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Ouch:
In the fascinating and important new terrorism case from the Second Circuit in Arar v. Ashcroft, Judge Cabranes has unusually harsh words for Judge Sack, who dissented. The Arar case considers whether there is a Bivens remedy for claims involving the removal of an alien from the United States. Arar was suspected of being a member of Al Qaeda, and the U.S. deported him to Syria, and he was allegedly tortured by Syran officials. The majority of the Second Circuit held that the Bivens doctrine (allowing a civil suit in federal court for a violation of a constitutional right) did not allow a Bivens remedy for such conduct. Judge Sack dissented, arguing that the courts could craft such a remedy.

  In his majority opinion, joined by Judge McLaughlin, Judge Cabranes had the following response to Judge Sack:
Such is the freedom enjoyed by the writer of a dissenting opinion. Those charged with rendering decisions that carry the force of law have no such freedom, however. Our task is to deliver a reasoned opinion that conforms to the precedents of the Supreme Court and our Court; we have done so here. We agree, of course, with Judge Sack's view that threats to the nation's security do not allow us to jettison principles of "simple justice and fair dealing." Id. at [55] But these parlous times of national challenge can no more expand the powers of the judiciary than they can contract the rights of individuals. The creation of civil damage claims is quintessentially a legislative function, and the protection of national security and conduct of foreign affairs are primarily executive. Whatever the emotive force of the dissent's characterization of the complaint, we cannot disfigure the judicial function to satisfy personal indignation.
  The majority and dissent disagreed so much they even used different fonts.
Anderson (mail):
Next up: en banc review?
7.1.2008 12:00am
GUEST3000:
The Second Circuit almost never grants en banc review. It's not simply that granting en banc review is rare -- a good portion of 2nd Circuit judges actually believe that it is improper for the en banc court to reconsider decisions made by panels. The judges also regularly use different fonts in their opinions. It's pretty much a mess there.
7.1.2008 12:11am
one of many:
It's the 2nd though, so I expect en banc is not going to happen, the 2nd Circuit doesn't do en banc review (well not often, the 2nd is a leetle diff-air-ant from the other circuits in it's procedures).
7.1.2008 12:11am
one of many:
dang 3k beat me to it by a hair.
7.1.2008 12:12am
George Weiss (mail) (www):
seems to me this guy could have filed for review of his deportation instead of waiting until deportation and then suing. thats lucky for him, since other aleins caught in the us suspected of being al queda operatives are simply sent to guantanimo, where they can now wait in line for habus.

if indeed the facts of him being associated with al queda are false..then he should sue his lawyer for malpractice not the government.
7.1.2008 12:17am
jps:
Of course, this follows last week's post about that "liberal" Cabranes....
7.1.2008 12:18am
M (mail):
It is too bad that they pretend (still!) that there was an actual natural security risk here when it's not pretty clear that there was not, that the supposed evidence for involvement w/ al Qaeda was garbage, that he was certainly tortured, and that this was done in a way that if it had been done by any other country we would have thought, rightly, that it was a violation of the Convention Against Torture. It might be that Arar had no remedy at law. But neither we, nor the court, should mince words in that we were deeply involved in the torture of a person on flimsy evidence in violation of international law and our treaty obligations.
7.1.2008 12:19am
Visitor Again:
Such is the freedom enjoyed by the writer of a dissenting opinion. Those charged with rendering decisions that carry the force of law have no such freedom, however.

What a cheap shot from the majority opinion, and this includes the rest of the paragraph, which is not reproduced in Orin's excerpt. I don't see how it follows at all from the majority opinion's criticisms of the dissent, which are summarized in the paragraph preceding this excerpt.

I'm sure the dissenting judge would have been delighted had he carried the day and been in the majority. This kind of jibe is merely an unreasoned effort to squelch dissent.
7.1.2008 12:30am
jps:
George- this was not a "deportation" in the traditional sense, but extraordinary rendition. You are not granted the opportunity to contest it at a hearing, and you have no lawyer. Hence the lawsuit.
7.1.2008 12:48am
Visitor Again:
What a cheap shot from the majority opinion, and this includes the rest of the paragraph, which is not reproduced in Orin's excerpt.

Sorry, I made a mistake; the rest of the paragraph is, of course, reproduced in Orin's excerpt.
7.1.2008 12:53am
TerrencePhilip:
The majority and dissent disagreed so much they even used different fonts.

