Illustration by: Matt Mahurin

Twenty-four-year-old Amir Meshal, the son of Muslim immigrants from Egypt, was a lifelong resident of New Jersey when, after living briefly in Cairo with extended family members, in 2006 he decided to go to Somalia to study Islam and experience living under Islamic law. The country appeared to have stabilized and a new Islamic government was on good terms with the United States.

But Somalia wasn’t as stable as Meshal had thought, and as violence erupted there again in January 2007, Meshal fled, along with many Somali civilians. He was arrested in a joint U.S.-Kenyan-Ethiopian operation along the border of Kenya.

Image by: Matt Mahurin

Those claims are the subject of a new lawsuit being filed Tuesday by the American Civil Liberties Union in Washington. Although it’s not the first lawsuit against U.S. officials seeking damages for torture and other mistreatment abroad, Meshal is only the second U.S. citizen to sue for U.S.-sponsored torture. That and a few other distinctive facts in this case may give him some advantages over those that have been dismissed.

“This is a U.S. citizen who was caught in hostilities abroad, and instead of helping him return, U.S. officials abused him and mistreated him and never charged him with a crime,” said Nusrat Choudhury, one of the lead lawyers from the ACLU representing Meshal. “Should they be allowed to do that without helping a U.S. citizen get home, and instead, denying him access to lawyers?”

That’s the question that will face judges in this case. In the past, the government has managed to convince courts to dismiss torture victims’ cases by saying that government officials are entitled to qualified immunity, or that the case would reveal state secrets, or that courts should not imply a right to sue government officials for constitutional violations when the case involves national security and foreign policy. But will courts be so willing to dismiss a case brought by a U.S. citizen, born to U.S. citizen parents, allegedly tortured directly by U.S. officials, and who has never even been charged with doing anything wrong?

American University Law Professor Stephen Vladeck, an expert on constitutional and national security law, says that although doctrinally the cases are not very different, the fact that Meshal is a U.S. citizen “practically, could make a difference to judges,” he said. “It would just highlight how wrong those other decisions are,” he said.

One of those decisions is Rasul v. Rumsfeld, decided by the D.C. Circuit Court of Appeals last year. In that case, the court dismissed the claims of four British men who’d been detained and allegedly abused at Guantanamo Bay because, the court reasoned, the federal officials were entitled to “qualified immunity” because it was not clear that Guantanamo detainees had rights under the U.S. Constitution at the time of their alleged abuse.

In that case, though, which is still on appeal (the Supreme Court remanded it back to the D.C. Circuit for reconsideration in light of intervening Supreme Court precedents), the court’s reasoning was based in part on the fact that the plaintiffs were all “aliens” — none were lawful U.S. citizens or residents.

Meshal’s U.S. citizenship may make his case more difficult to dismiss. “Mr. Meshal alleges there needs to be discovery in this case to determine whether what those officers did was objectively reasonable,” said Choudury, his lawyer. “Should an FBI officer think it’s objectively reasonable to threaten a U.S. citizen to send him to place where he will be tortured?”

Interestingly, recently released documents produced in the ACLU’s Freedom of Information Act case against the government have revealed memos written by FBI interrogation specialists in 2002 and sent to Defense Department officials specifically explaining that threatening a detainee with torture, death or disappearance is a violation of the U.S. Constitution and the anti-torture law. That could weaken the government’s argument that FBI officials reasonably thought it was legal to threaten Meshal in 2007.

The most recent case decided that presents similar facts is the case of Maher Arar, dismissed this month for the second time by the Second Circuit Court of Appeals. Arar, a Canadian citizen, was arrested by U.S. authorities while he was changing planes at JFK airport in New York in 2002. Arar was held briefly in the states, denied access to a lawyer, then rendered to Syria where he was held in a grave-like cell and interrogated under torture, he says, for almost a year. He was finally released without charge; Syrian authorities acknowledged that they had no evidence against him.

