By Jonathan Abrams, NSJ Staff Editor, HLS 2012

The Second Circuit ruled on November 2nd that Maher Arar, a Canadian citizen who claimed he was a victim of “extraordinary rendition,” may not sue American officials for damages because Congress has not authorized such suits.

Mr. Arar was detained at Kennedy International Airport on September 26, 2002 on suspicion of ties to Al Qaeda.  After thirteen days in U.S. custody he was flown to Jordan where he was handed over to Jordanian authorities.  After being treated roughly, he was delivered to the custody of Syrian officials, who detained him for a year.  He was held in an eighteen-square-foot cell and beaten repeatedly.

Following his release in October 2003, Arar sued then-Attorney General John Ashcroft and other American officials for the injuries he suffered.  The federal district court dismissed the appeal, and a sharply divided panel of the Second Circuit affirmed.

The Second Circuit, sitting en banc, affirmed the panel’s decision.  Chief Judge Dennis Jacobs, writing for a seven-judge majority, declined to extend private rights of action against federal officials to the extraordinary rendition context.  The Supreme Court, which first permitted federal officials to be sued for constitutional violations in Bivens v. Six Unknown Agents of Federal Bureau of Narcotics, has held that the Bivens remedy is not to be extended if “special factors counsel hesitation.”  The Second Circuit found such special factors present.  A lawsuit involving extraordinary rendition would force the court to enmesh itself in a policy that “affects diplomacy, foreign policy and the security of the nation,” areas that courts have traditionally left to the political branches.  The court will not “create, on our own, a new cause of action against officers and employees of the federal government,” but instead it is up to Congress to create such rights.

Four judges sharply dissented.  Judge Barrington Parker took issue with the majority’s view of the separation of powers.  He said that in “times of national stress and turmoil the rule of law is everything, our role is to defend the Constitution.  We do this by affording redress when government officials violate the law, even when national security is invoked as the justification.”  Judge Guido Calabresi wrote that “when the history of this distinguished court is written, today’s majority decision will be viewed with dismay.”

Justice Sonia Sotomayor participated in the oral argument when she sat on the Second Circuit, but was elevated to the Supreme Court before the final decision was rendered.