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Terrorism and National Security Issues

     A trial court ruled that the federal government's "bulk data program" collection was an unlawful search under the Fourth Amendment. The program, started pursuant to the USA PATRIOT Act, under which Sec. 215 empowers the FBI to request, and the Foreign Intelligence Surveillance Court to enter, orders “requiring the production of any tangible things (including books, records, papers, documents, and other items) for an investigation . . . to protect against international terrorism.” The trial court enjoined the government from collecting the plaintiffs' call records, but the order was stayed pending appeal. The injunction was overturned on appeal, Two separate opinions of two of the appeals panel judges determined that the plaintiffs failed to show that they had a substantial likelihood of prevailing on the merits. One judge found that the plaintiffs barely met the requirements for standing by showing that it was possible, but not substantially likely, that their own call records were collected as part of the bulk telephony metadata program, but they had not met the higher burden of proof required for a preliminary injunction. The second judge's opinion found that the plaintiffs had failed to demonstrate a "substantial likelihood" that the government was collecting data from Verizon Wireless, the phone company they used, or that they suffered any "cognizable injury." Klayman v. Obama, #14-5004, 800 F.3d 559 (D.C. Cir. 2015).
     Muslim plaintiffs claimed that the New York City Police Department, since January of 2002, had carried out a secret program monitoring the lives of Muslims, as well as their businesses, houses of worship, organizations and schools both in New York and surrounding states such as New Jersey solely because they were Muslim. The program allegedly included the use of remote controlled surveillance cameras aimed at mosques and the sending of undercover officers into mosques, student organizations, businesses, and neighborhoods believed to be heavily Muslim. The plaintiffs argued that this falsely stigmatized Muslims as criminals who should be pervasively surveilled. Overturning a trial court dismissal of the lawsuit for lack of standing and failure to state a claim, a federal appeals court held that the allegations “tell a story in which there is standing to complain and which present constitutional concerns that must be addressed and, if true, redressed.” The court compared the alleged surveillance program to the situations faced by Japanese-Americans during World War II, Jewish-Americans during the Red Scare era, and African-Americans during the civil rights era. Claims in the case involved alleged violations of religious liberty under the First Amendment and equal protection violations based on intentional discrimination against a protected class. The court stated that the allegations raised a presumption of unconstitutionality that the city had an obligation to rebut. The plaintiffs' First Amendment religious freedom claims could also go forward. Hassan v. City of New York, #14-1688, 2015 U.S. App. Lexis 17776 (3rd Cir.).
    The plaintiff, a U.S. citizen, sued the FBI for violations of constitutional rights under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, claiming that FBI agents detained, interrogated, and tortured him over the course of four months in three countries in Africa. Upholding the dismissal of the lawsuit, the federal appeals court stated that when the actions occurred during a terrorism investigation, "special factors" required hesitation in allowing a Bivens lawsuit for money damages. Bivens actions are usually not favored in cases involving the military, national security, or intelligence gathering. Further, the U.S. Supreme Court had never “created or even favorably mentioned a nonstatutory right of action for damages on account of conduct that occurred outside the borders of the United States.” The issue of remedies involving matters of foreign policy and national security are usually left to the political branches of government. Meshal v. Higgenbotham, #14-5194, 2015 U.S. App. Lexis 18453 (D.C. Cir.).
     A federal appeals court held that a telephone metadata program under which the National Security Agency (NSA) collected in bulk "on an ongoing daily basis" the metadata associated with numerous phone calls made by and to Americans, was not authorized by Sec. 215 of the PATRIOT Act. The appeals court did not consider the constitutionality of the program or rule that a preliminary injunction was required, leaving it for the trial court on remand to consider the propriety of preliminary relief. The trial court had denied relef, holding that the plaintiffs were precluded from bringing suit against the federal government about this program, but there was a right of action under the Administrative Procedure Act, 5 U.S.C. Sec. 702. ACLU v. Clapper, #14-42, 2015 U.S. App. Lexis 7531 (2nd Cir.).
     A federal court ruled that the U.S. government's "no-fly" list, barring certain named people from flying as part of efforts to combat terrorism, violated the constitutional rights of a number of people on the list by depriving them of their constitutional right to travel while failing to provide them with an adequate means to challenge their inclusion on the list. There were 13 plaintiffs, including four military veterans. Latif v. Holder, #3:10-cv-00750, 2014 U.S. Dist. Lexis 85450 (D. Ore.).
