Appeals Court Rejects Suit in Arar Rendition Case
The United States Court of Appeals for the Second Circuit, delivered a ruling on November 2, 2009, holding that Mr. Arar cannot seek civil damages from federal government officials because Congress has not authorized damages for a violation of the Torture Victim Protection Act. The Court declined to allow a Bivens action against federal officials because, in the context of extraordinary rendition, it would affect diplomacy, foreign policy, and the security of the nation.
Judge Dennis G. Jacobs wrote for the court, and there were four separate dissenting opinions. Judge Guido Calabresi wrote a strongly worded dissent, asserting that “I believe that when the history of this distinguished court is written, today’s decision will be viewed with dismay.”
According to Georgetown professor David Cole, who argued the case on behalf of the Center for Constitutional Rights, “[t]his decision says that U.S. officials can intentionally send a man to be tortured abroad, bar him from any access to the courts while doing so, and then avoid any legal accountability thereafter. It effectively places executive officials above the law, even when accused of a conscious conspiracy of torture.”Cole says a petition for Supreme Court review is likely.