Court Dismisses Lawsuit Challenging "Extraordinary Renditions"

A New York federal court has dismissed the complaint by a Canadian who alleged he had been “rendered” to Syria by U.S. government officials in order to be tortured. Maher Arar had sued former U.S. Attorney General Ashcroft as well as a number of other U.S. officials alleging he has a right to damages under the Torture Victim Protection Act as well as for violations of his Fifth Amendment Due Process rights. The court, per Judge Trager, dismissed Arar’s complaints on a variety of grounds.

(1) Arar’s TVPA claim fails because the TVPA was intended to protect only U.S. citizens, U.S. officials here were not acting under the TVPA-required “color of foreign law” element, and because Congress has specifically refused to create a private right of action for complainants like Arar in other statutes.

(2) Arar’s Due Process claims fail under an exception to the Bivens doctrine (which allows individual enforcement actions of constitutional violations). In cases implicating national security, courts may refuse to allow private enforcement actions of constitutional rights. As the court held:

[W]hether the policy be seeking to undermine or overthrow foreign governments, or rendition, judges should not, in the absence of explicit direction by Congress, hold officials who carry out such policies liable for damages even if such conduct violates our treaty obligations or customary international law.

The Court also dismissed Arar’s other claims stemming from his detention in the U.S. but he can replead them excluding the claims about rendition.

The Center for Constitutional Rights, who are Arar’s attorneys, are obviously unhappy (see their reaction here) and plan to appeal. But I think Judge Trager’s decision is well reasoned and thoughtful. It also is going to be difficult to reverse on appeal because he relied on fairly narrow grounds for his holdings. Still, CCR has a decent shot at getting Counts 2 and 3 reinstated. Those counts turn on the scope of an alien’s constitutional rights and his ability to enforce them. This is relatively new stuff without lots of really binding precedent.

Whether CCR should win on appeal, however, is quite another question. I have to say that I’m a bit torn. The facts alleged by Arar here are quite compelling. If true, then it seems a true injustice if he can’t get a remedy somewhere for what happened to him.

On the other hand, extending constitutional rights (and the right to sue to enforce those rights) to every nonresident alien outside the U.S. would be a momentous and potentially revolutionary move. Every U.S. agent or soldier operating abroad might have to provide Fifth Amendment Due Process rights to foreigners they encounter. While you might say, not a big deal. The Constitution follows the flag, etc. But just wait for that flood of litigation from Iraq and Afghanistan …