Second Circuit Decides that Constitutional Rights Litigation Does Not Follow the Flag
The U.S. Court of Appeals for the Second Circuit has rejected an appeal by Maher Arar, a Canadian national who is suing various U.S. government officials for injuries suffered during his “extraordinary rendition” shortly after 9/11 (h/t to Vince Vitowsky). The court, via Judge Jose Cabranes, held that Arar had failed to state a claim under the Torture Victim Protection Act and the Fifth Amendment of the U.S. Constitution, and that to the extent he had stated a constitutional claim, the court refused to create a cause of action in a case implicating foreign affairs and national security issues.
In essence, the majority followed the logic of the lower court (which I applauded at length here) by refusing to create a cause of action for a foreign national in a case implicating complex foreign affairs issues absent clear congressional authorization. It further held that Arar’s confinement in the United States did not state a claim for violation of the Fifth Amendment Due Process Clause since it did not amount to gross physical abuse.
As I have stated before, this case is a tough one. Almost all the evidence I’ve seen points to Arar’s blamelessness and to serious mistakes by the U.S. and Canadian governments. On the other hand, Bivens, which is the doctrine allowing courts to create a cause of action to recover damages for violations of constitutional right, is supposed to be used sparingly, especially in cases involving activities overseas and implicating foreign relations. I side with the majority on this prudential conclusion, but I do understand the temptation of the dissenting judge to give Arar the chance to get some relief for the horrors he appears to have suffered.
The majority and dissent got a little punchy in this opinion, which suggests the judges had some serious disagreements and that they see a cert petition to the Supreme Court in their near future. I think this case has a good chance to get to the Court given the astonishing facts and the unsettled nature of the law. Something to stay on top of…