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“Rendition” is a buzz word, or, more properly curse word for the legal left and all others who disagree with President Bush’s war on terror. “Rendition” is the practice and process of sending suspected terrorists to other countries whose interrogation techniques are more robust than our own in order to extract information that may save the lives or our soldiers or our citizens here at home.
That’s what happened to a Syrian-Canadian citizen named Maher Arar traveling from Tunisia to Canada via New York’s JFK airport in September 2002, when his name appeared on a watch list. After being briefly incarcerated in New York, in October 2002 he was “rendered” to Syria, interrogated there, and released in 2003. Arar then surfaced in Canada and two years later sued in an American court.
Last month, United States District Judge David G. Trager (Eastern District of New York) threw out Arar’s suit principally on national security grounds, and with it blunted yet another of the legal-left’s attempts to undermine America’s efforts to defend itself against radical Islam. For his trouble, Judge Trager has been pilloried by the usual suspects, including the losing plaintiff’s America-hating lawyers at the Center for Constitutional Rights, the Village Voice’s Nat Hentoff, and the likes of Georgetown University Law Professor David Cole.
Because of the importance of the ruling, and because it has been and will continue to be deliberately distorted, I’m going to explain it at some length in order to set the record straight and arm those who may have to defend the ruling. Because the facts as alleged in the complaint are crucial to an understanding of Judge Trager’s rulings on the law relating to rendition, they are set forth here almost in their entirety. (Ellipses and asterisks indicate where irrelevant words and sentences have been removed.)
Maher Arar (“Arar” or “plaintiff”) is a 33-year-old native of Syria . . . . He is a dual citizen of Syria and Canada and presently resides in Ottawa. In September 2002, while vacationing with family in Tunisia, he was called back to work by his employer . . . . He purchased a return ticket to Montreal with stops in Zurich and New York and left Tunisia on September 25, 2002.
On September 26, 2002, Arar arrived from Switzerland at John F. Kennedy Airport (“JFK Airport”) in New York to catch a connecting flight to Montreal. Upon presenting his passport to an immigration inspector, he was identified as “the subject of a ... lookout as being a member of a known terrorist organization. . . . .” He was interrogated by various officials for approximately eight hours. The officials asked Arar if he had contacts with terrorist groups, which he categorically denied. Arar was then transported to another site at JFK Airport, where he was placed in solitary confinement. He alleges that he was transported in chains and shackles and was left in a room with no bed and with lights on throughout the night.
The following morning, September 27, 2002, starting at approximately 9:00 a.m., two FBI agents interrogated Arar for about five hours, asking him questions about Osama bin Laden, Iraq and Palestine. Arar alleges that the agents yelled and swore at him throughout the interrogation. They ignored his repeated requests to make a telephone call and see a lawyer. At 2:00 p.m. that day, Arar was taken back to his cell, chained and shackled and provided a cold McDonald's meal--his first food in nearly two days.
That evening, Arar was given an opportunity to voluntarily return to Syria, but refused, citing a fear of being tortured if returned there and insisting that he be sent to Canada or returned to Switzerland. An immigration officer told Arar that the United States had a “special interest” in his case and then asked him to sign a form, the contents of which he was not allowed to read. That evening, Arar was transferred, in chains and shackles, to the Metropolitan Detention Center (“MDC”) in Brooklyn, New York, where he was strip-searched and placed in solitary confinement. During his initial three days at MDC, Arar's continued requests to meet with a lawyer and make telephone calls were refused.
On October 1, 2002, the Immigration and Naturalization Service (“INS”) initiated removal proceedings against Arar, who was charged with being temporarily inadmissible because of his membership in al Qaeda, a group designated by the Secretary of State as a foreign terrorist organization. Upon being given permission to make one telephone call, Arar called his mother-in-law in Ottawa, Canada. Upon learning Arar's whereabouts, his family contacted the Office for Consular Affairs (“Canadian Consulate”) and retained an attorney, Amal Oummih, to represent him. The Canadian Consulate had not been notified of Arar's detention. On October 3, 2002, Arar received a visit from Maureen Girvan from the Canadian Consulate, who, when presented with the document noting Arar's inadmissibility within the U.S., assured Arar that removal to Syria was not an option. On October 4, 2002, Arar designated Canada as the country to which he wished to be removed.
