Circuit Court: No damages for “rendition”
on Jun 30, 2008 at 6:30 pm
NOTE: The legal controversies arising out of the war-on-terrorism often lead to important tests of major Supreme Court precedents. The decision discussed here examines the scope of the Court’s 1971 decision in Bivens v. Six Unknown Federal Narcotics Agents, allowing money damage claims against federal officials for violating individuals’ constitutional rights.
A federal appeals court, in a major victory for federal officials in pursuing individuals suspected of terrorism, ruled on Monday that foreign nationals may not sue U.S. government officers for money damages for capturing them and sending them to foreign countries where they were tortured.
The decision by the Second Circuit Court in New York City, in a high-profile case seen as a significant legal test of the U.S. program of “special rendition,” also barred a claim specific to this case that U.S. officials seriously mistreated the detained individual while he remained in this country before being sent abroad involuntarily.
In both aspects of its rulings, the Circuit Court found it unnecessary to rule on the federal government’s claim that the case could not go forward in court because it would intrude on the “state secrets privilege” against disclosing classsified information.Â
Still, one of the key reasons the Court blocked a damages remedy was its concern that “adjudication of the claim at issue would necessarily intrude on the implementation of national security policies and interfere with our country’s relations with foreign powers.” In this case, it said, a court would have to probe the actions not only of the U.S. government, but of the governments of Canada, Jordan and Syria.
The decision, dividing the Circuit Court 2 to 1, came in the case of Arar v. Ashcroft, et al. (Circuit docket 06-4216). The opinion, along with the dissent, can be downloaded here. (The complete file is 104 pages.)
The damages lawsuit was filed by Maher Arar, a citizen both of Canada and of Syria and a resident of Ottawa, was traveling through the U.S. en route to Montreal on Sept. 26, 2002, when he was taken into custody at JFK Airport in the Queens borough of New York City. He was detained, apparently, on tips from Canadian officials that Arar had ties to the Al Qaeda terrorist network — a claim he has repeatedly denied.
After being interrogated by FBI agents, in harsh conditions, he contends, he was sent involuntarily to Syria — where he was born — over his objection that he would be tortured. He was flown to Amman, Jordan, and then taken to Syria, where he asserted he was held for ten months with repeated beatings and other forms of torture, until released to Canadian officials in December 2003. He later said that Syria interrogators were mainly interested in his associations with a man he regarded as a casual acquaintance.
Once freed, Arar sued former U.S. Attorney General John D. Ashcroft, former Deputy Attorney General Larry D. Thompson, then and current FBI Director Robert Mueller, and other U.S. officials. His lawsuit sought money damages for violations of his rights under a U.S. law against torture, and for violations of his Fifth Amendment due process rights for U.S. officials’ role in his mistreatment in the U.S. and for his torture in Syria. On these last counts, he sought to rely on the Supreme Court’s 1971 definition of a so-called “Bivens” damages remedy.
The Circuit Court rejected the claim based on the anti-torture law, finding that U.S. officials had no power under Syrian law so they were beyond the reach of that statute.
In the most important part of the ruling, written by Circuit Judge Jose A. Cabranes, the Court refused the Bivens claim, for two reasons: first, because Congress had provided an alternative remedy in a 1988 immigration law that allows an alien in the U.S. to challenge, during deportation proceedings, an order to send him to a country where torture was a prospect (but with no right to sue for damages), and, second, because of the “special factor” that such a damages lawsuit would introde on the Executive Branch’s functions in national security and foreign relations.
On the second point, the Circuit Court majority said “Arar effectively invites us to disregard the clear instructions of the Supreme Court by extending Bivens not only to a new contexst, but to a new context requiring the courts to intrude deeply into the national security policies and foreign relations of the United States.”
Arar’s claims, the Court said, would require courts to “probe deeply into the inner workings of the national security apparatus of at least three foreign countries, as well as that of the United States, in order to determine the basis for his alleged desgination as an Al Qaeda affiliate and his removal to Syria via Jordan despite his request to be removed to Canada.”
It noted that Canada, seeing a need to keep its secrets from disclosure at Arar’s behest, had agreed to pay him $11.5 million Canadian dollars (US $9.75 million) to withdraw a lawsuit he had filed in Canada.
If the Bivens claim against U.S. officials were to go forward in a District Court trial, the opinion said, “the effective functioning of U.S. foreign policy would be affected, if not undermined. For, to the extent that the fair and impartial adjudication of Arar’s suit requires the federal courts to consider and evaluate the implementation of the foreign and national security policies of the Unied States and at least three foreign powers, the ability of the federal government to speak with one voice to its overseas counterparts is diminished, and the coherence and vitality of U.S. foreing policy is called into question.”
The opinion noted that the Supreme Court, after creating a Bivens damages remedy for federal officials’ violations of an individual’s Fourth Amendment rights, had only exended that remedy to two kinds of claims: unequal treatment in federal employment (Davis v. Passman, 1979), and cruel and unusual punishment by federal prison officials (Carlson v. Green, 1980).
Congress, the majority said, could create a damages remedy against federal officials for the wrongs that Arar claims, but it has not done so and courts should thus be hesitant to step in and create one on their own.
Judge Cabranes’ opinion was joined by Senior Circuit Judge Joseph M. McLaughlin. Circuit Judge Robert D. Sack dissented on the rejection of the Bivens claim. He accused the majority of “mischaracterizing this as an immigration case, when it is in fact about forbidden tactics allegedly employed by United States law enforcement officers in a terrorism inquiry.”
