Court: Your Fourth And Fifth Amendment Rights No Longer Exist If You Leave The Country

from the a-blank-check-for-extraterritorial-abuse dept

The DC Appeals Court has just come to an unfortunate conclusion: because terrorism exists, your rights as a citizen will not be upheld if you travel outside of the United States. This summary of the case is from Lawfare's David Ryan, whose article claims this is a "victory" for the DOJ, rather than a loss for the American public.

The plaintiff, Amir Meshal, is a U.S. citizen and resident of New Jersey. According to the allegations in his complaint, he traveled to Somalia in 2006 to broaden his understanding of Islam, but fled to Kenya soon after because of violent unrest. In January 2007, a joint U.S.-Kenyan-Ethiopian law enforcement operation apprehended him and transported him to Nairobi. Over the next four months, the defendants allegedly violated Meshal’s Fourth and Fifth Amendment rights by secretly detaining and interrogating him, threatening him with torture and death, denying him access to counsel, and moving him across the borders of three African countries without legal process. The FBI eventually released Meshal, and the U.S. never charged him with any crime.
Meshal sued the FBI for violating his rights, bringing a Bivens action against the involved agents. This action is supposed to remedy unlawful searches and seizures that occur during criminal investigations. Meshal's case, however, raised previously-unaddressed issues. First, Bivens has never been applied to extraterritorial incidents. Second, the tort -- while addressing actions taken during criminal investigations -- has never been raised in the context of criminal investigations with national security implications. Because of this, the court (somewhat reluctantly) found that Meshal could not seek damages under Bivens.
As we understand it, the Supreme Court has taken a case-by-case approach in determining whether to recognize a Bivens cause of action. We therefore need not decide, categorically, whether a Bivens action can lie against federal law enforcement officials conducting non-terrorism criminal investigations against American citizens abroad. Nor do we decide whether a Bivens action is available for plaintiffs claiming wrongdoing committed by federal law enforcement officers during a terrorism investigation occurring within the United States. Our holding is context specific.
Unfortunately, this means Meshal cannot seek redress under any existing judicial precedent.
Once we identify a new context, the decision whether to recognize a Bivens remedy requires us to first consider whether an alternative remedial scheme is available and next determine whether special factors counsel hesitation in creating a Bivens remedy. See Wilkie, 551 U.S. at 550.

Meshal has no alternative remedy; the government does not claim otherwise. See Meshal, 47 F. Supp. 3d at 122 (“The parties agree that Mr. Meshal has no alternative remedy for his constitutional claims.”). Meshal, backed by a number of law professors appearing as amici curiae, argues that, when the choice is between damages or nothing, a Bivens cause of action must lie. The Supreme Court, however, has repeatedly held that “even in the absence of an alternative” remedy, courts should not afford Bivens remedies if “any special factors counsel[ ] hesitation.”
The lower court, along with the dissent in this decision, finds this situation unsatisfactory. But as the appeals court sees it, the lack of a remedy for the violation of Meshal's rights under these specific circumstances is a problem that must be solved by other government entities
There are no definitive answers to these competing visions of congressional action. We are not foreclosing either interpretation, but in a case where the thumb is heavy on the scale against recognizing a Bivens remedy, uncertain interpretations of what Congress did in 1973 and 1988 cannot overcome the weight of authority against expanding Bivens. In any event, if the courts, as amici argue, have radically misunderstood the nature and scope of Bivens remedies, a course correction must come from the Supreme Court, which has repeatedly rejected calls for a broad application of Bivens. Because we follow its lead, we will ship our oars until that Court decides the scope of the remedy it created.

If people like Meshal are to have recourse to damages for alleged constitutional violations committed during a terrorism investigation occurring abroad, either Congress or the Supreme Court must specify the scope of the remedy.
The court doesn't appear thrilled with the conclusions it has reached. "Our hands are tied" decisions are seldom satisfactory, especially for plaintiffs.

The dissenting opinion -- written by Judge Cornelia Pillard -- points out just how bizarre the court's conclusion is.
Had Meshal suffered these injuries in the United States, there is no dispute that he could have sought redress under Bivens. If Meshal’s tormentors had been foreign officials, he could have sought a remedy under the Torture Victim Protection Act. Yet the majority holds that because of unspecified national security and foreign policy concerns, a United States citizen who was arbitrarily detained, tortured, and threatened with disappearance by United States law enforcement agents in Africa must be denied any remedy whatsoever.
But the decision stands. And for the DOJ, it means its agencies will have a lot of leeway in the handling of US citizens it detains in other countries. Americans' rights are effectively nullified if the detainment is declared to be in the interest of national security. The majority opinion -- while dismissing Meshal's case -- states its sympathy for his situation and agrees that US citizenship has "inherent value." Unfortunately, its conclusion here appends a national security asterisk to that assertion, furthering the notion that civil liberties should nearly always grant the right of way to the War on Terror.


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  1. identicon
    me@me.net, 28 Oct 2015 @ 3:50am

    Our hands are tied =

    You're gutless cowards

    reply to this | link to this | view in thread ]

  2. identicon
    Anonymous Coward, 28 Oct 2015 @ 4:08am

    It's dangerous out there...

