08 Dec The Constitutional Limits of Counter-Terrorism Cooperation
The ACLU has filed a habeas corpus petition on behalf of a U.S. citizen who, as of the time of filing, had been held by the United Arab Emirates for about three months without charges. And, beyond the issue of unlawful detention, there are now also allegations that the UAE Security Services have used torture to extract a false confession.
Did the UAE hold this man at the request of (or with a knowing nod from) the U.S. because the FBI wasn’t able to build a case that would be convincing before a U.S. court? While rendition cases cover instances in which the U.S. has physical custody of a non-U.S. person and chooses to turn that person over to third-party governments for interrogation, in this case, the U.S. did not have custody over a U.S. citizen, but may have shared information/allegations/suspicions with a foreign government which may have persuaded that government to take the U.S. citizen into custody. At issue, then, is the tension between the techniques of counter-terrorism cooperation and Constitutional violation.
By way of background, according to a McClatchy article, Naji Hamdan is a 42 year old naturalized citizen who originally came to the U.S. in the early 1980’s. Starting around 1999, he was seemingly the subject of an FBI investigation concerning questions as to whether he knew Osama bin Laden. In 2006, he moved from the L.A. area to Lebanon (where he has family) and he also started a car repair company in the UAE. The McClatchy piece picks up the story:
In August, he was questioned at the U.S. embassy in Abu Dhabi by two FBI agents who flew out from Los Angeles. Several weeks later, UAE officials detained him, [his wife] Mallouk and [his brother] Hossam Hemdan said.
Hemdan, who owns automobile emissions testing stations in Los Angeles, said he arranged for Hamdan to meet the agents at the FBI’s request.
“He (Hamdan) said ‘That’s fine, I’ll see them,'” Hemdan recalled, adding that his brother later declined to discuss the meeting, except to say that “the agents know all this stuff about me and you and other people.”
“I believe they are intercepting my phone calls and emails,” Hemdan said of the FBI.
On Aug. 28, UAE security officers took Hamdan away as he, his wife and three children ate lunch in their Abu Dhabi apartment on the pretext of bringing him to a police station to sign papers related to a car accident, Mallouk said.
She said that when her husband failed to return, she began a fruitless search for him at police stations.
“I called the U.S. embassy . . . the next day. I was crying. They didn’t seem to care,” she related. “They said they would call back in an hour, but they didn’t call me back for six or seven days.”
The consular officer who telephoned confirmed that the embassy was aware of Hamdan arrest the day it occurred, said Mallouk, who hasn’t spoken to her husband since he made a brief call to her shortly after his arrest.
At the heart of the lawsuit is the
demand that the U.S. government extend to Hamdan his constitutional guarantee against illegal detention by asking the UAE to release him.
“The most elemental legal principles by which we govern ourselves cannot countenance the lawless detention of a United States citizen at the behest of his own government,” said a draft of the lawsuit provided to McClatchy by the ACLU.
In a December 3rd press release, the ACLU argued that:
Human-rights organizations such as Amnesty International have documented the U.A.E.’s practice of torturing prisoners, and in particular state security detainees. “U. S. officials knew that Naji Hamdan would likely be tortured in U.A.E. custody. The news today confirms what we most feared,” said Ahilan Arulanantham, Director of Immigrants’ Rights and National Security for the ACLU/SC. “Now that we know that Naji Hamdan was tortured, it is even more imperative that the U.S. government advocate strongly for his release. So long as the government fails to act, it remains complicit in the torture of this U.S. citizen.”
There seems to me to be a host of factual and legal issues here. First: how closely did the U.S. coordinate with the UAE? Did the U.S. actually ask for Hamdan to be detained? If so, is the U.S. susceptible to a habeas order even if the person is being held by the UAE?
Whether the U.S. can actually produce Hamdan is one issue, but I think there may be a good argument that habeas applies here, based on the doctrine of agency. I have been batting around this case with friends and colleagues and while I have no final answer on this, here are some thoughts to which we have returned. First, let’s assume a slightly different set of facts: Assume the U.S. had asked a private contractor to detain a U.S. citizen overseas. Shouldn’t a habeas petition be applicable? Yes. Now, what if the contractor refuses to render the person back over to the U.S.? That doesn’t mean habeas doesn’t apply, it is only an issue of the enforcement of the order. Thus, why should the result be any different if the U.S. has used a foreign state’s security apparatus as opposed to a private company?
But what if the court is unpersuaded that there was an actual U.S. request to detain Hamdan? That is, what if all that happened was a sharing of information and perhaps a wink and a nudge? Can the U.S. be constrained by the Constitution in such circumstances?
This is a slightly different case from the direct-agency model of my first scenario. This is also one that has some broader implications concerning the regulation of counter-terrorism coordination. Once again, these are some reactions without having reviewed the case law, but, that being said, if the target of the information that is being passed on by U.S. government sources is a U.S. citizen, I think there may be a solid argument that the U.S. government is constrained by the Constitution regarding reasonably foreseeable results in much the same way as in a direct-agency case. If, as the ACLU is arguing, the UAE Security Service is generally known for its use of torture, etc., and the U.S. passes on to that service information and allegations concerning a U.S. citizen within the UAE’s jurisdiction, then the simple fact that there was not a direct request for detention but “just” a wink and a nod should not somehow “save” this case from Constitutional regulation.
The counterargument could be that this would bring a significant amount of counter-terrorism cooperation under the umbrella of Constitutional regulation. Perhaps. But keep in mind we are talking specifically about the sharing of information with a foreign government about U.S. citizens. To say that the U.S. is only responsible if it directly asks for the detention of a U.S. citizen but somehow can escape Constitutional constraint if it just avoids directly requesting detention would be to make a loophole that you could drive a truck through.
Anyway, these are some initial thoughts. I am curious about any reactions from other readers or bloggers.
As of this writing, Hamdan has been transferred to a prison in Abu Dhabi about one week after the filing of the ACLU petitition. I am not sure how this will effect the petition.
The court has given the U.S. government until the first week in January to respond to the habeas petition. Stay tuned…
[UPDATE: A few edits were made after initial posting to point out that the U.S. citizen has been moved from the custody of the UAE Security Service and to a prison in Abu Dhabi.]