                   UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF COLUMBIA

________________________________
                                )
AMIR MESHAL,                    )
                                )
               Plaintiff,       )
                                )      Case No. 1:09-2178 (EGS)
          v.                    )
                                )
CHRIS HIGGENBOTHAM, et al.,     )
                                )
               Defendants.      )
________________________________)


                        MEMORANDUM OPINION

     Amir Meshal is an American citizen who alleges that, while

travelling in the Horn of Africa, he was detained, interrogated,

and tortured at the direction of, and by officials in, the

American government in violation of the United States

Constitution.   After four months of mistreatment, Mr. Meshal was

returned home to New Jersey.   He was never charged with a crime.

Mr. Meshal commenced this suit against various U.S. officials

under Bivens v. Six Unknown Agents of Federal Bureau of

Narcotics, 403 U.S. 388 (1971), which allows a victim of

constitutional violations to sue the responsible federal

officers or employees for damages.      The defendants have moved to

dismiss his case, alleging that even if Mr. Meshal’s allegations

are true, he has no right to hold federal officials personally




                                   1
 
liable for their roles in his detention by foreign governments

on foreign soil.

     The facts alleged in this case and the legal questions

presented are deeply troubling.    Although Congress has

legislated with respect to detainee rights, it has provided no

civil remedies for U.S. citizens subject to the appalling

mistreatment Mr. Meshal has alleged against officials of his own

government.   To deny him a judicial remedy under Bivens raises

serious concerns about the separation of powers, the role of the

judiciary, and whether our courts have the power to protect our

own citizens from constitutional violations by our government

when those violations occur abroad.

     Nevertheless, in the past two years, three federal courts

of appeals, including the United States Court of Appeals for the

District of Columbia Circuit, have expressly rejected a Bivens

remedy for citizens who allege they have been mistreated, and

even tortured, by the United States of America in the name of

intelligence gathering, national security, or military affairs.

This Court is constrained by that precedent.      Only the

legislative branch can provide United States citizens with a

remedy for mistreatment by the United States government on

foreign soil; this Court cannot.       Accordingly, defendants’

motion to dismiss must be GRANTED.



                                   2
 
    I.     BACKGROUND
         For the purposes of the pending motion to dismiss, the

Court accepts as true the following factual allegations in

Plaintiff Amir Meshal’s Second Amended Complaint.           Mr. Meshal is

a U.S. citizen who was born and raised in New Jersey.           In

November 2006, he travelled to Somalia.            Sec. Am. Compl. ¶ 23.

A few weeks after his arrival, fighting erupted between the

Supreme Council of Islamic Courts, which then controlled

portions of Somalia, and the Transitional Federal Government of

Somalia.      Id. ¶ 34.   Plaintiff fled Mogadishu along with

thousands of other civilians.          Id. ¶ 36.    He then attempted to

flee from Somalia to Kenya on or about January 3, 2007.              Id. ¶

38.

         Around the same time, U.S. officials planned to intercept

individuals entering Kenya in an attempt to capture al Qaeda

members.     By way of background, after the 1998 bombings of the

American Embassies in Kenya and Tanzania, the U.S. government

deployed civilian and military personnel to the Horn of Africa

to identify, arrest, and detain individuals suspected of

terrorist activity.       Id. ¶ 24.    Following the terrorist attacks

of September 11, 2001, the U.S. government was of the opinion

that Somalia was a potential haven for members of al Qaeda

fleeing Afghanistan.       Id. ¶ 26.        Accordingly, in 2002, the

Department of Defense initiated joint counterterrorism

                                        3
 
operations with nations in the Horn of Africa region, including

Kenya and Ethiopia.     Id. ¶ 27.     Since at least 2004, military

personnel and FBI agents have been directly involved in training

foreign armies and police units and conducting criminal

investigations of individuals with alleged ties to foreign

terrorists or terrorist organizations.          Id. ¶ 29.   According to

FBI procedures and policies, FBI officers have no law

enforcement authority in foreign countries, but may conduct

investigations abroad with the approval of the host government.

Id. ¶ 30.     Such extraterritorial activities may be conducted

“with the written request or approval of the Director of Central

Intelligence and the Attorney General or their designees.”          Id.

¶ 56.

        On or about January 24, 2007, Mr. Meshal was captured by

Kenyan soldiers and interrogated by Kenyan authorities.           Id. ¶

46.   The following day, he was hooded, handcuffed and flown to

Nairobi, where he was taken to the Ruai Police Station and

questioned by an officer of Kenya’s Criminal Investigation

Department.     Id. ¶ 51.   The officer told Mr. Meshal that he had

to find out what the United States wanted to do with him before

he could send him back to the United States.          Id. ¶ 52.

Plaintiff was detained at Ruai for approximately one week.          He

was not allowed to use the telephone or have access to an

attorney.     Id. ¶¶ 54-55, 71, 99.       On approximately February 3,

                                      4
 
2007, he was escorted outside the police station for an

encounter with three Americans, who identified themselves as

“Steve,” “Chris,” and “Tim.”     Id. ¶ 58.    “Steve” is defendant

FBI Supervising Special Agent Steve Hersem, and “Chris” is FBI

Supervising Special Agent Chris Higgenbotham.         “Tim” is Doe 1.

Id. ¶ ¶ 59-63.   During the following week, Hersem, Higgenbotham,

and Doe 1 interrogated Mr. Meshal at least four times.        Each

session lasted a full day and took place in a suite in a

building controlled by the FBI.        Id. ¶ 69-70.   When he was not

being questioned by Defendants, he remained in a cell at a

Kenyan police station. Id. ¶ 90.

       On the first day of interrogation, Doe 1 presented a form

to Mr. Meshal that notified him he could refuse to answer any

questions without a lawyer present. Id. ¶ 71. When Mr. Meshal

asked for an attorney, however, Doe 1 said that he was not

permitted to make any phone calls. Id.        When Mr. Meshal asked if

he had a choice not to sign the document because he had no way

of contacting an attorney, Higgenbotham responded: “If you want

to go home, this will help you get there. If you don’t cooperate

with us, you’ll be in the hands of the Kenyans, and they don’t

want you.” Id.   Higgenbotham also told Mr. Meshal that he was

being held “in a ‘lawless country’ and did not have any right to

legal representation.” Id.     Mr. Meshal was presented with the

same document for signature before each subsequent interrogation

                                   5
 
in Kenya.                       Id. ¶ 83.                      Mr. Meshal maintains that he signed the

documents because he believed he had no choice and hoped that it

would expedite his return to the United States. Id. ¶ 71.