    Leave your citizenship at the border.

    reply to this | link to this | view in thread ]

  3. identicon
    AJ, 28 Oct 2015 @ 4:11am

    "threatening him with torture and death, denying him access to counsel, and moving him across the borders of three African countries without legal process. The FBI eventually released Meshal, and the U.S. never charged him with any crime."

    So we threaten people with torture and death, deny them access to counsel, move them about with no due process at all, and then set him loose in the U.S. with no recourse at all? If this guy wasn't a terrorist before, you bet your ass he's one now.

    reply to this | link to this | view in thread ]

  4. identicon
    Anonymous Coward, 28 Oct 2015 @ 4:11am

    And of course...

    Since they can claim you lose some Constitutional amendments out of country, what's to stop them from claiming you lose them all?

    reply to this | link to this | view in thread ]

  5. identicon
    Anonymous Coward, 28 Oct 2015 @ 4:13am

    At the border

    I don't recall reading the words "inside the border" or any variation of that in the supreme law called the constitution.

    If they want the rights limited to the border they should propose and adopt the "limited bill of rights" amendment that reads something like this:

    Within the border the right of the people to be secure in their persons, houses, papers, and effects,[a] against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

    I also believe that our constitution applies to non-citizens inside and outside of the border. If everyone is not treated equal then the government could always argue ignorance as a shield to their violations. "Really we thought this guy Oscarry Benlyen wasn't a citizen but now that we know otherwise after holding him without trial for 10 years he is free to go."

    reply to this | link to this | view in thread ]

  6. identicon
    Anonymous Hero, 28 Oct 2015 @ 4:26am

    > a United States citizen who was arbitrarily detained, tortured, and threatened with disappearance by United States law enforcement agents in Africa must be denied any remedy whatsoever.

    How else would you ensure the safety of your citizens?

    reply to this | link to this | view in thread ]

  7. icon
    got_runs? (profile), 28 Oct 2015 @ 4:31am

    The United State of America is a police state.

    reply to this | link to this | view in thread ]

  8. icon
    That One Guy (profile), 28 Oct 2015 @ 4:45am

    On the contrary

    The majority opinion -- while dismissing Meshal's case -- states its sympathy for his situation and agrees that US citizenship has "inherent value."

    As noted in the article, he was screwed because of his US citizenship, not in spite of it.

    Because of his US citizenship, US agents were able to act as though he fell under US jurisdiction, while at the same time claiming that because he wasn't in the US at the time, none of the rights, legal or constitutional that he might have otherwise been protected by applied.

    Because of his US citizenship the court system he brought the case to was a US one, leading to this mess where he's forced to go through the US system, but lacks any rights of a US citizen.

    His US citizenship didn't help him, it completely eliminated any chance of redress for what he went through.

    And let's not forget:

    If Meshal’s tormentors had been foreign officials, he could have sought a remedy under the Torture Victim Protection Act. Yet the majority holds that because of unspecified national security and foreign policy concerns, a United States citizen who was arbitrarily detained, tortured, and threatened with disappearance by United States law enforcement agents in Africa must be denied any remedy whatsoever.

    A US citizen was detained without charge, tortured, threatened with 'disappearance' and death, by US agents, and yet again a US court does nothing, 'because terrorism'.

    The law mentioned, the Torture Victim Protection Act allows US citizens to sue those responsible for torturing them, but only if they're foreign agents/citizens. Thanks to the ones responsible being US agents, the law ceases to apply, and thanks to the court's willingness to allow USG agents to torture anyone so long as they're willing to pull the 'National Security' trump card, the poor sod here has basically no other options.

    reply to this | link to this | view in thread ]

  9. icon
    That One Guy (profile), 28 Oct 2015 @ 4:47am

    Re: And of course...

    Given they're arguing that they're allowed to torture US citizens once they leave the country, what makes you think they don't already do exactly that?

    reply to this | link to this | view in thread ]

  10. icon
    Bergman (profile), 28 Oct 2015 @ 4:55am

    If US law doesn't apply outside the US...

    Then obviously all you need to do to avoid kidnapping charges is take your victim outside of the country.

    The government is fond of that quote about the Constitution not being a suicide pact, but they tend not to think of the corollary to it -- if the highest law of the land is not a suicide pact, then lesser laws such as mere statutes cannot be either.

    This sort of crap proves something I've been saying for a while now -- what good do lawsuits do if, even if you win, you get paid off with your own money and the money of your fellow citizens, with the people you sued never paying a penny?

    Any violation of rights you can win a lawsuit under 42 USC 1983 for, is also a criminal act under 18 USC 242. Since most such violations of rights include acts of violence one way or another, perhaps the time has come to apply the laws the police like to hide behind, the ones that don't apply to just those with badges?

    Self-defense against a violent criminal is not illegal, even if that criminal is a federal agent. It cannot be illegal, otherwise it would be impossible for the government itself to arrest or prosecute a government agent/employee -- don't forget, handcuffing someone unlawfully is assault.

