The Constitutional Limits of Counter-Terrorism Cooperation

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.]

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Howard Gilbert
Howard Gilbert

The threshold question in Habeas is whether the court has jurisdiction over the prison and jailer or over the offense for which the prisoner is being held. No US court has jurisdiction over UAE officials or a prison in Abu Dhabi, nor do US courts have the power to order the release of the prisoner. At that point everything in the background story is irrelevant. You don’t get into the court to tell the story. Nothing in the story can change the threshold question of jurisdiction. The decision in Omar v Geren touches on these matters, though in that case the prisoner was at least plausibly in the custody of US military forces. Agency may apply to a private contractor working for the US, but another Sovereign cannot be an agent for this purpose. By definition the Sovereign is independent in the exercise of government functions such as arrest and trial. Even had the US President personally urged some action on a foreign government, that government’s final decision is outside the jurisdiction and beyond the review of US courts. Put another way, if ten randomly chosen foreign countries urged the US to lock OJ away for a long sentence, nothing they… Read more »


I think Howard Gilbert (above comment) has identified the essential logic at the heart of this question.  The principle of sovereignty eliminates any question of agency, which would have to be the legal core of any habeus order.  It might be a more pleasant world if any (all) foreign governments which heeded Washington’s instructions could be considered “agents,” but the fact that they are sovereign governments (regardless of their policies) nullifies any attempt to impose an agency relationship.

Benjamin Davis
Benjamin Davis

I see this differently. The U.S. has the discretion to assert diplomatic protection with the other sovereign with regard to a U.S. citizen.  A habeas case here can seek to push the U.S. to assert that diplomatic protection over the U.S. citizen held abroad.  The habeas case, even if it fails, turns the U.S. citizen from a nameless faceless person in a foreign country into a subject of U.S. court proceedings – a use of the judicial function to raise the profile of the individual and – as a result – attract attention to the status of the U.S. citizen abroad.  That may have already had the effect of ameliorating the conditions under which he is being held.  Now that he is in prison, VCCR rights (assuming Abu Dhabi is a signator) would apply.  If not, the more inchoate pressure on the political branches of the US to do something about the plight of this American abroad is what remains. Even if it is a foreign sovereign, the argument does not have to go all the way to agency to raise the question whether the U.S. is colluding with the foreign sovereign to hold and torture the person.  For example,… Read more »



Wouldn’t the assertion of diplomatic protection to a U.S. citizen abroad, a citizen who previously benefited only from his status as a citizen and not from any extra-judicial protection, open the door to any and all U.S. citizens incarcerated abroad to demand the same thing?  Upon what grounds would it be granted/asserted in one case, only to be denied in another?  The whim of the administration?  The trend of public opinion in the U.S.?  That sounds potentially problematic, to say the least.

Benjamin Davis
Benjamin Davis

The right of diplomatic protection is a right of the state.  And I agree that what standards are to be applied to that right is difficult to determine.  All I am saying is that rather than that discussion being solely a discussion within the Executive – particularly when the Executive may be colluding with a foreign power to torture that US citizen – a court case raises the issue of what the Executive is doing – and that puts pressure on the Executive.  Pressure on the Executive impacts the dialogue with the foreign state which may improve the status of the American held abroad. That pressure is what the American citizen abroad wants.  Which cases the US will step in on will relate to political will pushed on the US executive.

This is like building political will for US intervention in the Natalle Holloway case in Aruba.  Or the kid who was sentenced to caning in Singapore.  Or the US putting pressure on India about the dead Americans in the Mumbai bombing to permit the FBI to come over.