The court overlooked one thing. Federal employees take an oath, as follows:
“I, [name], do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter.
Detaining, rendering, threatening and torture are incompatible with that oath. Nor can it be argued in this case that the danger was so clear and imminent that such actions were justified as a matter of necessity/national security.
The ruling should be reversed.
“I, [name], do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter.
Detaining, rendering, threatening and torture are incompatible with that oath. Nor can it be argued in this case that the danger was so clear and imminent that such actions were justified as a matter of necessity/national security.
The ruling should be reversed.
36
If and only if Mr. Meshal's last name was either a Jewish or a Christian , and if he was practicing Judaism or Christianity, and not Muslim, he would've never been placed in any cell in Kenya or Ethiopia .And he would've never been tortured like the way he was tortured .
And no C.I.A. agent would've ever arrested him or rendered him to another Black holes in Africa or Egypt or any other torture cells that were kept by the Bush Administration and still continuing at present time.
Come on. America . How long we're going to pretend that we're not still fighting Crusade ?
Do we realize that this is 2015 ?
And if we're really not fighting crusade, how come all the people who're being tortured and killed in the Middle East are all Muslims ?
And if we've really tortured Mr.Meshal who's an American Citizen, why we're not admitting and pay him a hefty compensation ?
WE would've paid to a Non-Muslim long time back.
How long we're going to discriminate against the 3 million or more people of Muslim faith in this country ?
They're as good an American as everybody else.
So why these tortures and mayhem against the people of the Muslim faith ?
And since the science has advanced so much ,why not use the "Truth Serum" instead of rendering them to shadowy countries and torturing them or killing them (Like Maliki and his son and others in Yemen ) through drones ?
We should always take our orders from Jesus and not from the Devil like we did many times. And that's really a shame...tkb
And no C.I.A. agent would've ever arrested him or rendered him to another Black holes in Africa or Egypt or any other torture cells that were kept by the Bush Administration and still continuing at present time.
Come on. America . How long we're going to pretend that we're not still fighting Crusade ?
Do we realize that this is 2015 ?
And if we're really not fighting crusade, how come all the people who're being tortured and killed in the Middle East are all Muslims ?
And if we've really tortured Mr.Meshal who's an American Citizen, why we're not admitting and pay him a hefty compensation ?
WE would've paid to a Non-Muslim long time back.
How long we're going to discriminate against the 3 million or more people of Muslim faith in this country ?
They're as good an American as everybody else.
So why these tortures and mayhem against the people of the Muslim faith ?
And since the science has advanced so much ,why not use the "Truth Serum" instead of rendering them to shadowy countries and torturing them or killing them (Like Maliki and his son and others in Yemen ) through drones ?
We should always take our orders from Jesus and not from the Devil like we did many times. And that's really a shame...tkb
16
This seems an echo of the case of Meher Arar, a Canadian-Syrian dual citizen, grabbed during a layover at a US airport on faulty intelligence, and sent to Syria (despite a treaty allowing a deportee to choose the country to which to be deported), where he was in fact tortured, and interrogated by US and Canadian intelligence agents, for ten months. His case prompted a Royal Commission in Canada, a declaration of full innocence, and a $C 10.5 million compensation for Canada's part in the matter, but his US suit against the US government was dismissed for--you guessed it--"national security considerations." Read all about it at https://en.wikipedia.org/wiki/Maher_Arar
DRG's comments upthread understate the problem: sure, it appears that US legal protection and civil rights don't apply to non-citizens inside the US or to US citizens outside the US. But actually, even US citizens in the US can be denied these protections--look at the case of Jose Padilla, born in Brooklyn, arrested in Chicago on suspicion of planning to create a "dirty bomb," declared an "enemy combatant" with no rights, held for three and a half years in a military prison without charges, and subjected to "enhanced interrogation" all that time. (After much agitation by civil-liberty groups, he was eventually tried in US civil courts and convicted of aiding the enemy, but never charged with that "dirty bomb" allegation.)
https://en.wikipedia.org/wiki/Jos%C3%A9_Padilla_%28prisoner%29
DRG's comments upthread understate the problem: sure, it appears that US legal protection and civil rights don't apply to non-citizens inside the US or to US citizens outside the US. But actually, even US citizens in the US can be denied these protections--look at the case of Jose Padilla, born in Brooklyn, arrested in Chicago on suspicion of planning to create a "dirty bomb," declared an "enemy combatant" with no rights, held for three and a half years in a military prison without charges, and subjected to "enhanced interrogation" all that time. (After much agitation by civil-liberty groups, he was eventually tried in US civil courts and convicted of aiding the enemy, but never charged with that "dirty bomb" allegation.)
https://en.wikipedia.org/wiki/Jos%C3%A9_Padilla_%28prisoner%29
13
This country has lost it's moral compass.
33
It's been clear since June 20th, 2004 when William Saffire defined the term "ordinary rendition" in his NYT "On Language" column that the CIA has been involved in renditions since even before 9/11. Back then, the practice enabled us to say with a fairly straight face that we didn’t torture. We had exported our jobs. Why not our torture? Despite the years of research I did about rendition for my novel "I'm Not Muhammad" (2011), only recently have I come to realize that the FBI has been involved in these kidnappings as well (though it’s true that they were involved in possibly the first OR in 1987). Not that it would make these crimes any less heinous, but there was a time when the FBI took care of domestic threats and left it to the CIA to deal with threats from abroad.
7
The decision in this case is simply wrong. An American does not lose his rights, constitutional or otherwise, simply because he is abroad. If the American Government committed the horrendous acts alleged, there needs to be a trial with appropriate accountability for it. That is what the law has always been and there should not be a made up national security/terrorism exception for it. If the US Government wants to claim that there is no protection for American citizens abroad, good luck getting protection for your officers and agents abroad in the future.
35
The government has Sovereign Immunity. This goes back to the days of the British.
What this means is that the government must give permission to bring a suit against the government for a given cause of action. The government has waived Sovereign Immunity in many types of cases, torts for instance. If you are run over by a government vehicle, following a certain set of rules, you are allowed to sue.