I lol'd.
7.1.2008 1:17am
DangerMouse:
But these parlous times of national challenge can no more expand the powers of the judiciary than they can contract the rights of individuals.

About G.D. time this was said.
7.1.2008 2:28am
George Weiss (mail) (www):
jp

s:

George- this was not a "deportation" in the traditional sense, but extraordinary rendition. You are not granted the opportunity to contest it at a hearing, and you have no lawyer. Hence the lawsuit.



what? first of all, he did have a lawyer shortly after his detention-his family got him one-thats in the record.

second this buisnees about 'extraordinary rendition" vs "deportation" argument isn't even raised in the dissent.

the dissent does suggest that the purpose of the deportation was to elicit information, not solely for immigration. thats fine. but thats not why he didn't bring review of the deportation under the review options available to him.

according to him, he didn't do it because the gov lied ot his lawyer about where he was and lied to him about his lawyer not wanting to be with him during questioning etc.

however, the problem is these facts were not verified, and hence the court's majority didn't want to create a separate cause of action based on these facts (even if they tend to believe them). it suggests that it might very well have created it if the complaint had been verified.
7.1.2008 2:29am
Originalism Is Useful (mail):
Cabranes wants on the Supreme Court, no matter who is President. Smart move.
7.1.2008 4:58am
cboldt (mail):
New in the 2nd Circuit, but this case has been the subject of a well-publicized report from our neighbor to the north, in "Commission of Inquiry into the actions of Canadian Officials in Relation to Maher Arar."
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Some will take away from this 2nd Circuit decision that the extraordinary rendition was just and proper (or at least, justified, and not compensible as a matter of simple justice in these times of WOT) - after all, Arar lost.
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But it stands for a different proposition. Courts don't have the power to render civil damages against the state, unless the state consents, and provides a statutory cause of action.
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Canada paid Mr. Arar roughly $10 million for errors of Canadian officials. That award was not obtained via order of the court.
7.1.2008 5:52am
Richard Aubrey (mail):
As I said in another thread, Arar's beef is with the Mounties.
We are not required to let a terror suspect--certified by the RCMP--into the country. Nor, I suspect, is Canada required to let him back in once he's out. But that would be a matter for their law, whatever it is.
7.1.2008 6:29am
cboldt (mail):
-- As I said in another thread, Arar's beef is with the Mounties. --
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There is more than one set of dirty hands in this mess.
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The report of the Canadian Investigatory Commission is informative as to Canadian law, awareness of US plans, and on at least the part of one involved official in the Canadian government, that it (Canada) was facilitating the implementation of a U.S. government desire - to have Arar sent to a foreign country for some farmed-out enhanced interrogation.
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But the U.S. didn't do anything wrong. No siree, not in Richard Aubrey's world.
7.1.2008 7:00am
John P. Lawyer (mail):
Such is the freedom of any judge to write op-ed criticims, rather than simply sticking to the merits of the Plaintiff's claim - namely whether a Bivens remedy exists under these circumstances. One consideration in deciding whether to "expand" the Bivens remedy might in fact be national security concerns. But this sort of grandstanding by the majority is nothing more than a cheap shot. How does Judge Cabarenes know whether permitting such a remedy would endanger national security? If he wants to be an arm-chair observer on the war of terror, he should save it for the op-ed page of the New York Times - or better yet start a blog.
7.1.2008 8:57am
FantasiaWHT:

The creation of civil damage claims is quintessentially a legislative function, and the protection of national security and conduct of foreign affairs are primarily executive.


To tie this with another recent thread, this line of thinking is the distinction between judicial activism and judicial restraint for many of us.
7.1.2008 9:07am
krs:
When one looks at the preceding paragraph--i.e., to see what Judge Cabranes means by "such"--I think Judge Cabranes's observations make a bit more sense.

Judge Sack's dissent reads like an op-ed. Lengthy summary of the facts, lots of criticism of the majority, and lots of rhetoric at the end from Justice Jackson dissents about how we can't sacrifice too much liberty in the interest of national security. As Cabranes points out, though, when one looks at the specifics of Arar's case, there are a bunch of tough legal questions that Judge Sack fails to address.

Judge Sack's dissent persuasively argues that Arar was subject to a horrible injustice, but doesn't take the further step of explaining persuasively how Arar is entitled to the relief he seeks. As Judge Cabranes notes, "such is the freedom enjoyed by the writer of a dissenting opinion."
7.1.2008 9:14am
Anderson (mail):
a good portion of 2nd Circuit judges actually believe that it is improper for the en banc court to reconsider decisions made by panels

Fascinating. I wonder how they feel about their panels' decisions being reviewed by the Supreme Court? That can't seem right to them either.

