Calabresi’s Dissenting View on Arar
As both Julian and Ken (at VC) have indicated that they believe Arar was rightly decided by the Second Circuit, it’s worth noting that Guido Calabresi — hardly a flaming liberal — is dissenting in the case, describing the majority’s decision as “extraordinary judicial activism.” Scott Horton discusses Calabresi’s dissent — and notes that the majority decision is based on at least one fundamental and unforgivably sloppy mistake:
Typical of the care that went into the majority opinion is this passage: “Consider: should the officers here have let Arar go on his way and board his flight to Montreal? Canada was evidently unwilling to receive him.” Had Judge Jacobs, who wrote for the majority, bothered himself a bit with the record, he would have discovered that Canada confirmed it was willing to accept him home. Moreover, this is hardly a trivial error. The gravity of the government misconduct in this case comes from the decision to send Arar to Syria when he could have been returned to Canada, sent to Switzerland, or back to Tunisia, where he had been vacationing. He was sent to Syria for a reason, and that was torture.