Apparently this is not one of those types of cases where the government has waived its Sovereign Immunity.
What this means is that the government must give permission to bring a suit against the government for a given cause of action. The government has waived Sovereign Immunity in many types of cases, torts for instance. If you are run over by a government vehicle, following a certain set of rules, you are allowed to sue.
Apparently this is not one of those types of cases where the government has waived its Sovereign Immunity.
5
I don't agree with the Cato Institute, or possibly Mr. Eddington, on most issues, but I certainly agree with them on this issue. It is a very real shame that our security agencies engage in such practices as rendition and torture that run precisely counter to the system and ideas of the country they are supposedly protecting. It is even worse that they apparently feel entitled to do this even to our own citizens. But worse than all of this are courts who meekly accept the very thin rationale of "national security" and fail to protect the most basic rights of American citizens and use tortured political logic to avoid providing remedies for the very real harm done to people by our security agencies' use of right-less detention and third-world interrogation and torture that would not be permitted here at home.
40
Whether a Bivens action is appropriate in this case, I have to take issue with some of its assumptions and of some who have commented. The FBI does not have discretion to have people picked-up abroad and detained. (The writer is former CIA, maybe they do). It appears that the Kenyan government apprehended and detained Mr. Meshal on its own accord. Further, it is up to the Kenyan government whether the FBI is allowed to speak to Mr. Meshal and whether he is provided counsel or a phone. American citizens who are in other countries have to live with the laws of those countries. Those are not always the same as ours. Also, it looked that the US protested Mr. Meshal's removal to another country although it is unclear whether the other country had requested the removal and, quite honestly, Kenya could remove him according to its laws regardless of US approval. These actions, in my mind, show that those governments were as interested in talking to Mr. Meshal as the FBI. (Why would the FBI need to have him in Ethiopia or Somalia if they already had him in Kenya). Also, for the record, Mr. Meshal did not allege that the FBI tortured him.
Finally, the allegations made by Mr. Meshal are just that allegations. The court had to assume that they are true. We are all so distrustful of all government action that is mostly understandable. But lets not just assume that everything written here is as stated. This matter is still being litigated and may very well be allowed to proceed.
Finally, the allegations made by Mr. Meshal are just that allegations. The court had to assume that they are true. We are all so distrustful of all government action that is mostly understandable. But lets not just assume that everything written here is as stated. This matter is still being litigated and may very well be allowed to proceed.
6
Some practical considerations.
First, how many Americans can legitimately claim what Mr. Meshal claims? Creating a tort to benefit five people is not something that's likely to draw Congress's serious attention. Then, assuming that what happened to him actually was unjustified, unjust things happen in war all the time. Is there, for instance, a cause of action for the survivors of those killed collaterally when an Qaeda leader dies by drone attack? Even if one of those survivors was an American? Even if one of those who were killed collaterally was an American?
There are innumerable injustices committed in wartime, a rather good reason to limit war to occasions when it is absolutely necessary. Let's assume that Mr. Meshal's case was one of injustice. What percentage of rendition cases involving what may have been mistaken identity occurred of the TOTAL number of rendition cases? We'll likely never know, but I suspect that the percentage is low.
Is rendition for any reason justified? Well, when a legitimate threat to America during wartime can't easily be thwarted because of laws we enacted to protect us in saner times, when armies wore uniforms and fought by rules, it may be that rendition is the only way to deal with the threat. There probably have been several hundred targets of rendition in total, while, as of Feb. 14. 2013, 6,656 U.S. dead were suffered in Afghanistan and Iraq, with many thousands more wounded and many more dead and wounded not Americans.
Perspective.
First, how many Americans can legitimately claim what Mr. Meshal claims? Creating a tort to benefit five people is not something that's likely to draw Congress's serious attention. Then, assuming that what happened to him actually was unjustified, unjust things happen in war all the time. Is there, for instance, a cause of action for the survivors of those killed collaterally when an Qaeda leader dies by drone attack? Even if one of those survivors was an American? Even if one of those who were killed collaterally was an American?
There are innumerable injustices committed in wartime, a rather good reason to limit war to occasions when it is absolutely necessary. Let's assume that Mr. Meshal's case was one of injustice. What percentage of rendition cases involving what may have been mistaken identity occurred of the TOTAL number of rendition cases? We'll likely never know, but I suspect that the percentage is low.
Is rendition for any reason justified? Well, when a legitimate threat to America during wartime can't easily be thwarted because of laws we enacted to protect us in saner times, when armies wore uniforms and fought by rules, it may be that rendition is the only way to deal with the threat. There probably have been several hundred targets of rendition in total, while, as of Feb. 14. 2013, 6,656 U.S. dead were suffered in Afghanistan and Iraq, with many thousands more wounded and many more dead and wounded not Americans.
Perspective.
2
When laws apply to some people, but to not others, corruption, and worse, are essentially guaranteed.
Justice in this country is a prostitute. And she's very, very expensive.
Justice in this country is a prostitute. And she's very, very expensive.
7
Messy, ugly, an deeply disturbing, but Mr Meshal was not disappeared. He was ultimately freed and returned home to the United States and his family. Should he have redress? No doubt! Did some combination of Federal agencies overreach their authority? Almost certainly. Still, you wrote this essay and the NYTimes published it, and I am free to write a comment about it. Jimmy Carter said it best, "War is a crime." As long as we are engaged in an undeclared war against Islamist terror, the crimes of war will continue to spill over on our citizens. It is indeed a sobering reminder of the times in which we live, but also an affirmation of our country's deep and abiding commitment to the constitutional rights of its citizens.
2
The sad fact is Nixon was right. When the government does something, then it is always legal. There is no accountability. There is no separation of powers. I voted for Obama to end the war on terrorism and rein in the out of control executive branch. But it has turned into Bush III.
If the government ignores the law, how should the disenfranchised respond? Mr Meshal should take his case to the World Court, not because he will get any justice, but to prove beyond all doubt, that the United States of America is a rogue nation without any regard to law or order.
If the government ignores the law, how should the disenfranchised respond? Mr Meshal should take his case to the World Court, not because he will get any justice, but to prove beyond all doubt, that the United States of America is a rogue nation without any regard to law or order.