(And I thought the 5th Circuit was crazy.)
7.1.2008 9:21am
Al Maviva (mail):
It is too bad that they pretend (still!) that there was an actual natural security risk here when it's not pretty clear that there was not

A tort claim has to be evaluated on what was known or should have been known at the time the alleged tort occurred. The U.S. Govt was acting in reliance on Canadian government information. Evaluating the U.S. Govt action now based on today's knowledge of the RCMP's error or dishonesty, would impose a perfect knowledge requirement subjecting the government to an impossible standard. At the time Arar was deported, it was treated as a national security immigration case based on the information then available. The court has to evaluate it in that context. To do otherwise would rob the government of discretion in future national security cases. They aren't pretending to evaluate it as a national security case, they are treating it as what it was at the time.

And I wouldn't worry about it too much, cboldt. Pretty soon, our courts will follow Britain's lead and we won't be able to detain or repatriate actual captured AQ, for fear of their being tortured. All it will take is a court ruling that non-torture assurances of middle-eastern governments can't be trusted, and we will be unable to repatriate anybody. Well, unless Switzerland or some other third party wishes to assume responsibility for these poor innocent goat herds, auto mechanics, and traveling students.

(BTW, isn't it funny how the U.S. *never* captures any actual AQ - they're all just innocent goatherds? Amazing. You'd think in 5 years would would have captured one or two...man, what an amazing string of bad luck.)
7.1.2008 9:34am
Benjamin Davis (mail):
Arar was Canadian and Syrian national - he was sent to Syria with a series of questions for the Syrians to ask him. If you think that when you send someone to Syria, give the Syrians question to ask, that you are not expecting them to be tortured because the Syrians give you verbal assurances - I have a bridge in Brooklyn. If we wanted to deport him, then we should have deported him to Canada where no risk of torture with the list of questions. What happened, based on the alleged facts known at that time, is still no excuse for sending him to be tortured in Syria.
Best,
Ben
7.1.2008 9:43am
cjwynes (mail):

Arar was Canadian and Syrian national - he was sent to Syria with a series of questions for the Syrians to ask him. If you think that when you send someone to Syria, give the Syrians question to ask, that you are not expecting them to be tortured because the Syrians give you verbal assurances - I have a bridge in Brooklyn. If we wanted to deport him, then we should have deported him to Canada where no risk of torture with the list of questions. What happened, based on the alleged facts known at that time, is still no excuse for sending him to be tortured in Syria.


Yeah, I'm sure Canadian interrogation methods are real effective. "Would you please tell us what we want to know, eh? I have tickets to the Leafs game tonight, if you tell me where Osama is hiding, you can go with, eh? I'll buy you a beer, okay?"

Not to mention the fact that if the Canadians released him he could just walk across a bridge into Detroit and be right back here stirring up trouble.

In broader terms, I'd hate to think that everybody we denied asylum, for example, could end up suing us if they were treated poorly upon their return to their own country. That seems like the kind of thing this would invite.
7.1.2008 10:29am
Oren:
Thats lucky for him, since other aleins caught in the us suspected of being al queda operatives
The dissent is quite clear that his transit in the US hardly qualifies as "entrance" in any meaningful sense. He was at JFK to switch planes, no more.

In broader terms, I'd hate to think that everybody we denied asylum, for example, could end up suing us if they were treated poorly upon their return to their own country. That seems like the kind of thing this would invite.
First, he didn't apply for asylum. Second, he's a Canadian too and so should have had the choice to return there as well. Third, his removal to Syria was absolutely forbidden by the CAT (although this is non-justiciable, of course).
7.1.2008 10:49am
Oren:
Judge Sack's dissent persuasively argues that Arar was subject to a horrible injustice, but doesn't take the further step of explaining persuasively how Arar is entitled to the relief he seeks.
For a Bivens claim, the former is enough to satisfy the latter. That is entirely the point of Bivens.
7.1.2008 10:52am
Sarcastro (www):
Looks like Bivens was wrongly decided to me, as there was no statutory remedy there either.

After all, the Constitution doesn't apply to noncitizens like Arar, SCOTUS decision bedamned!