     A federal appeals court has ordered the release of a redacted copy of a secret Justice Department memo providing a legal argument justifying a 2011 drone attack that killed a U.S. male citizen suspected of being an al Qaeda leader. The court found that there had been a waiver of secrecy and privilege under Exemption 5 of the Freedom of Information Act as to the content of the legal analysis by the Office of Legal Counsel (OLC)-DOD memorandum. This was the case because senior government officials assured the public that such targeted killings of U.S. citizens by drones abroad were lawful and that the OLC advice established the legal boundaries within which the government operated. The government had already made public a detailed analysis of nearly all the legal reasoning contained in the memo. There was no longer any logical or plausible way to argue that the disclosure of the redacted memo risked disclosing any military plans, intelligent activities, sources and methods, or foreign relations details. Some other documents were properly withheld because they were "pre-decisional" and informal, and some others were ordered to be submitted to the court for an in camera examination. New York Times Company v. U.S. Dept. of Justice, #13-422, 2014 U.S. App. Lexis 11733 (2nd Cir.).
     Six Muslim individuals and a number of Muslim-owned businesses, mosques, and a student organization claimed that the New York City Police Department's surveillance of the Muslim community in New Jersey following the attacks of September 11, 2001 violated the First and Fourteenth Amendment by targeting Muslims solely on the basis of their religion. The federal trial court dismissed the lawsuit. “The more likely explanation for the surveillance was a desire to locate budding terrorist conspiracies. The most obvious reason for so concluding is that surveillance of the Muslim community began just after the attacks of September 11, 2001. The police could not have monitored New Jersey for Muslim terrorist activities without monitoring the Muslim community itself.” The court also stated that, “Nowhere in the complaint do plaintiffs allege that they suffered harm prior to the unauthorized release of the documents by the Associated Press. This confirms that plaintiffs’ alleged injuries flow from the Associated Press’s unauthorized disclosure of the documents. The harms are not ‘fairly traceable’ to any act of surveillance.” An appeal in the case is expected. Hassan v. City of New York, #2-12-3401, 2014 U.S. Dist. Lexis 20887 (D.N.J.).
     A federal district court ruled that the Google search engine company must provide private user data to the FBI pursuant to 17 out of 19 properly issued National Security Letters (NSLs), despite the fact that there was no judicially issued warrant for the information. The judge requested more information on the remaining two NSLs. NSLs allow FBI officials to send secret requests for "name, address, length of service," and other account information to online companies, banks, and other businesses as long as there is relevance to a national security investigation.
In Re: National Security Letters, #C-13-80063, U.S. Dist. Ct. (N.D. Cal. May 28, 2013).
     A U.S. citizen who had been confined as an enemy combatant and his mother filed a federal civil rights lawsuit against a former deputy assistant U.S. attorney general, asserting claims for unlawful detention and abusive interrogation, including an assertion that he had been tortured. The defendant had essentially written legal memoranda presenting the case for detaining terrorism suspects, following the September 11, 2001 attacks, as enemy combatants, and using interrogation techniques considered controversial. The defendant was entitled to qualified immunity, as, at the time of the defendant's conduct, it was not clearly established that a suspected terrorist, who was not a criminal defendant or convicted prisoner, was entitled to the same constitutional rights as they had while in military custody by Presidential order. It was also not clearly established, at the time, that the interrogation techniques allegedly involved rose to the level of illegal torture. Padilla v. Yoo, #09-16478, 2012 U.S. App. Lexis 8934 (9th Cir.).
     A federal appeals court reversed a trial court decision denying a Malaysian professor the ability to go forward on her lawsuit seeking to have her name removed from a U.S. government "no fly" list and other terrorist watchlists. The court found that the plaintiff had standing to assert her claims challenging her name's placement on the lists, and had sufficient voluntary connections to the U.S. to assert First and Fifth Amendment claims although she lives outside the country, based on her prior studies here, and her previous intention to return to this country after presenting her research at a conference abroad. Ibrahim v. Dep't of Homeland Security, #10-15873, 2012 U.S. App. Lexis 2457 (9th Cir.).
      A federal appeals court ruled that residential telephone customers could proceed with their claims that the federal government, with the assistance of major telecommunications companies "engaged in widespread warrantless eavesdropping in the United States following the September 11, 2001, attacks," constituting a "communications dragnet of ordinary American citizens." The court found that the plaintiffs had made detailed allegations and claims of harm, that the claims were not barred by the "political question" doctrine, and that the fact that the claim of illegal wiretapping arose in the context of national security issues did not impose on the plaintiffs any heightened scrutiny requirement in terms of the details they had to provide in their complaint. Claim were asserted concerning alleged violations of the First Amendment right of association, violation of the Fourth Amendment, and violation of federal wiretapping and privacy laws. Jewel v. National Security Agency, #10-15616, 2011 U.S. App. Lexis 25951 (9th Cir.).