Arar sued the U.S. government for complicity in his treatment abroad. The court last week ruled that he has no right to sue under the U.S. Constitution in this case because the claims would “have the natural tendency to affect diplomacy, foreign policy, and the security of the nation.” As for his claims under the Torture Victims Protection Act, enacted to protect victims of torture in other countries, Arar could not claim compensation from U.S. authorities because it was the Syrians who tortured him, even if U.S. officials knew that he was likely to be tortured when they sent him to Syria, the court ruled.

In addition to the fact that Meshal is a U.S. citizen, his case may stand a better chance because he is suing the actual FBI officials who he claims conducted his interrogation and threatened him with torture, forced disappearance and execution to coerce him into confessing to associations with al-Qaeda that he says he does not have.

“It was a Kenyan jail, but he is alleging that U.S. officials were complicit with those officials in keeping him detained in secret,” said Choudhury. “During interrogations, U.S. government officials threatened to send him to Israel, where they would make him disappear.”

Meshal’s constitutional claims may also fare better because there appears to be nowhere else to bring them — an important factor courts consider. The government claimed that Arar, as a Canadian, could have objected to his rendition before U.S. immigration authorities. (Arar’s lawyers disputed that.)

In this case, there appears to be no alternative means for redress. Meshal has declined to speak to reporters about his ordeal, but according to his legal complaint, while he was in Kenya, Meshal repeatedly asked to speak to a lawyer, to his father, and to the international Committee of the Red Cross; his requests were denied. He was allowed to speak once to a U.S. consular official in Kenya who said he would help Meshal.

Before the consular official could do anything, though, Meshal was handcuffed, hooded and flown to Somalia, where he feared he would be killed, he says. Meshal was deposited in an excruciatingly hot 25-foot-square cave, without windows or toilets. When guards opened the door of the cell, Meshal “noticed that enormous cockroaches were clustered in the corners of the cell and large black millipedes were all over the walls,” the legal complaint charges. Meshal says he was left there, handcuffed in the dark, for two days.

He was then moved to a storage tent where he was given one meal a day of biscuits, marmalade and water. He was left there for about four days until he was transferred to Ethiopia for further interrogation.

The government could still argue that the “state secrets privilege” should doom the case. In many cases charging government wrongdoing in the national security arena, the Justice Department has argued that allowing a lawsuit to go forward would reveal sensitive state secrets and endanger national security. The government’s frequent invocation of the state secrets privilege has become something of a political embarrassment, however. In February, Sen. Patrick Leahy (D-Vt.) introduced a bill, which now has nine co-sponsors, that would severely limit the government’s ability to dismiss cases on that ground. Shortly after, Attorney General Eric Holder in September announced a new policy on state secrets, pledging to use the privilege more sparingly and according to strict new rules. However, he has continued to assert it in situations where advocates say the case should move forward, with the judge simply reviewing any sensitive evidence behind closed doors.

“It seems unlikely the government wouldn’t invoke state secrets again,” said David Luban, a law professor at Georgetown University and expert on legal ethics and international law. In this case, Luban said, the government would likely claim that allowing the cases to move forward would expose sensitive information about the United States’ relationships or agreements with the other countries that Meshal was rendered to. And “if the action is being shut off because of state secrets,” he said, “I don’t think you can get around that.”

“The government can raise that in the course of litigation,” Choudhury agreed. “But that’s not a reason for this case not to go forward.” The government would still have to convince a court that national security would be put at risk simply by responding to requests about the FBI’s treatment of one individual and its role in his rendition and alleged torture. Some courts have been skeptical about that argument, although in the case of German citizen Khaled Al-Masri, a lawsuit filed by a rendition victim against U.S. authorities, a federal judge in Virginia did dismiss the case on state secrets grounds.