    Granted, one individual against an army is a bad idea generally, but if the only way we can get the justice our Constitution guarantees us is through vigilance committees or militias -- well, if the government is already in a state of rebellion against its own Constitution, it's not treason to put down the rebellion.

    reply to this | link to this | view in thread ]

  11. identicon
    Anonymous Coward, 28 Oct 2015 @ 5:00am

    You never go full Kafka

    Because of unspecified ...concerns ...a United States citizen who was arbitrarily detained, tortured, and threatened ...must be denied any remedy.

    reply to this | link to this | view in thread ]

  12. identicon
    Yes, I know I'm commenting anonymously, 28 Oct 2015 @ 5:03am

    Jurisdiction

    If the court cannot use US laws, they might be able to apply local laws in cases like these. (Although they are probably not as good when it comes to African countries.)

    In principle, everyone is obliged to remain within the laws of the local territory. But as a `representative' of one's own nation should also stay within those constitutional rights/obligations.
    Off course this applies even more to officers of the state...

    reply to this | link to this | view in thread ]

  13. identicon
    Anonymous Coward, 28 Oct 2015 @ 5:05am

    You have no rights

    They're only rights in theory. In practice, they're privileges to be revoked when they no longer serve the interests of the powerful.

    reply to this | link to this | view in thread ]

  14. identicon
    Anonymous Coward, 28 Oct 2015 @ 5:18am

    Re: On the contrary

    Just to remind everyone, Terrorism is a problem of the government using excuses to remove rights. Everything else is a lie used to screw you out of the rights you started with.

    reply to this | link to this | view in thread ]

  15. identicon
    Anonymous Coward, 28 Oct 2015 @ 5:19am

    Re: You have no rights

    Sad but true.

    reply to this | link to this | view in thread ]

  16. identicon
    Anonymous Coward, 28 Oct 2015 @ 5:29am

    Can this be appealed to SCOTUS?

    reply to this | link to this | view in thread ]

  17. identicon
    Anonymous Coward, 28 Oct 2015 @ 5:37am

    Am I the only one wondering "WTF is the FBI doing off of American soil?"

    reply to this | link to this | view in thread ]

  18. icon
    PaulT (profile), 28 Oct 2015 @ 5:54am

    Re:

    Even if not him, you can guarantee that stories like this are used to generate opposition and hatred to the US in other populations.

    They already know that the cries of "democracy" and "freedom" are lies, but how can they trust the US with anything if this is how they treat their own citizens? Meanwhile, of course, the actual terrorists are still laughing at how easy it was to scare you enough to throw away your own rights and freedoms, as that was the goal of the terrorism in the first place.

    reply to this | link to this | view in thread ]

  19. identicon
    Just Another Anonymous Troll, 28 Oct 2015 @ 6:07am

    AMERICA! Land of the free!
    ...unless you're not a citizen, in which case we can spy on you or blow you up with drones.
    ...or you leave the country, in which case you're fair game for kidnapping and torture.
    ...or if you're a non-LEO citizen, then we can do whatever we like.
    Aren't freedom, democracy, and civil rights great?

    reply to this | link to this | view in thread ]

  20. identicon
    Anonymous Coward, 28 Oct 2015 @ 6:27am

    the US constitution is not valid outside the US
    (because everybody else hates the USA and is a terrorist until proven innocent)
    OH, the taxes? THAT is not in the constitution,
    therefore remains valid!!!

    reply to this | link to this | view in thread ]

  21. identicon
    Anonymous Coward, 28 Oct 2015 @ 6:31am

    'extraordinary rendition' flipped over and cooked again

    This was the basis of the novel legal strategy known as "extraordinary rendition" -- the U.S. policy of delivering prisoners to countries where police routinely torture suspects, with clear instructions to "make them talk" and then claiming that no laws were broken because, despite being directed by US officials, the place of torture was outside US borders.

    Since 'extraordinary rendition' was used exclusively against non-US citizens (which can include immigrants being unjustly stripped of acquired citizenship status before being "deported" to another nation's custody), then why not flip it over and create another novel legal environment, this one for US citizens who are arrested abroad?

    That's something that should have been expected. Amir Meshal was a fool for not realizing that, as a Muslim-American citizen, traveling to certain countries would automatically put himself in the crosshairs of the US government's so-called "war on terrorism"

    reply to this | link to this | view in thread ]

  22. identicon
    Anonymous Coward, 28 Oct 2015 @ 6:40am

    US citizens should avoid contact to the FBI outside the USA, if contact is inevitable then just shoot to kill.
    Otherwise they will kidnap, disappear and torture you legally through different countries, forever.

    reply to this | link to this | view in thread ]

  23. identicon
    Anonymous Coward, 28 Oct 2015 @ 6:45am

    Applying that same logic

    Your honor I assassinated the POTUS when he was outside the border so it doesn't count.

    reply to this | link to this | view in thread ]

  24. identicon
    Anonymous Coward, 28 Oct 2015 @ 6:46am

    Re: 'extraordinary rendition' flipped over and cooked again

    this is a clear case of "traveling while being brown"
    you cannot have the wrong name/skin color/religion AND travel at the same time.

    let me explain this again:
    EITHER you travel OR have the wrong name/skin color/religion.

    reply to this | link to this | view in thread ]

  25. identicon
    Anonymous Coward, 28 Oct 2015 @ 6:55am

    Re: Applying that same logic

    private murder outside the US borders is ok ...

    but did you fail to fill the tax forms while being outside? cause in that case YOU ARE FUCKED my fellow citizen.

    reply to this | link to this | view in thread ]

  26. identicon
    Anonymous Coward, 28 Oct 2015 @ 6:59am

    What's that do for Military Personnel, Workers, Travelers, CIA , hmmm somethings not quite right about this.

    reply to this | link to this | view in thread ]

  27. icon
    Oblate (profile), 28 Oct 2015 @ 7:12am

    Unintended consequences?