8
It seems it is possible to do away with an individual's freedom under the guise of national security, or religious freedom.
5
The principle that should be applied here is that the flag follows the government. Regardless of place, any US government official -- such as an FBI agent -- is bound inextricably by the requirements of the US Constitution in any and all dealings with an American citizen. Just as the flag follows the government, the Constitution follows the flag.
18
This is the logical outcome of numerous (shameful) prior judicial decisions and DoJ legal opinions which determined the constitution ends at the border. Foreigner arrested in New York for a crime? You get all the rights and privileges of a citizen and the extensive due process of our criminal justice system. Foreigner arrested 2 feet over the border by the US? You can be held for a decade in Guantanamo, tortured, disappeared, and without any real recourse. American charged with a capital crime in the US? You get extensive due process, free defense counsel, and years of appeals before we execute you. American suspected of capital crimes located 2 feet over the border? We can summarily murder you with a drone strike: no trial, sentence, or questions asked.
20
Moral of the story: Stay out of dangerous, unstable areas of the world and bad things won't happen to you. Meshal had no good reason being in the failed state of Somalia.
4
According to the article, "Mr. Meshal had originally traveled to Egypt in 2005 to visit family members, but subsequently went to Somalia, ostensibly to provide humanitarian aid to what was then known as the Islamic Courts Union, the Islamist rebels opposed to the existing pro-United States Somali government."
You apparently reject this explanation. Why? Because he was providing humanitarian aid? Because you don't like who he was providing humanitarian aid to? Since when do we interfere in the internal politics of allied sovereign countries?
We used to be better than this. We used to be the good guys. I long for those good old days.
You apparently reject this explanation. Why? Because he was providing humanitarian aid? Because you don't like who he was providing humanitarian aid to? Since when do we interfere in the internal politics of allied sovereign countries?
We used to be better than this. We used to be the good guys. I long for those good old days.
4
Take a deep breath everyone, these are allegations made by attorneys for someone who is suing the government, not facts. There was no determination in this case as to whether or not any of these allegations have any basis in fact because the case was dismissed on the procedural grounds outlined in the decision prior to any sort of discovery, testimony or the evaluation of evidence. Please consider the source of the information and weigh that before accepting it as credible.
FBI agents interview subjects held in foreign countries every day. In this instance, I have a hard time imagining that anyone could think that interviewing an American citizen who was alleged to have traveled to Somalia to support Al-Shabaab is not an appropriate activity. Their conduct during these interviews is regulated by law and policy which forbid torture and threats of torture. It is fairly common knowledge within the Intelligence Community that the FBI's approach to interviews is based on rapport building, not on threats or coercion.
The FBI does not have jails or prisons overseas. Mr. Meshal was held by foreign countries under their laws, not by the FBI. I am sure that an Ethiopian jail is not as clean and well appointed as one in the US, but that is hardly something you can blame on the agents (who I assume were also living in slightly rougher accommodations than they are accustomed to during this investigation).
FBI agents interview subjects held in foreign countries every day. In this instance, I have a hard time imagining that anyone could think that interviewing an American citizen who was alleged to have traveled to Somalia to support Al-Shabaab is not an appropriate activity. Their conduct during these interviews is regulated by law and policy which forbid torture and threats of torture. It is fairly common knowledge within the Intelligence Community that the FBI's approach to interviews is based on rapport building, not on threats or coercion.
The FBI does not have jails or prisons overseas. Mr. Meshal was held by foreign countries under their laws, not by the FBI. I am sure that an Ethiopian jail is not as clean and well appointed as one in the US, but that is hardly something you can blame on the agents (who I assume were also living in slightly rougher accommodations than they are accustomed to during this investigation).
6
As a Brit subscribing to the New York Times and the American version of the Huffington Post I follow your politics and news daily. To be honest I am mesmerised and appalled by your car crash politics (I thought ours were bad!), by the outdated hillbilly attitude towards guns and the complacency at the frequent mass shootings. I am horrified at the corruption, bigotry, racism and general intolerance which seems to be rife in your society. I am sure you aren't all like that but your news seems full of stories of ridiculous political standoffs, corruption, police violence, particularly against ethnic minorities, homosexuals and people of different faiths. How practising Christians can be so cruel, judgemental and bigoted is unbelievable as my God wouldn't tolerate such views and behaviour. I feel like I am watching the slow moral disintegration of a hitherto great country. We Brits have always admired Americans but now....??
47
Our goofy politicians, shootings du jour and political corruption are a source of deep dismay and embarrassment to many Americans. But please remember, Patricia, as I endeavor to, that for every ugly deed featured in the headlines, there are thousands of good and generous ones quietly performed by Americans in every walk of life. Like you, I doubt it many days, but I still believe most Americans are the kind Brits always admired. They just don't make the news.
6
For every non terrorist and civilized country it's legal authority ends at it's border.
Obviously not so for the US as it has a long standing history of having it's law extended into other other states and having it's police and intelligence crooks operating outside the US.
And that includes blackmailing, high jacking, abducting and even killing not just non US citizens but also it's own citizens - usually without proper trial in a court of law.
Time for treating the US like it treats others, call for sanctions and a regime change to establish a democracy and a rule of law.
One could also start with a no fly zone and a travel ban on US personnel :-)
Obviously not so for the US as it has a long standing history of having it's law extended into other other states and having it's police and intelligence crooks operating outside the US.
And that includes blackmailing, high jacking, abducting and even killing not just non US citizens but also it's own citizens - usually without proper trial in a court of law.
Time for treating the US like it treats others, call for sanctions and a regime change to establish a democracy and a rule of law.
One could also start with a no fly zone and a travel ban on US personnel :-)
3
You might confirm with your attorney that under 3621 Fed. Pract.& Proc. 13E American citizens domiciled abroad have no standing in Federal Court where
your case could/should be heard. Mr. Obama, I believe in 2013 or 2014
corrected this in conjunction with Congress for corporations, but not
US citizens. Another disappointment for the man for whom I voted.
your case could/should be heard. Mr. Obama, I believe in 2013 or 2014
corrected this in conjunction with Congress for corporations, but not
US citizens. Another disappointment for the man for whom I voted.
