In a rare en banc ruling, the Second Circuit has held that a foreign national whom the United States shipped to Syria to be tortured under the "extraordinary rendition" program cannot sue the U.S. government for civil rights violations. In the 7-4 decision, the Court of Appeals cites executive authority and national security concerns in declining to extend Bivens liability in this context.
The case is Arar v. Ashcroft, decided on November 2. This case was originally decided by the Court of Appeals last year, 532 F.3d 137 (2d Cir. 2009), when a three-judge panel ruled against Arar. The full Court of Appeals (11 judges) took up the case.
Full court review by the Second Circuit is almost as rare as a court finding Bivens liability, named after a 1971 Supreme Court case which held that federal officials may be sued for civil rights violations. But as the Court notes in this case, the Supreme Court rarely authorizes Bivens cases, usually finding either that the plaintiff has other ways to gain relief or that "special factors counsel hesitation" in creating a new right. In fact, the Supreme Court has only twice authorized a Bivens case. The Second Circuit is not about to open that door in a case like this.
The seven judges who ruled against Arar find that he cannot sue the U.S. government for sending him to Syria for torture. (Arar, a Syrian and Canadian citizen, was accused of having terrorist ties). Since Congress has not authorized lawsuits for this violation, the courts can only do so under special circumstances. Chief Judge Jacobs emphasizes that this case is inappropriate for judicial review because such a case "would have the natural tendency to affect diplomacy, foreign policy, and the security of the nation." Among other particulars, the Court says that this case would enmesh the courts in American foreign policy, a field in which the courts lack expertise. This case would also probe governmental secrets, drag foreign governments into the mix, intrude on presidential authority, implicate classified information and force the government to settle the case in order to avoid these problems, opening the door to "graymail," a term of art which means the government pays money to the plaintiff to protect classified information.
The four judges in dissent have turned in strong opinions on the other side. Judge Parker points out that the Convention Against Torture makes it illegal for the government to use torture in any circumstance, be it a state of war or political instability. Judge Parker's temperament is sober and measured, but in this case he decries "the miscarriage of justice that leaves Arar without a remedy in our courts" and says that sending a man to Syria to be tortured "shocks the conscience." He further criticizes the majority's rigid deference to the Executive Branch and points out that national security justifications often fall flat, i.e., the Pentagon Papers case and the Supreme Court's decisions upholding the Sedition Act of 1918 and the more recent prosecution of Jose Padilla. Recent Supreme Court reviewing policies at Guantanamo Bay also undercut the en banc majority's reluctance to interfere with Executive Branch authority.
Judges Sack, Pooler and Calabresi also file dissents. Quoting Hamlet, Judge Calabresi opens his by stating that "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.'"