Second Circuit Hears Argument in Extraordinary Rendition Case

AM Law

December 10, 2008 8:00 AM

Posted by Daphne Eviatar

CORRECTION: The original post erroneously referred to the Eastern District of Virginia in the eighth graph below; the court is in fact the Eastern District of New York, as a reader pointed out to us.

In a long but lively en banc argument, the United States Court of Appeals for the Second Circuit Tuesday heard the case of Maher Arar, a Canadian citizen arrested in New York in 2002 and secretly sent to Syria for interrogation and torture.

Arar is the case that first brought to light the United States' program of "extraordinary rendition," by which U.S. authorities have sent detainees to other countries for interrogation, even though (or because) those countries are known to interrogate suspects under torture.

Georgetown Law Professor David Cole, arguing on behalf of the Center for Constitutional Rights, which represents Arar (with assistance on the brief from DLA Piper), made a vigorous case in the first hour of the argument that federal officials and the U.S. government are liable for damages under the Torture Victim Protection Act and under the 5th Amendment to the Constitution if Arar can prove his allegations that they conspired to keep him from seeing his lawyer and from accessing the US courts, and that they sent him to Syria to be tortured.

The defendants include former Attorney General John Ashcroft, former deputy AG Larry Thomson, the FBI, the INS, and the United States itself.

Cole described how 34-year-old Maher Arar, who was born in Syria but left at age 17, was changing planes at New York's John F. Kennedy Airport on his way home to Canada after visiting relatives in Tunisia. U.S. authorities, who suspected Arar of associating with Al Qaeda, first held him incommunicado in the United States for several days, denying him access to a lawyer or his family; they then flew him to Syria for interrogation, despite his protests that he'd be tortured if he was returned there. Indeed, he was. In Syria, he claims, he was held in a coffin-sized underground prison cell where he was severely beaten, whipped, and tortured into confessing to crimes he never committed. A year later, he was released without charge.

An investigation by the Canadian government later confirmed that there was no evidence linking Arar to Al Qaeda and that he had not assisted terrorism in any way.

After returning to Canada, Arar sued the United States government, with the help of the Center for Constitutional Rights in New York. At least four amicus briefs, including one by a group of retired federal judges represented by the Brennan Center for Justice and Paul, Weiss, Rifkind & Garrison, were filed on Arar's behalf.

In 2006, Arar's case was dismissed after the federal court in the Eastern District of New York accepted the Justice Department's argument that further investigation could harm national security, and because Arar was deported by immigration authorities and had failed to challenge his deportation in timely fashion-- notwithstanding that Arar wasn't allowed to see his lawyer, and also wasn't seeking entry into the U.S..

A three-judge panel of the Second Circuit affirmed the district court's ruling in June, holding that Arar had no cause for damages from federal officials for his treatment. In August, however, the full court of appeals made the highly unusual decision sua sponte to re-hear the case, suggesting that there are strong opinions and much disagreement among the judges.

That was borne out at the hearing yesterday afternoon. Held over two and a half hours before all 12 active judges of the circuit court, the appellate argument garnered so much public interest that both the courtroom and a separate overflow room were filled well before the starting time of 3:00 p.m. An animated panel questioned Cole about whether his claims on behalf of Arar wouldn't open the floodgates for damages claims by other aliens deported from the U.S., a concern that Cole, with the generous assistance of Judge Guido Calabresi, vigorously denied.

Jonathan Cohn, Deputy Assistant Attorney General in the Justice Department's civil division, represented Ashcroft and the United States. When he could get a word in among the barrage of questions fired at him from the judges, he insisted that no damages remedy can be implied in this situation, even if U.S. officials did conspire to have Arar tortured in Syria.

The plaintiff is "asking the court to recognize a cause of action that Congress did not create," Cohn said, an argument that seemed to get a sympathetic hearing from Judges Dennis Jacobs and Jose Cabranes. Cohn also strenuously argued that the case is inextricably intertwined with issues of national security and foreign policy, and therefore shouldn't be considered by the court--an argument that several judges greeted with great skepticism, particularly since they hadn't been given many of the facts upon which the government was relying. (At the end of the hearing, the court asked the government to produce an unredacted copy of a report by the Inspector General for the Department of Homeland Security about the Arar incident. The redacted report is available below for download.)

Ultimately, the case may boil down to a simple statement by Cole, which clearly disturbed at least some of the judges hearing it: "I don't see any reasonable argument that a federal official can torture somebody or outsource that torture to somebody else."

Although the case was submitted for decision by the Second Circuit, as one judge noted during the hearing, the new administration could reverse Justice's position on the matter after President-elect Barack Obama assumes office in January. That could reopen the case to yet another heated argument in the future.