    Does this ruling encourage those U.S. citizens who would align themselves with terrorists to stay in the country? Will they now want to do their 'training' here instead of abroad? It seems like a list of people traveling to terrorist supporting countries would be an easy first filter for the FBI/CIA/whatever to find these people, and they may have inadvertently reduced that capability.

    reply to this | link to this | view in thread ]

  28. identicon
    Anonymous Coward, 28 Oct 2015 @ 7:37am

    "There is no justice here. There's just us."

    reply to this | link to this | view in thread ]

  29. icon
    pouar (profile), 28 Oct 2015 @ 7:42am

    "but when it comes to broken laws that screw with the internet, the entire planet is under our jurisdiction"

    reply to this | link to this | view in thread ]

  30. identicon
    Anonymous Coward, 28 Oct 2015 @ 7:44am

    Re: Re: 'extraordinary rendition' flipped over and cooked again

    "this is a clear case of "traveling while being brown""

    But the dangers of being the wrong race/religion/etc extend far beyond just traveling. When Muslims play the game of paintball, for instance, they are engaging in terrorism training, a crime which essentially carries a life sentence.

    http://www.democracynow.org/2004/6/16/from_paintball_practice_to_prison_a

    reply to this | link to this | view in thread ]

  31. identicon
    Anonymous Coward, 28 Oct 2015 @ 7:46am

    Re: Our hands are tied =

    If you see injustice as a judge and do not rule in such a way to remedy the injustice, you should just be replaced with a computer program. The purpose of a human judge is to use human reason to mete out Justice. And you don't get to use national security as a shield for wimping out from your duty, especially when your ruling undermines national security.

    reply to this | link to this | view in thread ]

  32. icon
    MarcAnthony (profile), 28 Oct 2015 @ 7:49am

    Re: Unintended consequences?

    The unintended consequence is that the rights of every American citizen are chilled. The respect for human rights is the only real inherent value of citizenship, and that appears to have been unawfully and unethically exchanged in the service of unsubstantiated national security claims and the perception—which appears to have been false, in this case—that someone is a terrorist. If you value your life, you don't dare consider travelling outside of the country.

    reply to this | link to this | view in thread ]

  33. icon
    That One Guy (profile), 28 Oct 2015 @ 7:54am

    Re: At the border

    If they want the rights limited to the border they should propose and adopt the "limited bill of rights" amendment that reads something like this:

    On the one hand, having a congresscritter submit a proposal for that to make a point would be pretty funny, and potentially drive more attention to the issue. On the other hand, I can't help but feel enough of the other congresscritters would completely miss the 'joke', take it seriously, and actually try and get it passed.

    reply to this | link to this | view in thread ]

  34. icon
    That One Guy (profile), 28 Oct 2015 @ 7:56am

    Re: Re: Unintended consequences?

    At this rate give it a few years, a decade at most, and staying in the country won't provide any protection either.

    reply to this | link to this | view in thread ]

  35. identicon
    Anonymous Coward, 28 Oct 2015 @ 7:59am

    Re:

    Don't forget Corporate Sovereignty Laws.

    reply to this | link to this | view in thread ]

  36. identicon
    Anonymous Coward, 28 Oct 2015 @ 8:31am

    Re: And of course...

    The US is famous for enforcing the 16th amendment (income tax) on ex-pats who retain their US citizenship. So double standards...

    reply to this | link to this | view in thread ]

  37. identicon
    Anonymous Coward, 28 Oct 2015 @ 8:47am

    Re: It's dangerous out there...

    You should really start packing 'em up when there's still 100 miles to go before you even get to the border.

    reply to this | link to this | view in thread ]

  38. icon
    seedeevee (profile), 28 Oct 2015 @ 9:04am

    Revenge of the Federalist Society

    Another victory for Janice Rogers Brown and the Clarence Thomas wing of the judiciary.

    "In May 1996, Governor Pete Wilson appointed Brown as Associate Justice to the California Supreme Court. Before the appointment, she had been rated "not qualified" by the State Bar of California's Commission on Judicial Nominees Evaluation, which evaluates nominees to the California courts. She was the first person with that rating to be appointed."

    reply to this | link to this | view in thread ]

  39. icon
    seedeevee (profile), 28 Oct 2015 @ 9:06am

    Re:

    Nahh. Kidnapping and murder are the norm for an FBI agent.

    reply to this | link to this | view in thread ]

  40. identicon
    Anonymous Coward, 28 Oct 2015 @ 9:07am

    Re: Re: At the border

    Look on the bright side: trying to get it passed would mean that Congress is at least still willing to follow Poe's Law, even if they don't give a damn about any of the others.

    reply to this | link to this | view in thread ]

  41. identicon
    Anonymous Coward, 28 Oct 2015 @ 9:19am

    Re: You never go full Kafka

    I think it's time we start referring to Kafka's works as 'Americanesque'.

    reply to this | link to this | view in thread ]

  42. identicon
    Anonymous Coward, 28 Oct 2015 @ 9:32am

    Re: It's dangerous out there...