8
As the US government has increasingly claimed extraterritorial authority for itself (in drugs,"anti-terrorism," pornography, "money laundering," and gambling) it has also increasingly claimed immunity for itself from law (general international law, the law of warfare, and constitutional law). These are not, as it would at first seem, contradictions; rather, they are obverse faces of the same coin: that we are sufficiently powerful that we are beyond law.
8
From the Court of Appeals decision in this case: " At no point has the Supreme Court intimated that citizenship trumps other special factors counseling hesitation in creating a Bivens remedy."
For those us formerly naive enough to believe that our Fourth Amendment constitutional "guarantees" protect us, either here or at home, the Supreme Court (i.e, Scalia, Thomas and Co.) has a good laugh at our collective expense, I can't say I'm in agreement with what Ed Snowden did but I am entirely ok with why he did it.
For those us formerly naive enough to believe that our Fourth Amendment constitutional "guarantees" protect us, either here or at home, the Supreme Court (i.e, Scalia, Thomas and Co.) has a good laugh at our collective expense, I can't say I'm in agreement with what Ed Snowden did but I am entirely ok with why he did it.
14
How long before they only have to take us down the street to a foreign embassy? Or to a foreign restaurant?
9
There are certainly good rights and there are bad rights, there are good amendments and there are bad amendments, there are good laws and there are bad laws. The real question is who gets to decide which are which?
4
With all due respect to Samuel Johnson, it would appear national security has supplanted patriotism as the last refuge of scoundrels.
30
This is why the Patriot Act was a bad idea when it passed, and a worse idea now.
The Nazi party rose to power in Germany owing to such 'legal' shenanigans -- is this really where we want to be heading. Once one is declared a potential 'enemy of the state' all bets are off.
The Nazi party rose to power in Germany owing to such 'legal' shenanigans -- is this really where we want to be heading. Once one is declared a potential 'enemy of the state' all bets are off.
13
Let me see if I've got this right. If you're a foreign national in the US, you can be spied on with impunity. If you're a US citizen outside the US, your rights cease to exist. If you're a foreign national whom the US government even has a hint of suspicion about, you can be killed on orders, by the stroke of a pen.
Yossarian's head would be spinning: "that's some catch, Catch-22."
Doc Daneeka: "It's the best there is."
Yossarian's head would be spinning: "that's some catch, Catch-22."
Doc Daneeka: "It's the best there is."
7
Come on now. We elected people who allowed this stuff after 9/11--our congress and the mainscream media overwhelmingly convinced us to give up our rights in order to fight terror. Remember the Patriot Act, the searches of train/plane travelers, all the extraordinary renditions, Guantanamo, the TSA, wire taps, email taps, militarization of police, mindless invasions of Muslim countries? We went along, didn't we? Now what?
9
By allowing our fears to guide us into these kind of actions we have done ourselves more damage than any terrorist bomb could ever do, By undermining our legal and moral principles, we have anded Al Qaeda and like minded organizations a greater victory than they could ever have hoped for.
9
If Mr. Meshal cannot use the U.S. constitution because he was overseas at the time of these events, then the U.S. government has no basis for attempting to apply U.S. law overseas, either. (Like when they went to Afghanistan to arrest a U.S. citizen who had escaped from a U.S. federal prison in California.)
13
Shame on President Obama. In these matters, he's been no better than W. To think Obama has claimed to stop torture.
13
Let us not forget that the DOJ under Obama has declared that assassination of citizens is quite acceptable as well. A stance promoted by Hillary Clinton. So yes, hold your nose and vote Democrat.
5
One problem here is the powerful pacifying effect on citizens' minds in adopting the language chosen by malefactors to make us comfortable with this situation. "Rendition" may have roots in formal legal language but it is also a euphemism in these circumstances, where the spirit and likely the letter of our law is being denied; extra-legal capture and confinement is more ordinarily known as kidnapping. I suspect if journalists were more careful in their choice of accurate descriptive language, we'd see more concern and less tolerance of the behavior of the FBI in these circumstances.
12
Some comments indicate the writer did not read the story carefully. Meshal was never tortured; he was threatened with torture.
Lies by the authorities are part of standard non-violent interrogation methods, legal under a variety of Supreme Court decisions. The question, then, might be: Is it lawful for the interrogator to frighten the subject by making a vacuous threat of mistreatment? The threat was a lie, and lies are allowed. Ordinary criminal suspects here are frequently told they will take the fall for a crime they didn't commit unless they reveal who did pull the trigger; that is a threat, and yet it is allowed. Is the lie that the suspect will be tortured more egregious than a lie that one will be tried and convicted of a capital crime?
Lies by the authorities are part of standard non-violent interrogation methods, legal under a variety of Supreme Court decisions. The question, then, might be: Is it lawful for the interrogator to frighten the subject by making a vacuous threat of mistreatment? The threat was a lie, and lies are allowed. Ordinary criminal suspects here are frequently told they will take the fall for a crime they didn't commit unless they reveal who did pull the trigger; that is a threat, and yet it is allowed. Is the lie that the suspect will be tortured more egregious than a lie that one will be tried and convicted of a capital crime?
2
And it is "legal" for our government to drone strike people without due process--US citizens too.
10
Between this, the Arbitration Everywhere series, drone killings, and the murders committed by police, it is pretty clear that the rule of law does not really exist in this country
11
Are U.S. "intelligence" agencies under so much pressure to produce terror suspects that they must resort to tactics that would seem familiar to the members of the Spanish Inquisition. "Confess, confess…and everything will be okay." Every time sometime like this happens, the words of the Constitution become fainter and fainter until we will barely be able to read them, or heed them.
13
This shopping around of torture sites of opportunity has to stop. American laws regarding human rights need to pertain to those in American custody no matter where they are located. And the rights of American citizens while detained by American organizations need to apply regardless of location as well.
12
As a 12 year expat who left America because of Bush's war in Iraq, I still wait for the knock on the door in the middle of the night. Does that mean I'm paranoid?
