After Torture Report, Lawsuit Tests U.S. Commitment to Accountability

By Jonathan Hafetz, Associate Professor of Law, Seton Hall University School of Law

A week after the release of the executive summary of Senate Intelligence Committee'storture report, the world's attention is rightly focused on the flagrant abuses committed by CIA officials in the name of national security. But it would be mistake to place the blame for America's descent into torture entirely on the CIA.

Torture was not simply the work of a rogue agency but the formal policy devised by the most senior officials in the U.S. government. And other agencies, besides the CIA, were involved at various points and to varying degrees, including the FBI.

The case of Amir Meshal is one example, and it tests both this country's commitment to the rule of law and its willingness to heed the lessons of the Senate torture report released last week. The ACLU is representing Meshal in the U.S. Court of Appeals for the D.C. Circuit, where we filed a brief on his behalf yesterday.

In early 2007, four FBI agents unlawfully detained Mr. Meshal, a U.S. citizen born and raised in New Jersey, in Africa. The agents suspected Mr. Meshal of terrorist activity, but instead of obeying the Constitution and the FBI's own guidelines, they effectively disappeared Mr. Meshal for four months and threatened with him torture and death. It was only after Mr. Meshal's scandalous treatment was reported in the media that he was returned home to his family.

The Supreme Court's seminal decision in Bivens v. Six Unknown Named Agents gives any American citizen whose constitutional rights are violated by U.S. officials the right to sue. The Justice Department, however, is seeking dismissal of Mr. Meshal's suit notbecause it disputes that Mr. Meshal was grossly mistreated, but rather because it claims that there is a "national security" exception to the American Constitution.

In June, a district court called Mr. Meshal's treatment at the hands of the FBI "appalling" and "embarrassing." But the court nevertheless dismissed his complaint, claiming that its hands were tied by precedent.

No such precedent, in fact, exists. The Supreme Court has not only refused to immunize federal officials from liability when they act in the name of national security, but it has also explained that the rationale underlying such liability applies more, not less, forcefully in such situations because of the potential for abuse. The Senate report should put to rest any doubts about that fundamental insight.

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One major lesson of the Senate report is how the reliance on torture and other abusive interrogation tactics can spread across a government once they take hold. Another lesson is that simply exposing those abuses is not enough. The rule of law demands accountability.

Mr. Meshal's case is about more than his right to redress for the grave harm inflicted against him. It is about the right of all Americans to have their day in court when agents of their own government run roughshod over the Constitution and flout the rule of law.

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https://www.aclu.org/blog/human-rights-national-security/after-torture-report-lawsuit-tests-us-commitment-accountability