                 During these interrogation sessions, Mr. Meshal was

continuously accused of having received weapons and

interrogation resistance training in an al Qaeda camp. Id. ¶ 84.

Hersem told Mr. Meshal that “his buddy ‘Beantown,’” a U.S.

citizen named Daniel Maldonado, who Mr. Meshal met in Kenya and

who was seized by Kenyan soldiers on or about January 21, 2007,

“had a lot to say about [Mr. Meshal].” Id. ¶ 65-67.                                                Hersem told
                                                                                                        1
Mr. Meshal that his story would have to match Maldonado’s.                                                  Id.

¶ 66.

              The Defendants mistreated Mr. Meshal during the

interrogation sessions. Id. ¶¶ 86-88.                                                 Higgenbotham threatened

to send Mr. Meshal to Israel, where he said the Israelis would

“make him disappear.”                                           Id. ¶ 86.       Hersem told Mr. Meshal that if

he confessed his connection to al Qaeda, he would be returned to

the United States to face civilian courts there, but if he

refused to answer more questions he would be returned to


                                                            
1
  Maldonado was taken back to the U.S. from Kenya and charged in
U.S. courts with receiving military-type training from a foreign
terrorist organization. Sec. Am. Compl. ¶ 120. According to
one U.S. official, Mr. Meshal was not brought home because there
was insufficient evidence to detain or charge him in the United
States. Id. ¶ 121.


                                                                            6
 
Somalia. Id. ¶ 87.     Hersem also told Mr. Meshal that he could

send him to Egypt, where he would be imprisoned and tortured if

he did not cooperate and admit his connection with al Qaeda, and

told him “you made it so that even your grandkids are going to

be affected by what you did.”     Id. ¶ 88.    At one point,

Higgenbotham “grabbed” Mr. Meshal and “forced” him to the window

of a room, id. ¶ 86; at another, Hersem “vigorously pok[ed]” Mr.

Meshal in the chest while yelling at him to confess his

connection to al Qaeda.     Id. ¶ 87.

     Kenyan authorities never interrogated or questioned Mr.

Meshal, nor did they provide him with any basis for his

detention.   Id. ¶¶ 76, 78.     On February 7, 2007, a consular

affairs officer from the U.S. Embassy in Nairobi, accompanied by

a Kenyan man, visited Mr. Meshal in jail. Id. ¶ 103.       The

consular affairs officer told Mr. Meshal that he was trying to

get him home, and that someone would be in touch with his family

in New Jersey.   Id.    Also on or about February 7, 2007, Kenyan

courts began hearing habeas corpus petitions allegedly filed by

the Muslim Human Rights Forum (MHRF), a Kenyan human rights

organization, on behalf of Mr. Meshal and other detainees who

were seized fleeing Somalia and held without charge.       Id. ¶ 100.

     On February 9, 2007, Kenyan officials removed Mr. Meshal

from the jail, hooded and handcuffed him, and flew him and

twelve others to Somalia.     Id. ¶¶ 109-12.   There, he was

                                   7
 
detained in handcuffs in an underground room, with no windows or

toilets, referred to as “the cave.” Id. ¶¶ 111-12. Immediately

after Mr. Meshal’s rendition, Kenyan authorities presented

evidence to the Kenyan court showing that he was no longer in

Kenya; the court dismissed the habeas petition for lack of

jurisdiction. Id. ¶ 114.       Mr. Meshal alleges that Defendants

arranged for his removal from Kenya so they could continue to

detain and interrogate him without judicial pressure from Kenyan

courts.     Id. ¶¶ 108, 128.

        On or around February 16, 2007, Mr. Meshal was transported,

still handcuffed and blindfolded, by plane to Addis Ababa,

Ethiopia, and driven to a military barracks where he was

detained by the Ethiopian government with others who had been

rendered from Kenya to Somalia and Ethiopia.       Id. ¶¶ 117-119,

130-137.    After a week of incommunicado detention, and

continuing over the next three months, Ethiopian officials

regularly transported Plaintiff and other prisoners to a villa

for interrogation.     Id. ¶¶ 140-41, 151.    Plaintiff was

interrogated by Doe 1, who had interrogated him in Kenya, and

Doe Defendant 2, a U.S. official who introduced himself as

“Dennis,” and whose name has been filed with the Court under

seal.     Id. ¶¶ 140-41, 144-45.   Apart from a brief initial

interrogation upon his arrival, Mr. Meshal was never questioned

by Ethiopian officials. Id. ¶¶ 132-33.       Doe 1 led all but one of

                                     8
 
the interrogations of Mr. Meshal in Ethiopia.     Id. ¶¶ 146, 149.

He was joined at times by Doe 2, who led the final

interrogation. Id. ¶ 146.    Each time, Doe 1 made Mr. Meshal

believe that he and the other FBI agents would send Mr. Meshal

home if he was “truthful”.    Id. ¶¶ 148-49.   Does 1 and 2 refused

Mr. Meshal’s repeated requests to speak with a lawyer. Id. ¶

152.   When he was not being interrogated, Plaintiff was

handcuffed in his prison cell.   He was twice moved into solitary

confinement for several days.    Id. ¶ 154.

       No charges were ever filed against Mr. Meshal in Ethiopia.

Id. ¶¶ 155, 160, 162. On three occasions, he was taken for

closed proceedings before a military tribunal. Id.     After the

first proceeding, Doe 1 pressed Mr. Meshal to admit that he was

connected to al Qaeda and told him that he would not be allowed

to go home unless he told Doe 1 what he wanted to hear. Id. ¶

156.   Although FBI agents had been regularly interrogating Mr.

Meshal in Ethiopia for more than a month, U.S. consular

officials did not gain access to him until on or about March 21,

2007, after the fact of his detention became public knowledge

when McClatchy Newspapers first reported that he was being held

at a secret location in Ethiopia.     Id. ¶ 157. On or about May

24, 2007, Mr. Meshal was taken to the U.S. Embassy in Addis

Ababa and flown to the United States, where he was released.

During the four months he was detained abroad, he lost

                                  9
 
approximately eighty pounds.   Id. ¶¶ 166-67.    He was never

charged with a crime.

     Plaintiff seeks to hold Defendants individually liable for

monetary damages for violations of his constitutional and

statutory rights.   Count I alleges Defendants violated his Fifth

Amendment right to substantive due process by threatening him

with disappearance and torture; by directing, approving and

participating in his detention in Kenya and his illegal

rendition to Somalia and Ethiopia without due process; and by

subjecting him to months of custodial interrogation in Africa.