12
If I'm following this correctly, Mr. Meshal owes his life to the US government, without whose intervention he would still be in Somalia. He clearly had some explaining to do given the circustances under which he was discovered. Meaning his detention was reasonable and did not involve physical harm. Following which he was released and flown back to the US, for free, the same year.
All in all, this opinion fails to evoke sympathy for Mr. Meshal. Especially the concluding sentence, warning implications of Mr. Meshal's case on all Americans abroad, is a stretch to say the least. C'mon, really?
Still, a well-written thriller under 1500 words. Mr. Eddington should work on a script if he hasn't already and sell rights to Hollywood. Leave no man behind, how's that for a catch title...
All in all, this opinion fails to evoke sympathy for Mr. Meshal. Especially the concluding sentence, warning implications of Mr. Meshal's case on all Americans abroad, is a stretch to say the least. C'mon, really?
Still, a well-written thriller under 1500 words. Mr. Eddington should work on a script if he hasn't already and sell rights to Hollywood. Leave no man behind, how's that for a catch title...
4
Re-writing the Constitution, at will. The Bush II and Obama administrations are really bad in this regard.
8
This ruling is a huge blot on the Obama administration. It had no business defending government misconduct in the Bush administration; presumably it did so because someone convinced the White House that it too might wish to use rendition (and the threat of torture) on American citizens.
In the assumption the facts are as stated by Mr. Eddington, I suggest Times reporters investigate of how these Kafkaesque filings from government lawyers came to be and whether the White House will take ownership of the U.S. government position as detailed to the court.
If this inexplicable ruling stands (well, maybe the federal judges who so ruled don't believe in the liberties afforded citizens by our constitution) the executives branch will, through judicial fiat, make John C. Calhoun's dream of nullification a reality with respect to the Fourth Amendment.
In the assumption the facts are as stated by Mr. Eddington, I suggest Times reporters investigate of how these Kafkaesque filings from government lawyers came to be and whether the White House will take ownership of the U.S. government position as detailed to the court.
If this inexplicable ruling stands (well, maybe the federal judges who so ruled don't believe in the liberties afforded citizens by our constitution) the executives branch will, through judicial fiat, make John C. Calhoun's dream of nullification a reality with respect to the Fourth Amendment.
11
The legal issues and frightening federal appellate court decision discussed in this article were all decided long ago…Not in a court of law, but rather by an unconstitutional “memorandum” issued by the Department of Justice under Daddy Bush’s watch (not Cheney’s). See the following link to a 1989 DOJ memorandum from an Assistant Attorney General which basically says that the FBI does not need to obey several Supreme Court decisions that limit its authority overseas. http://fas.org/irp/agency/doj/fbi/olc_override.pdf Clearly we have not lived in a country governed by Law but rather by “Memo” for at least the last twenty-odd years.
14
There was a time before 1-20-80 that the US government expected all employees and agents working for it Citizen or not to obey US law no matter where they were on earth.
How exactly can anyone think for one second that that policy and practice (IDK if it was law) should not still apply? If we cannot hold our employees to be accountable to US law then how can we control them at all? We are held responsible for what they do as a nation, they must be held responsible for what they do by us the people they work for.
We need to know the names of the agents who did the questioning and the people who issued them orders to do so. Someone had to be inside the USA when that process began and that person did violate the law. If the orders to do this did not originate inside the US then the agents went rogue and are legally liable for that.
There is literally no way an honest person could possibly conclude that the FBI or any other US government agent is not accountable in a US court for their actions while on duty, doing that “duty” any where on earth.
How exactly can anyone think for one second that that policy and practice (IDK if it was law) should not still apply? If we cannot hold our employees to be accountable to US law then how can we control them at all? We are held responsible for what they do as a nation, they must be held responsible for what they do by us the people they work for.
We need to know the names of the agents who did the questioning and the people who issued them orders to do so. Someone had to be inside the USA when that process began and that person did violate the law. If the orders to do this did not originate inside the US then the agents went rogue and are legally liable for that.
There is literally no way an honest person could possibly conclude that the FBI or any other US government agent is not accountable in a US court for their actions while on duty, doing that “duty” any where on earth.
9
Americans abroad aren't real Americans. Only homelanders are.
2
And yet, unlike citizens of other countries who reside abroad, they are still required to pay taxes in the US, even if they haven't set foot there for 20 years.
6
Between national security with its rendition and torture, corporate personhood, and Christian arbitration the United States is becoming the 21st century equivalent of the Soviet Union. And not at all in a good way.
28
I seriously wonder whether the direction of our government in this regard can be changed by any means short of a political revolution; it's gone that far. Reject both parties' candidates; start over fresh. The argument that it's worse in other countries is beside the point. "An authoritarian and nationalistic right-wing system of government and social organization" is one definition of fascism. We're not there however we may well be on that path - maybe one election away if things go the GOP's way.
10
A criminal lawyer friend always said that he loved to cross-examine FBI agents as they readily admitted wrongdoing because they think they are allowed to do most anything. The blow back from this ruling could be to embolden government agents to further abuse US citizens at home.
72
I did not know the FBI was allowed to operate overseas.
3
Remind me again when "not allowed" stopped this government.
5
Why the euphemisms?
Call a spade a spade: it is torture not rendition. We've become so pathetic.
Call a spade a spade: it is torture not rendition. We've become so pathetic.
63
Torture is inflicting physical harm, Rendeition a perversion of render is a euphemism for kidnapping or arresting and then transporting the person to a place where torture can be done "legally".
7
No, it's "Night and Fog." People soon forget the evil we fought against, where camps for political prisoners were located in Germany (or Italy), the secret police torture chambers were everywhere, and the murder camps were located in Poland.
7
In our brave new world some individual of no political significance or apparently no national security significance gets rendered/kidnapped, imprisoned without charge, and for all practical purposes tortured with no legal recourse, yet those responsible for the deaths of hundreds of thousands and massive destruction walk free or die in their bed.
