His claim under the torture statute is a bit more plausible. He claims the FBI agents threatened to send him to Egypt or Israel where he would either be “disappeared” or tortured. The statute does cover threats of torture — whether it covers threats of some third party torturing the victim at some point undetermined point in the future, whether these threats have to be plausible to an objectively reasonable person, etc. are the questions.

Joe: But, whatever it is, they still would have some rights, including those protected by statutory law. This includes freedom of the mistreatment at issue in this case. Thus, the privilege of national citizenship I cited, which I have no reason to think is no longer available, holds.

So then which statute can Meshal claim relief under? That’s the real issue. If he can’t claim relief under a statute he has to claim relief under Bivens. And as I pointed out, the Arar decision seems to close the door on Bivens lawsuits concerning extraordinary rendition. True, the court could find that U.S. citizens have a right covered by Bivens where foreign nationals do not but the Arar decision was very concerned about the court intruding into foreign policy matters. That same deference toward the legislative and executive branches would seem to apply here.

The complaint doesn’t talk about him being questioned on the battlefield, but in custody at various locales. So, what is this talk of friendly fire?

Of course, now the world is a battlefield. The war is terrible bit is nice, but can be used for anything. Hamdi suggests there are certain limitations.

Not a new issue at all. All the cases that hold the writ inapplicable to war zones spoke of entire states and territories, not individual battlefields, as one singular region. The seminal case, Ex Parte Milligan, spoke as if all of Kentucky were one big battlefield, and all of indiana weren’t. So with the entirety of Hawaii in Duncan v. Kahanamoku.

The precedents simply don’t support the idea that one looks only at a battlefield while a battle is going on. The basic question in both Milligan and Duncan was whether civilian courts were able to function in the territory.

For Somalia, the answer is clearly “no”. That’s what a failed state results in — a lawless territory. The writ of habeas corpus only extends where the law holds sway. It’s true that under Covert we can’t try civilians by military court on a military base in England. But that’s because England was at peace at the time.

Duncan held that it was not lawful for the military to have continued to impose martial law on the civilian population of Hawaii in 1944, long after the Japanese invasion threat had receded. But it said that the initial imposition in December 1941 was lawful, and martial law continued to be lawfully imposed through at least 1942, while a threat of Japanese invasion was still serious.

If the entirety of Hawaii was a war zone and martial law was lawful in Hawaii in 1942 simply because of a December 1941 air attack and a continued looming threat of invasion, as the Supreme Court held in Duncan, why wouldn’t Somalia, where there are continuous hostilities, be even more a war zone?

You said we couldn’t question, but had to rely, on the allegations, apparently even when they are not only “open to question,” but are patently false. The idea that we must discuss the law only, in some factual vacuum, is yours, but not mine. This is a discussion about a lawsuit, not a 12(B)(6) motion. Nor do we have to confine ourselves to the “summary provided”; there is a publicly available Complaint, which quite clearly provides an absurdly distorted picture of the situation on the ground in Somalia at the time, in order to make Meshel look like an innocent student engaged in ivory-tower religious scholarship, rather than what is more likey: that he was a zealot drawn to Jihad on behalf of a Sharia-based regime at war with the infidels. As an analysis cited by Complaint (but not quoted for this) states: “The al-Qaeda presence in Somalia was further strengthened in late 2006 by a steady influx of jihadi volunteers from across the Muslim world.” The Complaint can’t give the impression that Meshel was one of these people, so some other reason for his travels into the war zone has to be constructed.

“He was supposed to expect the . . .fighting that allegedly forced him out?” Well, yes — as was widely reported in the press at the time, that fighting — including fierce battles in Mogadishu — had been going on for many months before he went there. And it was publicly reported that talks between the opposing sides had broken off, before Meshel went there.

I’m shocked … some factual claim in a complaint is open to question? You can refute the facts as much as you want, but I thought we were disputing questions of law here.

OTOH, I’m unsure of their relevancy since even if he is an unlawful combatant (and he was sent back to the U.S. at the end), as a U.S. citizen he has various rights of fair treatment.

And, he did not pretend “Somalia was a peaceful place” per the summary provided here. He claimed to go there for some sort of educational reason. False or not, that does not rely on it being a peaceful place. People go to non-peaceful places for some educational function lots of times.

