Second Circuit Decides that Constitutional Rights Litigation Does Not Follow the Flag

by Julian Ku

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…

5 Responses

  1. Agree – if there were a case in this arena to go to the Supreme Court – this would have to be the one. It goes part and parcel with Judicial reaction to Executive overreach through torture with detainees. If Bivens can’t capture this, then it really is a pretty thin gruel.



  2. “implicating complex foreign affairs issues”

    What complex foreign affaris issues?

    The US government kidnapped Arar for the express purpose of having him tortured in Syria. Where is the complexity?

    Where are the foreign affairs issues?

    This was nothing but a crime in the same sense that a murder or rape is. To pretend that there is any legitimate consideration of “foreign affairs” here is simply dishonest.

    Are you claiming that any foreign government has the lawful authority to do to you what was done to Arar?

  3. What, deport him to a country he was a citizen of?

    Yes, yes I do believe they have the lawful authority.

  4. What, deport him to a country he was a citizen of?

    Yes, yes I do believe they have the lawful authority.

    Not in that way, and not for that purpose, they didn’t. In fact, they probably didn’t have any authority at all, considering Article 3 of the Convention against Torture.

    Didn’t Arar v. Ashcroft stand for the terrible proposition that to embarrasss the Executive by exposing its blatantly unlawful, not to mention stupid, behavior was to invite dismissal on national security grounds, of all things?

    How is that anything other than a complete rejection of all principles of judicial review and even the rule of law itself?

    Also, didn’t Arar v. Ashcroft gratuitously question the absoluteness of the prohibition of torture, by reading down Rochin v. California? The less said about that, the better. (Although I seem to remember some brilliant posts on Balkinization about the case)

  5. Let’s be honest, this treaty is already pretty much through the looking glass:

    “The Committee is of the view that the phrase “another State” in article 3 refers to the State to which the individual concerned is being expelled, returned or extradited, as well as to any State to which the author may subsequently be expelled, returned or extradited.”

    That being said, I sincerely doubt that Mr. Arar, prior to actually being tortured, would have succeeded on the merits of an Article 3 claim:

    “The author must establish that he/she would be in danger of being tortured and that the grounds for so believing are substantial in the way described, and that such danger is personal and present.”

    We’re looking at things from an Ex Post Facto approach here. It doesn’t seem to be a reasonable reading of the treaty to claim that because he was indeed tortured, the US is in breech of the treaty.

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