I refer today to the obit of Ahmad Chalabi and the discredit earned by his partners in political and war crimes Dick Cheney, Douglas J. Feith, William J. Luti, Richard N. Perle and Paul D. Wolfowitz.
I refer today to the obit of Ahmad Chalabi and the discredit earned by his partners in political and war crimes Dick Cheney, Douglas J. Feith, William J. Luti, Richard N. Perle and Paul D. Wolfowitz.
91
Try all of these Project for the New American Century ("PNAC") members and collaborators (including Jeb!, who was a signatory member back in 1997 and helped manipulate the 2000 presidential elections) to The Hague!
Chalabi's death deals one of these scum out.
At least Himmler and Goering had the relative grace to take cyanide.
Chalabi's death deals one of these scum out.
At least Himmler and Goering had the relative grace to take cyanide.
7
they should make a swift visit to chalabi.
Mr. Meshal's conduct was foolhardy, to say the least. Nonetheless, what was done to him is simply outrageous. It is also of concern because just about everything I have read indicates that the F.B.I. generally stayed away from all that torture/kidnapping perpetrated by the C.I.A. in the eternal war on terror. Apparently, the F.B.I. also succumbed to the siren song of illegality. Does this mean that the F.B.I. can now arrest an American citizen illegally on U.S. soil and torture him while interrogating him and then go into court and claim "national security" in order to get away with it? I wouldn't put anything past our "law" enforcement officers.
20
This case brings to mind the old witticism, "Being an FBI agent [or fill in name of the government agency of your choice] means never having to say you're sorry." This reliance on legal technicalities to acquit government agents of a blatant violation of an individual's rights reflects a bureaucratic mindset that even officials in a democratic system cannot seem to avoid.
More importantly, the failure of the courts to uphold the spirit of the Bill of Rights confirms James Madison's skepticism about the capacity of legal guarantees of liberties (what he called "parchment barriers") to restrain government in the absence of a public determination to enforce those rights. Widespread fear of terrorists, fanned by opportunistic or politically insecure officeholders, has weakened commitment to some of the freedoms that most Americans believe define us as a people.
The implicit promise that government spying or mistreatment of suspected terrorists will avoid future 9/11s involves a Faustian bargain from which we will derive no benefits. We will end up less free, but not more secure.
More importantly, the failure of the courts to uphold the spirit of the Bill of Rights confirms James Madison's skepticism about the capacity of legal guarantees of liberties (what he called "parchment barriers") to restrain government in the absence of a public determination to enforce those rights. Widespread fear of terrorists, fanned by opportunistic or politically insecure officeholders, has weakened commitment to some of the freedoms that most Americans believe define us as a people.
The implicit promise that government spying or mistreatment of suspected terrorists will avoid future 9/11s involves a Faustian bargain from which we will derive no benefits. We will end up less free, but not more secure.
32
Yes, the facts Mr. Eddington lays out in this op-ed piece are troubling and deserve deeper investigation.
However, I can't help but note that Mr. Eddington works for the Cato Institute, an extreme right-wing organization. An organization which has been taken over by the radical energy-baron Koch Brothers.
The Kochs are known for having ulterior motives. And those motives are to end taxation, end corporate regulations that protect citizens and consumers, and amass power and profit for themselves. But the one thing they have never seemed too concerned with is civil liberties of average citizens.
Actually, they seem intent upon making sure those are squashed. So forgive me for wondering what's *really* behind this op-ed piece? Was agenda is really being served here?
There must have been a reason Mr. Meshal was targeted by the FBI in the first place. Was, perhaps, Mr. Meshal really an operative working for a foreign country to which the Kochs have close ties and the Kochs need to appease? (Like Saudi Arabia?) Or was Mr. Meshal just working directly for the Kochs as a corporate operative? After all, the number one reason the U.S. is fighting Middle Eastern wars is oil. I wouldn't put it past the Kochs to hire men to do their bidding overseas.
Considering all the people tortured and detained, why are the Koch's suddenly championing THIS guy?
I'll be surprised if my comment gets published, by the way.
However, I can't help but note that Mr. Eddington works for the Cato Institute, an extreme right-wing organization. An organization which has been taken over by the radical energy-baron Koch Brothers.
The Kochs are known for having ulterior motives. And those motives are to end taxation, end corporate regulations that protect citizens and consumers, and amass power and profit for themselves. But the one thing they have never seemed too concerned with is civil liberties of average citizens.
Actually, they seem intent upon making sure those are squashed. So forgive me for wondering what's *really* behind this op-ed piece? Was agenda is really being served here?
There must have been a reason Mr. Meshal was targeted by the FBI in the first place. Was, perhaps, Mr. Meshal really an operative working for a foreign country to which the Kochs have close ties and the Kochs need to appease? (Like Saudi Arabia?) Or was Mr. Meshal just working directly for the Kochs as a corporate operative? After all, the number one reason the U.S. is fighting Middle Eastern wars is oil. I wouldn't put it past the Kochs to hire men to do their bidding overseas.
Considering all the people tortured and detained, why are the Koch's suddenly championing THIS guy?
I'll be surprised if my comment gets published, by the way.
18
While the specifics of Mr. Meshal's activities and itinerary may be of anecdotal interest to some few persons, it seems to me that the piece's call-to-action is one of general applicability and principle. The discussion around those general--and genuinely important--matters is advanced not at all by breathless whispers of conservative conspiracies.
5
It seems both the conservatives and Liberals will turn a blind eye to torture as long as the victim or those championing the victim fall into a different camp. It shows how toxic our political system has become. I have no issue as progressive to join a conservative in upholding our constitutional rights
4
This is disturbing, to say the least. Have we undermined our rights in the Constitution so much that by gaming them under the rubric of "national security" we are all at risk of loosing our liberties?
We chastise and condemn Mr. Putin and other authoritarian figures in the world for doing to Mr. Meshal what we have done to him and call ourselves a nation of laws.
Can hypocrisy be strong enough of a word for the double standard we have shown?
We chastise and condemn Mr. Putin and other authoritarian figures in the world for doing to Mr. Meshal what we have done to him and call ourselves a nation of laws.
Can hypocrisy be strong enough of a word for the double standard we have shown?
