Meshal v Higgenbotham: Do All Lives Really Matter To Our Courts?

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By Benjamin G. Davis, Professor of Law, University of Toledo College of Law

In the Meshal decision on Friday, October 23, 2015, the US Court of Appeals for the DC Circuit found (as did the district court below) what FBI agents allegedly did to an American citizen abroad quite troubling. Yet by a majority, no relief was granted under Bivens due to the law enforcement action being tied to the national security space and that this happened outside the US.

The Court of Appeals said it hesitated to extend Bivens relief in this setting and left it to the Supreme Court to decide whether Bivens should reach this space.

As long ago as 1957 in Reid v. Covert, the Supreme Court said that the US Government cannot do to American citizen abroad what it cannot do to them domestically, to wit:

“At the beginning, we reject the idea that, when the US acts against citizens abroad, it can do so free of the Bill of Rights. The US is entirely a creature of the Constitution. Its power and authority have no other source. It can only act in accordance with all the limitations imposed by the Constitution. When the Government reaches out to punish a citizen who is abroad, the shield which the Bill of Rights and other parts of the Constitution provide to protect his life and liberty should not be stripped away just because he happens to be in another land. This is not a novel concept. To the contrary, it is as old as government. It was recognized long before Paul successfully invoked his right as a Roman citizen to be tried in strict accordance with Roman law.”

As quoted above, Reid v. Covert tells the ordinary American citizen what they should expect from their government when they are abroad. Now some might seek a narrow reading of Reid, or maybe some would emphasize the narrowing of domestic due process rights over the past years (with such things as the various urgency exceptions to things like Miranda rights being read), but whatever those analyses of court decisions may imply about what the ordinary American citizen should expect of their government domestically, they do not undercut the principle of Reid that when the US acts against citizens abroad, the Bill of Rights applies.

Yet, even in the current narrow vision of the Bill of Rights protections, the District Court and the Court of Appeals were quite troubled by what happened to this American citizen. The obvious reason for the courts being quite troubled is what is described as repugnant violence of the American sovereign on an ordinary American citizen who just happens to be abroad. For example, the threat to send Meshal to Egypt reveals that the intention was to have him tortured there or the threat to send him to Israel was to have him killed there. These types of actions violate with alacrity US treaty obligations under the UN Convention Against Torture and other forms of Cruel, Inhuman and Degrading Treatment or Punishment. Moreover, given this intention of the US government, any diplomatic assurances given by Egypt or Israel when this American citizen would be sent there would be profoundly suspicious. It would be patently clear to the Egyptian and Israeli counterparts what the US Government wanted to be done to this person by these foreign governments—the US government wanted this American citizen to be tortured or to be killed by the foreign government. The machinations of the American national security establishment are revealed to the light of day here, and the formulaic defenses of these practices of extraordinary rendition are revealed to be what they are—legal mumbo jumbo to mask an intent to have people tortured and killed in foreign lands.

What is of interest and somewhat new this time is these threats are not made by the US intelligence services or the US military but by the FBI, the ostensible “good guys” in the interrogation inquiries over the past years as presented in the testimony of persons such as Ali Soufan, the former FBI interrogator. They have contrasted their approaches with the approaches described in both the 2008 Senate Armed Services Committee [PDF] and 2014 partially declassified Senate Select Committee on Intelligence reports on the medieval torture done since 9/11 in conjunction with 54 countries around the world. What a thin mask even the good guys seem to be wearing as they assert the state’s ability to inflict violence on both foreign and American citizens. It is beyond the scope of this note to go in detail here, but these practices based on guidelines confirm the good sense of the American Psychological Association this summer to ban psychologists from participating in national security interrogations. The psychologists understand the techniques used on detainees in the process of rendition, detention and interrogation (not just the interrogation techniques) form a whole aimed at causing debility, dependence and dread in the target. These techniques have their antecedents in the czarist police, the Soviet NKVD and Soviet KGB and have been well-known since at least 1961 in the US as well as their tendency to cause false confessions of the kind seen at the Stalinist show trials of the 1930s. Taking as a whole Meshal’s experience from his capture to release, one can see from the description of the rendition, detention and interrogation process to which he was subjugated, these Soviet era tactics to engender debility, dependence and dread were being used on this American citizen by the US government.

The Supreme Court in Reid spoke on the Bill of Rights protection for American citizens extending abroad and these Meshal courts are quite troubled by what the American government did to this American citizen. At the same time both the District Court and the Court of Appeals go timid on us by not being willing to provide a Bivens remedy for an ordinary American citizen. So what is being said is basically an American citizen has constitutional rights, but the courts will not provide a remedy if the US government violates them, invokes national security and the American citizen happens to be abroad when the weight of American state violence comes down on her. As the Court of Appeals notes, Congress has not passed any law that protects an American citizen from American state violence abroad. Put succinctly, if an American citizen gets to the US court to challenge that state violence, the US courts will not provide a remedy to an American citizen for the egregious violations of the Bill of Rights by the American government abroad.

