service filed by AMIR MESHAL. re 24 granting 23 Plaintiff's Unopposed Motion for Clerk to Issue Summonses for John Does 1 and 2, as directed in attached order. (This document is SEALED and only available to authorized persons.)(zjf, ) (Entered: 02/22/2010)
RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. JOHN DOE 1 served on 2/17/2010, answer due 3/10/2010; JOHN DOE 2 served on 2/17/2010, answer due 3/10/2010 (DOCUMENT FILED UNDER SEAL) (See Docket Entry 24 ) (jf, ) (Entered: 02/22/2010)
26 Consent MOTION for Extension of Time to File Response and for Consolidated Response and Briefing Schedule by STEVE HERSEM, CHRIS HIGGENBOTHAM, TWO UNKNOWN NAMED EMPLOYEES, OFFICERS, OR AGENTS OF THE UNITED STATES GOVERNMENT (Attachments: # 1 Text of Proposed Order Proposed Order)(Greene, Glenn) (Entered: 02/19/2010)
MINUTE ORDER. In view of the number of defendants involved in the case, the possibility that the parties will have to respond to several motions and oppositions, and the consensual nature of the motion, the court grants 26 Consent Motion for an Enlargement of Time and to Establish a Consolidated Briefing Schedule. Defendants Hersem, Higgenbotham, and Does 1 and 2 shall respond to the Complaint by no later than April 19, 2010; Plaintiff shall respond to any dispositive motion filed by the Defendants by no later than June 4, 2010, and the Defendants shall reply by no later

02/19/2010 03/03/2010 04/19/2010 04/20/2010
05/10/2010 05/13/2010 05/14/2010
05/18/2010 06/23/2010 07/13/2010 07/14/2010
07/14/2010 09/03/2010

than July 6, 2010. The parties are instructed that the Court will view with disfavor any additional requests for extension of time. Signed by Judge Emmet G. Sullivan on February 19, 2010.(lcegs4) (Entered: 02/19/2010)
Set/Reset Deadlines: Answer due by 4/19/2010, Response to Dispositive Motions due by 6/4/2010. Reply to Dispositive Motions due by 7/6/2010. (clv, ) (Entered: 02/19/2010)
28 SEALED Notice filed by UNITED STATES. re 24 ORDER granting 23 Plaintiff's Unopposed Motion for Clerk to Issue Summonses for John Does 1 and 2, as directed in attached order. (This document is SEALED and only available to authorized persons.)(zjf, ) (Entered: 03/04/2010)
29 MOTION to Dismiss Filed by STEVE HERSEM, CHRIS HIGGENBOTHAM, JOHN DOE 1, JOHN DOE 2 (Attachments: # 1 Text of Proposed Order)(Greene, Glenn) (Entered: 04/19/2010)
30 ERRATA to Motion to Dismiss (Corrected Pages i−viii) by STEVE HERSEM, CHRIS HIGGENBOTHAM, JOHN DOE 1, JOHN DOE 2 29 MOTION to Dismiss Filed filed by CHRIS HIGGENBOTHAM, JOHN DOE 2, STEVE HERSEM, JOHN DOE 1. (Attachments: # 1 Errata Corrected Pages i−viii)(Greene, Glenn) (Entered: 04/20/2010)
31 AMENDED COMPLAINT against STEVE HERSEM, CHRIS HIGGENBOTHAM, JOHN AND JANE DOES 3−10, JOHN DOE 1, JOHN DOE 2 filed by AMIR MESHAL.(znmw, ) (Entered: 05/10/2010)
32 Consent MOTION for Extension of Time to File Response to Amended Complaint and to Establish a Consolidated Briefing Schedule by STEVE HERSEM, CHRIS HIGGENBOTHAM, JOHN DOE 1, JOHN DOE 2 (Attachments: # 1 Text of Proposed Order Proposed Order)(Greene, Glenn) (Entered: 05/13/2010)
MINUTE ORDER GRANTING 32 Consent Motion for extension of time and proposed briefing schedule. Defendants shall file their renewed motion to dismiss by no later than June 23, 2010; plaintiff shall file his opposition by no later than July 23, 2010; defendants shall file their response by no later than August 20, 2010. In light of defendants' representation that "[t]he Defendants will move to dismiss the Amended Complaint and in the interest of judicial economy they intend to file a single, full motion to dismiss rather than a supplement to the motion to dismiss that was filed on April 19, 2010", 29 Defendants' Motion to Dismiss is hereby DENIED without prejudice. Signed by Judge Emmet G. Sullivan on May 14, 2010. (lcegs4) (Entered: 05/14/2010)
Set/Reset Deadlines: Dispositive Motions due by 6/23/2010. Response to Dispositive Motions due by 7/23/2010. Reply to Dispositive Motions due by 8/20/2010. (clv, ) (Entered: 05/18/2010)
33 MOTION to Dismiss Plaintiff's Amended Complaint Filed by STEVE HERSEM, CHRIS HIGGENBOTHAM, JOHN DOE 1, JOHN DOE 2 (Attachments: # 1 Text of Proposed Order Proposed Order)(Greene, Glenn) (Entered: 06/23/2010)
34 Consent MOTION for Extension of Time to Respond to the Defendants' Motion to Dismiss the Amended Complaint by AMIR MESHAL (Attachments: # 1 Text of Proposed Order)(Choudhury, Nusrat) (Entered: 07/13/2010)
MINUTE ORDER granting 24 plaintiff's consent motion for extension of time to respond to defendants' motion to dismiss the amended complaint. Plaintiff shall file his opposition to the motion to dismiss by no later than September 3, 2010. Defendants shall file their reply by no later than October 15, 2010. Signed by Judge Emmet G. Sullivan on July 14, 2010. (lcegs4) (Entered: 07/14/2010)
Set/Reset Deadlines: Response to Dispositive Motions due by 9/3/2010. Reply to Dispositive Motions due by 10/15/2010. (clv, ) (Entered: 07/14/2010)
35 Memorandum in opposition to re 33 MOTION to Dismiss Plaintiff's Amended Complaint Filed filed by AMIR MESHAL. (Choudhury, Nusrat) (Entered: 09/03/2010)