“caught up in unexpected fighting”

He was supposed to expect the U.S. backed fighting that allegedly forced him out? Still, at the end, he is currently “innocent” of any charges, so why isn’t he an “innocent student” for the purposes of law?

Not when the complaint tries to pretend that Somalia was a peaceful place before Meshal went there, implying that he was just some innocent student, caught up in unexpected fighting.

The complaint doesn’t talk about him being questioned on the battlefield, but in custody at various locales. So, what is this talk of friendly fire?

Of course, now the world is a battlefield. The war is terrible bit is nice, but can be used for anything. Hamdi suggests there are certain limitations.

The Insular Cases limit the privileges of national citizenship once you leave the incorporated territory of the U.S.

I don’t know, especially under current law, just what rights a U.S. citizen (as compared to a mere resident of the territories) would lose by traveling to unincorporated U.S. territory.

But, whatever it is, they still would have some rights, including those protected by statutory law. This includes freedom of the mistreatment at issue in this case. Thus, the privilege of national citizenship I cited, which I have no reason to think is no longer available, holds.

I also read more than the summary of the Arar case but it is still helpful.

… has nothing to do with things that happen outside the U.S.

I didn’t say it had nothing to do with it. I said: “To the respect the second category applies here, it isn’t because it happened out of the country.”

Given I left open the fact that it might apply, how could I be saying it had “nothing to do” with it? I just noted — see Mark Field — that just because it happened outside the U.S. is not the point.

Joe: He was “held at the behest of U.S. officials,” “repeatedly questioned by FBI agents who threatened to send him to Israel or Egypt unless he acknowledged ties to al-Qaeda, the lawsuit alleges,” and “questioned repeatedly by U.S. agents in Ethiopia.”

“At the behest” is not the same as “in the custody of.” It seems he was in the custody of Kenyan and Ethiopian officials (not sure whose custody he was in in Somalia, though). These are not the same thing. If he was indeed in the custody of a foreign country, his main complaint is against that country since it bears primary responsibility for his loss of liberty.

So an American citizen was acted upon by U.S. agents. Proper treatment is a privilege of national citizenship per the Slaughterhouse Cases:

The Insular Cases limit the privileges of national citizenship once you leave the incorporated territory of the U.S. It’s still a gray area but the Slaughterhouse Cases hardly win the argument, especially since the Arar court refused to extend Bivens to cases of extraordinary rendition. Even if this guy’s constitutional rights were violated, it is not clear he has any remedy.

Per the Findlaw summary [of Arar case]
…
The FBI agents were agents of U.S. law. To the respect the second category applies here, it isn’t because it happened out of the country.

I read the full Arar decision, not just the Findlaw summary, and believe I captured the basic argument accurately, while necessarily leaving out the nuances. Note that “extraordinary rendition” necessarily involves conduct that occurs outside the U.S. It is not logical to say “in the context of extraordinary rendition, allowing a Bivens action against policymaking federal officials would have the natural tendency to affect diplomacy, foreign policy, and the security of the nation” has nothing to do with things that happen outside the U.S. The keywords “extraordinary rendition,” “diplomacy,” and “foreign policy” all come into play exactly because of things that happen outside the territory of the U.S.

This obviously couldn’t be done in the United States, or a country like France, but it probably could be done in a country like Afganistan. Somalia would seem a somewhat border line case, but the breakdown of civil governmen, the spread of pirates and militias, and the ongoing civil war would seem to make it more like a war zone where the writ of habeas corpus doesn’t apply even for a citizen, than like a place where it does apply.

Under Humphrey, if a writ of habeas corpus isn’t obtainable to challenge a detention, a civil rights lawsuit isn’t available either.

War is an unfortunate thing. People can get mistaken for the enemy and shot on sight, and there is no legal remedy, and it happens all the time. What happened to Meshal is unfortunate, but less unfortunate, it must be said, than what happens to friendly fire victims. They have no legal remedy, after all. Is it any worse if Meshal doesn’t?

That’s because their business model depends on their continued commission of maintenance and champerty, both of which used to be considered criminal and tortious behavior. But today, who cares if the lawsuit has actual merit, when it — or one’s distorted account of it — can be used to drum up donations from the credulous?

