Arar Files Cert. Petition in Detention, Access, Torture Case

The Center for Constitutional Rights yesterday filed a cert. petition in the U.S. Supreme Court on behalf of Maher Arar, the Canadian citizen detained by U.S. authorities, denied access to the courts, and delivered to Syria for torture, seeking review of the Second Circuit's rejection of Arar's claims.  The CCR has an outstanding legal resource page, including media links and C-Span's coverage of the Second Circuit's en banc oral argument, here.

Arar filed his claim against a host of senior federal officials and 10 unknown federal law enforcement and immigration agents for violations of the Torture Victim Protection Act and the Fifth Amendment Due Process Clause.  The district court rejected Arar's claims; a divided three-judge panel of the Second Circuit affirmed; and the en banc Second Circuit upheld, 7-4 (with four separate and notably sharp dissents).

Arar argues four points in his cert. petition.  First, he argues that the Second Circuit's rejection of his Bivens claim for obstruction of access to the courts is contrary to laws implementing the Convention Against Torture (the "CAT") and the purpose and spirit of Bivens.  Federal law implementing the CAT prohibits sending any person to a country where he faces danger of torture, 8 U.S.C. Sec. 1231(a) and (e), and grants court of appeals jurisdiction to review constitutional and CAT claims in petitions for review of removal orders.  8 U.S.C. Secs. 1252(a)(2)(D) and (a)(4).  Arar argues that defendants in the case violated both, and that the Second Circuit's rejection of his claims allows federal officials "to escape accountability so long as they ensure that aliens in their custody cannot get to court."  (Cert. Petition at 13.)  This undermines "one of the predominant justifications for Bivens remedies[:] to deter unconstitutional conduct."  (Id.)

Arar argues next that the Second Circuit erred in weighing only those factors against recognizing a Bivens action in the case (and not those factors in favor of recognizing an action) and in holding that any reason for hesitation in recognizing a Bivens action should bar such claims.  Arar argues that this approach is inconsistent with the balancing approach in Wilkie v. Robbins (2007) ("weighing reasons for and against the creation of a new cause of action"), the Court's most recent Bivens decision, and decisions of other courts of appeals.

Third, Arar argues that the Second Circuit erred in ruling that defendants did not act "under color of law" of a foreign nation, for the purpose of the Torture Victim Protection Act, when they conspired with Syrian officials.  Arar argues that defendant's "willful participation in joint action" with Syrian officials satisfies the standard set in Dennis v. Sparks (1980) (holding that private parties who bribed a state judge to issue an injunction acted under color of state law for purposes of 42 U.S.C. Sec. 1983).

Finally, Arar argues that the Second Circuit, in affirming the dismissal because Arar couldn't name the defendants and identify their precise actions, set a pleading standard that exceeded even the heightened pleading standards in Twombly and Iqbal, because, unlike the defendant in Iqbal, the defendants here cannot give (and have not given) an "obvious alternative explanation" for the facts asserted in the complaint.

The sharply divided Second Circuit opinion, and Arar's strong arguments that the ruling runs up against well settled law, make Arar's case a good candidate for Supreme Court review.  But the trend of this Court is to curtail judicial review, not expand it.  A Court ruling in this case could well extend that trend, possibly doing even more damage to Bivens, to liberal pleading standards, and to access to the courts in cases involving the government's claimed interest in national security.  (On this last point, the other case to watch is Mohamed v. Jeppesen Dataplan, the state secrets case pending before the en banc Ninth Circuit.  The case was argued December 15, 2009; audio is here.)  

SDS