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01/27/2011 02/09/2011
02/09/2011 02/22/2011 02/24/2011
02/25/2011 03/03/2011

36 Unopposed MOTION for Leave to File Excess Pages by STEVE HERSEM, CHRIS HIGGENBOTHAM, JOHN DOE 1, JOHN DOE 2 (Attachments: # 1 Text of Proposed Order)(Greene, Glenn) (Entered: 10/08/2010)
MINUTE ORDER granting 36 defendants' unopposed motion for enlargement of page limitation for defendants' reply brief. Defendants' reply brief shall be limited to no more than 33 pages. Signed by Judge Emmet G. Sullivan on October 12, 2010. (lcegs4) (Entered: 10/12/2010)
37 REPLY to opposition to motion re 33 MOTION to Dismiss Plaintiff's Amended Complaint Filed filed by STEVE HERSEM, CHRIS HIGGENBOTHAM, JOHN DOE 1, JOHN DOE 2. (Greene, Glenn) (Entered: 10/15/2010)
MINUTE ORDER. The Court, sua sponte, schedules a hearing on 33 Defendants' Motion to Dismiss Plaintiff's Amended Complaint for February 8, 2011 at 10:00 a.m. in Courtroom 24A. Signed by Judge Emmet G. Sullivan on January 5, 2011. (lcegs4) (Entered: 01/05/2011)
Set/Reset Hearings: Motion Hearing set for 2/8/2011 10:00 AM in Courtroom 24A before Judge Emmet G. Sullivan. (clv, ) (Entered: 01/05/2011)
38 Unopposed MOTION to Continue the Hearing on Defendants' Motion to Dismiss the Amended Complaint by AMIR MESHAL (Attachments: # 1 Text of Proposed Order)(Choudhury, Nusrat) (Entered: 01/14/2011)
MINUTE ORDER granting 38 plaintiff's unopposed motion to continue the hearing on defendants' motion to dismiss the amended complaint. The hearing is hereby scheduled for March 1, 2011 at 11:00 am in Courtroom 24A. Signed by Judge Emmet G. Sullivan on January 17, 2011. (lcegs4) (Entered: 01/17/2011)
Set/Reset Hearings: Motion Hearing set for 3/1/2011 11:00 AM in Courtroom 24A before Judge Emmet G. Sullivan. (clv, ) (Entered: 01/18/2011)
39 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Benjamin E. Wizner, :Firm− American Civil Liberties Union Foundation, :Address− 125 Broad Street, New York, NY 10004. Phone No. − 212−519−7860. Fax No. − (212) 549−2652 by AMIR MESHAL (Attachments: # 1 Declaration of Benjamin E. Wizner, # 2 Text of Proposed Order)(Spitzer, Arthur) (Entered: 01/26/2011)
ORDER granting 39 Motion for Leave to Appear Pro Hac Vice for Benjamin E. Wizner. Signed by Judge Emmet G. Sullivan on January 27, 2011. (lcegs4) (Entered: 01/27/2011)
MINUTE ORDER. Due to the Court's calendar, the motions hearing previously scheduled for March 1, 2011 at 11:00 a.m. will now take place on March 1, 2011 at 10:00 a.m. in Courtroom 24A. PLEASE NOTE THE TIME CHANGE. The Court regrets any inconvenience to the parties. Signed by Judge Emmet G. Sullivan on February 9, 2011. (lcegs4) (Entered: 02/09/2011)
Set/Reset Hearings: Motion Hearing set for 3/1/2011 10:00 AM in Courtroom 24A before Judge Emmet G. Sullivan. (clv, ) (Entered: 02/09/2011)
40 Unopposed MOTION to Continue Hearing on Defendants' Motion to Dismiss by AMIR MESHAL (Attachments: # 1 Text of Proposed Order)(Spitzer, Arthur) (Entered: 02/22/2011)
MINUTE ORDER. In view of 40 the plaintiff's unopposed motion for an additional continuance of the hearing on defendant's motion to dismiss, the hearing previously scheduled for March 1, 2011 is hereby rescheduled for May 19, 2011 at 11:00 a.m. in Courtroom 24A. The proceedings in this matter are temporarily stayed until May 19, 2011. Signed by Judge Emmet G. Sullivan on February 24, 2011. (lcegs4) (Entered: 02/24/2011)
Set/Reset Hearings: Motion Hearing set for 5/19/2011 11:00 AM in Courtroom 24A before Judge Emmet G. Sullivan. Case Stayed (clv, ) (Entered: 02/25/2011)
41 NOTICE OF SUPPLEMENTAL AUTHORITY by STEVE HERSEM, CHRIS HIGGENBOTHAM, JOHN DOE 1, JOHN DOE 2 (Attachments: # 1 Exhibit Lebron, et al. v. Rumsfeld, et al., 2011 WL 554061)(Greene, Glenn) (Entered: 03/03/2011)