And the court could still decide to dismiss the case based on its broader national security implications, as it did in Arar. “What’s been so disturbing is how judges have bent backwards to say this is a new kind of claim,” said Vladeck. In the Arar case, for example, the court cast his claim for compensation for extraordinary rendition as a new kind of constitutional claim that would require the court essentially to create a new right to sue. The court then could easily decline to create that new right, citing the “special factors” involved — in particular, the potential impact on national security and foreign policy. “What’s so distressing about Arar was that the Second Circuit endorsed such a limitless view of special factors,” said Vladeck. “If Arar’s rendition case can’t prevail, then I’m pressed to see what kind of case can win.”

Still, one case has survived dismissal so far. That’s the case of Jose Padilla, a U.S. citizen deemed an “enemy combatant”, who is now suing John Yoo, the former lawyer at the Justice Department who justified torture and Padilla says personally helped to devise his illegal treatment. Although the Obama administration, representing Yoo, tried to have the case dismissed, a federal court in California refused, in part because there was no other way for a U.S. citizen to hold U.S. officials accountable.

Padilla was also the only U.S. citizen to have sued a U.S. official for torture. Until now. Choudhury hopes, at least, that Meshal’s U.S. citizenship might also make some difference. But the outcome is hard to predict. Judges and courts are sharply divided on when a victim of abusive federal government policies should have a right to bring their claims to court.

When the full Second Circuit court ruled in Arar’s case last week, the decision included four powerful dissents.

“The majority would immunize official misconduct by invoking the separation of powers and the executive’s responsibility for foreign affairs and national security,” wrote Judge Barrington Parker, in one of them. “Its approach distorts the system of checks and balances essential to the rule of law, and it trivilializes the judiciary’s role in these arenas,” he continued. The executive’s powers in foreign policy and national security “are not limitless” and their “bounds in both wartime and peacetime are fixed by the same Constitution,” he wrote. The court’s refusal to allow Arar a remedy, he continued, “immunizes official conduct directly at odds with the express will of Congress and the most basic guarantees of liberty contained in the Constitution. By doing so, the majority risks a government that can interpret the law to suits its own ends, without scrutiny.”

The Boston Globe has an interesting piece from Obama’s native country on attempts to cash in.

Fortunately, an eagle-eyed reader already asked Kurtz about this in an online chat. “Oy,” Kurtz said, by way of correction. “I obviously meant the country of his father. He wrote a book about it.” And I’m surprised that no “birthers” have caught this yet. One popular “birther” touchstone is a 2007 Honolulu Advertiser story that refers to Kenya as Obama’s “native” country, an error that the paper retracted.

–

You can follow TWI on Twitter and Facebook.

So where do Republicans think he was born? For whatever reason, 19 percent of them say Indonesia, where Obama lived after his mother re-married and moved there with her husband Lolo Soetoro. (”Birthers” often attack the president as “Barry Soetoro,” which I’ve never quite understood; is that really a stranger name than “Obama”?) Thirteen percent of Republicans say he was born in Kenya, birthplace of Barack Obama Sr. Mystifyingly, 2 percent of Republicans say the president was born in the Philippines, a country he has no  connection to whatsoever.

And how do the numbers break down by race?

Rep. Patrick McHenry (R-N.C.) just shot out a statement declaring that he has “absolutely no reason to question President Obama’s citizenship.”

I anticipate that as a legal matter the courts will continue to come to the same conclusion.

But he also leaves a bit of room for doubt, adding that his view is based only on a cursory survey of the case. “I have not carefully reviewed the evidence as a jurist would,” he said.

Something there for both sides of this inane debate.

As to Dave Weigel’s involvement in this, we can take for granted he will deny being in on it, even though he brought the Politijab spoof to the wider world (and only credited them belatedly).

Okay, two things.