This approach of the District Court and the Court of Appeals is in direct violation of two of the most elementary rules of international law. The Draft Articles on Responsibility of States for Internationally Wrongful Acts codify, inter alia, two customary international law rules that state.

(Article 31 Reparation): 1. The responsible State is under an obligation to make full reparation for the injury caused by the internationally wrongful act. 2. Injury includes any damage, whether material or moral, caused by the internationally wrongful act of a State. In addition under (Article 32 – Irrelevance of internal law) “The responsible State may not rely on the provisions of its internal law as justification for failure to comply with its obligations under this part.”

The judicial power is a power of the US and as such, the judicial power is called to not leave the American citizen abroad with no remedy for this kind of abuse by the US government. To be charitable, possibly due to the pitiful manner in which international law is taught in the US, the lawyers arguing the case or the judges and their clerks deciding the case were ignorant of these rules of international law. But, even those only steeped in US foreign relations law should be expected to have come across Reid in their research or in their law school textbook—if they took such a class.

For the millions of Americans who travel abroad, what should they now do?

Americans who live, work or travel abroad should consider now taking out kidnapping insurance, not for some foreign kidnapper risk, but for the risk of kidnapping by their own government—if such insurance exists. It would be through the payment on that insurance policy they might through private ordering assure as a matter of contract their compensation for the violations done by the US government given these courts inability to shape a constitutional remedy for that American citizen. The kidnap risk incurred is not from the local government and includes the threat of torture, the threat of actual transfer across national boundaries without any consideration to the legality of that (put another way, rendition, abduction, without extradition of the kind described in Sosa v. Alvarez-Machain in 1992 as not being a problem), and the threat of rendition to torture in places like Egypt or Syria as was done to foreigners such as Al-Libi, Al-Masri and Al-Arar by the self-same US Government.

If the facts of this case and the court decisions do not bother the ordinary American reader, then I submit the ordinary reader has lost their way. Implicit is the sentiment Meshal must have been a bad character for being caught up in all this, yet in the past 60 years how many times have we seen persons being identified as bad persons by the government and then that designation found out later to be a complete fabrication? Might I just suggest the name of Martin Luther King, Jr. and his travails with J. Edgar Hoover as the head of the FBI? Or the infiltration of civil rights and student movements in the past with the intention to discredit those actors in those movements? Or how about the infiltration of movements like Black Lives Matter, Occupy Wall Street, Muslim mosques and other citizen groups we have seen in the most recent years? The American government national security space over and over demonstrates it is perfectly willing to use its vast capacity for state violence against American citizens and the courts tell us in Meshal if they are abroad that American citizen is out of luck.

If these facts about an American citizen’s treatment by her government do bother the reader, would your view be the same if the name was Al-Libi, Al-Masri or Al-Arar? For those cases of non-Americans being treated worse by the American government have been the subject of discussion for years with our courts demonstrating just as little willingness to provide them a remedy for the treatment done to them.

If all lives matter then why did Al-Libi’s death in Gaddhafi’s prison after having been rendered by us to Egypt where he was tortured, Al-Masri’s rendition to torture in Cobalt or Al-Arar’s rendition to torture in Syria also not matter enough for our courts to care to give them a remedy? Such a remedy is demanded by international law as described above.

If human rights have any meaning, it is all lives matter. If such meaning includes recognizing that there is state oppression and confronting it as a human rights struggle, then we should highlight the specificities of certain kinds of state oppression. If the state oppression affects a subgroup of Americans, then it is to be highlighted—so black lives matter. If it affects American citizens abroad, it is to be highlighted—Expatriate American lives matter. If it affects foreigners, it is to be highlighted—foreigners “with names that sound funny to some people” lives matter.

All lives matter or black lives matter are not mutually exclusive concepts. What is problematic is to undergird either of those concepts with a blindness to kinds of state oppression of persons that attack human dignity, that the Constitution’s Bill of Rights only modestly vindicates, and that human rights law, humanitarian law and international criminal law remind us are inalienable to human dignity.

Yet, once again, we see the jurisdiction to adjudicate through the judicial power blinks before the national security state. Where does this judicial power find the source for this timidity before the egregious acts of state violence on the individual citizen? Does the citizen’s name have to be Bill Miller instead of Amir Meshal for judges’ consciences to perk up to impose a remedy?

I fear we are in the “better them than me” mode of being indifferent to the state violence on others as long as it does not come over to one’s own life. Truly then, the classic divide and conquer strategy is so ingrained in us, we should never be surprised again why oppression persists.

We are not Dred Scott with no rights—and particularly human rights as vindicated through the Constitution—to be recognized by our government either when we are here or overseas.