Arar “Rendition” Suit Dismissed by Second Circuit

Maher Arar, a Canadian who was detained by the U.S. and the subject of an “extraordinary rendition” to Syria, has lost his bid to maintain his lawsuit in U.S. courts.  By a 7-4 vote, the U.S. Court of Appeals for the Second Circuit, sitting en banc, has voted to dismiss his suit against U.S. government officials for alleged violations of his constitutional rights (opinion can be read here).  The majority held that it should not create a cause of action for a violation of constitutional rights (a “Bivens” action) due to the “special factors” present in this case. Such special factors include the affect of private suits on the conduct of foreign policy and national security. Instead, the court says that such private causes of action should only be allowed if Congress does so by statute.   Essentially, the full court seems to have endorsed the panel appellate opinion and district court opinion in this case on this question.  And, although this is a close and agonizing case, I think this is the right call, as I explained when the panel opinion came down and a few years ago in the context of the original district court case back in 2006.