The FBI Says You’re Fair Game On the Other Side of the Border

The Federal Bureau of Investigation held an
American citizen for four months, harshly interrogated him, and
finally released him without charges. That’s the claim of Amir
Meshal who, represented by the American Civil Liberties Union, is
suing the U.S. government and specific individuals involved in his
alleged mistreatment. For its part, the Department of Justice
doesn’t bother denying the charges—it just says that national
security concerns preclude the case from even being considered.

According to the ACLU, which appears in court tomorrow on
Meshal’s behalf:

WASHINGTON – The American Civil Liberties Union will appear in
court on Wednesday on behalf of a U.S. citizen who was illegally
detained and mistreated by American officials in three east African
countries in 2007. After fleeing unrest in Somalia, New Jersey
resident Amir Meshal was arrested, secretly imprisoned in inhumane
conditions, and harshly interrogated by FBI agents over 30 times
before ultimately being released without charge four months later.
…

In December 2006, Meshal was studying in Mogadishu when civil
unrest broke out. He fled to neighboring Kenya, where he wandered
in the forest for three weeks seeking shelter and assistance before
being arrested. He was then repeatedly interrogated by FBI agents,
who accused him of receiving training from al Qaeda, which Meshal
denied. The American interrogators threatened him with torture and
kept him from contacting a lawyer or his family.

Meshal was subsequently rendered to Somalia and then Ethiopia,
where he was secretly imprisoned in filthy conditions with
inadequate access to food, water, and toilets for more than three
months, and again harshly interrogated by U.S. officials, who bore
responsibility for his rendition and continued detention.

In response, Justice Department
lawyers argue (PDF):

Counts I – III [Fifth Amendment claims] fail as a matter of law
because special factors counsel hesitation and preclude the Court
from creating the implied constitutional tort damages remedy sought
in the new and sensitive context presented by this Complaint –
extraterritorial national security operations… even if the Court
recognizes a damages remedy without any statutory foundation, all
Defendants are entitled to qualified immunity on Counts I – III ,
and Higginbotham and Hersem (the only defendants named) are
entitled to qualified immunity for Count IV [alleging violation of
the Torture Victim Protection Act].

Got that? Never mind what happened, because national security.
And besides, the defendants are immune even to concerns about
torture.

Whatever Amir Meshal’s actual role, whatever the facts of his
treatment by U.S. government officials, that’s a chilling
argument—unless you’re the sort of creature who believes individual
rights are a function of geography, rather than humanity.