    The U.S. Supreme Court held that former Attorney General Ashcroft was entitled to qualified immunity in a lawsuit by a man detained after the events of 9/11/2001 under a federal material witness statute. The plaintiff claimed that the government had a policy of using this statute to detain innocent persons suspected of terrorism without charges.  The Court held that the objectively reasonable arrest and detention of a material witness pursuant to a validly obtained warrant cannot be challenged as unconstitutional on the basis of allegations that the arresting authority had an improper motive. Ashcroft did not violate clearly established law and thus is entitled to qualified immunity because, at the time of the arrest, not a single judicial opinion had held that pretext could render an objectively reasonable arrest pursuant to a material-witness warrant unconstitutional. Ashcroft v. al-Kidd, #10-98, 2011 U.S. Lexis 4021.
     By 6-3, the U.S. Supreme Court rejected a First Amendment challenge to a federal statute which criminalizes providing "material aid" to designated foreign terrorist organizations even when the aid provided is purportedly aimed at facilitating training for peacefully resolving conflicts or asserting human rights claims. “At bottom,” Chief Justice Roberts wrote for the majority, “plaintiffs simply disagree with the considered judgment of Congress and the executive that providing material support to a designated foreign terrorist organization — even seemingly benign support — bolsters the terrorist activities of that organization.” Holder v. Humanitarian Law Project, #08-1498, 2010 U.S. Lexis 5252.
      A Pakistani Muslim was arrested on suspicion of terrorist activity by federal agents following the September 11, 2001 terrorist attack and detained in restrictive conditions. He filed a federal civil rights action against a number of federal officials, including the Attorney General and the F.B.I, director, claiming that he had been unjustly labeled a person of "high interest" because of his race, religion, or national origin. The lawsuit also objected to the arrest and detention of thousands of Arab Muslim men during the September 11th investigation, as well as to purportedly overly harsh conditions of confinement. The Court overturned the denial of the government's motion to dismiss the lawsuit, finding that there were insufficient facts pled to show purposeful and unlawful discrimination. There was no showing that the policy under which the plaintiff was detained was the product of discrimination. The Court noted that because the September 11th terrorist attacks were carried out by Arab Muslims, "it is not surprising" that a legitimate policy directing law enforcement to arrest and detain individuals because of their suspected link to the attacks would produce a disparate, incidental impact on Arab Muslims, even though the policy's purpose was to target neither Arabs nor Muslims. The Court stated that the appeals court below should determine whether the plaintiff should be allowed to amend his complaint. Ashcroft v. Iqbal, No. 07-1015, 2009 U.S. Lexis 3472.
    A man allegedly subjected to illegal wiretapping, physical surveillance, and placement on terrorist watch lists after telling an airline that it should screen everything to avoid the placement of bombs on airplanes could pursue Fourth Amendment, First Amendment, and privacy claims, as he sufficiently alleged that he suffered harm from these actions. Additionally, while 49 U.S.C. Sec. 46110(a) denied the court jurisdiction over claims concerning the Transportation Security Administration watch lists, it did not bar claims concerning the plaintiff's possible placement on other watch lists. Tooley v. Napolitano, No. 07-5080, 2009 U.S. App. Lexis 3252 (D.C. Cir.).
     Two long time friends of Arab ethnicity flying from San Diego to New York claimed that they were improperly seized after they got off the plane and confronted with shotguns and police dogs, after which they were placed in police station cells for four hours and questioned about alleged terrorist surveillance actions on the plane. No evidence of wrongdoing on their part was found, they stated. In a federal civil rights and Federal Tort Claims Act lawsuit against a police detective, an FBI agent, and two counter-terrorism agents, the court ruled that the plaintiffs' Arab ethnic origin could not be used, under the Fourth Amendment, as a factor in deciding whether their detention was justified, and that race can not be used to show criminal propensities. Farag v. U.S., Case No. 05-CV-3919, 2008 U.S. Dist. Lexis 95331 (E.D.N.Y.).