Count II alleges Defendants violated Mr. Meshal’s Fifth

Amendment right to procedural due process by subjecting him to

prolonged and arbitrary detention without charge; denying him

access to a court or other processes to challenge his detention;

and denying him access to counsel. Count III alleges Defendants

violated his Fourth Amendment right to be free from unreasonable

seizure without a probable cause hearing.   Count IV alleges

Defendants violated his rights under the Torture Victim

Protection Act (TVPA), 28 U.S.C. § 1350, note.    Id. ¶¶ 171-213.

     Defendants have moved to dismiss all counts of the

complaint.   They argue that the Court should also dismiss the

constitutional claims because (1) “special factors” preclude

implying a cause of action under Bivens v. Six Unknown Agents of

Federal Bureau of Narcotics, 403 U.S. 388, 389 (1971); and (2)

                                10
 
Defendants are entitled to qualified immunity.      They also argue

that Mr. Meshal’s TVPA claim must be dismissed because none of

the Defendants were acting under color of foreign law.      For the

reasons explained below, the motion to dismiss will be granted

because binding precedent from this Circuit prohibits either a

TVPA or a Bivens remedy for Mr. Meshal.

    II.   STANDARD OF REVIEW

      A motion to dismiss under Federal Rule of Civil Procedure

12(b)(6) tests the legal sufficiency of a complaint.       Browning

v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002).      A complaint

must contain “a short and plain statement of the claim showing

that the pleader is entitled to relief, in order to give the

defendant fair notice of what the ... claim is and the grounds

upon which it rests.”     Bell Atl. Corp. v. Twombly, 550 U.S. 544,

555 (2007) (internal quotation marks and citations omitted).

While detailed factual allegations are not necessary, plaintiff

must plead enough facts “to raise a right to relief above the

speculative level.”     Id.    The Court must construe the complaint

liberally in plaintiff’s favor and grant plaintiff the benefit

of all reasonable inferences deriving from the complaint.       Kowal

v. MCI Commc’ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994).

However, the Court must not accept plaintiff’s inferences that

are “unsupported by the facts set out in the complaint. . . .

[or] legal conclusions cast in the form of factual allegations.”

                                    11
 
Id. “[O]nly a complaint that states a plausible claim for relief

survives a motion to dismiss.”   Ashcroft v. Iqbal, 556 U.S. 662,

679 (2009).

    III. ANALYSIS

    A. Plaintiff Has Alleged Deprivations of His Constitutional
       Rights
      In analyzing a Bivens claim, a court must first “identify

the exact contours of the underlying right said to have been

violated” and determine “whether the plaintiff has alleged a

deprivation of a constitutional right at all.”   Cnty. of

Sacramento v. Lewis, 523 U.S. 833, 841 n.5 (1998); Al-Aulaqi v.

Panetta, Civ. No. 12-1192, 2014 U.S. Dist. LEXIS 46689 *37

(D.D.C. Apr. 4, 2014).   Plaintiff has stated a plausible

violation of both the Fourth and Fifth Amendments.

      It has been “well settled” for over fifty years that “the

Bill of Rights has extraterritorial application to the conduct

abroad of federal agents directed at United States citizens.”

United States v. Toscanino, 500 F.2d 267, 280-81 (2d Cir. 1974).

    The United States is entirely a creature of the Constitution.
    Its power and authority have no other source. It can only act
    in accordance with all the limitations imposed by the
    Constitution. When the Government reaches out to punish a
    citizen who is abroad, the shield which the Bill of Rights and
    other parts of the Constitution provide to protect his life
    and liberty should not be stripped away just because he
    happens to be in another land.

Reid v. Covert, 354 U.S. 1, 5-6, (1957) (plurality).




                                 12
 
              Plaintiff has alleged that Defendants violated his Fourth

Amendment rights by detaining him for four months without a

probable cause hearing.                                         The Fourth Amendment requires a

“prompt” hearing to assess the sufficiency of evidence

supporting detention.                                          See Gerstein v. Pugh, 420 U.S. 103, 125

(1975).                   “The touchstone of [such an inquiry] is

reasonableness.” United States v. Knights, 534 U.S. 112, 118

(2001).                   In the criminal context, a detained individual must

receive a hearing within 48 hours of seizure.                                          County of

Riverside v. McLaughlin, 500 U.S. 44, 56 (1991).                                         Non-citizens

detained under the USA Patriot Act must receive a probable cause

hearing within seven days.                                          See 8 U.S.C. § 1226a(a)(5).

Plaintiff has plausibly alleged that his detention without a

hearing for four months – particularly when Defendants told him

over and over that they had the power to send him back to the

United States at any time – is unreasonable.2


                                                            
2
    The Second Circuit has recognized that the Fourth Amendment
attaches “where the cooperation between the United States and
law enforcement officials is designed to evade constitutional
requirements applicable to American officials.” U.S. v. Maturo,
982 F.2d 57, 61 (2d Cir. 1992). Mr. Meshal claims exactly that.
He alleges that Defendants told him if he confessed his
involvement with al Qaeda he would immediately be returned to
the United States. to face civilian courts, but if he refused to
answer more questions he would be returned to Somalia. Sec. Am.
Compl. ¶ 87. Plaintiff claims that another individual detained
under similar circumstances, Daniel Maldonado, was in fact
returned to the United States to be charged after he confessed
to receiving terrorist training, and alleges Defendants
deliberately kept Plaintiff from returning home because they did
                                                                       13
 
              Mr. Meshal also asserts that Defendants deprived him of his

Fifth Amendment right to substantive due process by, inter alia,

coercively interrogating him during his detention and

extraordinary rendition, including threatening him with torture,
                                                                                                                                                      3
disappearance and death.                                                   Sec. Am. Compl. ¶¶ 86-88.

              To state a substantive due process claim, a plaintiff must

assert that government officials were so “deliberately

indifferent” to his constitutional rights that the officials’

conduct “shock[s] the . . . conscience.”                                                                                  Estate of Phillips v.

Dist. of Columbia, 455 F.3d 397, 403 (D.C. Cir. 2006).                                                                                                             Every

substantive due process inquiry “demands an exact analysis of

circumstances before any abuse of power is condemned as

conscience shocking.”                                              Lewis, 523 U.S. at 850.