On October 5, 2002, Arar had his only meeting with counsel. The following day, he was taken in chains and shackles to a room where approximately seven INS officials questioned him about his reasons for opposing removal to Syria. His attorney was not provided advance notice of the interrogation, and Arar further alleges that U.S. officials misled him into thinking his attorney had chosen not to attend. During the interrogation, Arar continued to express his fear of being tortured if returned to Syria. At the conclusion of the six-hour interrogation, Arar was informed that the officials were discussing his case with “Washington, D.C.” Arar was asked to sign a document that appeared to be a transcript. He refused to sign the form.
The following day (October 7, 2002), attorney Oummih received two telephone calls informing her that Arar had been taken for processing to an INS office at Varick Street in Manhattan, that he would eventually be placed in a detention facility in New Jersey and that she should call back the following morning for Arar's exact whereabouts. However, Arar alleges that he never left MDC and that the contents of both of these phone calls to his counsel were false and misleading.
That same day, October 7, 2002, the INS Regional Director, J. Scott Blackman, determined from classified and unclassified information that Arar is “clearly and unequivocally” a member of al Qaeda and, therefore, “clearly and unequivocally inadmissible to the United States”under 8 U.S.C. § 1182(a)(3)(B)(i)(V) [a federal statute]. * * * Based on that finding, Blackman concluded “that there are reasonable grounds to believe that [Arar] is a danger to the security of the United States.” * * *
At approximately 4:00 a.m. on October 8, 2002, Arar learned that, based on classified information, INS regional director Blackman had ordered that Arar be sent to Syria and that his removal there was consistent with Article 3 of the United Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (“CAT”). Arar pleaded for reconsideration but was told by INS officials that the agency was not governed by the “Geneva Conventions” and that Arar was barred from reentering the country for a period of five years and would be admissible only with the permission of the Attorney General.
Later that day, Arar was taken in chains and shackles to a New Jersey airfield, where he boarded a small jet bound for Washington, D.C. From there, he was flown to Amman, Jordan, arriving there on October 9, 2002. He was then handed over to Jordanian authorities, who delivered him to the Syrians later that day. At this time, U.S. officials had not informed either Canadian Consulate official Girvan or attorney Oummih that Arar had been removed to Syria. Arar alleges that Syrian officials refused to accept Arar directly from the United States.
Arar's Final Notice of Inadmissability (“Final Notice”) ordered him removed without further inquiry before an immigration judge. … According to the Final Notice: “The Commissioner of the Immigration and Naturalization Service has determined that your removal to Syria would be consistent with [CAT]….” It was dated October 8, 2002, and signed by Deputy Attorney General Larry Thompson. After oral argument on these motions to dismiss, in a letter dated August 18, 2005, counsel for Arar clarified that he received the Final Notice within hours of boarding the aircraft taking him to Jordan…..
During his ten-month period of detention in Syria, Arar alleges that he was placed in a “grave” cell measuring six-feet long, seven feet high and three feet wide. The cell was located within the Palestine Branch of the Syrian Military Intelligence (“Palestine Branch”). The cell was damp and cold, contained very little light and was infested with rats, which would enter the cell through a small aperture in the ceiling. Cats would urinate on Arar through the aperture, and sanitary facilities were nonexistent. Arar was allowed to bathe himself in cold water once per week. He was prohibited from exercising and was provided barely edible food. Arar lost forty pounds during his ten-month period of detention in Syria.
During his first twelve days in Syrian detention, Arar was interrogated for eighteen hours per day and was physically and psychologically tortured. He was beaten on his palms, hips and lower back with a two-inch-thick electric cable. His captors also used their fists to beat him on his stomach, face and back of his neck. He was subjected to excruciating pain and pleaded with his captors to stop, but they would not. He was placed in a room where he could hear the screams of other detainees being tortured and was told that he, too, would be placed in a spine-breaking “chair,” hung upside down in a “tire” for beatings and subjected to electric shocks. To lessen his exposure to the torture, Arar falsely confessed, among other things, to having trained with terrorists in Afghanistan, even though he had never been to Afghanistan and had never been involved in terrorist activity.
Arar alleges that his interrogation in Syria was coordinated and planned by U.S.officials, who sent the Syrians a dossier containing specific questions.
