{"id":579,"date":"2009-12-01T09:35:48","date_gmt":"2009-12-01T16:35:48","guid":{"rendered":"http:\/\/www.harvardnsj.com\/?p=579"},"modified":"2009-12-01T09:35:48","modified_gmt":"2009-12-01T16:35:48","slug":"second-circuit-rules-victim-of-extraordinary-rendition-may-not-sue-american-officials","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/nsj\/2009\/12\/second-circuit-rules-victim-of-extraordinary-rendition-may-not-sue-american-officials\/","title":{"rendered":"Second Circuit Rules Victim of Extraordinary Rendition May Not Sue American Officials"},"content":{"rendered":"

By Jonathan Abrams, NSJ Staff Editor, HLS 2012<\/strong><\/p>\n

The Second Circuit ruled on November 2nd that Maher Arar, a Canadian citizen who claimed he was a victim of \u201cextraordinary rendition,\u201d may not sue American officials for damages because Congress has not authorized such suits.<\/p>\n

Mr. Arar was detained at Kennedy International Airport on September 26, 2002 on suspicion of ties to Al Qaeda.\u00a0 After thirteen days in U.S. custody he was flown to Jordan where he was handed over to Jordanian authorities.\u00a0 After being treated roughly, he was delivered to the custody of Syrian officials, who detained him for a year.\u00a0 He was held in an eighteen-square-foot cell and beaten repeatedly.<\/p>\n

Following his release in October 2003, Arar sued then-Attorney General John Ashcroft and other American officials for the injuries he suffered.\u00a0 The federal district court dismissed the appeal, and a sharply divided panel of the Second Circuit affirmed.<\/p>\n

The Second Circuit, sitting en banc<\/em>, affirmed<\/a> the panel\u2019s decision.\u00a0 Chief Judge Dennis Jacobs, writing for a seven-judge majority, declined to extend private rights of action against federal officials to the extraordinary rendition context.\u00a0 The Supreme Court, which first permitted federal officials to be sued for constitutional violations in Bivens v. Six Unknown Agents of Federal Bureau of Narcotics<\/em>, has held that the Bivens<\/em> remedy is not to be extended if \u201cspecial factors counsel hesitation.\u201d\u00a0 The Second Circuit found such special factors present.\u00a0 A lawsuit involving extraordinary rendition would force the court to enmesh itself in a policy that \u201caffects diplomacy, foreign policy and the security of the nation,\u201d areas that courts have traditionally left to the political branches.\u00a0 The court will not \u201ccreate, on our own, a new cause of action against officers and employees of the federal government,\u201d but instead it is up to Congress to create such rights.<\/p>\n

Four judges sharply dissented.\u00a0 Judge Barrington Parker took issue with the majority\u2019s view of the separation of powers.\u00a0 He said that in \u201ctimes of national stress and turmoil the rule of law is everything, our role is to defend the Constitution.\u00a0 We do this by affording redress when government officials violate the law, even when national security is invoked as the justification.\u201d\u00a0 Judge Guido Calabresi wrote that \u201cwhen the history of this distinguished court is written, today\u2019s majority decision will be viewed with dismay.\u201d<\/p>\n

Justice Sonia Sotomayor participated in the oral argument when she sat on the Second Circuit, but was elevated to the Supreme Court before the final decision was rendered.<\/p>\n","protected":false},"excerpt":{"rendered":"

By Jonathan Abrams, NSJ Staff Editor, HLS 2012 The Second Circuit ruled on November 2nd that Maher Arar, a Canadian citizen who claimed he was a victim of \u201cextraordinary rendition,\u201d may not sue American officials for damages because Congress has not authorized such suits. Mr. Arar was detained at Kennedy International Airport on September 26, 2002 on suspicion of ties to Al Qaeda.\u00a0 After thirteen days in U.S. custody he was flown to Jordan where he was handed over to Jordanian authorities.\u00a0 After being treated roughly, he was delivered to the custody of Syrian officials, who detained him for a […]<\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"site-sidebar-layout":"default","site-content-layout":"","ast-site-content-layout":"default","site-content-style":"default","site-sidebar-style":"default","ast-global-header-display":"","ast-banner-title-visibility":"","ast-main-header-display":"","ast-hfb-above-header-display":"","ast-hfb-below-header-display":"","ast-hfb-mobile-header-display":"","site-post-title":"","ast-breadcrumbs-content":"","ast-featured-img":"","footer-sml-layout":"","ast-disable-related-posts":"","theme-transparent-header-meta":"","adv-header-id-meta":"","stick-header-meta":"","header-above-stick-meta":"","header-main-stick-meta":"","header-below-stick-meta":"","astra-migrate-meta-layouts":"default","ast-page-background-enabled":"default","ast-page-background-meta":{"desktop":{"background-color":"var(--ast-global-color-5)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"ast-content-background-meta":{"desktop":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"jetpack_post_was_ever_published":false,"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[1],"tags":[],"class_list":["post-579","post","type-post","status-publish","format-standard","hentry","category-uncategorized"],"jetpack_featured_media_url":"","jetpack_shortlink":"https:\/\/wp.me\/peZtUX-9l","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/journals.law.harvard.edu\/nsj\/wp-json\/wp\/v2\/posts\/579","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/journals.law.harvard.edu\/nsj\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/journals.law.harvard.edu\/nsj\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/nsj\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/nsj\/wp-json\/wp\/v2\/comments?post=579"}],"version-history":[{"count":0,"href":"https:\/\/journals.law.harvard.edu\/nsj\/wp-json\/wp\/v2\/posts\/579\/revisions"}],"wp:attachment":[{"href":"https:\/\/journals.law.harvard.edu\/nsj\/wp-json\/wp\/v2\/media?parent=579"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/nsj\/wp-json\/wp\/v2\/categories?post=579"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/nsj\/wp-json\/wp\/v2\/tags?post=579"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}