    So... Land of the free*

    *as long as the free are actual citizens and are physically inside the country's borders.

    I wonder if "inside" includes the CBP zones?

    reply to this | link to this | view in thread ]

  43. identicon
    Anonymous Coward, 28 Oct 2015 @ 9:46am

    Re: On the contrary

    A US citizen was detained without charge, tortured, threatened with 'disappearance' and death, by US agents, and yet again a US court does nothing, 'because terrorism'.
    I kinda thought it was all over once we were told that executing a US citizen without trial was OK 'because terrorism'.

    I knew it was over when I was told that using a high-pressure pump to shoot hummus up someone's ass was now considered a life-saving medical procedure 'because terrorism'.

    I'd be happier if they'd just excuse their behavior with 'because power-mad narcissistic sociopathy'.

    reply to this | link to this | view in thread ]

  44. identicon
    Jon Davis, 28 Oct 2015 @ 10:42am

    NDAA

    I thought this is pretty much exactly what was "legitimized" with the passing of the NDAA. The NDAA seemed to orient itself towards US citizens on US soil, but if it's good enough for those inside the country, then it would be good enough for those outside of it.

    reply to this | link to this | view in thread ]

  45. icon
    Whatever (profile), 28 Oct 2015 @ 11:14am

    You may not like it, but the court is getting right - even in the face of a truly outrageous case.

    US sovereignty ends at it's borders. The law of the US isn't the law of the rest of the world. It would be silly if it was. Americans (any, including police and such) are subject to the laws of the places they visit, American law doesn't follow you around like a little personal storm cloud.

    What happened to this guy is a tragedy, but it's a weird situation where the laws of the countries (and those countries willingness to enforce their own laws) that carries the day.

    It sucks, but honestly, it's no different from the arguments against France trying to apply it's "right to be forgotten" rules to everyone, everywhere. If their laws have limits (and they do) then US law is not any diffferent.

    reply to this | link to this | view in thread ]

  46. icon
    Gwiz (profile), 28 Oct 2015 @ 11:31am

    Re:

    US sovereignty ends at it's borders. The law of the US isn't the law of the rest of the world.

    That's true, but in this case we are talking about a US citizen having dealings with the US government (FBI). I don't recall any restriction in the Bill of Rights pertaining to physical locations.

    In my opinion (but obviously not the opinion of our courts) the Bill of Rights limits what the US government can or cannot do and extends to anyone who has dealings with the US government, regardless of citizenship or physical location. The wording of the Bill of Rights is "persons", not "citizens".

    reply to this | link to this | view in thread ]

  47. identicon
    Anonymous Coward, 28 Oct 2015 @ 12:02pm

    We therefore need not decide, categorically, whether a Bivens action can lie against federal law...

    Nor do we decide whether a Bivens action is available for plaintiffs claiming wrongdoing...

    There are no definitive answers to these competing vision...

    ...uncertain interpretations of what Congress did in 1973 and 1988 cannot overcome the weight of authority...

    ...we will ship our oars until that Court decides the scope of the remedy it created.

    ...either Congress or the Supreme Court must specify the scope of the remedy.

    If you're a judge who won't decide on anything, won't try to come up with any 'definitive answers' to confusing problems, would rather accept an argument from authority than address uncertainty, and prefer to let other people decide things for you, maybe you should re-read your job description.

    reply to this | link to this | view in thread ]

  48. identicon
    Personanongrata, 28 Oct 2015 @ 2:57pm

    Aiding an Abetting Tyranny

    What is an unalienable Right if the Right may be voided by political expediency or by a person crossing an imaginary line found on a map?

    What type of check on tyranny do the federal court jesters (Sullivan, Kavanaugh, Brown, etal) infesting the US District Court for the District of Columbia provide?

    reply to this | link to this | view in thread ]

  49. identicon
    Personanongrata, 28 Oct 2015 @ 2:58pm

    Re: Our hands are tied =

    You're gutless cowards

    Yes they are.

    reply to this | link to this | view in thread ]

  50. identicon
    Rekrul, 28 Oct 2015 @ 6:47pm

    "National security" - The magic words used to make your rights vanish.

    reply to this | link to this | view in thread ]

  51. identicon
    Anonymous Coward, 28 Oct 2015 @ 7:54pm

    So the law of the land doesn't apply to government officials while they are over seas, I hope that applies to us lowly citizens also. God forbid Barack Obama was thought to be stealing or committing adultery while visiting Saudi Arabia, and surely it would be best to leave Michelle at home. The courts today know nothing about the spirit of the law, and that there are exceptions, as no two cases, like no two people, are the same. The pendulum will swing the other way sooner or later, but let us hope it doesn't swing as far the other way as it has this time.

    reply to this | link to this | view in thread ]

  52. icon
    Whatever (profile), 28 Oct 2015 @ 8:00pm

    Re: Re:

    I think you would be correct if the acts occurred either in the US or in a US embassy or military base, as an example, all of which are sovereign spaces. However, out in the rest of the world, the FBI is in fact powerless unless given power by a local government, IE they are not the law of the land. There is a certain amount of courtesy extended there is a certain amount of turning a bling eye, but realistically, the FBI (or any of the other 3 and 4 letter organizations) is legally powerless outside of the US sovereign spaces. It only stands to reason that the citizens have the same standing, IE NONE.