04/26/2011 05/12/2011
05/13/2011 05/16/2011
05/24/2011 05/25/2011 06/29/2011 07/12/2011 08/22/2011 12/01/2011 01/18/2012 01/30/2012
02/06/2012 02/14/2012 02/15/2012
02/21/2012

42 RESPONSE re 41 NOTICE OF SUPPLEMENTAL AUTHORITY filed by AMIR MESHAL. (Choudhury, Nusrat) Modified on 4/27/2011 to enhance docket text (jf, ). (Entered: 04/26/2011)
MINUTE ORDER. The motions hearing scheduled for 11:00 am on May 19, 2011 is hereby rescheduled for 10:00 am on May 19, 2011 in Courtroom 24A. PLEASE NOTE THE TIME CHANGE. The Court regrets any inconvenience to the parties. Signed by Judge Emmet G. Sullivan on May 12, 2011. (lcegs4) (Entered: 05/12/2011)
Set/Reset Hearings: Motion Hearing set for 5/19/2011 10:00 AM in Courtroom 24A before Judge Emmet G. Sullivan. (clv, ) (Entered: 05/13/2011)
MINUTE ORDER. Due to the Court's calendar, the motions hearing scheduled for May 19, 2011 is VACATED, to be rescheduled for a later date. The Court regrets any inconvenience to the parties. Signed by Judge Emmet G. Sullivan on May 16, 2011. (lcegs4) (Entered: 05/16/2011)
MINUTE ORDER scheduling a hearing on 33 defendants' motion to dismiss for July 12, 2011 at 10:00 a.m. in Courtroom 24A. Signed by Judge Emmet G. Sullivan on May 24, 2011. (lcegs4) (Entered: 05/24/2011)
Set/Reset Hearings: Motion Hearing set for 7/12/2011 10:00 AM in Courtroom 24A before Judge Emmet G. Sullivan. (clv, ) (Entered: 05/25/2011)
43 NOTICE OF SUPPLEMENTAL AUTHORITY by STEVE HERSEM, CHRIS HIGGENBOTHAM, JOHN DOE 1, JOHN DOE 2 (Attachments: # 1 Exhibit)(Greene, Glenn) (Entered: 06/29/2011)
Minute Entry for proceedings held before Judge Emmet G. Sullivan: Motion Hearing held on 7/12/2011 re 33 MOTION to Dismiss; motion heard and taken under advisement. (Court Reporter LISA GRIFFITH.) (clv, ) (Entered: 07/12/2011)
44 NOTICE OF SUPPLEMENTAL AUTHORITY by AMIR MESHAL (Attachments: # 1 Exhibit, # 2 Exhibit)(Choudhury, Nusrat) (Entered: 08/22/2011)
45 RESPONSE re 44 NOTICE OF SUPPLEMENTAL AUTHORITY filed by STEVE HERSEM, CHRIS HIGGENBOTHAM, JOHN DOE 1, JOHN DOE 2. (Greene, Glenn) (Entered: 12/01/2011)
46 MOTION to Amend/Correct 31 Amended Complaint by AMIR MESHAL (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Choudhury, Nusrat) (Entered: 01/18/2012)
47 RESPONSE re 46 MOTION to Amend/Correct 31 Amended Complaint filed by STEVE HERSEM, CHRIS HIGGENBOTHAM, JOHN DOE 1, JOHN DOE 2. (Attachments: # 1 Exhibit Text of Proposed Order)(Greene, Glenn) (Entered: 01/30/2012)
48 REPLY to opposition to motion re 46 MOTION to Amend/Correct 31 Amended Complaint filed by AMIR MESHAL. (Choudhury, Nusrat) (Entered: 02/06/2012)
49 MOTION to Withdraw as Attorney by AMIR MESHAL (Attachments: # 1 Text of Proposed Order)(Wizner, Benjamin) (Entered: 02/14/2012)
50 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Hina Shamsi, :Firm− American Civil Liberties Union Foundation, :Address− 125 Broad Street, New York, NY 10004. Phone No. − 212−284−7321. Fax No. − 212−549−2654 by AMIR MESHAL (Attachments: # 1 Declaration of Hina Shamsi, # 2 Text of Proposed Order)(Spitzer, Arthur) (Entered: 02/15/2012)
MINUTE ORDER treating as opposed 46 plaintiff's motion for leave to file an amended complaint, and granting over objection. See Fed. R. Civ. P. 15(a)(2) (The court should freely give leave when justice so requires.); see also Richardson v. United States, 193 F.3d 545, 548−49 (D.C. Cir. 1999) (Leave to amend a complaint should be freely given in the absence of undue delay, bad faith, undue prejudice to the opposing party, repeated failure to cure deficiencies, or futility. (citing Foman v. Davis, 371 U.S. 178, 182 (1962))). Plaintiff's Second Amended Complaint is hereby deemed filed. It is further ordered, for the reasons set forth by plaintiff in his motion for leave to amend and his reply in support thereof, that defendants may file a supplemental memorandum