That is the allegation, not a matter of fact. I’m sure the Kenyans had more than enough reason to detain him under whatever standard that the law of that land allows. For an American to cry about that is just to prove what rubes Americans can be.

Joe: He was “held at the behest of U.S. officials,…the lawsuit alleges,”

Yes, that is what the lawsuit alleges. But, what does “held at the behest of U.S. officials” mean? Would Meshal have been “held at the behest of U.S. officials” if what happened was that US officials passed along information to the Kenyans that they relied on in deciding to hold him? Or, would US officials have done more, say offered the Kenyans some quid pro quo, the “quo” being detention of Meshal so he could be interrogated? The government of Kenya may be very open to certain types of “suggestions” by the US, but the relationship between that country and ours is not what the relationship was between East Germany and the Soviet Union, so that “behest” would always be tantamount to “order.”

From a strictly business perspective, I don’t think it would be advisable to take Meshal’s case on a contingency fee basis expecting to jackpot, or even come close to covering costs. Whatever the case would be worth in the event they won and collected damages plus attorney fees, the chances of that happening must be slim, and hence the expectancy small. A lottery ticket might be a better “investment” than this lawsuit. Of course, the odds of success mean relatively little to the ACLU, since they don’t decide to take cases like this one figuring that at the end of the day they are likely to come out ahead financially.

You are entitled to those protections FROM the govt when you are in the custody of that govt. When you are outside the U.S. you are quite literally at the mercy of whatever country you happen to be in. The U.S. never had custody of this person, so I fail to see what relief he is suing for. He is back in the U.S., unharmed, and not accused of any crime. Perhaps sadder, but likely not wiser.

According to his ACLU lawyers, but not anyone else, at least, not yet. Kenya scooped up a number of people fleeing from Somalia at the same time, for their own internal security purposes. They allowed other countries access to the prisoners. Some prisoners have been released, some extradited to both Ethiopia and Somalia, and some still are in Kenyan custody. That the U S sought to interrogate prisoners held by a friendly country for possible links to Islamic terrorists should not be surprising, nor should it automatically create a link between the interrogation and the original detention. The U S may have benefited from the detentions, and approved of the entire situation, without being a prime actor in what transpired. Both Ethiopia and Kenya have their own agendas which are fairly inimical to those suspected terrorists. They didn’t need any U S urging to take action. They may have enjoyed some U S material support – far from clear – but that hardly puts the U S in the driver’s seat.

MaryN: My approach to this is that, as an American, you are entitled to certain protection, certain process, from your government. The fact that the plaintiff went to a country that, admittedly, most people have no interest in going to, does not change that. How on earth is it okay for the U.S. to deny an American access to a lawyer, and threaten him with torture, for months, on the grounds that the person went to a dangerous country, and nothing more? We should be talking about the process that Americans are due by their own government, not whether it is or is not suspicious to be in Somalia. He was free to go wherever he wanted. It’s not like he broke some law by going to Somalia. We could all be at the wrong place at the wrong time. And if this is how we can be treated in those circumstances, it’s horrifying.P.S. Somalia is sometimes categorized in the MENA region. The regional classifications are not consistent.

First, you denied there was any reason to be suspicious of Meshal’s story (“The conclusions that people are jumping to here are unwarranted.”), in particular his claim that he went to Somalia “to enrich his study of Islam;” now you tell us the reasons why he was in Somalia are of no consequence. Do you still maintain that Somalia was “relatively peaceful” (emphasis added), and presumably therefore a better place, because it was “one of the few countries being governed under Islamic (sharia) law at the time”?

You say, “It’s not like he broke some law by going to Somalia.” Depending on his purpose in traveling to Somalia, he may have broken US law, but in any event he has never been charged with breaking any US law.

MaryM, may I ask if you are the same person as Mary, a convert to Islam who regularly posts to Richard Silverstein’s blog? I wonder because of your remarkably rosy views of sharia, your belief that “for an observant Muslim to be interested in traveling there (Somalia) is nothing out of the ordinary,” your real or feigned naivety about what is doing in certain parts of the world, etc.

He was “held at the behest of U.S. officials,” “repeatedly questioned by FBI agents who threatened to send him to Israel or Egypt unless he acknowledged ties to al-Qaeda, the lawsuit alleges,” and “questioned repeatedly by U.S. agents in Ethiopia.”

