On November 10, 2009, a Muslim American citizen who was detained and tortured while traveling abroad filed a lawsuit in the U.S. District Court for the District of Columbia under Bivens and the Torture Victim Protection Act of 1991, 28 U.S.C. § 1350, against several supervising agents and two unknown agents of the Federal Bureau of Investigation. The plaintiff, represented by the ACLU and a human rights clinic at the Yale Law School, asked the court for compensatory damages, punitive damages, and other relief as necessary, claiming that he had been deprived of his Constitutional rights under the Fourth and Fifth Amendments. The plaintiff claimed that while he was traveling in the Horn of Africa, he was detained, interrogated, and tortured at the direction of and by officials in the American government. After four months of mistreatment, detained in handcuffs in an underground room, with no windows or toilets, he was returned home to New Jersey. He was never charged with a crime.

Specifically, the plaintiff claimed “defendants detained him in secret, denied him access to counsel and the courts, and threatened him with torture and death. He sa[id] he was threatened with extradition to Israel and with rendition to Egypt.” The plaintiff was told by defendants that he “would suffer the same fate as the protagonist in the movie Midnight Express—a movie where a foreign prisoner is brutally beaten and confined in horrid conditions in a Turkish prison for refusing to cooperate.” The plaintiff was promised that if he confessed his connection to “al Qaeda, he would be returned to the United States to face civilian courts.” The plaintiff alleged that this was done to “extract a confession to terrorist activity as a prelude to prosecution.” 804 F.3d 417, 419 (D.C. Cir. 2015).

The federal government moved to dismiss the case on April 19, 2010, alleging that even if the plaintiff's allegations were true, he had no right to hold federal officials personally liable for their roles in his detention by foreign governments on foreign soil. On May 10, 2010, the plaintiff filed an amended complaint and soon after, the government filed a motion to dismiss the amended complaint. For the next several months, the parties responded to the motion to dismiss, with numerous extensions and continuances of the hearing on the motion to dismiss granted. On February 21, 2012, the plaintiff filed a second amended complaint. The defendants renewed their motion to dismiss against this second amended complaint. Throughout the remainder of 2012, numerous circuit court decisions were issued in other cases which had the potential to impact the parties’ arguments and the Court’s consideration of the motion. Accordingly, the court held a supplemental hearing on the motion to dismiss on December 12, 2013.

On June 13, 2014, Judge Emmet G. Sullivan granted the defendants' motion to dismiss. Judge Sullivan wrote that the facts alleged in this case and the legal questions presented were deeply troubling. Judge Sullivan found that the plaintiff had plausibly alleged violations of his Fourth and Fifth Amendment Rights, and described his treatment as “appalling” and “embarrassing.” Nevertheless, Judge Sullivan wrote that the court was constrained by precedent that expressly rejected a Bivens remedy for citizens who allege that they have been mistreated, and even tortured, by the United States of America in the name of intelligence gathering, national security, or military affairs. 2014 WL 2648032 (D.D.C. June 13, 2014).

On August 7, 2014, the plaintiff appealed to the D.C. Circuit Court regarding the motion to dismiss. The appeal was assigned USCA no. 14-5194. On October 23, 2015, the D.C. Circuit Court affirmed the judgement of the District Court in a 2-1 decision. (Hon. Janice Rogers Brown, Hon. Brett M. Kavanaugh concurring, Hon. Cornelia T. L. Pillard dissenting). The higher court echoed the District Court’s opinion that the allegations of federal agents abusing an American citizen abroad were quite troubling, yet also dismissed the suit, finding a Bivens action unavailable. 804 F.3d 417, 418 (D.C. Cir. 2015). The plaintiff’s petition for rehearing en banc was denied on February 2, 2016.

On June 6, 2016, a petition for writ of certiorari was filed to the Supreme Court, to resolve the question over whether a federal agent’s assertion of national security considerations justifies dismissal of a Bivens actions for Fourth and Fifth Amendment violations. The case was docketed 15-1461. Briefs were submitted in favor of the plaintiff by the U.N. Special Rapporteurs on Torture, Commonwealth Lawyers Association, Constitution Project, and by law professors. On June 27, 2017, the petition for the writ of certiorari was denied. This case is closed.

Jessica Kincaid - 06/16/2014
Emma Himes - 11/27/2019


compress summary