Arar v. Ashcroft (Second Circuit Court of Appeals)
Court Cases
On December 19, 2006, the Brennan Center filed an amicus curiae (or friend of the court brief) in the U.S. Court of Appeals for the Second Circuit on behalf of a distinguished group of retired federal judges in the case of Arar v. Ashcroft. This lawsuit was brought in the U.S. District Court for the Eastern District of New York by a Canadian citizen, Maher Arar. Arar alleges that he was arrested at New York’s JFK International Airport by U.S. officials and subsequently rendered to Syria where he was held tortured and held for more than a year before being released when Syria concluded there was no evidence that he had any terrorist ties. A Canadian Commission has since reached the same conclusion, criticizing the conduct of both Canadian and U.S. officials in this matter. However, the district court granted the government’s motion to dismiss Arar’s claims under Bivens v. Six Unknown Named Agents, a landmark Supreme Court decision guaranteeing a judicial remedy to individuals whose constitutional rights have been violated. The district court concluded that it was necessary to avoid judicial intrusion into areas of national security and foreign affairs committed to the Executive and Legislative branches. The retired judges’ brief argues that the district court’s dismissal of the Bivens claims, alleging U.S. complicity in torture, undermines the Judiciarys role in our system of separation of powers to act as a check on Executive conduct that violates individual rights protected by the Constitution. The brief shows that the Judiciary has exercised that function in times of war and national emergency, notwithstanding the Executives claims that the challenged conduct touched on areas of national security and foreign affairs. It explains that it is the province of the Judiciary to interpret and enforce constitutionally-guaranteed individual rights, like the right to be free from torture, and to provide remedies for their vindication.
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Sidney S. Rosdeitcher, Carmen K. Cheung, Aaron Delaney, Brian Kohn, and Kimberly Ravener of the law firm Paul, Weiss, Rifkind, Wharton & Garrison LLP, are co-counsel with the Brennan Center on the brief.