As evidence of this, Arar notes that the interrogations in the U.S. and Syria contained identical questions, including a specific question about his relationship with a particular individual wanted for terrorism. In return, the Syrian officials supplied U.S. officials with all information extracted from Arar; plaintiff cites a statement by one Syrian official who has publicly stated that the Syrian government shared information with the U.S. that it extracted from Arar. …
The Canadian Embassy contacted the Syrian government about Arar on October 20, 2002, and, the following day, Syrian officials confirmed that they were detaining him. At this point, the Syrian officials ceased interrogating and torturing Arar.
Canadian officials visited Arar at the Palestine Branch five times during his ten-month detention. Prior to each visit, Arar was warned not to disclose that he was being mistreated. He complied but eventually broke down during the fifth visit, telling the Canadian consular official that he was being tortured and kept in a grave.
Five days later, Arar was brought to a Syrian investigation branch, where he was forced to sign a confession stating that he had participated in terrorist training in Afghanistan even though, Arar states, he has never been to Afghanistan or participated in any terrorist activity. Arar was then taken to an overcrowded Syrian prison, where he remained for six weeks.
On September 28, 2003, Arar was transferred back to the Palestine Branch, where he was held for one week. During this week, he heard other detainees screaming in pain and begging for their torture to end.
On October 5, 2003, Syria, without filing any charges against Arar, released him into the custody of Canadian Embassy officials in Damascus. He was flown to Ottawa the following day and reunited with his family.
On the basis of these alleged facts, Arar sued named and unnamed members of the Department of Justice, Homeland Security, Immigration and Naturalization Service, Immigration and Customs Enforcement, and Federal Bureau of Investigation.
He alleged that his treatment—within the United States, upon being “rendered” from the United States to Syria, and there being tortured—violated two provisions of American law: a federal statute called the Torture Victim Prevention Act (TVPA), and the Fifth Amendment Clause (Due Process) of the United States Constitution.
Here we need to be very clear about what was not, and what was, before Judge Trager when the government moved to dismiss Arar’s complaint.
Not before him were the facts Arar had alleged, which the judge had to assume were true. Not before him was whether this country should facilitate, let alone engage in, the conduct Arar alleged. Not before him was the wisdom of whatever statutory and/or constitutional provisions might be applicable. Not before him was either concrete or ephemeral notions of “right and wrong,” “civilized or uncivilized behavior,” or “morality or immorality.” Not before him were issues of policy, which are the domain of Congress and its elected officials who are responsible to the electorate.
Remember that David G. Trager is a federal district judge He does not make the law. It is his sworn duty only to apply federal statutes and the Constitution and, if necessary, to interpret both—but not to make policy from the
Thus what was before Judge Trager, in his own words was this: “The questions presented by these motions are whether the facts alleged can give rise to any theory of liability under those provisions of law [the TVPA and the Fifth Amendment] and, if so, whether those claims can survive on prudential grounds in light of the national-security and foreign policy issues involved.” Not whether as a matter of policy Arar should have recourse, but whether American law as currently written gives Arar any recourse.
Arar’s complaint raised four claims:
First: Violation of the TVPA by the defendants “conspiring with and/or aiding and abetting Jordanian and Syrian officials to bring about his torture.”
Second: Violation of the Fifth Amendment because of the Syrian torture.
Third: Violation of the Fifth Amendment because of his detention and lack of access to counsel in Syria.
Fourth: Violation of the Fifth Amendment because of his treatment in the United States.
For relief on claims first, second, and third, Arar sought what’s called “declaratory judgments,” meaning that he was correct that under the facts as alleged the defendants violated his TVPA and Fifth Amendment rights. He sought on all four claims both compensatory and punitive damages.
Thus, in summary, the predicates of the case before Judge Trager were these:
- Arar alleged he had been denied Fifth Amendment rights because of his treatment in the United States, his rendition to Syria, and his treatment in Syria.
- Arar alleged that all or some of the foregoing violated his rights under the Torture Victim Prevention Act.
- All of these allegations had to be taken as true for purposes of the government’s motion to dismiss.