    I think a judge would be incredibly silly and naive to try to enforce US law outside of the US.

    reply to this | link to this | view in thread ]

  53. icon
    That One Guy (profile), 28 Oct 2015 @ 9:12pm

    Re: Re: Re:

    I think a judge would be incredibly silly and naive to try to enforce US law outside of the US.

    Yeah, here's the problem with that:

    If people like Meshal are to have recourse to damages for alleged constitutional violations committed during a terrorism investigation occurring abroad, either Congress or the Supreme Court must specify the scope of the remedy.

    They're claiming that they can't judge what went on because it was done during a 'terrorism investigation', clearly an action by the government and it's agents. The exact same actions undertaken for other reasons, by anyone else, would almost certainly have the judge throwing the book as hard as possible at those responsible.

    The judge finding against those responsible wouldn't be 'enforcing US law outside of the US', they'd be punishing US agents/representatives, acting under cover of US authority, against a US citizen.

    Either those responsible were acting under government authority/approval, in which case it would absolutely be fitting to consider their actions to fall under US jurisdiction, no matter where they were at the time, or they were not acting under USG authority/approval, in which case you've got rogue agents torturing US citizens, and they need to be dealt with severely.

    reply to this | link to this | view in thread ]

  54. identicon
    Anonymous Coward, 28 Oct 2015 @ 11:22pm

    Re: Re: Re: Re:

    He was detained by Kenyans in Kenya.

    reply to this | link to this | view in thread ]

  55. identicon
    Anonymous Coward, 28 Oct 2015 @ 11:59pm

    Re: Re: Re: Re:

    "The law is the law is the law."

    Were we really surprised that Whatever was going to respond in the exact same way that he's always done?

    reply to this | link to this | view in thread ]

  56. identicon
    Anonymous Coward, 29 Oct 2015 @ 1:01am

    At this rate they won't exist inside the country either. First it's outside the country next it will be inside the constitution free zone "protecting" the borders, then it will be everywhere inside the country.

    reply to this | link to this | view in thread ]

  57. identicon
    Anonymous Coward, 29 Oct 2015 @ 1:04am

    Re:

    using terrorism to attack countries they do not like. they have so much practice creating fake terror plots they can easily do the real thing.

    reply to this | link to this | view in thread ]

  58. identicon
    Anonymous Coward, 29 Oct 2015 @ 1:06am

    Re: Unintended consequences?

    seems more like it is a veiled threat for US citizens to not leave the country for any reason. If you decide to leave we will kill you.

    reply to this | link to this | view in thread ]

  59. identicon
    Anonymous Coward, 29 Oct 2015 @ 1:10am

    Re:

    Then the US agents that took part in this should be up on charges of terrorism, treason, kidnapping, assault and torture. Since they have no jurisdiction outside their borders and freely took it upon themselves to kidnap, terrorize and torture a US citizen. They are not exempt from being labeled terrorists solely because they are the FBI since they have no protections either under this theory

    reply to this | link to this | view in thread ]

  60. icon
    That One Guy (profile), 29 Oct 2015 @ 2:39am

    Re: Re: Re: Re: Re:

    Only in part, it was a joint operation between three groups, one of them the FBI, meaning US agents were involved, and it was those individuals that he was trying to sue.

    reply to this | link to this | view in thread ]

  61. identicon
    Anonymous Coward, 29 Oct 2015 @ 3:07am

    Re:

    "International travel"

    F.T.F.Y

    reply to this | link to this | view in thread ]

  62. icon
    Bergman (profile), 29 Oct 2015 @ 7:33am

    Re: Re: And of course...

    It would make an interesting legal challenge to enforcement of the 16th amendment, to point out that the court protects the fourth and fifth amendments to a far greater extent than they protect the sixteenth.

    So if the fourth and fifth don't apply outside the country...

    reply to this | link to this | view in thread ]

  63. icon
    Bergman (profile), 29 Oct 2015 @ 7:35am

    Re:

    You pay taxes to the government to protect you. Unfortunately, the nature of the protection is the same the Mafia provides.

    reply to this | link to this | view in thread ]

  64. icon
    DavidMxx (profile), 29 Oct 2015 @ 9:11am

    Rights are absolute

    There seems to be something that has been forgotten in the last few years: The Bill of Rights was added to the Constitution to remind the Federal Government that all people hold inalienable rights. The rights were listed so as to eliminate any possibility of misinterpretation of the Constitution. The Constitution does not grant those rights, it acknowledges them. More specifically, the Bill of Rights lists specific prohibitions on governmental power and abuse. This includes limits on what the courts can decree. If the courts conclude something that falls outside of the Bill of Rights in their plain reading, then the court's decision is unconstitutional (i.e. unlawful) as well. And you will notice, there is NO MENTION of citizenship in the Bill of Rights. The Bill of Rights applies to ALL peoples, not just US Citizens. It's time that people around the world start realizing this and act accordingly.

    reply to this | link to this | view in thread ]

  65. identicon
    Anonymous Coward, 29 Oct 2015 @ 11:53am

    Re: Rights are absolute

    "nd you will notice, there is NO MENTION of citizenship in the Bill of Rights."

