[JURIST] The US Court of Appeals for the DC Circuit [official website] on Friday affirmed by a vote of 2-1 [opinion, PDF] the dismissal [DC Circuit opinion below, PDF] of a Bivens action filed by a US citizen alleging that he was tortured and threatened by US Federal Bureau of Investigation couter-terrorism agents in Ethiopia, Somalia, and Kenya and this conduct violated his constitutional rights. In Amir Meshal v. Chris Higgenbotham, et. al. the plaintiff filed suit against four FBI agents, claiming that his detention without a hearing for four months violated his Fourth Amendment [text] rights and that the threats of torture and disappearance violated his due process rights under the Fifth Amendment [text]. Meshal was arrested by a US-Kenyan-Ethiopian operation in January 2007, and he alleged that while imprisoned he was repeatedly denied the opportunity to consult with an attorney. In Webster Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics decided 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. In Friday’s opinion, the court based its opinion on the extraterritorial nature of the activity in question and the separation of powers in legal matters involving national security, stating: “The Judiciary is not suited to second guess executive officials operating in foreign justice systems[…]The weight of authority against expanding Bivens, combined with our recognition that tort remedies in cases involving matters of national security and foreign policy are generally left to the political branches, counsels serious hesitation before recognizing a common law remedy in these circumstances.” The court’s ruling follows precedent from other Federal circuits, that have held a Bivens action is unavailable for US citizens who allege they have been mistreated, and even tortured, by American officials in the name of intelligence gathering, national security, or military affairs.
In a JURUST op-ed, guest columnist Susan Hu of the Center for Constitutional Rights [official website] discusses failed attempts by plaintiffs to extend Bivens extraterritorialy [op-ed] and argues that the Seventh Circuit misinterpreted Supreme Court precedent in Vance v. Rumsfeld and consequently diminished a fundamental constitutional protection.