November 02, 2015 Practice Points

Legal Remedies for Violations of U.S. Citizens Overseas Unavailable

By Leonard Wills

Can a U.S. citizen sue federal officials for violating his Fourth and Fifth Amendment rights when the alleged unlawful actions of torture and illegal detention took place overseas?

On October 23, 2015, in Meshal v. Higgenbotham, the U.S. Court of Appeals for the D.C. Circuit ruled in a 2–1 decision that a U.S. citizen could not sue government officials for damages. While traveling abroad, Meshal, a U.S. citizen, was detained and interrogated by U.S. law enforcement because they believed Meshal was involved with a terrorism group. After several months of detention, he was released by U.S. law enforcement and came back to the United States. He filed suit claiming that his Fourth and Fifth Amendment rights were violated when he was illegally detained, interrogated, and tortured.

In the majority opinion, written by Judge Brown, he provided two "special factors" which resulted in the ruling. First, the case involved national security matters. Brown wrote that allowing suits involving both national security and foreign policy would subject the government to possible disclosure of sensitive national security information and "force courts to make difficult determinations about whether and how constitutional rights should apply abroad and outside the ordinary peacetime contexts for which they were developed." Second, no precedent exists to provide a legal remedy for alleged illegal actions that took place abroad. Brown wrote that the Supreme Court has never "created or even favorably mentioned a non-statutory right of action for damages on account of conduct that occurred outside the borders of the United States."

In the same vein as Brown's majority opinion, Judge Kavanaugh's concurring opinion deferred to Congress and the president. He wrote, "The confluence of those two factors—extraterritoriality and national security—renders this an especially inappropriate case for a court to supplant Congress and the President by erecting new limits on the U.S. war effort." He continued, "Congress and the President possess the authority to restrict the actions of U.S. officials during wartime, including by approving new tort causes of action… But they have not created a tort cause of action for this kind of case."

The dissent, written by Judge Pillard, stated that the judiciary must protect the Fourth Amendment rights of citizens. She agreed with the majority that "courts must not imperil the foreign relations or national security of the United States." To avoid disclosure of national security matters during litigation, courts can apply protective safeguards such as the state-secrets privilege that allows the government to "withhold information from disclosure that would imperil national security or foreign policy." These safeguards allow the judiciary to maintain its responsibility "to assure the vindication of constitutional interests such as those embraced by the Fourth Amendment" without "either second-guessing the sound judgments of the political branches, or rubber-stamping every invocation of the capacious and malleable concept of 'national security' at the expense of the liberty of the people."

The majority, in this case, holds that national security interests outweigh individual civil liberties. Whenever the government detains a U.S. citizen overseas for reasons of national security, then the detainee has no legal remedy from the judiciary against the government. Instead a remedy for any alleged violations of civil liberties must come from Congress or the president. The court's ruling, however, is not the supreme law of the land. This case could be accepted by the Supreme Court. If so, one can hope that the Court provides clear legal rules that safeguard both civil liberties and does not "second-guess" the sound judgments of Congress or the president.

Keywords: minority trial lawyer, litigation, Fourth Amendment, Fifth Amendment, civil rights, violations, foreign policy, national security

Leonard Wills is with the U.S. Department of Homeland Security Federal Emergency Management Agency in Philidelphia, Pennsylvania.

The views in this article neither represent the official views of the United States government nor does the United States government endorse the views in this article.

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