              The parties have cited no case law examining the precise

substantive due process rights of a U.S. citizen coercively

interrogated while on foreign soil.                                                                         The government concedes,

however, that coercive interrogation, standing alone, may give

rise to a substantive due process claim.                                                                                  Defs.’ Mot. to Dismiss


                                                                                                                                                                                               
                                                                                                                                                                                               
not have enough information to charge him. Id. ¶¶ 120-21.
These allegations do not suggest that it was “unreasonable” for
Mr. Meshal to expect a probable cause hearing; to the contrary,
Defendants deliberately refused to provide him access to one.
3
   Mr. Meshal has also alleged other violations of his Fifth
Amendment rights; however, it is unnecessary to determine
whether each and every one would go forward. For the purpose of
the Bivens analysis, it is enough to conclude that Plaintiff has
plausibly alleged a deprivation of at least some constitutional
rights. Lewis, 523 U.S. at 841, n.5.
                                                                                            14
 
at 30; see Chavez v. Martinez, 538 U.S. 760, 779 (2003).     Within

the United States, plaintiffs may state a claim for a

substantive due process violation where they have been verbally

threatened with “the terror of instant and unexpected death at

the whim of [their] . . . custodians,”    Burton v. Livingston,

791 F.2d 97, 100 (8th Cir. 1986), or when the interrogation is

“so terrifying in the circumstances . . . that [it] is

calculated to induce not merely momentary fear or anxiety, but

severe mental suffering.”   Wilkins v. May, 872 F.2d 190, 195

(7th Cir. 1989).   In this case, Plaintiff has alleged that FBI

agents threatened him with torture, disappearance, and death if

he did not immediately confess to his interrogators that he was

a terrorist.   These threats were made when Mr. Meshal was

thousands of miles from home, in a foreign prison where he had

no access to any country’s legal system, and with no idea when,

if ever, he would be allowed to see a lawyer, face charges, or

return home.   Under these circumstances, accepting the

allegations of the Complaint as true, the Court finds he has

stated a plausible substantive due process claim.

     The Court does not determine whether Mr. Meshal would

prevail on his constitutional claims, if he were permitted to

assert them.   It does, however, hold that he has stated a

“plausible claim for relief” under the Fourth and Fifth

Amendments to the Constitution.    Iqbal, 556 U.S. at 679.

                                  15
 
       B. Binding Precedent Deprives Mr. Meshal of a Remedy for the
          Alleged Deprivations of His Constitutional Rights.

                             1. Mr. Meshal Has No Other Remedies:                       It is “Damages or
                                Nothing.”
              In Bivens v. Six Unknown Agents of Federal Bureau of

Narcotics, 403 U.S. 388, 389 (1971), the Supreme Court

established that victims of constitutional violations by a

federal agent have a right to recover damages against the

official in federal court despite the absence of a statute

conferring that right.4                                          A court follows a two-step process to

determine whether a Bivens remedy is available.                                           First, it must

consider whether “any alternative, existing process for

protecting the interest amounts to a convincing reason for the

Judicial Branch to refrain from providing a new and freestanding

remedy in damages.” Wilkie v. Robbins, 551 U.S. 537, 550 (2007)

(citations omitted).                                           If an alternative remedy does not exist,

the court proceeds to step two: “mak[ing] the kind of remedial

determination that is appropriate for a common-law tribunal,

paying particular heed, however, to any special factors

counselling hesitation before authorizing a new kind of federal

litigation.”                             Bush v. Lucas, 462 U.S. 367, 378 (1983); see also

Bivens, 403 U.S. at 396 (a cause of action for damages against

                                                            
4
  “A Bivens suit is the federal counterpart of a claim brought
pursuant to 42 U.S.C. § 1983 against a state or local
officer/employee for the violation of the claimant's
constitutional rights.” Rasul v. Myers, 512 F.3d 644, 652 n.2
(D.C. Cir. 2008), vacated, 555 U.S. 1083 (2008).
                                                                        16
 
federal officials may not lie where there are “special factors

counseling hesitation in the absence of affirmative action by

Congress.”).                             These special factors “relate not to the merits of

a particular remedy, but to the question of who should decide

whether such a remedy should be provided.” Sanchez-Espinoza v.

Reagan, 770 F.2d 202, 208 (D.C. Cir. 1985) (citations omitted).

              The parties agree that Mr. Meshal has no alternative remedy

for his constitutional claims.                                 “Without [Bivens], Meshal has no

recourse and the judiciary will be powerless to vindicate the

constitutional rights of a U.S. citizen against illegal

detention and mistreatment by officials of his own government.
                                                                               5
Here, as in Bivens, it is ‘damages or nothing.’”                                   Pl.’s Opp’n

at 8, (quoting Bivens, 403 U.S. at 410 (Harlan, J.,

concurring)).                               They dispute, however, whether “special factors

counsel hesitation” in implying a Bivens cause of action on

these facts.




                                                            
5
  Plaintiff has also alleged a violation of the Torture Victim
Protection Act, 28 U.S.C. § 1350, note (“TVPA”), which, if
successful, would provide a partial, limited remedy against two
of the individual Defendants for the use of torturous
interrogation techniques. Sec. Am. Compl. ¶¶ 204-13. The TVPA,
however, is not available to Mr. Meshal. In Doe v. Rumsfeld,
this Circuit reaffirmed that the TVPA “[does] not include as
possible defendants either American government officers or
private U.S. persons.” 683 F.3d 390, 396 (D.C. Cir. 2012)
(quoting Saleh v. Titan Corp., 580 F.3d 1, 16 (D.C. Cir. 2009).
Accordingly, Plaintiff’s TVPA claim must be DISMISSED.
                                                               17
 
     2.   The Special Factors Counseling Hesitation

     Defendants argue that “matters implicating national

security and intelligence operations, particularly those

involving foreign governments, are ‘the province and

responsibility of the Executive.’”    Defs.’ Mot. to Dismiss Pl.’s

Am. Compl. at 11 (quoting Dep’t of Navy v. Egan, 484 U.S. 518,

529-30 (1988)).   Defendants argue that Mr. Meshal is essentially

attacking the nation’s foreign policy, specifically joint

operations in the Horn of Africa and executive policies which

permit FBI agents to conduct and participate in investigations

abroad.   Id. at 12.   They claim that, if allowed to go forward,

Mr. Meshal’s claims would interfere with the management of our

country’s relations with other sovereigns, a power

constitutionally allocated to the executive branch.     Id. at 13.

Defendants argue that this is not the judiciary’s role, impinges

on bedrock separation of powers principles, and would “undermine

the Government’s ability to speak with one voice in this area.”