I would also like to echoe DangerMouse's echoeing of the main opinion. The War on Terror means all sorts of new interpretations of the Constitution will occur, but any Judicial analysis of these interpretations would be new Judicial powers. And the judiciary totally has no new powers. Thus, there can be no review!

See, logic clearly dictates courts should really stop taking any cases against the Government in these parlous times.
7.1.2008 11:04am
Al Maviva (mail):
The dissent is quite clear that his transit in the US hardly qualifies as "entrance" in any meaningful sense. He was at JFK to switch planes, no more.

So, if Osama bin Laden changes planes in Chicago en route between bombings, we're supposed to give him a free pass because he hasn't "entered" the U.S. for purposes of immigration law? You're amazing, Oren.

In your world, if a terrorist is at Guantanamo (Cuba) or a remote post in Afghanistan, he is within U.S. court jurisdiction and possessed of constitutional rights, because he's basically in America for legal purposes. On the other hand, the same terrorist changing planes in Queens with his feet actually on U.S. soil, isn't in America and law enforcement shouldn't touch him.

Even for an internet blog commenter you hold remarkably inconsistent opinions on the law. Do you work for Michael Ratner? If you don't, you should - you'd be a very, very good fit for his firm.
7.1.2008 11:16am
DJR:

The creation of civil damage claims is quintessentially a legislative function, and the protection of national security and conduct of foreign affairs are primarily executive.



So then Bivens was what?
7.1.2008 11:22am
Oren:
So, if Osama bin Laden changes planes in Chicago en route between bombings, we're supposed to give him a free pass because he hasn't "entered" the U.S. for purposes of immigration law? You're amazing, Oren.
Who said anything about a free pass? OBL certainly qualifies for an arrest warrant at this point. If anyone thought there was even an iota of evidence against Mr. Arar, they could have gone to a court and given it a try.

On the other hand, the same terrorist changing planes in Queens with his feet actually on U.S. soil, isn't in America and law enforcement shouldn't touch him.
Actually, I would argue that he was substantially in the US enough for due process to trigger. Nice though, making my point for me is quite kind. Also, I made no claim that the US authorities "should not touch him", which is entirely absurd on its face.

The point about transit was not to establish where he was but to disabuse us of the majority's insistence that this is an immigration case -- that Arar intended to stay in the US. Nothing could be further from the truth -- Arar's entire purpose in being at JFK was to leave the US and go home to his family in Canada.
7.1.2008 11:28am
Oren:
So then Bivens was what?
Quite inconvenient precedent, at least the way the majority sees it.
7.1.2008 11:30am
EPluribusMoney (mail):
Sometimes with a Republican judicial appointee we get a bad judge. But with Democratic appointees we get either bad ones or loonies. Remember in November.
7.1.2008 1:31pm
cboldt (mail):
-- Pretty soon, our courts will follow Britain's lead and we won't be able to detain or repatriate actual captured AQ, for fear of their being tortured. --
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You probably want to delete the "to detain" part of that, since the US government is not capable of making a legally-actionable mistake, or heaven forbid, violating a law against cruel and inhuman treatment, torture, or the CAT.
7.1.2008 1:46pm
Richard Aubrey (mail):
If Syria were that bad, there should be more complaints from the usual suspects about how Syria gets invited to all the UN human rights parties.
But there aren't, so, clearly, it isn't.
7.1.2008 1:48pm
geearr:
"On the other hand, the same terrorist changing planes in Queens with his feet actually on U.S. soil, isn't in America and law enforcement shouldn't touch him."

From what I know of the Arar case, it may have been a better result for him to have faced law enforcement.
7.1.2008 3:33pm
Richard Aubrey (mail):
geearr. Yeah. But on what grounds?
We've already heard that he wasn't going to immigrate, he was merely changing planes. Harmless. Was there an international warrant for his arrest?
Sounds like setting up another Padilla.
7.1.2008 3:53pm
Thorley Winston (mail) (www):

If Syria were that bad, there should be more complaints from the usual suspects about how Syria gets invited to all the UN human rights parties.
But there aren't, so, clearly, it isn't.


What was the outcome of Mahar Arar’s lawsuit against Syria for allegedly torturing him?
7.1.2008 3:57pm
Richard Aubrey (mail):
Thorley.
Didn't he have to serve the warrants himself, or something? Just kidding.
I have no idea.

What's your point?

