By Molly Wooldridge
Last Wednesday, three former federal agents from the FBI and NCIS urged the Supreme Court to take up the case of Meshal v. Higgenbotham and to overturn a lower court’s refusal to hear Meshal’s claims on the merits because of a new judge-made exception for national security cases.
Nearly a decade ago Amir Meshal, a U.S. citizen, says he was studying in Somalia when hostilities broke out. Fearing for his safety, Meshal fled to neighboring Kenya where he was arrested and subsequently detained. Over the next four months, U.S. FBI agents tortured and interrogated him while detaining Meshal in several east African countries without access to a lawyer. Meshal was subsequently released and never charged with a crime.
Soon after he was permitted to return home, Meshal filed a civil suit against the FBI supervising special agent, Chris Higgenbotham, and three other U.S. government officials for violations of his right to due process and his right to be free from unreasonable seizure. However, the U.S. Court of Appeals did not rule on the merits of whether Meshal’s constitutional rights were violated. Rather, it decided that Meshal has no remedy for violations that occurred overseas and in the context of a terrorism investigation.
Ordinarily a victim may bring what is known as a Bivens action, named after a 1971 Supreme Court decision, to obtain monetary damages against federal government officials who have violated his or her constitutional rights. But courts have declined to allow new types of Bivens claims when there are “special factors counseling hesitation.”
However, circuit courts are not consistent as to what constitutes a special factor. Three circuit courts, including the D.C. Circuit, have carved out a special factors exception for national security cases so that victims of constitutional violations cannot bring a Bivens action if their rights were “violated in the context of military affairs, national security or intelligence gathering.”
The result of this new exception is that a U.S. citizen, like Meshal, has no recourse if his constitutional rights are violated by U.S. agents abroad during a national security or terrorism investigation.
The three former federal agents—Donald Borelli and Joe Navarro from the FBI, and Mark Fallon of NCIS—filed an amicus brief last Wednesday urging the Supreme Court to review the case and instruct the lower court to decide the case on the merits. These FBI and NCIS veterans have a combined total of 81 years of service. They argue that Meshal should not be precluded from seeking compensation for violations of his constitutional rights merely because the torture and interrogation occurred abroad and in the context of a counterterrorism operation.
The authors provide insight on the constitutional policies and practices of the agency: “FBI agents are required to adhere to the Constitution whenever and wherever they carry out their work.” This adherence to the Constitution is embedded in both the FBI’s core values as well as all publically available guidelines that govern FBI operations.
If the Supreme Court refuses to review Meshal’s case, this would close the door for Meshal and other victims to recover damages against government agents who infringe on constitutional protections during a national security investigation abroad. The Supreme Court should clarify for lower courts that no overbroad national security exception is necessary and that individual cases should be judged on their own merits.