Circuit rejects Syrian rendition/torture claim

The War on Terror continues to produce contentious but interesting rulings from the Second Circuit. Today, over a lengthy dissent by Judge Sack, the Court of Appeals holds that a dual citizen of Syria and Canada cannot sue American officials for constitutional violations flowing from their decision to remove him to Syria after denying him entry to this country because of his alleged ties to al Qaeda.

The case is Arar v. Ashcroft, decided on June 30. As Judge Cabranes writes for the majority, "Arar alleges that [defendants] mistreated him while he was in the United States and then removed him to Syria with the knowledge or intention that he would be detained and tortured there."

The claim under the Torture Victims Protection Act fails because, while he alleges that defendants removed him to Syria with the knowledge or intention that Syrian authorities would interrogate him under torture and that defendants also gave Syrian authorities information about him and suggested subjects for Syrian authorities to interrogate him about, the plaintiff does not contend "that defendants possessed any power under Syrian law, that their allegedly culpable actions resulted from the exercise of power under Syrian law, or that they would have been unable to undertake these culpable actions had they not possessed such power."

The plaintiff also cannot maintain a Bivens action against U.S. officials. A Bivens claim allows the victims of a civil rights violation to sue federal officials. But Bivens remedies are quite limited, as any experienced civil rights lawyer can tell you. One reason for this is that the Supreme Court instructs that Bivens claims must fail if there is another way for the plaintiff to gain relief, even if that relief is relatively limited. Here, the Immigration and Nationalization Act offers the plaintiff some relief. That kills the Bivens claim, which normally would provide for the full range of damages. While the plaintiff argues that federal officials interfered with his right to pursue relief under the INA, the Second Circuit adopts the reasoning of the Eighth Circuit in holding that, at best, the plaintiff can sue for a due process violation arising from that interference. But, the Court of Appeals is "reluctant to permit litigants to avoid congressionally mandated remedial schemes on the basis of mere allegations of official interference."

Another reason the plaintiff can't win is that a ruling in his favor would interfere with U.S. foreign policy and national security. Time and time again the courts have declined to entertain such claims for that reason. The Second Circuit reminds us: "The Supreme Court has observed on numerous occasions that determinations relating to national security fall within 'an area of executive action in which courts have long been hesitant to intrude.'” The crux of the Second Circuit's reasoning follows:

this suit arises from the Executive Branch’s alleged determination that (a) Arar was affiliated with Al Qaeda, and therefore a threat to national security, and (b) his removal to Syria was appropriate in light of U.S. diplomatic and national security interests. There can be no doubt that for Arar’s claims to proceed, he must 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 designation as an Al Qaeda affiliate and his removal to Syria via Jordan despite his request to be removed to Canada.

As any judicial inquiry into the plaintiff's claims would require the court to delve into national security issues and potentially disrupt the effective functioning of U.S. foreign policy, his claim must be dismissed.