- For relief, Arar wanted compensatory and punitive damages on all four of his claims, and a declaratory judgment on his first three claims. Arar’s claims for declaratory judgments proved to be a tactical mistake, and they were the first to fall from Judge Trager’s application of settled law.
Before one can seek a declaratory judgment, Article III of the Constitution as interpreted by several decisions of the Supreme Court of the United States requires that he have “standing to sue”—(1) that he himself have suffered an injury to a specific legally protected interest, (2) that there be a causal connection between that injury and what the defendant did to him, and, most important to Arar’s complaint, (3) that it is “likely” the injury complained of will be “redressed by a favorable decision.”
Putting aside the first two requirements of standing to sue, Arar’s own complaint demonstrated that he failed to satisfy the third because, as Trager wrote,
his only continuing injury is a five-year bar to reentry [to the United States]….. Thus, any [declaratory] judgment declaring unlawful the conditions of his detention or his removal to Syria [as compared, for example, with a challenge to the order removing Asar from the United States, which he did not complain about] would not alter in any way his ineligibility to reenter this country. Consequently, Arar’s claim for declaratory relief fails to meet the [Supreme Court] requirement . . . that it be ‘”likely” as opposed to merely “speculative” that the injury—for these purposes, the bar to reentry—would be “redressed by a favorable decision.”
The bottom line for Arar’s three declaratory judgment claims: denied.
In making this ruling, Judge Trager was merely applying Supreme Court precedent, and his reasoning is unimpeachable. (He neatly distinguished a case decided in the United States Court of Appeals for the Second Circuit in which a deported alien, had, unlike Arar, challenged a removal order.)
That left Arar’s request for damages on his four remaining claims, which in turn depended on whether either the TVPA and/or the Fifth Amendment’s Due Process Clause afforded him any rights that our government had violated.
Trager turned first to the Torture Victim Protection Act.
A preliminary question was whether the act applied to “those who aid or abet, or conspire with, primary violators”—so called “secondary violators.” The government argued “no,” but Judge Trager ruled against it, relying largely on legislative history and a textual statutory interpretation. That meant that the United States defendants could be, but not necessarily were, liable for what the Syrians might have done to Arar.
Next came the TVPA’s requirement that the wrong allegedly done Arar was committed by the eighteen named and unnamed United States officials under “color of law of any foreign nation.” After an extensive and penetrating analysis of similar language in the civil rights statute (42 U.S.C. Section 1983), Judge Trager concluded that “the color of ‘foreign law’ requirement [of TVPA], combined with the intent by Congress to use the Torture Victim Protection Act as a remedy for U.S. citizens (emphasis added) subjected to torts [wrongs] committed overseas, strongly supports [the government’s] . . . claim that the Torture Victim Protection Act does not apply here.” In other words, because Arar had made no allegation that the United States defendants were acting under Syrian law (whatever else they may have done), and also because the TVPA sought to protect U.S. citizens, not aliens, from torture abroad, Arar’s TVPA claim was dismissed “with prejudice,” meaning it could not be brought again.
At this juncture it is worth repeating that none of Judge Trager’s rulings thus far even impliedly approved of the treatment Arar received in the United States or Syria, if indeed his story was true. Indeed, accepting them as true, following Supreme Court precedent Trager merely ruled (1) that Arar lacked standing to sue for a declaratory judgment because that relief would in no way redress what had happened to him in the United States and Syria, (2) that Arar’s own complaint failed to show that the government defendants acted under color of Syrian law, and (3) that the TVPA as a matter of statutory interpretation and legislative history did not apply to aliens suing in a federal court, no matter what may have befallen them in a foreign country.
That left Arar’s Fifth Amendment due process claims (second and third) for detention and torture in Syria.
The government argued forcefully that four federal statutes deprived the federal court of jurisdiction over Arar’s Fifth Amendment claim. In a lengthy analysis of those statutes and other court decisions, Judge Trager shredded the government’s arguments, concluding that none of the statutes “preclude a consideration of the merits of Arar’s alleged [Fifth Amendment] due process violations.”
Judge Trager’s opinion was now getting down to a fine point, rooted in a Supreme Court decision entitled Bivins v. Six Unknown Agents of Fed. Bureau of Narcotics. The Bivins case established “that the victims of a constitutional [e.g., Fifth Amendment due process] violation by a federal agent have a right to recover damages against the official in a federal court despite the absence of any statute conferring such a right.”
