(CN) – A Canadian engineer can’t sue the United States after he was mistaken for a terrorist in a New York airport and was handed over to Syrian authorities who allegedly interrogated him under torture, the 2nd Circuit ruled in a 7-4 decision.
In the majority opinion, Chief Judge Dennis Jacobs said it was up to the other branches of government to decide how to implement extraordinary rendition and whether an individual can sue the government or federal employees directly for any constitutional violations stemming from rendition.
“Administrations past and present have reserved the right to employ rendition, and not withstanding prolonged public debate, Congress has not prohibited the practice, imposed limits on its use, or created a cause of action for those who allege they have suffered constitutional injury as a consequence,” Jacobs wrote.
Maher Arar, a dual citizen of Syria and Canada, was detained in September 2002 while changing planes at Kennedy Airport after Canadian authorities tipped off U.S. officials that Arar was a member of al Qaida.
After spending 12 days in a detention center in Brooklyn, Arar was deported to Syria based on his alleged ties to a suspected terrorist.
U.S. immigration officials interviewed him without his attorney present and deemed him “clearly and unequivocally” a member of al Qaida, according to the ruling.
He was flown by private jet to Washington, D.C., and then to Jordan, where he was handed over to Syrian officials, despite his request to be deported to Canada. U.S. officials allegedly deported him without allowing him to speak with his attorney, family members or the Canadian consulate.
Arar said he was kept in a small underground cell for 10 months, and was beaten with a two-inch thick electric cable.
He claimed that U.S. officials conspired to send him to Syria in order to interrogate him under torture, and that the United States channeled questions through his Syrian interrogators and gleaned intelligence from the interviews.
After nearly a year, he was released without charges and returned to Canada.
Arar sued various federal officials, demanding damages for alleged violations of his rights under the Torture Victim Protection Act and the Fifth Amendment.
The district court dismissed his claims without prejudice and said he lacked standing to seek a declaration that the government had violated his “constitutional, civil, and human rights.”
In June 2008, a three-judge panel of the New York-based appeals court affirmed. A majority of the judges agreed to rehear the case, but ultimately held that Arar can’t seek damages from federal officials.
Without reaching the issues of qualified immunity or the state secrets privilege, the court upheld dismissal of the case based on the Supreme Court’s narrow application of the so-called Bivens remedy. A Bivens action allows an individual to collect damages from federal officers who commit constitutional violations.
“[T]he Supreme Court has warned that the Bivens remedy is an extraordinary thing that should rarely if ever be applied in ‘new contexts,'” Chief Judge Jacobs wrote. In the majority’s view, extraordinary rendition is just such a “new context.”
Arar’s complaint “explicitly targets the ‘policy’ of extraordinary rendition,” Jacobs added, and any decision by the courts would necessarily stir up diplomatic and national security concerns.
Bivens actions over extraordinary rendition would also make the government vulnerable to “graymail,” where the government would be forced to trade cash settlements or drop criminal charges for secrecy.
Judges Calabresi, Pooler, Sack and Parker dissented, writing separately to stress different aspects of their disagreement with the majority opinion.
Judge Robert Sack said the majority improperly tried to slice Arar’s complaint in two: claims for mistreatment in the United States and “claims for detention and torture in Syria.”
“Arar’s complaint of mistreatment sweeps more broadly than that,” Sack wrote, adding that a due process violation is not a “new context” for a Bivens action.
He also flipped the majority’s claim that allowing Arar to sue would unduly influence policy. “Civil rights actions influence policy: They make it more costly for executive officers to violate the Constitution,” Sack wrote.
Judge Barrington Parker said the majority departed from the Convention Against Torture, which states that “[n]o exceptional circumstances whatsoever … may be invoked as a justification of torture.”
He also rejected the majority’s repeated calls for “hesitation … whenever thoughtful discretion would pause even to consider” in decisions on Bivens actions.
“[B]ecause ‘thoughtful’ people, by definition, always ‘pause to consider,’ this approach would foreclose a damages remedy on account of the most fleeting and superficial of concerns,” Parker wrote.
In Judge Rosemary Pooler’s dissent, she argued that federal officials shouldn’t be given a pass simply because they weren’t the actual torturers.