Id. (quoting Munaf v. Geren, 128 S.Ct. 2207, 2226 (2008)).    In a

related argument, Defendants claim the litigation would threaten

national security by necessitating inquiry into, inter alia,

specific terrorist threats, substances and sources of

intelligence, and the extent to which other countries cooperate

with the United States.    Id. at 13-14.   Defendants also argue

that this litigation would “enmesh foreign countries and their

                                 18
 
officials in civil litigation in U.S. courts,” which could

impact relations with those countries.    Id. at 16.

      Plaintiff responds that no special factors counsel

hesitation in this case.   First, he argues that he does not

challenge the nation’s foreign policy. “[R]ather, this suit

concerns only the manner in which four federal law enforcement

officers treated a U.S. citizen . . . . Recognizing a judicial

remedy here would not prevent the government from carrying out

counter-terrorism operations in the Horn of Africa . . . .     It

would require only that U.S. officials abide by the Constitution

in their treatment of U.S. citizens during the course of those

operations[.]” Pl.’s Opp’n at 9-10.   Plaintiff maintains that

separation of powers principles underscore why this Court should

permit a Bivens remedy here: the Court would be performing its

traditional role of protecting the constitutional rights of a

U.S. citizen.   Id. at 10-11.   Plaintiff contends that Defendants

should not be able to escape their constitutional obligations to

American citizens “by directing or colluding with foreign actors

or hiding behind the fig-leaf of a foreign custodian.”     Id. at

11.   In response to Defendants’ predictions that the litigation

would entail a broad-based inquiry into matters of national

security and foreign affairs, Plaintiff argues that while the

litigation “may require some inquiry into the Defendants’

relationship and communication with foreign officials,” the

                                 19
 
focus of the litigation is on conduct by U.S. officials against

a U.S. citizen.     Id. at 14.   Plaintiff further argues that the

judiciary has the experience and institutional competence to

conduct necessary inquiries into cooperation between the United

States and foreign governments, as well as matters involving

national security.     Id. at 14-15.

     3.      The Judiciary’s Traditional Ability to Protect the
             Rights of American Citizens

     In Bivens, the Supreme Court held that a damages remedy

exists in the rare case in which “[t]he mere invocation of

federal power by a federal law enforcement official will

normally render futile any attempt to resist. . . .     In such

case, there is no safety for the citizen, except in the

protection of judicial tribunals, for rights which have been

invaded by the officers of the government, professing to act in

its name.”     Bivens, 403 U.S. at 394-95 (citing Weeks v. United

States, 232 U.S. 383, 386 (1914); United States v. Lee, 106 U.S.

196, 219 (1882) (emphasis added)).      Even when such conduct is

committed overseas, the judiciary has historically concluded it

still has a role in applying the protections of the Constitution

to U.S. citizens. See Reid v. Covert, 354 U.S. at 5-6 (plurality

opinion)(“When the Government reaches out to punish a citizen

who is abroad, the shield which the Bill of Rights and other

parts of the Constitution provide to protect his life and


                                   20
 
liberty should not be stripped away just because he happens to

be in another land.”).

     In Sanchez-Espinoza v. Reagan, 770 F.2d 202, 209 (D.C. Cir.

1985), this Circuit declined to imply a Bivens remedy for

Nicaraguan citizens.   In that case, the plaintiffs claimed that

as a result of American support, the Contras carried out

widespread attacks on Nicaraguan civilians.   The D.C. Circuit

relied heavily on the fact that the plaintiffs were foreign

nationals:

     Just as the special needs of the armed forces require the
     courts to leave to Congress the creation of damage remedies
     against military officers for allegedly unconstitutional
     treatment of soldiers, so also the special needs of foreign
     affairs must stay our hand in the creation of damage
     remedies against military and foreign policy officials for
     allegedly unconstitutional treatment of foreign subjects
     causing injury abroad. . . . [T]he danger of foreign
     citizens= using the courts in situations such as this to
     obstruct the foreign policy of our government is
     sufficiently acute that we must leave to Congress the
     judgment whether a damage remedy should exist.

770 F.2d at 208-209 (internal citations omitted).   See also Arar

v. Ashcroft, 585 F.3d 559, 575-76 (2d Cir. 2009) (foreign

nationals may not seek damages against U.S. officials for

actions abroad, relying on Sanchez-Espinoza); In re Iraq &

Afghanistan Detainees Litig., 479 F.Supp.2d 85, 105-106 (D.D.C.

2007) (same), aff=d Ali v. Rumsfeld, 649 F.3d 762 (D.C. Cir.

2011).



                                21
 
      By contrast, where American citizens’ constitutional

interests are at stake, courts have traditionally been far less

willing to allow foreign policy concerns to extinguish the role

of the judiciary.   In Ramirez de Arellano v. Weinberger, 745

F.2d 1500 (D.C. Cir. 1984), this Circuit allowed a U.S. citizen

to sue for declaratory and injunctive relief when the U.S.

military seized his ranch in Honduras.   The Court held that

“[w]hile separation of powers concerns may outweigh judicial

adjudication in the typical case involving a foreign act of

state, the prudential balance may shift decidedly when [U.S.]

citizens assert constitutional violations by [U.S.] officials. .

. .   [T]eaming up with foreign agents cannot exculpate officials

of the United States from liability to [U.S.] citizens for the

United States officials’ unlawful acts.”   Id. at 1542-43.

Likewise, in Abu Ali v. Ashcroft, 350 F.Supp.2d 28, 61 (D.D.C.

2004), the district court found that an American citizen

indefinitely detained in a Saudi Arabian prison, allegedly at

the behest of U.S. authorities, could challenge his detention in

a habeas proceeding.   The district court acknowledged the

considerable authority of the executive branch in diplomatic

relations, and noted that such authority would “cabin the

Court’s inquiry” so as not to intrude on executive functions.

Id.   Ultimately, however, the court found “there is simply no

authority or precedent . . . for [the government=s] suggestion

                                22
 
that the executive=s prerogative over foreign affairs can

overwhelm to the point of extinction the basic constitutional

rights of citizens of the [U.S.] to freedom from unlawful

detention by the executive.”     Id. at 61-62.   Finally, in Hamdi

v. Rumsfeld, 542 U.S. 507, 535-36 (2004), the Supreme Court

rejected the argument that separation of powers principles

prohibit the judiciary from examining the indefinite detention

of American citizens by their own governments, even when the

detainee is captured on a foreign battlefield fighting against

the U.S., and even when he has been designated an enemy

combatant.   “[T]he position that the courts must forgo any

examination of the individual case . . . serves only to condense

power into a single branch of government.”       Hamdi, 542 U.S. at

535-36 (emphasis in original).    “We have long since made clear

that a state of war is not a blank check for the President when

it comes to the rights of the Nation’s citizens.”       Id. at 536

(emphasis added).