The entire world gives us more crap about Gitmo than Syria gets where it's real. And they don't say they expect more from America than from the benighted brown people who can't be expected to know better. Syria's actions are totally ignored, not even acknowledged in order to be excused, to the extent that they get onto UN committees and commissions having to do with human rights.
7.1.2008 4:58pm
Johnnie (mail) (www):
The fact is, Arar, a dual Canadian and Syrian national, was deported not rendered. When an alien arrives in the U.S. and is found inadmissible, as Arar was, he is then removed. Commonly that is called deportation, but technically, those found inadmissible were removed, not deported, as only an immigration judge from the Executive Office for Immigration Review, can order an alien deported. Under policy and practice, an alien who is inadmissible is removed to the country from which he came. In Arar's case, he should have been placed on a flight back from whence he came, but for some reason that did not happen. However, returning him to his country of citizenship was irregular, but not illegal. However, in no case are aliens sent onward when found inadmissible. Hence the claim by the radical left that Arar should have been sent to Canada is specious. In any event, the Euorpean country his flight came from would have refused him, so Syria is the logical country. Add to this his ridiculous claims that he was either tortured or abused while in detention in the U.S. makes all his claims suspect, including his claim that he was tortured in Syria. Especially given that Syria is aiding and abetting Al Quaida as we speak in Iraq. These people are also trained to make false allegations against law enforcement. Every crook in America makes those allegations when he is arrested.
7.1.2008 5:36pm
cboldt (mail):
-- However, in no case are aliens sent onward when found inadmissible. --

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Methinks yer talkin' outa yer hat. This transfer was irregular.
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According to Canada, Arar is the first instance of a Canadian citizen, traveling on Canadian papers, who has requested to be sent to Canada, being sent to a country other than Canada. And the October 7 decision to remove to Syria was taken without informing the Canadian consular, who had been in communication with US officials since Oct 1.
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Canadian Commission of Inquiry - Analysis and Recommendations at Section 5.2.2 (page 31)
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Now, I well realize that as a matter of pure logic, I have not disproved your assertion. But I'd sure like to see a cite that supports your contention.
7.1.2008 6:00pm
cboldt (mail):
However, in no case are aliens sent onward when found inadmissible.

See 8 USC 1231 for the general immigration case (first choice is removal to origination, but by no means is it the ONLY choice)
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See 8 USC, CHAPTER 12, Subchapter V for Alien Terrorist Removal Procedures
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(2) Removal
(A) In general
The removal of an alien shall be to any country which the alien shall designate if such designation does not, in the judgment of the Attorney General, in consultation with the Secretary of State, impair the obligation of the United States under any treaty (including a treaty pertaining to extradition) or otherwise adversely affect the foreign policy of the United States.
7.1.2008 6:46pm
Richard Aubrey (mail):
cboldt. You mean the alien gets a choice? If I read that right, that's what it means.
So either Arar chose Syria, or the US decided that any other of his choices would not be in the interests of US foreign policy. Can the removal be to a country the alien doesn't put down on his top ten list?
7.1.2008 10:36pm
Oren:
The entire world gives us more crap about Gitmo than Syria gets where it's real.
I don't excuse Syria's brutal policies for a minute but neither do I expect better from them. It's a sign of a respect for the United States that I'm disappointed when we do not live up to our ideals.

See 8 USC, CHAPTER 12, Subchapter V for Alien Terrorist Removal Procedures
Being as Arar is most certainly not a terrorist, I would imagine that subchapter does not apply in his case.
7.2.2008 12:51am
ReaderY:
The Supreme Court has interpreted the Constitution as specifically prohibiting the application of principles of justice and fair dealing in cases involving the termination of viable fetuses. There is no reason why alien exclusion should be treated differently. An alien and a viable fetus are biologically and legally similar, human beings capable of being legal persons but who simply happen not to have the rights of persons under constitutional doctrine.

Surely the power to exclude aliens is as important as the right to abortion, one is an express power textually granted, the other is merely the result of a Supreme Court interpretation. Permitting evidentiary and judicial remedies would simply unduly burden the exercise of the power to exclude.

Nor is "torture" etc. a concern. Justice Stephens has suggested that it is actually irrational for the government to regard even viable fetuses as feeling pain or to consider the pain they experience in its decision-making. There is no constitutional, legal, or moral reason that aliens should be treated any differently.