    "Constitution of the United States of America
    We, the people of the United States, ....ourselves, our posterity...constitution of the United States of America"

    And that's just the title and introduction.

    Though I take it you're being sarcastic, right?

    reply to this | link to this | view in thread ]

  66. icon
    tqk (profile), 29 Oct 2015 @ 12:22pm

    Too bad, US service members.

    This says to the rest of the world, kill US service members on sight the moment you think you can get away with it. It's just self-defence 101. If they didn't want that, they shouldn't have been there.

    If the US won't even protect its own citizens, they're little better than loose cannons to the rest of the world. Do not need, at all.

    reply to this | link to this | view in thread ]

  67. icon
    tqk (profile), 29 Oct 2015 @ 12:36pm

    Re: Re: Re: And of course...

    You forget the IRS is even more special than all the other special agencies. They even have their own court system, and armed robbery doesn't apply when they do it.

    reply to this | link to this | view in thread ]

  68. icon
    tqk (profile), 29 Oct 2015 @ 12:52pm

    "Hail Caesar" vs. "sic semper tyrannis".

    You pay taxes to the government to protect you. Unfortunately, the nature of the protection is the same the Mafia provides.

    I recommend Harry Sidebottom's novels about Imperial Rome. The guy on the street two thousand years ago didn't think all that differently about his gov't from what we're reading about right now. That's two thousand years of treading water while listening to platitudes from liars on high, who're all just looking for a chance to stab you in the back or worse. We suck at being a sentient species.

    I only wonder why it was the Italians (or Egyptians, or Persians) who pulled it all together first. Maybe just "location, location, location", as in real estate.

    reply to this | link to this | view in thread ]

  69. icon
    DavidMxx (profile), 29 Oct 2015 @ 3:17pm

    Re: Re: Rights are absolute

    So, you quote the preamble to the Constitution (that is, the opening paragraph explaining why the drafters felt the need to start a new government) as proof that the Bill of Rights only applies to US Citizens?

    The Constitution in fact doesn't apply to any person at all, citizen or otherwise. The Constitution of the United States is a document that describes the LIMITS of the powers granted TO Federal Government BY the citizens of the newly formed country.

    The first ten amendments (commonly referred to as the Bill of Rights) was added to the Constitution expressly to tell the Federal Government that the rights listed could NOT be modified, abridged, nor rescinded by the Federal Government, just in case the main Constitutional writing wasn't clear enough.

    Those rights belonged to the people BEFORE the United States of America existed, something that should be obvious considering that the Constitution is not a document granting rights to the people but a document defining limits to the Federal Government. So to believe that only citizens of the United States have those rights defies both common sense and logic.

    reply to this | link to this | view in thread ]

  70. identicon
    Anonymous Coward, 29 Oct 2015 @ 3:33pm

    Re: Re: Re: Rights are absolute

    And it also defies logic that any rights that anyone has that are specific to the country they live in travel with them when they go overseas. The only right you have overseas if you get into trouble is the right to a consular visit ( a right that the US has ignored in the past - including for a mexican who was put to death http://www.nytimes.com/2008/08/06/us/06execute.html?_r=0 )

    Human Rights may seem inalienable from our vantage point in the 21st century, but they don't stretch back vey far in the grand history of humanity.

    reply to this | link to this | view in thread ]

  71. identicon
    Anonymous Coward, 29 Oct 2015 @ 3:50pm

    Re: Re: Re: Rights are absolute

    "So, you quote the preamble to the Constitution (that is, the opening paragraph explaining why the drafters felt the need to start a new government) as proof that the Bill of Rights only applies to US Citizens?"

    Quoted because it outlines the scope of the document, i.e, The United States and the people of the United States.
    I am not American, and I claim no 1st amendment rights, why would I. It is simply not the law of my country or 193 others.

    If Americans really believed their rights followed them, then I wouldn't keep running into American backpackers with Canadian flags sewn onto their backpacks, would I?

    reply to this | link to this | view in thread ]

  72. icon
    DavidMxx (profile), 29 Oct 2015 @ 4:18pm

    Re: Re: Re: Re: Rights are absolute

    I'll say it more time: The Constitution does not grant any rights AT ALL, it defines and limits the powers granted to the US Federal Government by the people. This has been shown time and again in every US Supreme Court case ever undertaken. EVERY US Supreme Court case is ALWAYS about whether the government has overstepped the powers granted to it by the Constitution.

    So, if the US Constitution does not grant rights, then pray tell where did the rights come from if not from simply being human?

