At a hearing Wednesday on the government's motion to dismiss the case, U.S. District Court Judge Emmet G. Sullivan suggested that the suit would have a hard time surviving under recent appeals court precedents. Sullivan said his ruling would come later.
Amir Meshal filed the lawsuit in 2009, claiming that after he left Somalia in 2006 for neighboring Kenya, FBI agents interrogated him and accused him of receiving training from al-Qaida. The suit, which the American Civil Liberties Union filed on Meshal's behalf, says U.S. officials consented to sending him back to Somalia and eventually to Ethiopia, where he was imprisoned in secret for several months. U.S. officials subjected him to harsh interrogations while denying him access to a lawyer, his family or anyone else, and he was released in May 2007 with no explanation, according to the lawsuit.
The U.S. Supreme Court in a 1971 case created a damage remedy for constitutional violations committed by federal agents. At issue in Wednesday's hearing was whether that extends to cases that touch on national security, especially in light of recent appeals court rulings.
One of those, a decision by the U.S. Court of Appeals for the District of Columbia Circuit last year, rejected a lawsuit by an American civilian translator who said U.S. officials threw him in prison in Iraq for nine months without explanation. The translator tried to hold former Defense Secretary Donald H. Rumsfeld personally liable for the alleged mistreatment, but the appeals court ruled that the Supreme Court has never allowed such a remedy in a case involving the military, national security or intelligence.
Jonathan Hafetz, who argued Meshal's case for the ACLU, tried to draw a distinction, arguing his case involved law enforcement rather than military activity. Sullivan countered that the FBI agents, in trying to determine whether Meshal was a member of al-Qaida, were involved in intelligence-gathering.
Sullivan, an appointee of President Bill Clinton, said the facts alleged in the lawsuit were "troubling." But he also repeatedly said he had to be mindful of how his ruling would be treated on appeal. "I have to look down the road" and anticipate what the appeals court and Supreme Court would do, he said.
Hafetz said that if the judge were to dismiss the lawsuit, that would create a "sweeping exemption" to the right to challenge constitutional violations committed by federal agents.
Sullivan also seemed concerned about the government's position, asking pointedly whether Americans lose their rights when they leave the country. Justice Department lawyer Glenn Greene said no but added that the fact that this took place overseas was a factor in the case.
"I'm just trying to determine where the rights end ... because it's very troubling," Sullivan said.
Meshal, a Muslim, had traveled to Somalia to broaden his understanding of Islam, the lawsuit says. He was arrested while trying to enter Kenya from Somalia, at a time when much of Somalia was controlled by hard-line Islamists. Hundreds of people, including Islamist fighters, had fled Somalia for Kenya after Ethiopian troops invaded the country in support of a weak but internationally backed government. U.S. authorities in Washington have said that after interviewing Meshal in Kenya they determined he was not a threat and had not violated U.S. law.
Meshal was 24 when he returned home to New Jersey in 2007. His lawyers say he's now living in the Midwest but declined to be more specific to protect his privacy.
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