     A Malaysian Muslim in the U.S. on a student visa sought injunctive relief to remove her name from a "No-Fly" list. When she attempted to fly from California to Malaysia, the airline allegedly found her name on the government's No-Fly list, and a federal employee told local police to prevent her from flying and to detain her for interrogation, as well as to call the FBI. She was handcuffed and release after two hours. The next day, she was allowed to fly, but only after being subjected to "enhanced" searches. The court found that because placing the plaintiff's name on the No-Fly list was a result of an FBI order, and the FBI is not an agency named in 49 U.S.C. Sec. 46110 (requiring challenges to Transportation Security Administration orders, including the no-fly list, be filed in a federal appeals court, limiting the right to trial by jury), the trial court had jurisdiction to review the order to determine whether the inclusion of her name on the list violated her civil rights. While the Transportation Security Administration maintains the No-Fly list, according to the court, its compilation is handled by a branch of the FBI, the Terrorist Screening Center, which is not named in the statute as an agency whose orders have to be challenged only through proceedings in a federal appeals court. Other claims were dismissed, including a claim under 42 U.S.C. Sec. 1983, since none of the defendants acted under color of state law. Ibrahim v. Dept. of Homeland Security, No. 06-16727, 538 F.3d 1250 (9th Cir. 2008).
     The plaintiff, a U.S. citizen, went to Iraq to work on a documentary film, and was arrested and then detained in a U.S. military camp after washing machine timers were found in his taxi. Such timers, according to the court, are often used in explosive devices. He was allegedly held for 48 days before he was provided with a hearing before a military officers' panel, following which an investigation cleared him of criminal conduct. He was then released six days later. He sued two generals, a number of other unnamed defendants, and the former Secretary of Defense, claiming that his Fourth and Fifth Amendment rights were violated by these actions. The federal trial court ruled that the plaintiff was protected by the provisions of the Bill of Rights while overseas, but that the defendants could not be held liable. They were entitled to immunity as the prior clearly established case law concerning the right to a timely probable cause hearing concerned detainees on "non-hostile U.S. territory" rather than overseas. There was also no violation of his right to due process, since he received prompt notice of the charge against him. In the setting of a battlefield, the court commented, the government has a strong interest in providing for the safety of military personnel, and this took priority over the holding of a probable cause hearing under the circumstances. The lawsuit was dismissed. Kar v. Donald Rumsfeld, Civil Action No. 07-0984, 2008 U.S. Dist. Lexis 73974 (D.D.C.).
     A Malaysian Muslim student in the U.S. sought injunctive relief to remove her name from the Defendant's "No-Fly List," and also sought to challenge policies and procedures implementing that list. The plaintiff attempted to fly from San Francisco to Malaysia, but was barred from doing so when the airline found her name on the "No-Fly List" provided by the federal government. A federal employee allegedly told local police not only to prevent her from flying, but also to detain her for further questioning by the FBI. She was handcuffed and taken to a police station, and released two hours later. She was allowed to fly the next day, but only following detailed searches. A federal trial court dismissed her claims against the federal government and a federal employee, as well as those against an airline and an airline employee. A federal appeals court ruled that 49 U.S.C. Sec. 46110 stripped the trial court of jurisdiction over any claim the student might otherwise have had concerning government policies and procedures involved in the implementation of the "No-Fly List." Any claims under 42 U.S.C. Sec. 1983 were properly rejected because none of the defendants acted under color of state law. Individual capacity claims against the federal employee for violation of civil rights and state law claims, however, could go forward. Ibrahim v. Dept. of Homeland Security, No. 06-16727, 2008 U.S. App. Lexis 17572 (9th Cir.).
     New York appellate panel affirms a jury verdict that the Port Authority was more than two-thirds responsible for the 1993 terrorist bombing of the World Trade Center that killed six persons and injured more than a thousand. Nash v. Port Auth. of N.Y. & N.J., #129074/93, 2008 N.Y. App. Div. Lexis 374, 2008 NY Slip Op. 03991 (1st Dept.).
     Several U.S. domestic organizations claimed that they wished to provide support to "nonviolent and lawful" activities of foreign organizations designated as terrorist organizations by the U.S. government, and challenged the constitutionality of portions of the USA Patriot Act providing such support. The foreign organizations in question in the case are the Kurdistan Workers Party, aka Partiya Karkeran Kurdistan ("PKK"), and the Liberation Tigers of Tamil Eelam ("LTTE"). A federal appeals court found that provisions of the statute criminalizing the providing of training, expert advice or assistance to terrorist organizations was unconstitutionally vague and improperly chilled protected expressive activities, as well as providing criminal penalties without adequately defining what conduct was prohibited. These provisions could arguably be applied to protected free speech activities, the court stated. The court rejected, however, the plaintiffs' argument that similar prohibitions on providing "personnel" to such terrorist organizations was also vague, since there is a difference between constitutionally protected expression and unprotected actions or conduct. The court also upheld the criminalization of facilitating terrorist activities through supplying expertise in constructing explosive devices, supplying weapons, or providing money for terrorist activities. Humanitarian Law Project v. Mukasey, No. 05-56753, 2007 U.S. App. Lexis 28470 (9th Cir.).
