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2nd Circuit Denies Torture Victim's Claim Over Rendition
Case seen as harbinger for rights of terror suspects sent via 'extraordinary rendition' to foreign jurisdictions and subjected to torture since 9/11 attacks
New York Law Journal
November 03, 2009
A Canadian engineer who claims he was sent by the United States to Syria to be tortured in 2002 cannot sue U.S. officials in federal court, the 2nd U.S. Circuit Court of Appeals said Monday in an in banc ruling.
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 Monday, David Cole, the Georgetown University Law Center professor who argued 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."
In June 2008, a three-judge 2nd Circuit panel found the district court had personal jurisdiction over the defendants but found Arar failed to state his claims under the torture act. A split panel dismissed his Bivens claims.
Monday's in banc decision affirmed a February 2006 ruling by Eastern District of New York Judge David Trager, which dismissed the complaint.
Judges Joseph M. McLaughlin, Jose A. Cabranes, Reena Raggi, Richard C. Wesley, Peter W. Hall and Debra Ann Livingston joined the majority.
Four judges -- Guido Calabresi, Rosemary S. Pooler, Robert D. Sack and Barrington D. Parker -- dissented, each writing a separate opinion and joining the other three dissents. The dissents totaled 124 pages.
"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," 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."
The case, Arar v. Ashcroft, 06-4216-cv, is considered by many to be a harbinger for the legal rights of terror suspects sent via "extraordinary rendition" to foreign jurisdictions and subjected to torture since the Sept. 11, 2001, attacks.
According to Arar's complaint, while on vacation in Tunisia in September 2002, he was called back to Montreal by his employer, a Massachusetts software developer and supplier. After changing planes at John F. Kennedy International Airport, Arar was held for 12 days in U.S. custody on the basis of a warning from Canadian authorities that he was a member of al-Qaida. He was then sent to Syria to be interrogated and tortured by Syrian officials.
