Monday, February 20, 2006

Court Dismisses Lawsuit Challenging "Extraordinary Renditions"

A New York federal court has dismissed the complaint by a Canadian who alleged he had been "rendered" to Syria by U.S. government officials in order to be tortured. Maher Arar had sued former U.S. Attorney General Ashcroft as well as a number of other U.S. officials alleging he has a right to damages under the Torture Victim Protection Act as well as for violations of his Fifth Amendment Due Process rights. The court, per Judge Trager, dismissed Arar's complaints on a variety of grounds.

(1) Arar's TVPA claim fails because the TVPA was intended to protect only U.S. citizens, U.S. officials here were not acting under the TVPA-required "color of foreign law" element, and because Congress has specifically refused to create a private right of action for complainants like Arar in other statutes.

(2) Arar's Due Process claims fail under an exception to the Bivens doctrine (which allows individual enforcement actions of constitutional violations). In cases implicating national security, courts may refuse to allow private enforcement actions of constitutional rights. As the court held:

[W]hether 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.

The Court also dismissed Arar's other claims stemming from his detention in the U.S. but he can replead them excluding the claims about rendition.

The Center for Constitutional Rights, who are Arar's attorneys, are obviously unhappy (see their reaction here) and plan to appeal. But I think Judge Trager's decision is well reasoned and thoughtful. It also is going to be difficult to reverse on appeal because he relied on fairly narrow grounds for his holdings. Still, CCR has a decent shot at getting Counts 2 and 3 reinstated. Those counts turn on the scope of an alien's constitutional rights and his ability to enforce them. This is relatively new stuff without lots of really binding precedent.

Whether CCR should win on appeal, however, is quite another question. I have to say that I'm a bit torn. The facts alleged by Arar here are quite compelling. If true, then it seems a true injustice if he can't get a remedy somewhere for what happened to him.

On the other hand, extending constitutional rights (and the right to sue to enforce those rights) to every nonresident alien outside the U.S. would be a momentous and potentially revolutionary move. Every U.S. agent or soldier operating abroad might have to provide Fifth Amendment Due Process rights to foreigners they encounter. While you might say, not a big deal. The Constitution follows the flag, etc. But just wait for that flood of litigation from Iraq and Afghanistan ...


Blogger randomopinion said...

So you're a bit torn? Uh, yes, if one goes around invading countries there is a chance of getting into some legal trouble, especially if you torture, kill, kidnap, etc. (or outsource - catchy word, isn't it - all of this) the inhabitants there, or elsewhere, as in the case you post on. But don't worry, I'm sure the "leading American scholar" in foreign relations war with whom you'll be teaching in a few hours at the American Enterprise Institute will find a *legal* way out of this mess. After all, he did have a hand in creating it. What goes around, comes around?

2/21/2006 5:23 AM  
Blogger David R. Amos said...

"Professor Ku teaches international, constitutional, and corporate law subjects. His main research interest is the intersection of international and domestic law."

Mr arar and his sneaky team of lawyers do not hold a candle to me and my complaints. Rest assured that something wicked always comes around sooner or later and I guess I am that man.I do stand at the intersection of international, corporate and domestic law and I play the wicked game of politics as well.
Need I say I love suing Yankee lawyers?
Google me an check my work as a Canadian Political Animal. Before he infers that I am a liar Professor Ku should check his email box at law school and study the work of a Yankee lawyer's worst nightmare. An ethical pigheaded layman who will never settle with crooks so that they may cover up public corruption can be somewhat formidable sometimes. EH? May I suggest that he does not delete this comment? I already saved the webpage thus his malicious arse would be showing if he does.Did I mention that I aam a hell of blogger whose is almost stricken or heavily edited? If I were truly a fool then why to the Feds do so?
Veritas Vincit
David Raymond Amos

9/30/2006 3:24 PM  
Blogger J&D said...