Judge Sacks should keep his religious beliefs between him and his minister. This is a secular state, and "justice and fair dealing" are religious concepts that have no place in our secular society. Our constitution guarantees freedom of choice to exclude the unwanted from entering our families and society, free from restraint by religious notions of "justice and fair dealing."
7.2.2008 5:25am
cboldt (mail):
-- So either Arar chose Syria, or the US decided that any other of his choices would not be in the interests of US foreign policy. Can the removal be to a country the alien doesn't put down on his top ten list? --

.

On this subject (and I'll assume others), you're nothing but an administration apologist. And a sarcastic one at that. Good job!
7.2.2008 7:14am
cboldt (mail):
-- Being as Arar is most certainly not a terrorist, I would imagine that subchapter does not apply in his case. --

.

Tentatively agreed (I haven't looked to see how "terrorist" is defined for purposes of Title 8, but I've not seen any reports that stick that label on him). Just the same, that section illustrates that even a terrorist gets a choice, under the law. Johnnie's contention was "in no case are aliens sent onward when found inadmissible," and his argument flows from that demonstrably false premise.
7.2.2008 7:19am
Richard Aubrey (mail):
Oren. The point is not that, when your wrist is up between your shoulder blades, you "don't excuse" Syria's local color.
The point is that, absent coercion, neither you nor anyone else who's upset with Gitmo will even mention Syria.
And, in fact, even not-excusers don't raise an eyebrow about Syria's inclusion on various UN peace and wonderfulness committees and commissions.
It is nice to know that you're willing to condemn another multiculturally, authentically culturally relative, ancient and proud nation over what are merely internal customs. Fascist. Or, as I say, there's always the coercion piece.
7.2.2008 11:45am
Richard Aubrey (mail):
cboldt.
If he has a choice, which he does, according to the piece you cited, how'd he get to Syria? Did he choose it? Did he choose a bunch of other places and the US said none would do?
There's a contradiction between that section and what is alleged to have happened.

Arar may not be a terrorist, but the Canadians had said he was affiliated. That was what the US was going on. Not the finding years later that the RCMP had goofed.
7.2.2008 11:48am
cboldt (mail):
-- If he has a choice, which he does, according to the piece you cited, how'd he get to Syria? --
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Read the Canadian government report, it lays out the details that you're either ignorant of, or pretending to be ignorant of.
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The US isn't explaining how or why it decided to act hurriedly, and differently in this case (from what the law prescribes, and from what it has historically done when in contact with consular), other than to blame Canada. You're taking the same tack. No sweat. Blame Canada. It's all the rage.
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Arar did not choose Syria. He objected strenuously to being sent there. He asked to be sent to Canada and the US said "no." If Arar had said, "but this is against US statutes and international agreements," I doubt it would have been persuasive.
7.2.2008 2:11pm
Richard Aubrey (mail):
cboldt.
There are two issues here. One is how Arar got tagged as a terrorist. That was Canada's fault. If you wish to insist that the US discount anything Canada says about such things, let us know. It might be a good idea, but I don't know about making it publicly known as policy.

The other issue is how Arar got to Syria instead of someplace else. If you're correct, the law cited was not followed. So what, exactly, transpired?

Lastly, given the required respect for the UN, how is the US supposed to know Syria is a bad actor? I mean that only half in jest. If the US had said, we don't return people to Syria because the chair of the UNHRC routinely tortures prisoners, that would be internationally and dem/lib-ly unpleasant.
It would also get mixed up with the current dilemma about what to do with Uighurs who, if they go back to China, would become involuntary organ donors.
Good, keep people from Syria.
Bad, keep people from China.

Fails to compute.
7.2.2008 2:27pm
cboldt (mail):
-- One is how Arar got tagged as a terrorist. That was Canada's fault. --
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Not exactly. But nice try. Both the US and Canada were suspicious, and both wanted to "learn more" about Arar's associations. But the label "terrorist" was a leap to conclusion (or based on information unknown to Canadian authorities) - and was not a label affixed by the Canadian authorities.
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-- The other issue is how Arar got to Syria instead of someplace else. If you're correct, the law cited was not followed. So what, exactly, transpired? --
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Read the Canadian government report, it lays out the details that you're either ignorant of, or pretending to be ignorant of.
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-- how is the US supposed to know Syria is a bad actor? --
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I would guess that in immigration matters, Syria is NOT considered a bad actor, per se. I would wager that some number of nonimmigrant aliens are returned to Syria, without any substantial concern or incident. Cases are actually handled on a case-by case basis.
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I've taken the time to read the various reports, allegations, defenses, etc., and while I'm sure my understanding is a bit muddled on various details, I'm unwilling to give the US a "job well done" on this one. In fact, I'd say the handling reeked of bad faith. US action in this case remains a subject of Canadian hard feelings toward the US.
7.2.2008 3:49pm
Richard Aubrey (mail):
Canadian action remains a subject of Arar hard feelings toward Canada.

