Wednesday, May 12, 2010

Government Urges Judicial Restraint in Rendition Case

The Obama Administration filed a brief urging the Supreme Court to reject a petition to hear Maher Arar's case seeking damages for alleged extraordinary rendition and torture.  Thanks to Lyle Denniston at SCOTUSblog for the link to the brief.  We previously posted on Arar's cert. petition here.

The case, Arar v. Ashcroft, involves Maher Arar's claim against former AG John Ashcroft and others for their roles in his alleged extroarindary rendition to Syria and torture in violation of the Convention Against Torture (CAT) and the Torture Victims Protection Act (TVPA).  The en banc Second Circuit rejected Arar's claims, refusing to create a new Bivensremedy for alleged violations of the CAT, holding that the TVPA does not apply to U.S. officials acting under U.S. law, and ruling that Arar's claim that he was denied access to the courts while held within the United States was insufficiently detailed.

The administration (in a brief filed by Acting Solicitor General Neal Katyal, and not Elena Kagan, who, because of her nomination to the Court, has apparently taken herself out of SG briefing) argued narrowly in support of the Second Circuit's ruling and against cert.  The administration focused primarily on the Bivens remedy and the separation-of-powers considerations counselling against a new cause of action--that the courts are ill-equipped to rule on, and second guess, the political branches in foreign affairs and national security.  Katyal also argues that the Immigration and Nationality Act provided a narrow remedy for individuals alleging violations of the CAT, and that therefore an additional Bivens remedy is not warranted.

The administration argued that the Second Circuit got it right on the TVPA (that the TVPA does not apply, as here, to U.S. officials acting under U.S. law) and on the pleading standard for Arar's access claim (that Arar's allegations were insufficiently detailed to support his claim).


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