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Case in Point: When the Law Is Used to Limit America's Freedom of Action

Posted By Paul Rosenzweig On September 7, 2011 @ 9:21 am In Legal | Comments Disabled

The law, increasingly, is becoming a tool used by opponents of American power to harass American officials and, through the courts, limit America’s freedom of action.

A case in point is the lawsuit brought by the American Civil Liberties Union on behalf of Amir Meshal (an American citizen).  Meshal, who lives  in New Jersey, says that in 2006 he travelled to Somalia “to enrich his study of Islam.”  At that time, parts of Somalia were under the control of the Islamic Courts Union – a fundamentalist militia.   Later that year the US assisted in an Ethiopian offensive that recaptured the capital and installed a new government.

Meshal says that he fled the fighting, and that he has no ties to the ICU or al-Qaeda.  His law suit alleges that he was arrested in Kenya and held in a filthy, crowded cell, at the behest of American officials.  He says that the FBI came and questioned him and that the FBI agents threatened to sned him to Israel or Egypt (where, presumably, he feared being tortured) if he did not confess to his al-Qaeda ties.  When a Kenyan human rights group sought his release, Meshal says he was sent back to Somalia and then on to Ethiopia before finally being released.

And now, safely back in America, like any good American he is seeking  to sue someone.  He wants money damages from the FBI for his detention and “harsh treatment.”  He is not alone.  In the Seventh Circuit two US citizens have sued former Secretary of Defense Rumsfeld personally for their mistreatment and a similar suit is pending in Washington DC.

Suits like these aren’t really meant to secure money (though that is a nice side benefit if it happens).  They are, instead, part of an incessant drumbeat to criminalize and personalize policy differences while using the courts to advance a particular political agenda.  It also doesn’t hurt to try to obtain classified documents through the courts in the hopes of expanding such political objectives.

What is most notable about these cases is not the allegations of misconduct – but rather the fact that even the Obama Administration has seen fit to oppose them in Court.  Whenever it has done so it has argued both that the Congress has never authorized these suits and that federal officials are immune from these sorts of Monday-morning quarterbacking law suits.  And that’s precisely right – if personal law suits against government officials were to become the norm we would soon find ourselves without any volunteers to serve in government.

Imagine what it is like to be the FBI agents sent to Kenya to question Meshal – a suspected al-Qaeda operative (forgive my skepticism about his trip to study Islam in war-torn Somalia).  They were just doing their  jobs.  If, now, their liveliood and personal forturne are at risk they must surely rue the day they signed up to join the FBI – which is, of course, exactly what Meshal wants.


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