Tuesday, July 01, 2008

Court rules rendition case not eligible for damages.

And the plaintiff does not look to be a very happy camper, does he?

The decision is seen as a significant legal test of the US program of "special rendition."

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.

Interrogated under "harsh conditions" sniff-sniff. Poor baby.

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 section 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.

It should be noted that Canada, in an attempt to keep it's investigative methods and procedures secret, paid this same joker $11.75 million Canadian to get him to withdraw his lawsuit against them. (Will this be something we start seeing here in the US as a result of Boumediene v. Bush? Count on it, possums.)

For his part, Arar is "lashing out in his outrage" against the court ruling and vows to pursue the case further. Just one more example of the litigation jihad as brought to you in part by the New York based Center for Constitutional Rights. (Umm. He holds dual Syrian and Canadian citizenship, guys - tell me again where it says in the US Constititution that Syri-Canadians are covered?)

"The court's 2-1 ruling is outrageous," Arar said in a statement shortly after the court announced its decision. "It basically legitimizes what was done to me, and permits the government to use immigration law as a disguise to send people to torture without regard for due process."

The court decision upheld a lower court's rejection of the case, but Arar's lawyers with the New York-based Center for Constitutional Rights said they will press on. "We're not going to let it end here," said Maria Lahood, listing options that include asking a wider group of judges with the same court to reconsider the decision or heading straight to the U.S. Supreme Court.

You'll be happy to know that in the meantime Maher Arar and his family remain on the US terror watchlist and you can read more on the opinion beneath the fold if you're interested.

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.”

Click below for more on the decisionThe 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 context, 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.”