Extraordinary Rendition Decision Places Executive Branch Above the Law

The New York Law Journal, in an excellent (and free!) article discusses an en banc decision by the Second Circuit Court of Appeals about the extraordinary rendition of a Canadian citizen in 2002. Mark Fass writes

The 7-4 majority held that the Canadian, Maher Arar, failed to state a claim under the Torture Victim Protection Act and that his remaining claims did not satisfy the test for "implied" constitutional causes of action under the 1971 U.S. Supreme Court decision in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388.

"Applying our understanding of Supreme Court precedent, we decline to create, on our own, a new cause of action against officers and employees of the federal government," Chief Judge Dennis G. Jacobs wrote in his 59-page majority opinion.

"Rather, we conclude that, when a case presents the intractable 'special factors' apparent here. . . it is for the Executive in the first instance to decide how to implement extraordinary rendition, and for the elected members of Congress—and not for us as judges—to decide whether an individual may seek compensation from government officers and employees directly, or from the government, for a constitutional violation."

In a statement yesterday, David Cole, the Georgetown University Law Center professor who argued Mr. Arar's appeal in cooperation with the Center for Constitutional Rights, said the ruling "effectively places executive officials above the law."

"This decision says that U.S. officials can intentionally send a man to be tortured abroad, bar him from any access to the courts while doing so, and then avoid any legal accountability thereafter," he said. "It effectively places executive officials above the law, even when accused of a conscious conspiracy to torture."

The facts of the case were laid out in great detail in the New Yorker story in February 14, 2005, 'Outsourcing Torture, the secret history of America's "extraordinary rendition" program,' by Jane Mayer. The case is officially styled Arar v. Ashcroft, and the documents are posted at Center for Constitutional Rights here, along with a description of the case and links to videos from CNN, CSpan, YouTube, audio from NPR and links to articles from the New York Times. There is also a nice timeline which simplifies the story, which can be confusing in the more emotionally fraught full stories.

The decision from the Court of Appeals is posted here as a single PDF document, but there is a majority opinion, and then a series of separate opinions and dissents totally 124 pages, according to the New York Law Journal. Be sure to watch for Guido Calabresi's dissent:

"In its utter subservience to the executive branch, its distortion of Bivens doctrine, its unrealistic pleading standards, its misunderstanding of the [Torture Victim Protection Act] and of §1983, as well as in its persistent choice of broad dicta where narrow analysis would have sufficed, the majority opinion goes seriously astray," Judge Calabresi wrote. "It does so, moreover, with the result that a person—whom we must assume (a) was totally innocent and (b) was made to suffer excruciatingly (c) through the misguided deeds of individuals acting under color of federal law—is effectively left without a U.S. remedy." (snip)

"[B]ecause I believe that when the history of this distinguished court is written, today's majority decision will be viewed with dismay, I add a few words of my own, 'more in sorrow than in anger,'" he wrote, quoting Act I, Scene 2, of "Hamlet."

"[The majority] has engaged in what properly can be described as extraordinary judicial activism. It has violated long-standing canons of restraint that properly must guide courts when they face complex and searing questions that involve potentially fundamental constitutional rights. It has reached out to decide an issue that should not have been resolved at this stage of Arar's case."

Mr. Arar released a statement through the Center for Constitutional Rights.

"After seven years of pain and hard struggle it was my hope that the court system would listen to my plea and act as an independent body from the executive branch," Mr. Arar said. "Unfortunately, this recent decision and decisions taken on other similar cases, prove that the court system in the United States has become more or less a tool that the executive branch can easily manipulate through unfounded allegations and fear mongering. If anything, this decision is a loss to all Americans and to the rule of law."

(quote from the New York Law Journal article). Check here for the press release from the Center for Constitutional Rights, which is representing Mr. Arar.

Image of Mr. Arar is from the BBC News website reporting here on the U.S. court rejecting Mr. Arar's claim.