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11/04/2013

in support of their pending motion to dismiss, not to exceed 15 pages, within the time limits set forth by Federal Rule of Civil Procedure 15(a)(3). Plaintiff may file a response to defendants' supplemental memorandum, not to exceed ten pages, by no later than ten days after defendants' supplemental memorandum is filed. SO ORDERED. Signed by Judge Emmet G. Sullivan on February 21, 2012. (lcegs4) (Entered: 02/21/2012)
MINUTE ORDER granting 49 Benjaman Wizner's motion to withdraw as attorney for plaintiff. Signed by Judge Emmet G. Sullivan on February 21, 2012. (lcegs4) (Entered: 02/21/2012)
MINUTE ORDER granting 50 motion for leave to appear pro hac vice by Hina Shamsi. Signed by Judge Emmet G. Sullivan on February 21, 2012. (lcegs4) (Entered: 02/21/2012)
51 SECOND AMENDED COMPLAINT against STEVE HERSEM, CHRIS HIGGENBOTHAM, JOHN AND JANE DOES 3−10, JOHN DOE 1, JOHN DOE 2 filed by AMIR MESHAL.(jf, ) (Entered: 02/22/2012)
52 SUPPLEMENTAL MEMORANDUM to re 37 Reply to opposition to Motion, 33 MOTION to Dismiss Plaintiff's Amended Complaint Filed filed by STEVE HERSEM, CHRIS HIGGENBOTHAM, JOHN DOE 1, JOHN DOE 2. (Greene, Glenn) (Entered: 03/06/2012)
53 RESPONSE re 52 Supplemental Memorandum, 35 Memorandum in Opposition to Defendants' Renewed Motion to Dismiss the Second Amended Complaint filed by AMIR MESHAL. (Choudhury, Nusrat) Modified on 3/20/2012 (jf, ). (Entered: 03/19/2012)
54 NOTICE OF SUPPLEMENTAL AUTHORITY by STEVE HERSEM, CHRIS HIGGENBOTHAM, JOHN DOE 1, JOHN DOE 2 (Attachments: # 1 Exhibit Padilla v. Yoo, 2012 WL 1526156)(Greene, Glenn) (Entered: 05/11/2012)
55 RESPONSE re 54 NOTICE OF SUPPLEMENTAL AUTHORITY filed by AMIR MESHAL. (Choudhury, Nusrat) (Entered: 05/24/2012)
56 NOTICE OF SUPPLEMENTAL AUTHORITY by STEVE HERSEM, CHRIS HIGGENBOTHAM, JOHN DOE 1, JOHN DOE 2 (Attachments: # 1 Exhibit)(Greene, Glenn) (Entered: 06/22/2012)
57 RESPONSE re 56 NOTICE OF SUPPLEMENTAL AUTHORITY filed by AMIR MESHAL. (Choudhury, Nusrat) (Entered: 07/05/2012)
58 NOTICE OF SUPPLEMENTAL AUTHORITY by STEVE HERSEM, CHRIS HIGGENBOTHAM, JOHN DOE 1, JOHN DOE 2 (Attachments: # 1 Exhibit Vance v. Rumsfeld − 2012 WL 5416500)(Greene, Glenn) (Entered: 12/05/2012)
59 RESPONSE re 58 NOTICE OF SUPPLEMENTAL AUTHORITY filed by AMIR MESHAL. (Choudhury, Nusrat) (Entered: 12/21/2012)
60 STATUS REPORT by AMIR MESHAL. (Choudhury, Nusrat) (Entered: 10/09/2013)