    I don't believe my rights as a human being follow me because I am a US citizen. I believe I have those inalienable rights BECAUSE I am a human being. The same applies to any person, US citizen or not, physically in the US or not.

    reply to this | link to this | view in thread ]

  73. identicon
    Anonymous Coward, 29 Oct 2015 @ 4:32pm

    Re: Re: Re: Re: Re: Rights are absolute

    "The Constitution does not grant any rights AT ALL"..."government has overstepped the powers granted to it by the Constitution."

    I'll leave it to you to work out the contradiction in what you said.

    The rights granted to you by the constitution do not over rule any laws that are at odds with those rights when you leave the US.
    eg, go to a country with speech laws, say something illegal, and see how far your 1st amendment gets you. Not too far I would imagine.

    reply to this | link to this | view in thread ]

  74. icon
    DavidMxx (profile), 29 Oct 2015 @ 5:32pm

    Re: Re: Re: Re: Re: Re: Rights are absolute

    Don't know whether you just trying to be a troll, or simply don't (or won't) understand.

    Last post.

    "government has overstepped the powers granted to it by the Constitution."

    There is no contradiction in this statement with my other posts. The Federal Government is granted powers through the Constitution BY the people, not the other way around.

    "The rights granted to you by the constitution[...]"

    The Constitution does not grant ANY rights to people, it is the PEOPLE granting limited power to the Federal Government.

    reply to this | link to this | view in thread ]

  75. identicon
    Anonymous Coward, 29 Oct 2015 @ 6:12pm

    Re: Re: Re: Re: Re: Re: Re: Rights are absolute

    Whatever, I'm quibbling with your "all the people of the world" shit, not where it come from (the 'founding fathers' rather than 'the people'). And your idea that the rest of the world should follow your American Exceptionalism (which we most definitely shouldn't).

    reply to this | link to this | view in thread ]

  76. identicon
    Rekrul, 29 Oct 2015 @ 10:19pm

    Re: Re:

    No, the words are still "national security". They even work inside the U.S. as well.

    Think you have a right to a lawyer or to only be held for a certain period of time before they have to charge you or release you? "National security!" Poof, they can hold you as long as they want and deny you access to a lawyer.

    Think they need a warrant to get private information about you? "National security!" Poof, no warrant required.

    Think the courts can help you get justice for having your rights violated? "National security!" Poof, the court is rendered powerless.

    reply to this | link to this | view in thread ]

  77. icon
    John Fenderson (profile), 30 Oct 2015 @ 6:00am

    Re: Re: Re: Re: And of course...

    Yes, this. Things people often don't understand about the IRS: they are the most powerful law enforcement agency in the nation. They are the only law enforcement agency to have their own seperate court system. Many of the rights you have with law enforcement agencies don't apply with the IRS.

    reply to this | link to this | view in thread ]

  78. icon
    nasch (profile), 30 Oct 2015 @ 6:36pm

    Re: Re: Re:

    I think you would be correct if the acts occurred either in the US or in a US embassy or military base, as an example, all of which are sovereign spaces. However, out in the rest of the world, the FBI is in fact powerless unless given power by a local government, IE they are not the law of the land.

    If the FBI boarded a ship in international waters and proceeded to torture the occupants to death, do you suppose US courts should just shrug and tell the victims' families to take it up with some international tribunal?

    reply to this | link to this | view in thread ]

  79. icon
    nasch (profile), 30 Oct 2015 @ 6:40pm

    Re: Re: Re: Re: Re: Re: Re: Re: Rights are absolute

    And your idea that the rest of the world should follow your American Exceptionalism (which we most definitely shouldn't).

    You're still not getting it. He's not saying all other governments need to be like the US. He's saying the Constitution limits the powers of the US government, and the government doesn't get to ignore those limits just because it's dealing with someone who's not in the US at the moment.

    reply to this | link to this | view in thread ]

  80. identicon
    Dogmatix, 30 Oct 2015 @ 9:40pm

    Court: Your Fourth And Fifth Amendment Rights No Longer Exist

    Once again, the courts have failed the people, and gotten an easy case wrong.
    The people have rights, the government employees have duties. Their first duty, the one they take an oath to obey, is to support and defend the Constitution. That includes the bill of rights, and the 4th and 5th amendment.

    There are no exceptions, and there is no need for congressional action. 1st amendment gives everyone the right to petition the government for redress of grievances, and the courts have jurisdiction to hear such claims.

    Congress has no power to authorize unconstitutional actions by government employees, so when they act outside of the scope of the constitution, they are just as much subject to the penalty of law as anyone else.

    US sovereignty may end at its borders, but government employees are obligated under oath to obey the constitution wherever they are. There's nothing in the Constitution that says they are free of that oath if they are operating outside of US borders.

    reply to this | link to this | view in thread ]

  81. icon
    That One Guy (profile), 30 Oct 2015 @ 11:13pm

    Re: Re: Re: Re:

    Should they? Absolutely not. Would they? Almost certainly yes.

    reply to this | link to this | view in thread ]

  82. icon
    nasch (profile), 31 Oct 2015 @ 1:40pm

    Re: Re: Re: Re: Re:

    I know how you feel about it, but I'm wondering if Whatever will reply.

    reply to this | link to this | view in thread ]


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