       In short, when the constitutional rights of American

citizens are at stake, courts have not hesitated to consider

such issues on their merits even when the U.S. government is

allegedly working with foreign governments to deprive citizens

of those rights.    United States v. Yousef, 327 F.3d 56, 145

(D.C. Cir. 2003) (for suppression purposes, courts must inquire

into   statements elicited in overseas interrogation conducted by

                                  23
 
foreign police to determine whether U.S. agents actively

participated in the questioning, or used the foreign for the

interrogation in order to circumvent constitutional requirements

such as Miranda);     United States v. Toscanino, 500 F.2d 267, 281

(2d Cir. 1974) (trial court must conduct an evidentiary inquiry

to determine whether the defendant was brought into the

jurisdiction of court through abduction at the hands of foreign

officials at the behest of U.S.); Berlin Democratic Club v.

Rumsfeld, 410 F. Supp. 144, 155 (D.D.C. 1976) (plaintiffs were

entitled to discovery of facts which would show that the German

government wiretapped American citizens at the direction of the

United States).  

     4.      Doe, Lebron, and Vance

     Notwithstanding our courts’ long history of providing

judicial access to citizens whose rights are violated by our

government, in the last two years, three courts of appeals,

including this Circuit, have dismissed Bivens actions by U.S.

citizens alleging constitutional violations by U.S. government

officials.

     In Lebron v. Rumsfeld, 670 F.3d 540 (4th Cir. 2012), cert.

denied, 132 S. Ct. 2751 (2012), the Fourth Circuit refused to

recognize a Bivens remedy for Jose Padilla, an American citizen

detained as an enemy combatant and allegedly tortured for three

years while in U.S. military custody.    The circuit rejected

                                  24
 
Padilla’s claims against seven defendants, high ranking policy

makers as well as the two former commanders of the Naval

Consolidated Brig in which he was held.   It found that under

separation of powers principles, the Constitution assigned the

legislature plenary control over the military establishment, and

the President control over national security and military

affairs as Commander in Chief.   Lebron, 670 F.3d at 549 (citing

U.S. Const. art. II, § 2, cl. 1); see also Dep’t of Navy v.

Egan, 484 U.S. 518, 530 (1988) (judges “traditionally have been

reluctant to intrude upon the authority of the Executive in

military and national security affairs”); Winter v. NRDC, Inc.,

555 U.S. 7, 24, 26 (2008) (courts must afford “great deference”

to what “the President – the Commander in Chief – has determined

. . . to [be essential to] national security”).   The Lebron

court explicitly found the question of citizenship not to be

dispositive, as “[t]he source of hesitation is the nature of the

suit and the consequences flowing from it, not just the identity

of the plaintiff.”   670 F.3d at 554.    The court found that the

plaintiff’s lawsuit would intrude into military affairs, in

violation of the separation of powers.    Id. at 550.   It also

found troubling that the lawsuit challenged the government’s

detainee policies, both as applied to Padilla and much more

generally.



                                 25
 
       In short, Padilla’s complaint seeks . . . to have the
       judiciary review and disapprove sensitive military
       decisions made after extensive deliberations within the
       executive branch as to what the law permitted, what
       national security required, and how best to reconcile
       competing values. It takes little enough imagination to
       understand that a judicially devised damages action would
       expose past executive deliberations affecting sensitive
       matters of national security to the prospect of searching
       judicial scrutiny.

Id. at 551.    The Lebron court recognized that people may “not

agree with [these] policies.   [People] may debate whether they

were or were not the most effective counterterrorism strategy.

But the forum for such debates is not the civil cause of action

pressed in the case at bar.    The fact that Padilla disagrees

with policies allegedly formulated or actions allegedly taken

does not entitle him to demand the blunt deterrent of money

damages under Bivens to promote a different outcome.”    Id. at

552.

       In Doe v. Rumsfeld, 683 F.3d 390 (D.C. Cir. 2012) pet. for

reh’g en banc denied, 2012 U.S. App. LEXIS 15717 (D.C. Cir. July

30, 2012), the D.C. Circuit refused to allow a Bivens remedy for

a U.S. citizen, a government contractor who alleged he was

illegally detained, interrogated, and tortured for nearly ten

months on a U.S. military base in Iraq before being released

without charges.   The Doe court began with the observation that

courts have been reluctant to extend Bivens remedies to new

contexts, and “[t]he Supreme Court has never implied a Bivens


                                 26
 
remedy in a case involving the military, national security, or

intelligence . . . caution[ing] that matters intimately related

to . . . national security are rarely proper subjects for

judicial intervention.”      Id. at 394-95 (internal citations and

quotation marks omitted).     With respect to intelligence

gathering, the court observed that the D.C. Circuit had recently

declined to recognize a Bivens cause of action in Wilson v.

Libby, in which undercover CIA operative Valerie Plame and her

husband Joseph Wilson sought a Bivens remedy from Bush

Administration officials who deliberately revealed her identity.

“[T]he required judicial intrusion into national security and

intelligence matters was . . . a special factor counseling

hesitation because such intrusion would subject sensitive

operations and operatives to judicial and public scrutiny.”        Id.

(citing Wilson v. Libby, 535 F.3d 697, 710 (D.C. Cir. 2008))

(quotation marks omitted).     Finally, the Circuit rejected the

plaintiff’s argument that his United States citizenship

distinguished his case from Arar v. Ashcroft and Ali v.

Rumsfeld, in which the courts rejected non-citizens’ Bivens

claims against American officials based on alleged torture in

the United States and abroad, noting that “[Doe’s] citizenship

does not alleviate the . . . special factors counseling

hesitation.”   Id. at 396.



                                   27
 
     Most recently, in Vance v. Rumsfeld, 701 F.3d 193 (7th Cir.

2012) (en banc), cert. denied, 133 S. Ct. 2796    (2013), a

divided Seventh Circuit, sitting en banc, reversed a panel

judgment and dismissed the Bivens claims of two government

contractors, both American citizens, who were allegedly

arrested, detained and tortured by the U.S. military in Iraq.

