No Legal Remedy for Government-Arranged Torture of Innocent Travelers

On Monday the U.S. Court of Appeals for the 2nd Circuit rejected Maher Arar's attempt to hold federal officials responsible for his "extraordinary rendition." Arar, a Canadian telecommunications engineer, was detained during a 2002 layover in New York based on mistaken suspicions that he had ties to Al Qaeda. After holding him for two weeks, American officials shipped him off to Syria, where he was imprisoned for a year and tortured. The Canadian government, which supplied the erroneous information that led to Arar's detention and rendition, later cleared him of any involvement in terrorism and paid him $11 million in compensation and legal fees. In 2007 Secretary of State Condoleezza Rice, without exactly apologizing, acknowledged that the case was not "handled as it should have been." But according to the 2nd Circuit's ruling, Arar has no remedy under U.S. law for the violation of his rights.

The appeals court said Arar cannot sue under the Torture Victim Protection Act because it requires a showing that U.S. officials were acting "under the color" or foreign law; Arar's allegation that they conspired with Syrian officials to have him tortured, the seven-judge majority said, was not enough. The court also rejected Arar's claim that the Constitution itself (specifically, the Fifth Amendment's Due Process Clause) gives him a cause of action. Since 1971 the U.S. Supreme Court has allowed people to sue government officials for violations of their constitutional rights in certain circumstances even without explicit statutory authorization. But the 2nd Circuit said the foreign policy and national security issues associated with extraordinary rendition counseled against extending this principle, known as the Bivens doctrine, to cases like Arar's:

If a civil remedy in damages is to be created for harms suffered in the context of extraordinary rendition, it must be created by Congress, which alone has the institutional competence to set parameters, delineate safe harbors, and specify relief….When a case presents the intractable "special factors" apparent here…it is for the Executive in the first instance to decide how to implement extraordinary rendition, and for the elected members of Congress…to decide whether an individual may seek compensation from government officers and employees directly, or from the government, for a constitutional violation. 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.

Four dissenting judges criticized the majority's interpretation of the torture statute and its application of the Bivens doctrine. Judge Guido Calabresi faulted the court for addressing the Bivens claim at all, saying the constitutional question could have been avoiding by sending the case back to the district court for consideration of whether it is precluded by the "state secrets" doctrine:

A holding that Arar, even if all of his allegations are true, has suffered no remediable constitutional harm legitimates the Government's actions in a way that a state secrets dismissal would not. The conduct that Arar alleges is repugnant, but the majority signals—whether it intends to or not—that it is not constitutionally repugnant. Indeed, the majority expressly states that the legal significance of the conduct Arar alleges is a matter that should be left entirely to congressional whim.

The upshot of this decision, Calabresi said, is that "a person—whom we must assume (a) was totally innocent and (b) was made to suffer excruciatingly (c) through the misguided deeds of individuals acting under color of federal law—is effectively left without a U.S. remedy." He suggested that his colleagues allowed fear of terrorism to cloud their judgment:

When the history of this distinguished court is written, today's majority decision will be viewed with dismay…In calmer times, wise people will ask themselves: how could such able and worthy judges have done that?

The majority and dissenting opinions are here (PDF). I discussed Arar's experience in a 2006 column. More on the case here.