     Sheriff's deputies believed that a parked car was "suspicious" because some boxes and a 5-gallon can could be seen within it. The vehicle was observed within days of some "controversial" international meetings being held in Miami, Florida at which political demonstrations were anticipated, the Free Trade Area of the Americas ("FTAA") ministerial hearings, in November 2003. Upon being informed of the vehicle by the deputies, the officer in charge of the city's bomb squad arrived on the scene and "rendered it safe" by destroying it. The officer, based on the circumstances, was entitled to qualified immunity and had at least "arguable" probable cause to take the actions he carried out. Claims against the city will proceed. Vogel v. City of Miami, No. 07-20436, 2007 U.S. Dist. Lexis 85438 (S.D. Fla.).
      The U.S. government has "plenary authority" to control entry into the country through the border, and also had statutory authority to detain and search five U.S. citizens, practicing Muslims with no criminal records, when they were returning from a Canadian Islamic conference. Additionally, intelligence the government had received that persons with known terrorist ties would be attending the conference provided the government with a compelling interest in preventing potential terrorists from entering the county. The searches, which took place at the border were not intrusive enough to violate the Fourth Amendment, and also did not violate the plaintiffs' constitutional or statutory rights to religious freedom. Tabbaa v. Chertoff, No. 06-0119, 2007 U.S. App. Lexis 27258 (2nd Cir.).
     Information concerning whether or not the plaintiff was listed in a Terrorist Screening Database (TSDB) maintained by the FBI was protected from disclosure under a privilege for law enforcement investigatory files. FBI's alleged surveillance of an Israeli native in the U.S. did not violate his First Amendment rights. FBI agents were also not liable for alleged harassment by his neighbors, who were under the mistaken belief that he was Iranian, and when there was no evidence that any FBI agent was aware of the plaintiff's particular political beliefs. Raz v. Mueller, No. CIV 02-5184, 389 F. Supp. 2d 1057 (W.D. Ark. 2005). [N/R]
     Information concerning the frequency and location of random searches of N.Y. subway riders' backpacks and containers were protected against discovery by a law enforcement privilege in a lawsuit challenging the city's program to carry out such searches. Macwade v. Kelly, No. 05 CIV.6921, 230 F.R.D. 379 (S.D.N.Y. 2005). [N/R]
     U.S. Supreme Court rules that foreign nationals detained in Guantanamo Bay, Cuba, captured in Afghanistan hostilities, have a right to access to U.S. courts to challenge the legality of their detention, and that U.S. citizen detained as an "enemy combatant" for allegedly fighting against the U.S. in Afghanistan, also had a due process right to access to a "neutral decision maker" to challenge the factual basis for his detention. In a third case involving a U.S. citizen detained as an "enemy combatant" on U.S. soil for alleged involvement in terrorist conspiracy, Court does not reach ultimate issues because of procedural defects in court filing. Rasul v. Bush, No. 03-334, 2004 U.S. Lexis 4760; Hamdi v. Rumsfeld, No. 03-6696, 2004 U.S. Lexis 4761; Rumsfeld v. Padilla, No. 03-1027, 2004 U.S. Lexis 4759. [N/R]
     Two Wisconsin inmates did not have standing to sue Middle Eastern nations such as Iran, Iraq, Syria, the Sudan, and Libya, and terrorist groups such as Al Qaida and the Taliban for millions of dollars in compensatory and punitive damages in a lawsuit filed with the purported intention of "lending a hand" in the war on terrorism. They had personally never been victims of terrorism and were "no more likely than the average American citizen to be victims of future attacks." George v. Islamic Republic of Iran, No. 02-3195, 63 Fed. Appx. 917 (7th Cir. 2003).[N/R]
     U.S. Attorney General John Ashcroft rules that illegal immigrants can be held indefinitely without bond if their cases present national security concerns. The opinion was requested by the Homeland Security Department, which now has authority over most immigration matters, after the Board of Immigration Appeals upheld a judge's decision to release a Haitian asylum-seeker on $2,500 bond. Ashcroft ordered that this decision be vacated, and that the asylum-seeker be denied bond and detained "pending appropriate disposition and proceedings respecting his status under the immigration laws." In Re: D-J-, Respondent, 23 I&N Dec. 572 (A.G. 2003). Interim decision #3448, April 17, 2003. [N/R]

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