One was detained for about one month, the other for three

months; as in Doe, neither was ever charged with a crime.       The

circuit began by noting 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.”     Id. at 198-99.   Like the Doe

and Lebron courts, the Vance court found plaintiffs’ American

citizenship not “dispositive one way or the    other,” id. at 203;

the principal point was that civilian courts should not

interfere with the military chain of command or with “[m]atters

intimately related to national security.”     Id. at 199-200.

     Several judges wrote separately to explain their

disagreement with the reasoning and/or dissent from the outcome

of the Vance decision.   They observed that Congress has

legislated remedies for U.S. citizens to sue foreign officials

for damages, and non-citizens to sue anyone who has committed a

tort in violation of the law of nations, but not for U.S.

citizens to sue U.S. officials.

                                  28
 
     [I]f it were true that there is no Bivens theory under
     which a U.S. citizen may sue an official of the U.S.
     government . . . who tortures that citizen on foreign
     land under the control of the United States . . . then U.S.
     citizens will be singled out as the only ones without a
     remedy under U.S. law. . . . . Only by acknowledging the
     Bivens remedy is it possible to avoid treating U.S.
     citizens worse than we treat others. The fear of offense to
     our allies that the majority fears dissipates as soon as we
     look at the broader picture.
Vance, 701 F.3d at 209 (Wood, J., concurring) (discussing TVPA

and Alien Tort Statute, 28 U.S.C. § 1350); see also id. at 218-

20 (Hamilton, J., dissenting).   The Vance concurrence and

dissents argue that citizenship matters: The government has a

well-established obligation to protect its own citizens’

constitutional rights abroad.    Id. at 221-22 (Hamilton, J.,

dissenting).   And they maintain that Bivens must provide a

remedy against, at the very least, the individual officers who

are alleged to have committed the mistreatment.

     Every government institution errs . . . . The point of
     judicial participation is not infallibility but
     independence and neutrality, something executive entities
     do not have when evaluating their own officers' conduct . .
     . . I cannot agree that the separation of powers bars a
     citizen’s recovery from a rogue officer affirmatively
     acting to subvert the law. That is a quintessential
     scenario where Bivens should function to enforce individual
     rights.

See id. at 230-31 (Williams, J., dissenting); see also id. at

207-08 (Wood, J., concurring); id. at 222-24 (Hamilton, J.,

dissenting).




                                 29
 
     5.   Doe, Lebron, and Vance Doom Mr. Meshal’s Claims

     Mr. Meshal struggles to distinguish this case from Doe,

Vance, and Lebron.   First, he argues that these cases only

prohibit Bivens actions against the military, or on the

battlefield.   Pl.’s Resp. to Defs.’ Dec. 5, 2012 Notice of

Suppl. Authority, 1-3. The cases cannot be read that narrowly.

Each case states that the same special factors compelling

hesitation in military cases also compel hesitation in cases

involving national security and intelligence.   Lebron, 670 F.3d

at 549 (noting that judges “traditionally have been reluctant to

intrude upon the authority of the Executive in military and

national security affairs,” and courts must afford “great

deference” to what “the President – the Commander in Chief – has

determined . . . is essential to national security.”) (citations

omitted); Doe, 683 F.3d at 395 (“In the context of national

security and intelligence, the Court has cautioned that matters

. . . are rarely proper subjects for judicial intervention.”)

(internal citations and quotation marks omitted); Vance, 701

F.3d at 199-200, 203 (finding plaintiffs’ American citizenship

not “dispositive one way or another,” – either way,   civilian

courts should not interfere with the military chain of command

or with matters intimately related to national security).     The

cases hold that implying a Bivens cause of action in any of

these types of cases would intrude into the affairs of the

                                30
 
legislative and executive branches, in violation of the

separation of powers.   Lebron, 670 F.3d at 550; Doe, 683 F.3d at

394-95; Vance, 701 F.3d at 198-99.

     In this case, Mr. Meshal alleges that Defendants acted in

accordance with guidelines established by the executive branch.

Specifically, he alleges that Defendants were part of the

Combined Joint Task Force-Horn of Africa, a joint

counterterrorism operation with nations in the Horn of Africa

region, which was established by the U.S. government and

includes military employees, civilian employees, including FBI

agents, and representatives of coalition countries. Defs.’ Mot.

to Dismiss at 12; see also Second Amended Compl. ¶¶ 24-30, 56.

A central theme of Mr. Meshal’s claims is that Defendants in

this case acted with the cooperation of the foreign governments

which held him in their prisons, transferred him between

nations, and permitted Defendants access to him.    See generally

Second Am. Compl.   As the government points out, these claims

have the potential to implicate “national security threats in

the Horn of Africa region; substance and sources of

intelligence; the extent to which each government in the region

participates in or cooperates with U.S. operations to identify,

apprehend, detain, and question suspected terrorists on their

soil; [and] the actions taken by each government as part of any

participation or cooperation with U.S. operations.”   Mot. to

                                31
 
Dismiss at 13.   They involve the same separation of powers

concerns which were decisive in Lebron, Doe, and Vance.

     Second, Mr. Meshal tries to distinguish Lebron, Doe, and

Vance by arguing that he only brings this action against the

“non-supervisory law enforcement officers directly involved in

his detention and mistreatment,” and does not seek to hold

remote superiors liable for his constitutional abuses.    Pl.’s

Response to Notice of Supp. Auth., ECF #59 at 2; see also Pl.’s

Response to Notice of Supp. Auth., ECF #57 at 2-3.    He therefore

claims that his lawsuit would not require the Court to intrude

into the functions of the other branches of government.     Id. at

2; see also ECF #59 at 2.     This argument also cannot survive.

Lebron and Vance also included defendants who were directly

responsible for their torture; the plaintiffs in those cases

argued they implemented the policies “devised and authorized” by

the cabinet officials at the highest levels of government.

Lebron, 670 F.3d at 547; see also Vance, 701 F.3d at 196,

(plaintiffs sued “persons who conducted or approved their

detention and interrogation, and many others who had supervisory

authority over those persons”).    Neither court differentiated

among the defendants in denying a Bivens remedy; as the Lebron

court stated: “The source of hesitation is the nature of the

suit and the consequences flowing from it,” not the identity of

the parties to the lawsuit.    670 F.3d at 554; see also Vance,

                                  32
 
701 F.3d at 198-99 (no right of action against either the

soldiers who mistreated plaintiffs or their remote supervisors).