Taking Arar’s allegations as true for the purpose of the government’s motion to dismiss, at first look it would seem that he would have a viable Bivins claim. However, the Supreme Court has ruled that a Bivins remedy is not available when “‘special factors counseling hesitation’ are present.” One example is a situation where a particular issue is “best decided by coordinate branches of government.”
And now the nub of the matter.
The government made two arguments. One, which Judge Trager found “unpersuasive,” was that Arar had recourse under the Immigration and Nationality Act.
The second was that Arar’s case was subject to a Bivens exception “because the foreign policy and national-security concerns raised [by the Arar case] . . . are properly left to the political branches of government,” e.g., the President as Commander in Chief.
This argument Judge Trager found “compelling”—as is his analysis and his conclusion, which are the most courageous, albeit most vulnerable, parts of his lengthy opinion.
Perhaps realizing that his opinion would turn on the defensibility of this section, the judge began with a lengthy preamble about national security and foreign policy considerations:
Defendants [the government] next argue that this court should decline to extend a Bivens remedy in light of the national-security concerns and foreign policy decisions at the heart of this case. Such determinations, they claim, are uniquely reserved to the political branches of government and counsel against the extension of a damages remedy here….
This case undoubtedly presents broad questions touching on the role of the Executive branch in combating terrorist forces--namely the prevention of future terrorist attacks within U.S. borders by capturing or containing members of those groups who seek to inflict damage on this country and its people. Success in these efforts requires coordination between law-enforcement and foreign-policy officials; complex relationships with foreign governments are also involved. In light of these factors, courts must proceed cautiously in reviewing constitutional and statutory claims in that arena, especially where they raise policy-making issues that are the prerogative of coordinate branches of government.
A number of considerations must be noted here. First, Article I, Section 8 of the U.S. Constitution places the regulation of aliens squarely within the authority of the Legislative branch. Congress has yet to take any affirmative position on federal-court review of renditions; indeed, by withholding any explicit grant of a private cause of action [a claim] under the Torture Victim Protection Act to plaintiffs like Arar, or to any plaintiff under [another federal statute] . . . , the opposite is the more reasonable inference.
Second, this case raises crucial national-security and foreign policy considerations, implicating “the complicated multilateral negotiations concerning efforts to halt international terrorism….” The propriety of these considerations, including supposed agreements between the United States and foreign governments regarding intelligence-gathering in the context of the efforts to combat terrorism, are most appropriately reserved to the Executive and Legislative branches of government. Moreover, the need for much secrecy can hardly be doubted. One need not have much imagination to contemplate the negative effect on our relations with Canada if discovery were to proceed in this case and were it to turn out that certain high Canadian officials had, despite public denials, acquiesced in Arar's removal to Syria. More generally, governments that do not wish to acknowledge publicly that they are assisting us would certainly hesitate to do so if our judicial discovery process could compromise them. Even a ruling sustaining state-secret-based objections to a request for interrogatories, discovery demand or questioning of a witness could be compromising. Depending on the context it could be construed as the equivalent of a public admission that the alleged conduct had occurred in the manner claimed--to the detriment of our relations with foreign countries, whether friendly or not. Hence, extending a Bivens remedy “could significantly disrupt the ability of the political branches to respond to foreign situations involving our national interest…..” It risks “produc[ing] what the Supreme Court has called in another context ‘embarrassment of our government abroad’ through ‘multifarious pronouncements by various departments on one question…..’” As the Supreme Court recently noted, “[r]emoval decisions, including the selection of a removed alien's destination, ‘may implicate our relations with foreign powers’ and require consideration of ‘changing political and economic circumstances…..’”
The Supreme Court has further noted that “any policy toward aliens is vitally and intricately interwoven with contemporaneous policies in regard to the conduct of foreign relations, the war power, and the maintenance of a republican form of government. Such matters are so exclusively entrusted to the political branches of government as to be largely immune from judicial inquiry or interference…..”