First, I can state unequivocally that I was not “in on” the hilarious “punking” of the “birther movement.” (I can also say, here and now, that I did not fake the moon landing.) I found out about it via a tip from one of the small community of people who debunk the “birthers,” who email me regularly with such tips. Some of these people post at Politijab, the small, registration-required, anonymous web forum where Steve Eddy (posting as “Koyaan”) first exposed the source of the “Kenyan” hoax. That’s the other point I want to make: I originally credited my source who told me to check out Eddy’s evidence, and later changed the post to credit Eddy’s original Politijab post once members of the site told me it was okay to credit them.

I’m not a fan of online anonymity. In cases like this, though, where ordinary people with day jobs want to pass on news without exposing their identities to the unstable “birther” community, I’m okay with it. Even an anonymous online handle is more evidence than the bumbling Orly Taitz gave to a court of law of the provenance of the forged “Kenyan” certificate.

If Maguire wants to continue wrecking his reputation like this, I won’t stop him. But it’s good to have a chance to explain how and why the merry “birther” debunkers are getting this done.

Today marks the eleventh Anniversary of the terrorist attacks against the U.S. Embassies in Nairobi, Kenya and Dar es Salaam, Tanzania. In Kenya, 218 people lost their lives and over 5,000 were injured; the blast in Dar es Salaam killed 11 people and wounded more than 85 others. Our thoughts are with those who were injured and the families and loved ones of those who were lost in these tragic events.

These attacks in East Africa are sad examples of al Qaeda’s determination to kill innocent men, women and children in many countries, regardless of their religion, race, or nationality. The memory of the attacks in Kenya and Tanzania remind us that we must always be vigilant in working with our allies to bring these terrorists to justice; to prevent these types of attacks from happening again; and to advance peace and security for Americans, Kenyans, Tanzanians, and people around the world.

Last month, the Justice Department brought charges in a New York federal court against Ahmad Khalfan Ghailani, one of the alleged participants in the 1998 bombings. Ghailani was apprehended in Pakistan in July 2004. His capture went unremarked upon for several days until the Pakistanis unveiled him hours before John Kerry accepted the Democratic presidential nomination.

Fine cotton business paper: $11

Inkjet printer: $35

1940 Royal Model KMM manual typewriter: $10

2 Shilling coin: $1

Pilot Varsity fountain pen: $3

Punkin’ the Birthers: Priceless

First, there’s the original photo of the infamous forged certificate on a red, striped carpet, as it appeared on WorldNetDaily.

Then, a photo of a typewriter and special paper for making official-looking documents.

Then, a crumpled-up certificate:

Then, the punchline:

David Wiegel (sic) is a regular poster at the Politijab Forum.

Actually, no: I joined the site in order to read the threads at that superlative Web forum for “birther”-debunkers. I’ve never posted a comment there.

The rest of the argument posits that “Politijab is an astroturf site” because its inbound links come from AOL News, Daily Kos, Topix, and Democratic Underground. How that proves that the site is astroturf, I have no earthly idea.

You can draw your own conclusions, however a betting man would find favorable odds that a one “David Weigel” is part of the fraud campaign.

The “fraud campaign” is a new conspiracy theory, which argues that David Bomford’s birth certificate (used to forge the infamous “Kenyan birth certificate”) is itself a forgery, despite David Bomford’s acknowledgment that it’s real, and despite the failure of anyone responsible for the “Kenyan” certificate to come forward. One more reason to doubt that even the release of every Obama record would please the birthers; with the Bomford certificate, they have a genuine document that predates this conspiracy theory, and their forums are abuzz with “proof” of how it’s forged.

Bomford report was created to try to discredit my efforts

The Bomford birth certificate, not “report,” was created in 1964 and posted online several years ago. David Bomford has confirmed that it’s his birth certificate. Taitz obtained a forgery, and the only question is whether she realizes this and is lying about it or whether she’s still duped. And that’s an important question; as I reported in my story yesterday, if Taitz knowingly submitted a forgery as part of her lawsuit, she exposed herself to charges of defamation against the president of the United States.