Arar v. Ashcroft (Amicus Brief)

In Brief – In the case of Arar v. Ashcroft, the plaintiff, Mr. Maher Arar, a Canadian citizen, is challenging his U.S.-directed rendition to Syria, where he was brutally tortured and never charged with a crime. On October 27, 2008, the Brennan Center filed a replacement amicus brief in the U.S. Court of Appeals for the Second Circuit on behalf of an esteemed group of retired federal judges. The Brennan Center submitted its first amicus brief on behalf of the distinguished judges on December 19, 2006.

Question Presented – The distinguished judges’ brief argues that the dismissal of Mr. Arar’s Bivens claim, without allowing him to prove his grave and disturbing allegations of U.S. government complicity in his torture by Syrian authorities would be an abdication of the role assigned to the Judiciary by the Constitution and a failure to carry out the Rule of Law.

Procedural History – Oral arguments will be heard by the Second Circuit en banc on December 9, 2008.

In Detail – On December 19, 2006, the Brennan Center filed an amicus curiae 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 Maher Arar, a Canadian citizen.

Mr. 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 tortured and held for more than a year before being released after the Syrian government 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 Mr. 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 Judiciary’s 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 Executive’s 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.

Additional information can be found on the Center for Constitutional Rights’ (lead counsel with DLA Piper US LLP) case page.

Sidney S. Rosdeitcher, Aaron S. Delaney, Brian A. Kohn, and Eric Tam of the law firm Paul, Weiss, Rifkind, Wharton & Garrison LLP, are co-counsel with the Brennan Center on the brief.