So an American citizen was acted upon by U.S. agents. Proper treatment is a privilege of national citizenship per the Slaughterhouse Cases:

“Another privilege of a citizen of the United States is to demand the care and protection of the Federal government over his life, liberty, and property when on the high seas or within the jurisdiction of a foreign government. Of this there can be no doubt, nor that the right depends upon his character as a citizen of the United States.”

The U.S. citizen cannot expect the federal government to secure him overseas against all mistreatment, but he can expect that the federal government does not directly aid and abet that mistreatment via its own agents.

The Arar case was dismissed as it concerns what happened to him outside the U.S.

Per the Findlaw summary:

“an action under the Torture Victim Protection Act and the Fifth Amendment based on plaintiff’s detention at a U.S. airport and subsequent removal to and alleged torture in Syria, the dismissal of the complaint is affirmed where 1) plaintiff insufficiently pleaded that the alleged conduct of defendant U.S. officials was done under color of Syrian law; and 2) in the context of extraordinary rendition, allowing a Bivens action against policymaking federal officials would have the natural tendency to affect diplomacy, foreign policy, and the security of the nation.”

The FBI agents were agents of U.S. law. To the respect the second category applies here, it isn’t because it happened out of the country.

A legally more interesting case was reported a few years ago on this blog: a Pakistani father and son holding U.S. citizenship traveled to Pakistan to visit family and were told once they were in Pakistan that the U.S. had added them to the no-fly list that all airlines flying to the U.S. were required to check their passenger lists against. Effectively, they were barred from re-entering the U.S. until they agreed to sit down for an interrogation with Pakistan-based FBI agents without lawyers present. I’m not sure if they ever sued over this, though.

Steve2: So… what is a good reason to give for going to Somalia? I mean, “I heard Somalia’s a hellhole full of thugs and pirates, and I’m kind of sociopathic and want to kill people without going to jail, so I figured I’d take a trip to Somalia and kill people for the fun of it” is the only reason I can think of to actually go to Somalia, but that doesn’t seem like the sort of thing you want to admit to anybody, especially to a court of law.

“I planned to smuggle antiquities out of Somalia and sell them in Europe and the U.S. for huge profits” is believable.

Nick

didn’t rick come to casablanca for the waters?

Indeed he did. Perhaps, like Rick, Meshal was misinformed.

I am curious as to our government’s obligations to citizens who are not located on US territory. Does our government owe any rights to citizens who are at that time under the jurisdiction of a foreign government? Does an American have fourth amendment rights when he is located in Somalia?

The basic answer is contained in Reid v. Covert.

This is one of my favorite cases because of what Dorothy Smith’s lawyer did. In brief, she killed her husband and was convicted of murder by a court martial. The sentence was affirmed by the Army Board of Review, and then again by the Court of Military Appeals. She was then transferred to prison in WV, where she filed a habeas petition which was denied by the District Court. She appealed to the 4th Cir. While that was pending, the SCOTUS took the case and combined it with Covert’s. They lost in the SCOTUS 5-3.

Ok, now consider the circumstances. Mrs. Smith lost her trial. She lost her first appeal. She lost her second appeal. She lost her writ petition. She lost in the SCOTUS. If you’re her lawyer, what do you do?

What he did should be a lesson to lawyers everywhere: he filed a petition for rehearing in the SCOTUS. And won.

It ain’t over till it’s over.

I am curious as to our government’s obligations to citizens who are not located on US territory. Does our government owe any rights to citizens who are at that time under the jurisdiction of a foreign government? Does an American have fourth amendment rights when he is located in Somalia?

As a general matter, your rights elsewhere are not conterminous with your rights here. That being said, it’s also probably true that citizens still retain some of their rights even abroad. Which rights and how much of them, well, those are the questions keeping the law professor off the streets.

Houston Lawyer: If the FBI questions you while you rot in an Egyptian jail, do they have to give you a Miranda warning first?

They never have to give you a Miranda warning, they just can’t use the evidence at trial if they don’t. And I imagine that that would be the same for both citizens and non-citizens.

Houston Lawyer: If the FBI questions you while you rot in an Egyptian jail, do they have to give you a Miranda warning first?