7/03/2009 10:33 AM  
Blogger ninest123 Ninest said...

ninest123 08.11
louboutin, nike free, burberry outlet online, michael kors outlet, burberry, nike outlet, louboutin shoes, ray ban sunglasses, chanel handbags, longchamp outlet, michael kors outlet, nike air max, ray ban sunglasses, tory burch outlet, coach outlet, replica watches, coach purses, polo ralph lauren outlet, michael kors outlet, tiffany jewelry, christian louboutin outlet, coach outlet, michael kors outlet, gucci outlet, prada outlet, longchamp outlet, tiffany and co, longchamp, oakley sunglasses, michael kors outlet, jordan shoes, kate spade handbags, polo ralph lauren outlet, true religion jeans, oakley sunglasses, nike air max, coach factory outlet, louboutin outlet, prada handbags, kate spade outlet, oakley sunglasses, michael kors

8/11/2015 2:45 AM  
Blogger ninest123 Ninest said...

new balance pas cher, nike air max, nike roshe run, hollister, michael kors, true religion jeans, north face, true religion jeans, lululemon, sac guess, timberland, longchamp pas cher, ray ban pas cher, sac longchamp, abercrombie and fitch, nike air max, air force, mulberry, burberry, nike free run uk, ray ban uk, lacoste pas cher, north face, ralph lauren uk, michael kors, nike blazer, true religion outlet, oakley pas cher, nike free, hogan, vans pas cher, hermes, air max, nike air max, air jordan pas cher, michael kors, ralph lauren pas cher, hollister pas cher, converse pas cher, tn pas cher, vanessa bruno, louboutin pas cher

8/11/2015 2:49 AM  
Blogger ninest123 Ninest said...

birkin bag, lululemon, timberland boots, nfl jerseys, baseball bats, celine handbags, babyliss, chi flat iron, mac cosmetics, nike air max, longchamp, ferragamo shoes, mont blanc, herve leger, insanity workout, vans shoes, ghd, iphone 6 cases, hollister, valentino shoes, hollister, reebok shoes, jimmy choo shoes, nike roshe, nike roshe, soccer jerseys, wedding dresses, mcm handbags, nike huarache, new balance, instyler, giuseppe zanotti, p90x workout, north face outlet, bottega veneta, abercrombie and fitch, north face outlet, oakley, soccer shoes, nike trainers, asics running shoes, beats by dre

8/11/2015 2:51 AM  
Blogger ninest123 Ninest said...

hollister, ugg boots uk, thomas sabo, ugg boots, lancel, uggs on sale, karen millen, links of london, ray ban, louboutin, ralph lauren, bottes ugg, converse outlet, ugg boots, replica watches, ugg boots, converse, gucci, toms shoes, hollister, coach outlet, nike air max, juicy couture outlet, ugg boots, ugg,uggs,uggs canada, supra shoes, ugg,ugg australia,ugg italia, vans, swarovski crystal, wedding dresses, swarovski, ugg pas cher, pandora charms, montre pas cher, marc jacobs, juicy couture outlet, pandora charms, pandora jewelry
ninest123 08.11

8/11/2015 2:53 AM  
Blogger 柯云 said...

oakley sunglasses wholesale
ugg boots sale
uggs on sale
ugg outlet
michael kors outlet
retro 11
michael kors handbags
discount ugg boots
cheap oakleys
uggs for sale
giuseppe zanotti outlet
ugg outlet store
ray-ban sunglasses
cheap oakley sunglasses
ugg boots sale
cheap uggs sale
louis vuitton purses
jordan 11s
oakley sunglasses wholesale
uggs for chea
louis vuitton handbags
the north face jackets
tods outlet store
louis vuitton outlet stores
hollister clothing
michael kors outlet
cheap toms shoes
gucci handbags
kids lebron shoes
uggs on sale
north face jackets
air max 95
coach factory outlet
rolex watches
uggs on sale
official coach factory outlet
louis vuitton outlet stores

12/22/2015 8:27 PM  

Post a Comment

<< Home