And if Syria is not a bad actor on immigration issues, and if the UN thinks it's worthy of UN human rights honors, then what's the problem?

Problem is, Syria is a bunch of absolutely murderous, vicious, brutal bastards. But if you say so, you get into trouble with the thought police. Remember Wounded Knee. Imagine the US saying, we can't send this guy to Syria because they're a bunch of vicious, murderous, brutal bastards, their UN standing notwithstanding.

Not gonna happen.

In fact, as I've said before, this is the first time I can recall anybody to the left of Buckley saying anything about Syria and torture. Conveeeenient.
7.2.2008 8:57pm
cboldt (mail):
-- In fact, as I've said before, this [the Arar case] is the first time I can recall anybody to the left of Buckley saying anything about Syria and torture. --
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And so, errors of lefties justifies sending Arar to Syria?
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-- Problem is, Syria is a bunch of absolutely murderous, vicious, brutal bastards. --
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Oh yeah. I guess it does, if the "sender" is the infallible US government.
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I opened with a general sentiment that no hands are clean. You objected, with the retort that US hands are clean. You persisted in that defense through several rounds of exchange. You are of course entitle to adhere to that position; and I am entitled to disagree.
7.2.2008 9:46pm
ReaderY:
Once again, Johnson v. Eisentrager found that the Bill of Rights lacks "extraterritorial application", the exact parallel of the language that Roe v. Wade used when it held that the Bill of rights lacked "prenatal application". Fundamental to Roe's holding was its claim that an obligatory state interest is synonomous with application of the word "person". -- it specifically held that the fact that the word "person" didn't apply totally decided the matter and caused the state's claim of interest to simply collapse.

If Roe was a legitimate constitutional decision of general application then it applies here. The factors apply - we have a situation where the word "person" lacks application. If, as the Roe opinion held, concepts of justice etc. normally applicable to persons do not apply when the word "person" lacks application, this must be the case here as well. The fact that extraterritorial aliens can sometimes sue in American courts doesn't make them persons, because the Roe court specificially held that state traditions of permitting fetuses to be named parties to suits in certain instances didn't make fetuses legally persons and didn't require states to treat them as such. Same here.

If Roe is a legitimate constitutional decision, then where the word "person" lacks application, "justice and fair dealing" are simply optional, and being emotionally attached to treating them as mandatory is simply an inappropriate application of religious doctrine to what is supposed to be a secular government. The spectre of government officials getting uptight or emotional about people choosing not to worry about these entirely optional concepts where nonpersons are concerned is exactly the sort of scenario Roe v. Wade was designed to prevent.
7.3.2008 2:36am
ReaderY:
Relevant Roe language:

The appellee and certain amici argue that the fetus is a "person" within the language and meaning of the Fourteenth Amendment. In support of this, they outline at length and in detail the well-known facts of fetal development. If this suggestion of personhood is established, the appellant's case, of course, collapses, for the fetus' right to life would then be guaranteed specifically by the Amendment. The appellant conceded as much on reargument. 51 On the other hand, the appellee conceded on reargument 52 that no case could be cited that holds that a fetus is a person within the meaning of the Fourteenth Amendment.

The Constitution does not define "person" in so many words. Section 1 of the Fourteenth Amendment contains three references to "person." The first, in defining "citizens," speaks of "persons born or naturalized in the United States." The word also appears both in the Due Process Clause and in the Equal Protection Clause. "Person" is used in other places in the Constitution: in the listing of qualifications for Representatives and Senators, Art. I, § 2, cl. 2, and § 3, cl. 3; in the Apportionment Clause, Art. I, § 2, cl. 3; 53 in the Migration and Importation provision, Art. I, § 9, cl. 1; in the Emolument Clause, Art. I, § 9, cl. 8; in the Electors provisions, Art. II, § 1, cl. 2, and the superseded cl. 3; in the provision outlining qualifications for the office of President, Art. II, § 1, cl. 5; in the Extradition provisions, Art. IV, § 2, cl. 2, and the superseded Fugitive Slave Clause 3; and in the Fifth, Twelfth, and Twenty-second Amendments, as well as in §§ 2 and 3 of the Fourteenth Amendment. But in nearly all these instances, the use of the word is such that it has application only postnatally. None indicates, with any assurance, that it has any possible pre-natal application. 54

All this, together with our observation, supra, that throughout the major portion of the 19th century prevailing legal abortion practices were far freer than they are today, persuades us that the word "person," as used in the Fourteenth Amendment, does not include the unborn.

