Last week the 2nd Circuit sua sponte decided to rehear en banc its decision in the Arar case. (For you non-lawyers/non-Latin speakers, that means it decided on its own to rehear the case with all judges participating rather than the panel of 3 that originally heard the case.) Arar is a Canadian citizen who was detained by U.S. authorities at JFK airport while flying back to Canada from Tunisia by way of Switzerland, then shipped off to Syria to be tortured. (The Canadian government was complicit as well but that is the subject of separate proceedings in Canada.) He sued a number of U.S. government officials for damages, but for a variety of fairly complex reasons, the 2nd Circuit panel denied him relief.
Judge Sack, dissenting, took issue with the majority's reasoning on one point: that there was no jurisdiction because the alleged wrongful acts did not take place inside the U.S. As the majority noted, to the extent that the alleged wrongful act was Arar's removal from the U.S., a federal statute appears to bar jurisdiction over lawsuits challenging any "action taken or proceeding brought to remove an alien from the United States." But Judge Sack thought (and I agree) that that provision is about judicial review of deportation proceedings and therefore doesn't apply to a challenge to extraordinary rendition where the challenge asserts that in effect the U.S. officials, acting in the U.S., ordered Arar's torture by their (Syrian) agents. (Footnote: Apparently the U.S. policy of not dealing with Syria only applies to peace negotiations.)
On the merits, it's not clear what the right result is in this case, viewed as a matter of technical legal doctrine. But it does seem that if there is a general lesson in the Supreme Court's Gitmo decisions, it's this: Core rights such as the right to freedom from detention (and by extension the right against torture), cannot be defeated by jurisdictional games that treat actions taken by U.S. officials in places entirely controlled by the U.S. as though they fall outside the zone of legal protection. It's probably true, as the panel majority said in Arar, that Congress could either provide for or eliminate a private right of action for people in Arar's circumstances (although some of us, following the late great Henry Hart, think that the complete elimination of all remedies for outrageous violations of constitutional rights would itself raise constitutional questions), but that doesn't mean that the courts should let Congress off the hook. If Congress wants to say that extraordinary rendition is legal, it should have to say that expressly.
Posted by Mike Dorf