Amir Meshal, a United States citizen born and raised in New Jersey, is a Muslim, who decided to visit Mogadishu, Somalia, in 2006, in order to “broaden his understanding of Islam after the country’s volatile political situation had largely stabilized.” Yet, according to the American Civil Liberties Union, which is representing him in a lawsuit, during Meshal’s trip in Somalia he was detained without due process and “harshly interrogated” by FBI agents.
The ACLU alleges that the FBI violated his Fourth and Fifth Amendment rights, engaged in illegal interrogation, illegal proxy detention, illegal rendition and torture. The organization will be in a court in Washington, DC, tomorrow to argue against a government motion to have the lawsuit dismissed.
The government argues that allowing the lawsuit to proceed “risks injecting” the court into “sensitive overseas national security and intelligence domains.” The “remedy” sought by Meshal “could impinge upon the Executive Branch’s ability to pursue cooperative arrangements with foreign governments aimed at protecting our nation from terrorist attack.
What the government is attempting to do is similar to prior cases involving alleged rendition or torture. In a lawsuit against Jeppesen DataPlan, Inc., a Boeing company subsidiary, the ACLU alleged the company had helped the CIA “forcibly disappear” five men, who were tortured, detained and interrogated. The US government invoked the state secrets privilege and the Ninth Circuit Court of Appeals refused to hear further argument on the case.
On January 24, 2007, violence erupted in the country and Meshal fled Somalia with other civilians, according to the ACLU. Meshal was “apprehended in a joint US-Kenyan-Ethiopian operation along the Somalia-Kenya border.” He was then held for four months and three days and detained in three different countries. He was never charged with a crime, never given access to a lawyer and never brought before a judge.
More than thirty times, Meshal was interrogated. He was “threatened 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.” He returned home on May 27, 2007.
Two Supervising Special Agents of the FBI, Chris Higgenbotham and Steve Hersem, were allegedly responsible for Meshal’s detention, abuse and torture. They allegedly threatened him with the “infliction of severe physical and mental pain and suffering in the course of interrogations that took place” in Kenya. They allegedly did this to force Meshal to admit to having connections to al Qaeda or individuals connected.
The US government maintains that if this lawsuit is not thrown out it will “implicate” the US’s “relationships with governments in the Horn of Africa and their purported joint counter-terrorism operations to identify, apprehend, detain and question suspected terrorists in that region.” That is only if that coordination requires the torture and inhumane treatment of persons in order to fight terrorism.
According to journalist Jeremy Scahill, the CIA has an underground prison and a CIA base in Somalia. Terrorism suspects have been subjected to renditions and brought to the underground while governments have no knowledge of those suspects whereabouts. Somali intelligence agents are paid, advised and trained by the CIA to run the prison. They are denied due process and interrogated for days, even when they may not be who the CIA thinks they are.
This may be what the US government is worried will be disrupted. It worries this lawless and inhumane conduct will be jeopardized, since the CIA would suddenly have to take more care if they caught someone like Meshal, who happened to be a US citizen. (Note: Kenya has paid some damages to rendition victims, unlike the US government which refuses to give torture or rendition victims their day in court.)
Furthermore, the US government suggests that because agents or officials were involved the case cannot proceed because Meshal’s allegations require inquiry into the actions of Kenyan, Somalian and Ethiopian officials.
The upshot of the argument by the US government, the ACLU contends in a recent court filing, is that the court is “powerless to provide a remedy to a US citizen abroad for gross misconduct by federal law enforcement officers no matter how brutally those officers treated him or how long they locked him away in a secret jail, as long as they engaged foreign officials to shield their illegal conduct.”
“Meshal’s Fifth Amendment due process claim against interrogations involving threats of torture and forced disappearance does not challenge foreign conduct even though the interrogations occurred abroad,” the ACLU adds. “Likewise, his Fourth and Fifth Amendment claims against his four-plus months of secret, extrajudicial detention challenges only the actions of the FBI agents responsible, in whole or in part, for that detention.”
The FBI agents may have communicated and cooperated with foreign agents but that conduct is not being challenged in this case. The agents are also not being accused creating or implementing a policy of extraordinary rendition but rather are being accused of physically depriving Meshal of his liberty by detaining him secretly for over four months.
Oral argument already took place on the motion to dismiss on July 12, 2011, but on December 1, 2013, the court ordered further argument.
“The harsh treatment and mental anguish this man suffered should never be experienced by anyone, let alone an American citizen at the hands of his own government,” said Jonathan Hafetz, who is a cooperating attorney with the ACLU and will argue the case in court on December 11. “When an American’s constitutional rights are violated by law enforcement officials, courts must hold them accountable.”