MINUTE ORDER. Pending before the Court is defendants' motion to dismiss plaintiffs' Second Amended Complaint. Due to the numerous circuit court decisions which have been issued since defendants initially filed this motion, which the Court recognizes could impact the parties' arguments and the Court's consideration of the motion, the Court believes that an additional hearing is appropriate. Accordingly, it is hereby ORDERED that the Court will hold a supplemental hearing in this matter on December 11, 2013 at 1:00 PM in Courtroom 24A. The parties should be prepared to address the recent circuit decisions in Lebron v. Rumsfeld, (4th Cir. 2012), Padilla v. Yoo, (9th Cir. 2012), Doe v. Rumsfeld, (D.C. Cir. 2012), and Vance v. Rumsfeld (7th Cir. 2012), and not to repeat arguments previously raised. Signed by Judge Emmet G. Sullivan on November 1, 2013. (lcegs4) (Entered: 11/01/2013)
Set/Reset Hearings: Motion Hearing set for 12/11/2013 at 1:00 PM in Courtroom 24A before Judge Emmet G. Sullivan. (mac) (Entered: 11/04/2013)

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Minute Entry for proceedings held before Judge Emmet G. Sullivan. Motion Hearing held on 12/11/2013 re 33 MOTION to Dismiss. (Court Reporter CATHRYN JONES.) (mac) (Entered: 12/12/2013)
61 NOTICE OF WITHDRAWAL OF APPEARANCE as to AMIR MESHAL. Attorney Nusrat J. Choudhury terminated. (Choudhury, Nusrat) (Entered: 03/25/2014)
62 ORDER granting 33 , 52 Motions to Dismiss. The Clerk of the Court is directed to close this case. Signed by Judge Emmet G. Sullivan on June 13, 2014. (lcegs4) (Entered: 06/13/2014)
63 MEMORANDUM OPINION. Signed by Judge Emmet G. Sullivan on June 13, 2014. (lcegs4) (Entered: 06/13/2014)
64 NOTICE OF APPEAL TO DC CIRCUIT COURT as to 62 Order on Motion to Dismiss, 63 MEMORANDUM OPINION by AMIR MESHAL. Filing fee $ 505, receipt number 0090−3803505. Fee Status: Fee Paid. Parties have been notified. (Shamsi, Hina) Modified on 8/8/2014 to add linkage (rdj). (Entered: 08/07/2014)
65 Transmission of the Notice of Appeal, Order Appealed, and Docket Sheet to US Court of Appeals. The Court of Appeals fee was paid this date re 64 Notice of Appeal to DC Circuit Court. (rdj) (Entered: 08/08/2014)
USCA Case Number 14−5194 for 64 Notice of Appeal to DC Circuit Court, filed by AMIR MESHAL. (kb) (Entered: 08/11/2014)
66 MANDATE of USCA (certified copy) ORDERED and ADJUDGED that the judgment of the District Court appealed from in this cause is hereby affirmed, in accordance with the opinion of the court filed herein this date as to 64 Notice of Appeal to DC Circuit Court, filed by AMIR MESHAL. USCA Case Number 14−5194. (zrdj) (Entered: 02/12/2016)