     Even if the defendants’ place in the chain of command were

relevant under Vance, Doe, and Lebron, the Second Amended

Complaint makes clear that this case is about far more than Mr.

Meshal’s own experiences.    The Complaint explicitly alleges that

Mr. Meshal’s detention, transfer, and interrogation were part of

a much larger trend: the government’s “increasing[] engage[ment]

in ‘proxy detention,’ a practice in which individuals alleged or

suspected to have ties to foreign terrorists or foreign

terrorist organizations are detained by foreign authorities at

the behest of, the direction of, and/or with the active and

substantial participation of the United States.”    Second Am.

Compl. ¶ 31.    Central to Mr. Meshal’s complaint are his

allegations that Kenyan, Somalian, and Ethiopian officials were

substantial participants in his detention and transfer between

countries.     Id. ¶¶ 56-59, 76-82, 108-12, 115-19, 123-25, 130-37.

He alleges that they were also partners in the similar treatment

of many other people of interest to the United States.      Id. ¶¶

122-23, 134-39.    Moreover, he claims that his treatment and the

similar treatment of others was authorized by and/or conducted

with full awareness of other U.S. officials, “including

officials designated by the Attorney General and the Director of

Central Intelligence.”     Id. ¶ 139; see also ¶¶ 56-57, 129A, 122,

                                  33
 
134-37, 165A, 170C, 170D.   Like the complaints in Lebron, Doe,

and Vance, “it takes little enough imagination to understand

that a judicially devised damages action would expose past

executive deliberations affecting sensitive matters of national

security” as well as sensitive matters of diplomatic relations,

“to the prospect of searching judicial scrutiny.”       Lebron, 670

F.3d at 551.   In these circumstances, special factors counsel

hesitation in the judicial creation of damages remedies.       Id.;

see also Doe, 683 F.3d at 394; Vance, 701 F.3d at 199-200.

     Finally, Mr. Meshal argues that Vance is distinguishable

because the plaintiff in that case had access to other, “albeit

partial” remedies for his injuries, while for Mr. Meshal, it is

“damages or nothing.”   ECF #59 at 3 (noting that the Vance

plaintiffs could seek monetary damages under the Military Claims

Act or the Foreign Claims Act).    Plaintiff acknowledges that the

Doe plaintiff had no alternative remedy but seeks to distinguish

that decision on grounds that Congress had deliberately acted to

deprive military detainees of a private right of action by

passing the Detainee Treatment Act.    ECF #57 at 4.    He argues

that Congress has not affirmatively acted to foreclose a private

right of action for plaintiffs such as himself, and accordingly,

the judiciary is free to create a Bivens remedy.       Id.

     Again, this argument cannot survive Doe, which holds that

as long as special factors counseling hesitation exist,

                                  34
 
congressional action or inaction is irrelevant to the creation

of a Bivens remedy.   On the one hand, the existence of a statute

that provides a partial remedy to a plaintiff seeking a Bivens

remedy precludes a Bivens cause of action, even though the

statute does not provide complete relief.   Doe, 683 F.3d at 396

(citing Bush v. Lucas, 462 U.S. 367, 380, 388 (1983)).    On the

other hand, “the absence of statutory relief for a

constitutional violation . . .   does not by any means

necessarily imply that courts should award money damages against

the officers responsible for the violation.”   Id. (quoting

Schweiker v. Chilicky, 487 U.S. 412, 421-22 (1988)).     When

Congress has acted to legislate in a subject matter area,

“congressional inaction can also inform [the judiciary’s]

understanding of Congress’s intent” with respect to creation of

a Bivens remedy.   Doe, 683 F.3d at 397 (explaining that where

Congress has legislated in an area but failed to provide a

private cause of action for damages, “[i]t would be

inappropriate for this Court to presume to supplant Congress’s

judgment in a field so decidedly entrusted to its purview.”).

     Congress has legislated with respect to detainee rights

both in the United States and abroad.   See inter alia, Torture

Victim Protection Act, 28 U.S.C. § 1350, note; Military Claims

Act, 10 U.S.C. § 2733; Foreign Claims Act 10 U.S.C. § 2734; and

Federal Anti-Torture Statute, 18 U.S.C. § 2340.   Some of these

                                 35
 
statutes provide private causes of action for money damages;

others authorize criminal prosecution.   The fact that none of

these acts extends a cause of action for detainees similarly

situated to Mr. Meshal to sue federal officials in federal court

does not lead to the conclusion, as Mr. Meshal argues, that

Congress intended the judiciary to recognize such a cause of

action.    On the contrary, under Doe, “evidence of congressional

inaction . . . supports our conclusion that this is not a proper

case for the implication of a Bivens remedy.”     Doe, 683 F.3d at

397.

    IV.   CONCLUSION

       When Bivens was decided over forty years ago, it was

intended for cases in which “[t]he mere invocation of federal

power by a federal law enforcement official will normally render

futile any attempt to resist . . . .   In such case, there is no

safety for the citizen, except in the protection of the judicial

tribunals, for rights which have been invaded by the officers of

the government, professing to act in its name.”     Bivens, 403

U.S. at 394-95 (citations omitted).    Mr. Meshal has come to

court seeking the protection of judicial tribunals as the only

way to provide for his safety.   Under Lebron, Doe, and Vance,

however, when a citizen’s rights are violated in the context of

military affairs, national security, or intelligence gathering

Bivens is powerless to protect him.    As one of the Vance

                                 36
 
dissenters predicted, this evisceration of Bivens risks

“creating a doctrine of constitutional triviality where private

actions are permitted only if they cannot possibly offend anyone

anywhere.   That approach undermines our essential constitutional

protections in the circumstances when they are often most

necessary.”    Vance, 701 F.3d at 230 (Williams, J., dissenting).

In issuing today’s opinion, the Court fears that this prediction

is arguably correct.

     This Court is outraged by Mr. Meshal’s “appalling (and,

candidly, embarrassing) allegations” of mistreatment by the

United States of America.    Doe v. Rumsfeld, Case No. 08-cv-1902,

2012 U.S. Dist. LEXIS 127184, *5 (D.D.C. Sept. 7, 2012).

Nevertheless, this Court is not writing on a clean slate;

rather, it is constrained by binding precedent.   Only Congress

or the President can provide a remedy to U.S. citizens under

such circumstances.    Accordingly, Defendants’ motion to dismiss

is GRANTED.    An appropriate order accompanies this Memorandum

Opinion.

SIGNED:     Emmet G. Sullivan
            United States District Judge
            June 13, 2014




                                 37
 