49
Double standard? It's one authoritarian viewpoint versus another--just like in the days of Hitler (whose playbook the GOP has adopted since the "election" of W in 2000--really a Cheney regency) versus Stalin.
4
One more way in which Obama's declaration that he would run the most transparent administration in history has become a cruel joke.
37
It looks to me that this guy was snatched by the Bush Administration, not the Obama. The "patriot" act was a Bush Law. Can you quit hating Obama long enough to quit blaming him for everything including the wreck of the Titanic?
Hope and Change.
4
Jeff, perhaps you didn't read far enough into the article to see that Mr. Meshal brought suit in 2009. And that "Obama administration lawyers" argued on behalf of the F.B.I.
Perhaps you also don't recall the Mr. Obama signed - by robopen - extension and expansion of PATRIOT.
Perhaps you also don't recall the Mr. Obama signed - by robopen - extension and expansion of PATRIOT.
4
A claim of "national security" is clearly a "get out of jail free card". It is nothing more than a game of Monopoly that tramples on the rights of citizens and makes a mockery of the Constitution.
54
This is a clear instance of punishment creep, perpetrated by our so-called security state which is taking over greater and greater swaths of American citizens' rights and civil liberties.
Rentidions, the drone program, the massive NSA surveillance of civilians, and the FISA courts all point to the tightening grip of authoritarianism in present-day United States. Also, they stand in searing contrast to the idyllic campaign promises of transparency by the younger Obama of 2008.
oz.
Rentidions, the drone program, the massive NSA surveillance of civilians, and the FISA courts all point to the tightening grip of authoritarianism in present-day United States. Also, they stand in searing contrast to the idyllic campaign promises of transparency by the younger Obama of 2008.
oz.
42
...and, of course, despite claims of the "Liberty Caucus" and "freedom" this and that of the GOP, which speaks in antonyms, it's more of the same. Each and every one of the presidential and congressional wannabes can be categorized as authoritarian anarchists.
5
Some day - and I hope that it comes soon - we will realize that Congress's Patriot Act has been as inimical to our Constitution as was SCOTUS's infamous Dred Scott decision. The Founding Fathers would have been appalled.
75
As an atty. before commenting I read the decision. The issue is legally complex but for me it raises one fundamental issue.The unending war on terror has allowed congress and the executive branch to create laws [ which are reviewed and enforced by an all to compliant court system] that have destroyed the very values upon which are Declaration of Independence and the Bill of Rights are based.The voting public has allowed this to happen.
124
No, the fear of 9/11 caused this. There were plenty of protests, they were simply ignored. Both parties rushed to tear up the Constitution, and Congress enacted new laws which exonerated the culprits retroactively. Disgsusting
6
Don't color by the numbers.
It doesn't matter if it's on foreign soil or not.
A person can right now be snatched by secret police; working under a secret order; issued by a secret court; for violation of a secret law, sentenced by a secret court, imprisoned in a secret jail, executed in secret.
Hey, it's all legal don't ya know.
We have become what we feared and escaped centuries ago.
......We the people, indeed.
It doesn't matter if it's on foreign soil or not.
A person can right now be snatched by secret police; working under a secret order; issued by a secret court; for violation of a secret law, sentenced by a secret court, imprisoned in a secret jail, executed in secret.
Hey, it's all legal don't ya know.
We have become what we feared and escaped centuries ago.
......We the people, indeed.
69
We seem to have gone from "E pluribus unum" and a Constitutional democracy to the equivalent of "Heil Hitler!" (or Trump, who never denied reading Hitler's speeches as bedtime reading) and a police state since 1980.
8
The principle used is nothing new. I had a guy slam into the back of me doing 90 miles an hour on an overseas Air Force Base because he was having a grand mal seizure. He had been told by the local Air Force Clinic his blackouts and headaches were stress and to take more Motrin.
To cover themselves the Air Force refused to release an accident report and they disappeared his medical records while the Navy hospital disappeared mine. Therefore I could not collect a penny of insurance money despite the fact he was on duty at the time. His job - hazardous waste disposal!
I wrote to attorneys in Guam, Hawaii, San Francisco, and Washington D.C. and none of them would touch it because U.S. civilian law does not apply on overseas U.S. government property. No court of competent jurisdiction.
I am white and worked as an overseas civilian subcontracter to our government for 35 years. I still have to have regular medical treatment at my own expense caused by the accident. You can imagine how U.S. laws and principles are violated when the person is not white, and the claim is national security. Our overseas empire operates by different rules than our Constitution protected Republic and has for a long time.
To cover themselves the Air Force refused to release an accident report and they disappeared his medical records while the Navy hospital disappeared mine. Therefore I could not collect a penny of insurance money despite the fact he was on duty at the time. His job - hazardous waste disposal!
I wrote to attorneys in Guam, Hawaii, San Francisco, and Washington D.C. and none of them would touch it because U.S. civilian law does not apply on overseas U.S. government property. No court of competent jurisdiction.
I am white and worked as an overseas civilian subcontracter to our government for 35 years. I still have to have regular medical treatment at my own expense caused by the accident. You can imagine how U.S. laws and principles are violated when the person is not white, and the claim is national security. Our overseas empire operates by different rules than our Constitution protected Republic and has for a long time.
78
Mark's partner. Thanks for the sharing. You got it right. I experienced this first hand on something innocuous as returning to the US as a permanent resident married to an American after more than a year of overseas living in Asia. I was stunned at the kind of paper work I had to fill up (that treated everybody like a terrorist, criminal or a suspect) ; constantly changing rules that appears to be more like "harassment and racially motivated assault than national security interests"....and interviews that felt more like an interrogation. I could not believe that this the United States that I now belong to after 27 years of American residence. You are right, "If rights and protections can be so easily overlooked for Anglo citizens working abroad in military bases, imagine what it is like for an ordinary civilian social worker of Brown hue who teaches and researches social problems in the US"?
US leaders and organizations are not just overlooking the American Constitution, they are literally redefining it without our knowledge and people's involvement.
US leaders and organizations are not just overlooking the American Constitution, they are literally redefining it without our knowledge and people's involvement.
