The Department of Justice won a significant victory yesterday when the D.C. Circuit held in Meshal v. Higgenbotham that a plaintiff cannot state a cause of action under Bivens for alleged constitutional violations that occur during a terrorism investigation in a foreign country.
The defendants in Meshal are several FBI agents working in counterterrorism. The plaintiff, Amir Meshal, is a U.S. citizen and resident of New Jersey. According to the allegations in his complaint, he traveled to Somalia in 2006 to broaden his understanding of Islam, but fled to Kenya soon after because of violent unrest. In January 2007, a joint U.S.-Kenyan-Ethiopian law enforcement operation apprehended him and transported him to Nairobi. Over the next four months, the defendants allegedly violated Meshal’s Fourth and Fifth Amendment rights by secretly detaining and interrogating him, threatening him with torture and death, denying him access to counsel, and moving him across the borders of three African countries without legal process. The FBI eventually released Meshal, and the U.S. never charged him with any crime.
Meshal subsequently sued the FBI agents under Bivens, the judicially created cause of action that allows plaintiffs to seek monetary relief from federal officers for violating certain constitutional rights. The D.C. District Court dismissed Meshal’s complaint in an opinion authored by Judge Emmett Sullivan. Judge Sullivan determined that Meshal had properly alleged violations of the Fourth and Fifth Amendment, and even noted his “outrage” at Meshal’s appalling treatment. However, he concluded that Bivens precedent from the U.S. Supreme Court and D.C. Circuit compelled the dismissal of Meshal’s complaint.
Judge Janice Rogers Brown, who wrote the majority opinion for the D.C. Circuit, agreed that the court could not properly recognize a Bivens action in this context. After acknowledging the “troubling” nature of Meshal’s allegations, Judge Brown determined that the Court was bound by precedent cautioning against extending Bivens to new contexts. Here, the context of Meshal’s suit had two key attributes that made it especially novel. First, Meshal’s claim involved a criminal terrorism investigation that implicated national security concerns. Second, his claim would require the extraterritorial application of the U.S. Constitution’s protections. Judge Brown further noted that no court had previously extended Bivens to cases involving either the extraterritorial application of constitutional protections or the national security domain, let alone both of these factors together.
Judge Brown acknowledged Meshal’s lack of an alternative remedy, but determined that this consideration was outweighed by two “special factors counseling hesitation” in recognizing a Bivens action. The first factor was involvement with “the military, national security, or intelligence”; the second factor was that the alleged “conduct . . . occurred outside the borders of the United States.” While the Court did not decide if either factor alone would be sufficient, it held that the presence of both factors precludes relief under Bivens. Judge Brown further reasoned that Bivens litigation involving these factors presents significant practical difficulties and national security risks, and that Congress is the proper branch of government to revise a federal tort cause of action.
Judge Brett Kavanaugh joined Judge Brown’s opinion in full, but wrote a separate concurrence to emphasize several points. Most critically, he noted that the divide between the majority opinion and the dissent did not concern whether the issues in the case were justiciable, but rather concerned whether this is a context where it is more appropriate to defer to Congress in determining if a federal cause of action should be afforded to claimants. As he explained, the key question is: "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."
Judge Kavanaugh looked to Congress’ exemptions in the FTCA and TVPA as evidence of its “deliberate [decision]” not to create a statutory cause of action for tort cases like Meshal’s. He then criticized the dissent for attempting to circumvent that legislative judgment by providing a judicially created damage remedy. Citing the Supreme Court’s edict to use caution before extending Bivens to new contexts, Judge Kavanaugh held it would not be proper to recognize a Bivens case where the underlying conduct occurs overseas and involves a national security investigation during wartime. Moreover, recognizing a Bivens action here would make U.S. officials hesitate before aggressively investigating and interrogating al Qaeda members abroad. Even if this were a valid policy goal, “judges . . . do not get to make that decision.” To hold otherwise would amount to the Court “unilaterally [recognizing] new limits that restrict U.S. officers’ wartime activities,” in disregard of the proper role of the judiciary.
Judge Cornelia Pillard wrote a thirty page dissent. In her view, a plaintiff should be able to bring a Bivens suit “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.” Judge Pillard critiqued the majority and concurring opinions for reading the applicable Bivens cases too broadly, and would foreclose a constitutional damages remedy only when the plaintiff’s circumstances implicate concerns related to military discipline. Judge Pillard also looked at Congress’ actions in the aftermath of Bivens, particularly its amending of the FTCA, and concluded that those actions are “wholly consistent with [congressional] acquiesence to Bivens for claims like Meshal’s.” Moreover, Judge Pillard reasoned that the majority’s concerns regarding extraterritoriality were unwarranted since the foreign affairs implications that arise when an alien sues U.S. officials do not apply when the plaintiff is an American citizen.
Judge Pillard also expressed significant skepticism regarding the government’s claims of national security risk, and would rule that “mere recitation of foreign policy and national security interests does not foreclose a constitutional damages remedy.” In her view, the judiciary regularly adjudicates claims implicating national security and foreign policy, and typically requires that governmental assertions of national security interests be “authoritative and specific” unlike the assertions here. To that end, the executive and judiciary have numerous tools (including secure facilities, in camera review, and the state secrets privilege) to safeguard sensitive information. However, the majority did not insist on the use of these tools, and instead allowed the government to prevail by making generalized, unsubstantiated assertions of national security risk. For Judge Pillard, invoking a “malleable” concept like national security should not have foreclosed Meshal’s suit, at least at the motion to dismiss stage. Finally, Judge Pillard seemed to suggest that DOJ might, in opposing relief here based on national security concerns, be acting contrary to the will of President Obama: “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.”