Third, with respect to these coordinate branch concerns, there is a fundamental difference between courts evaluating the legitimacy of actions taken by federal officials in the domestic arena and evaluating the same conduct when taken in the international realm. In the former situation . . . judges have not only the authority vested under the Constitution to evaluate the decision-making of government officials that goes on in the domestic context, whether it be a civil or a criminal matter, but also the experience derived from living in a free and democratic society, which permits them to make sound judgments. In the international realm, however, most, if not all, judges have neither the experience nor the background to adequately and competently define and adjudge the rights of an individual vis-à-vis the needs of officials acting to defend the sovereign interests of the United States, especially in circumstances involving countries that do not accept our nation's values or may be assisting those out to destroy us.
On a related point, despite plaintiff's counsel's contention to the contrary at oral argument, the qualified immunity defense, which works effectively in the domestic sphere to protect officials in the performance of their duties, is not a sufficient protection for officials operating in the national-security and foreign policy contexts. This is because the ability to define the line between appropriate and inappropriate conduct, in those areas, is not, as stated earlier, one in which judges possess any special competence. Moreover, it is an area in which the law has not been developed or specifically spelled out in legislation. Nor can we ignore the fact that an erroneous decision can have adverse consequences in the foreign realm not likely to occur in the domestic context. For example, a judge who, because of his or her experience living in the community, rejects a police claim that a certain demonstration is potentially violent and, as a result, allows the demonstration to proceed over the objections of these law-enforcement officials faces a much smaller risk that this decision will result in serious consequences even if, with the benefit of hindsight, his or her judgment turns out to be wrong. On the other hand, a judge who declares on his or her own Article III authority that the policy of extraordinary rendition is under all circumstances unconstitutional must acknowledge that such a ruling can have the most serious of consequences to our foreign relations or national security or both.
Accordingly, the task of balancing individual rights against national-security concerns is one that courts should not undertake without the guidance or the authority of the coordinate branches, in whom the Constitution imposes responsibility for our foreign affairs and national security. Those branches have the responsibility to determine whether judicial oversight is appropriate. Without explicit legislation, judges should be hesitant to fill an arena that, until now, has been left untouched--perhaps deliberately--by the Legislative and Executive branches. To do otherwise would threaten “our customary policy of deference to the President in matters of foreign affairs….” In sum, whether the policy be seeking to undermine or overthrow foreign governments, or rendition, judges should not, in the absence of explicit direction by Congress, hold officials who carry out such policies liable for damages even if such conduct violates our treaty obligations or customary international law.
What, then did Judge Trager’s views mean for whether to recognize a Bivens exception to Arar’s second and third claims for what allegedly happened to him in Syria?
“For these reasons,” Trager wrote, consistent with applicable Supreme Court
precedents, “I conclude that a remedy under Bivens for Arar's alleged rendition to Syria is foreclosed .” There is an exception, and so there would be no remedy under Bivins. Accordingly, Judge Trager dismissed Arar’s second and third claims.
That left only Arar’s fourth claim: the alleged Fifth Amendment due process violation for his detention within the United States.
As to that, Judge Trager recognized that the rights of an alien like Arar, not resident here but only passing through, are far from settled legally or constitutionally, though a consensus seems to exist that they have some rights—at a minimum, according to one court, the right to be free from “gross physical abuse.”
Because Arar’s complaint, construed in a light most favorable to his claim, alleged such a possible due process violation, Trager let that claim stand—but only subject to Arar repleading his “gross physical abuse” allegations more specifically, and actually naming the defendants who were personally involved in the alleged violation of his due process rights.
What happens next in the Arar case is a tactical question for Arar’s counsel and their backers. If the CCR lawyers are smart, they will walk away from Judge Trager’s dismissal of their client’s “Syria rendition” claims, swallowing the judge’s decision because it was rendered (no pun intended) in only one of scores of federal district courts in the United States, and thus has no wider precedential effect.
On the other hand, if the Center for Constitutional Rights does not walk away, and instead takes the “Syria rendition” issue to the Court of Appeals and ultimately to the Supreme Court, they may lose much more than they have already. They may find that the Court of Appeals and the Supreme Court agree with Judge Trager’s well-reasoned, eminently defensible opinion that found that national security considerations trump an otherwisearguable Bivins claim.
No matter what the legal-left does next, all Americans owe Judge David G. Trager a debt of gratitude for his understanding and appropriate application of the Constitution of the United States, and his recognition of the threat to our nation posed by radical Islam.
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