7
Assuming that the names of the agents are known, why can't Meshal try to sue the agents in their individual capacity. If none of the events occurred officially, then the agents were not acting in an official capacity, and the agents were merely acting as private citizens.
It's a long shot, but the government cannot have it both ways. Either the agents were acting officially - or they were not.
It's a long shot, but the government cannot have it both ways. Either the agents were acting officially - or they were not.
40
It would not surprise me if the government ruled that the government and its agents can have it both ways.
4
He could sue, but for this he needs a civilized state with a working legal system.
Which rules out the US.
Which rules out the US.
5
A properly functioning Executive Branch would never do this. This was Cheney's world view.
A properly functioning Congress would never allow this. This is the ultimate in constituent services. It would have made Benghazi seem tame.
We should never have gotten to the point of a properly functioning court remedy. With the Roberts Court setting the basic tone, I doubt we have functioning courts either.
It is national security deep state run wild. Cheney must have been so pleased.
I'd like to know if Cheney personally got daily reports of the torture of this man, as he did of others.
Finally, this article is far too kind to our government actions in Somalia. The Islamic Courts were the government, functioning and with a local base. What the US tried to support was appointed by the US, and controlled the hotel it stayed in only as long as US contractors protected it. Ethiopia is a traditional enemy of Somalia going back centuries, and the US openly paid for an invasion to overthrow the existing government. It is rather like paying Germany to invade France back when that was a hot topic.
So this American, whatever he was doing, was doing it with the existing government with a functional local base, in a place that was starving and trying to recover from a decade of warlord craziness. He very well might have had nothing to do with "terrorism" but just been on the wrong side of the power politics of the US.
A properly functioning Congress would never allow this. This is the ultimate in constituent services. It would have made Benghazi seem tame.
We should never have gotten to the point of a properly functioning court remedy. With the Roberts Court setting the basic tone, I doubt we have functioning courts either.
It is national security deep state run wild. Cheney must have been so pleased.
I'd like to know if Cheney personally got daily reports of the torture of this man, as he did of others.
Finally, this article is far too kind to our government actions in Somalia. The Islamic Courts were the government, functioning and with a local base. What the US tried to support was appointed by the US, and controlled the hotel it stayed in only as long as US contractors protected it. Ethiopia is a traditional enemy of Somalia going back centuries, and the US openly paid for an invasion to overthrow the existing government. It is rather like paying Germany to invade France back when that was a hot topic.
So this American, whatever he was doing, was doing it with the existing government with a functional local base, in a place that was starving and trying to recover from a decade of warlord craziness. He very well might have had nothing to do with "terrorism" but just been on the wrong side of the power politics of the US.
35
Please read the article. The Obama administration argued it was acceptable and it was upheld by district and appeals courts. This has nothing to do with Cheney or the Roberts court.
And if you read up, you will find out that renditions started under Clinton.
And if you read up, you will find out that renditions started under Clinton.
20
This isn't Cheney,the denial of this man's rights is 100% Obama. He has the full power to decide how the executive will respond, and has chosen the path of least responsibility. The executive branch and legislative branch may have gone severely astray most 9/11, but at least they can proffer the excuse of excessive stress in an unknown situation.
With the clarity of almost 8 years of hindsight at the outset and 14 years at this point in time, to continue to walk this path is really inexcusable.
With the clarity of almost 8 years of hindsight at the outset and 14 years at this point in time, to continue to walk this path is really inexcusable.
22
This was done in 2007, by Cheney. Also in the article.
Yes, Obama has played along with the entire War on Terror mechanism they created, despite promises not to do so, from Gitmo onward. He has gone to court to defend every excess. He has invoked the Secrets Doctrine when he could win no other way. He has not ended wars, but started more.
Do you imagine I am not disappointed with Obama? Do you imagine that excuses Cheney gloating over the torture transcripts? Do you imagine that excuses the Iraq War?
And I support Bernie but oppose Hillary, because she would be worse in all of these things.
Yes, Obama has played along with the entire War on Terror mechanism they created, despite promises not to do so, from Gitmo onward. He has gone to court to defend every excess. He has invoked the Secrets Doctrine when he could win no other way. He has not ended wars, but started more.
Do you imagine I am not disappointed with Obama? Do you imagine that excuses Cheney gloating over the torture transcripts? Do you imagine that excuses the Iraq War?
And I support Bernie but oppose Hillary, because she would be worse in all of these things.
20
But if the tables were turned, and Meshal tortured FBI or CIA officials overseas, he could be prosecuted here. So much for equal protection.
66
He was Muslim and not white. The agents were white guys and likely Eagle Scouts too. This is pure us vs them.
US citizenship is nominal, if someone is "them."
US citizenship is nominal, if someone is "them."
36
What on earth does having been a Boy Scout and achieved a high rank have anything to do with this? As for being "white guys" - well, if they were black and you said the same thing, you would quite justly be accused of making a racist comment.
The last time I checked, being white and a Boy Scout was not synonymous with being evil.
The last time I checked, being white and a Boy Scout was not synonymous with being evil.
2
He was threatened with torture. He was never actually tortured and, since such treatment did not follow his refusal to submit, the threat was clearly a lie.
Police interrogators here lie to suspects in order to induce cooperation all the time, and those lies include threats of conviction for a crime they know the suspect did not commit.
That Meshal believed the lie . . . of course. A lie that is obviously transparent would work -- there, or back home.
Police interrogators here lie to suspects in order to induce cooperation all the time, and those lies include threats of conviction for a crime they know the suspect did not commit.
That Meshal believed the lie . . . of course. A lie that is obviously transparent would work -- there, or back home.
2
to trucklt-
it seems that you don't understand the concept of freedom given to US under the Constitution of the US . unless explicitly forbidden by law american citizens have the right to travel wherever they please.
furthermore there are legitimate business reasons to visit failed states, where great opportunities may exist. furthermore people have families and relatives in failed states, whom they may wish to visit. in spite of the court decision it shows a lack of moral propriety on the part of the CIA/FBI to act in a manner which would be deemed to be illegal within in the territory of the continental US.