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D.C. Circuit Holds Bivens Not Available for Extraterritorial Incidents

On October 23, 2015, the Court of Appeals for the D.C. Circuit held that a man who had been detained, interrogated and tortured for four months in three African countries by and with the consent of FBI agents could not maintain a Bivens action against the agents.

Amir Meshal, a U.S. citizen, travelled to Mogadishu, Somolia in 2006 to "broaden his understanding of Islam after the country's volatile political situation had largely stabilized." An outbreak of violence forced him to flee to neighboring Kenyawhere he was arrested during a joint U.S.-Kenyan-Ethiopian anti-terrorism operation.

During four months of detention, Meshal was held incommunicado, moved between three different countries and interrogated by local and U.S. officials who threatened to torture and/or kill him. He lost eighty pounds. Then he was released without having been charged with a crime. He returned to the U.S. and filed a Bivens action against the U.S. agents.

In Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), the Supreme Court held that a private person could maintain a civil rights action for money damages against federal personnel who violated the person's constitutional rights. It has frequently been used to seek compensation for "ill-executed criminal investigations."

The district court dismissed the case, holding that the D.C. Circuit and other courts of appeal had expressly rejected using a Bivens action to seek redress for maltreatment or torture by U.S. officials who were gathering intelligence or involved in military or national security affairs. Meshal appealed.

Noting that "[n]o court has countenanced a Bivens action in a case involving national security" and "extraterritorial application" of Bivens was "virtually unknown," the D.C. Circuit held that it would not expand Bivens to this situation. Therefore, it affirmed the dismissal of Meshal's suit. See: Meshal v. Higgenbotham, D.C. Cir., No. 14-5194.

Related legal case

Meshal v. Higgenbotham


 

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