They never have to give you a Miranda warning, they just can’t use the evidence at trial if they don’t. And I imagine that that would be the same for both citizens and non-citizens.

U.S. holding cells are often filthy and crowded. Am I supposed to be shocked that cells near the Kenya/Somali border are?

As to why he went to Somalia …”recently come under the control of a militia known as the Islamic Courts Union” is telling. See this sympathetic account.

This very might be “educational” to some extent — but clearly since the U.S. didn’t like the group (its choice of questionable benefit to the area, but that’s a political question, I guess), saying you are there to support the other side is not something to emphasize.

OTOH, honestly, is not helping an Islamic government rebuild a way to be educated in the study of Islam?

Putting that aside, the trouble U.S. citizens are getting into in these places is not without historical precedents. In various past conflicts, the U.S. opposed its citizens going to foreign lands to be involved in new but controversial movements.

A bit ironic given how foreigners who came here during our war of independence helped us.

If the FBI questions you while you rot in an Egyptian jail, do they have to give you a Miranda warning first?

Why does he think he will succeed where Arar failed? The special factors prong of Bivens is terribly difficult to overcome.

He is a citizen of the US so might have a better shot at the special factors.

If the rest of Meshal’s story is as accurate as that, then he has no case, because that statement is flatly untrue. Perhaps Mary N. is only echoing the ACLU, which claims that Meshal went to Somalia in November, 2006, only to get caught up in fighting that broke out unexpectedly in December. Laughably, they state that Mogadishu was “enjoing peace, stability and a revival” under the SICC (Somali Islamists) when Meshal got there. Perhaps they are referring to a “revival” of amputations; the lopping off, of hands and feet, certainly had picked up once the Islamists came into power.

But there had been fighting going on throughout 2006 (between, on the one side, the SICC and its foreign jihadi allies, including al Qaeda leaders such as Fazul Abdullah Mohammed, assisted by Hezbollah and Iran, and, on the other, the “government” and a mix of Somali factions supported by Ethiopia and the U.S.). After decades of civil war, renewed fighting broke out in February, with widespread street fighting in Mogadishu in May and June, and continued warfare through the hinterand provinces, approaching Mogadishu, until the Islamist side collapsed, and Meshal was captured, along with many fleeing foreign Jihadis, including Daniel Maldonado, an American who has admitted to training in a Somali al Qaeda camp.

Meshal lied to his own family about where he was going — he told them he was working in Dubai. It beggars belief that he was going to war- torn Somalia to “study.” More likely he went there, as did many foreign Islamic fanatics, to make jihad on behalf of a Sharia based regime. I have no more sympathy for him than if he had run off to join the Hitler Youth.

The court proceedings will sort out the accuracy or inaccuracy of Meshal’s story, but it is unfortunate that such a man is an American citizen. As we have been reminded this week, radical Islam is incompatible with the values needed to be a citizen of a western liberal democracy.

Nick

Boonton: I agree. We give rights to many people who are far worse than Meshak (Dahmer? Manson? McVeigh?). But an obvious lie in a complaint doesn’t make me sympathetic to him.We give rights? Can I get a second helping?You are remarkably credulous. How many observant Muslims, especially American ones, do you know or know of that travel to Somalia “to enrich (their) study of Islam”? Well visiting countries with lots of Muslims would seem to be in line with ‘enriching one’s study of Islam’. Aside from Cuba, I wasn’t aware that as an American citizen I’m forbidden to travel where I please. Please tell me where I can find a list of forbidden places to visit. Perhaps there’s Ministry for the Control of Foreign Travel that I can write too?

You could try the State Department website.

They don’t forbid you to travel to Somalia, but the warnings seem to meet the definition of “hellhole”.

Nick

We give rights? Can I get a second helping?

You are remarkably credulous. How many observant Muslims, especially American ones, do you know or know of that travel to Somalia “to enrich (their) study of Islam”?

Well visiting countries with lots of Muslims would seem to be in line with ‘enriching one’s study of Islam’. Aside from Cuba, I wasn’t aware that as an American citizen I’m forbidden to travel where I please. Please tell me where I can find a list of forbidden places to visit. Perhaps there’s Ministry for the Control of Foreign Travel that I can write too?