Relevant Johsnon language:

The Court of Appeals has cited no authority whatever for holding that the Fifth Amendment confers rights upon all persons, whatever their nationality, wherever they are located and whatever their offenses, except to quote extensively from a dissenting opinion in In re Yamashita, 327 U.S. 1, 26 . The holding of the Court in that case is, of course, to the contrary.

If this Amendment invests enemy aliens in unlawful hostile action against us with immunity from military trial, it puts them in a more protected position than our own soldiers. American citizens conscripted into the military service are thereby stripped of their Fifth Amendment rights and as members of the military establishment are subject to its discipline, including military trials for offenses against aliens or Americans. Cf. Humphrey v. Smith, 336 U.S. 695 ; Wade v. Hunter, 336 U.S. 684 . Can there be any doubt that our foes would also have been excepted, but for the assumption "any person" would never be read to include those in arms against us? It would be a paradox indeed if what the Amendment denied to Americans it guaranteed to enemies. And, of course, it cannot be claimed that such shelter is due them as a matter of comity for any reciprocal rights conferred by enemy governments on American soldiers. 11 [339 U.S. 763, 784]

The decision below would extend coverage of our Constitution to nonresident alien enemies denied to resident alien enemies. The latter are entitled only to judicial hearing to determine what the petition of these prisoners admits: that they are really alien enemies. When that appears, those resident here may be deprived of liberty by Executive action without hearing. Ludecke v. Watkins, 335 U.S. 160 . While this is preventive rather than punitive detention, no reason is apparent why an alien enemy charged with having committed a crime should have greater immunities from Executive action than one who it is only feared might at some future time commit a hostile act.

If the Fifth Amendment confers its rights on all the world except Americans engaged in defending it, the same must be true of the companion civil-rights Amendments, for none of them is limited by its express terms, territorially or as to persons. Such a construction would mean that during military occupation irreconcilable enemy elements, guerrilla fighters, and "werewolves" could require the American Judiciary to assure them freedoms of speech, press, and assembly as in the First Amendment, right to bear arms as in the Second, security against "unreasonable" searches and seizures as in the Fourth, as well as rights to jury trial as in the Fifth and Sixth Amendments.

Such extraterritorial application of organic law would have been so significant an innovation in the practice of governments that, if intended or apprehended, it could scarcely have failed to excite contemporary comment. Not one word can be cited. No decision of this Court supports such a view. Cf. Downes v. Bidwell, 182 U.S. 244 . [339 U.S. 763, 785] None of the learned commentators on our Constitution has even hinted at it. The practice of every modern government is opposed to it.
7.3.2008 2:43am
ReaderY:
Of course the Roe Court considered other factors in devising its trimester system etc. But an unshakable core essential to the result was that it wasn't willing to take the fact that Texas regarded a fetus as deserving of some of the rights of person as having much weight. Because the term "person" doesn't apply, Texas' concern was simply misdirected.

So here. The fact that a judge personally regards "justice and fair dealing" as being deserved in a situation is as misplaced as the State of Texas' concerns were in Roe. Both opinions are simply personal morality. The United States in this instance can of course choose to apply these concepts, just as Texas could for a viable fetus. But it has no obligation to do so, and imposing any sense of obligation because of a judge's personal moral beliefs ignores what Roe v. Wade was all about. People who regard the concept of personhood as more expansive simply need to suck up, deal with it, and stop imposing their personal emotions on others.
7.3.2008 2:52am
Katherine (mail):
"In fact, as I've said before, this [the Arar case] is the first time I can recall anybody to the left of Buckley saying anything about Syria and torture."

If this is true, it's because you're a willfully ignorant, torture apologist, hack. There are over 28,000 hits from a Google search of Amnesty International's website for the words "Syria" and "torture." (Some are undoubtedly duplicates). Here are some that predate Arar's rendition: 2001, another from 2001, another from 2001, 2000, etc. etc. etc. ad infinitum for years and years.
7.8.2008 2:21am