Limitations on Bivens Actions in National Security Removal Cases: ARAR v. ASHCROFT (2d Cir. 2008)

Limitations on Bivens Actions in National Security Removal Cases:
ARAR v. ASHCROFT (2d Cir. 2008)

Introduction

The case of Maher Arar v. John Ashcroft stands as a pivotal judicial decision addressing the intersection of national security measures and individual constitutional rights. Arar, a dual citizen of Syria and Canada, was detained by U.S. authorities at JFK International Airport in 2002 and subsequently removed to Syria, where he faced torture. This comprehensive commentary delves into the background, key legal issues, the court's findings, and the broader implications of the judgment.

Summary of the Judgment

Decided by the United States Court of Appeals, Second Circuit on June 30, 2008, the case revolves around Arar's civil action against several high-ranking U.S. officials, including former Attorney General John Ashcroft and FBI Director Robert Mueller. Arar alleged that these officials orchestrated his detention and removal to Syria with the knowledge that he would be subjected to torture. The District Court dismissed Arar's claims under the Torture Victim Protection Act (TVPA) and the Fifth Amendment's Due Process Clause, citing the Immigration and Nationality Act (INA) and the doctrine established in Bivens v. Six Unknown Named Agents.

Upon appeal, the Second Circuit upheld the District Court's dismissal of Arar's claims. The majority opinion held that:

  • Arar's allegations did not sufficiently establish a claim under the TVPA.
  • The judiciary should refrain from extending the Bivens remedy in contexts intertwined with national security and foreign policy considerations.
  • Arar failed to establish a substantive due process violation under the Fifth Amendment.
  • Declaratory relief was not warranted due to lack of standing.

Judge Sack concurred in part but dissented concerning the availability of a Bivens action, advocating for its applicability even within national security contexts.

Analysis

Precedents Cited

The judgment extensively referenced several key precedents, including:

  • Bivens v. Six Unknown Named Agents (1971): Established an implied private right of action for constitutional violations by federal officers.
  • Immigration and Nationality Act (INA): Governs the removal proceedings and limits judicial review of certain removal decisions.
  • SOSA v. ALVAREZ-MACHAIN (2004): Refined the Bivens framework, emphasizing the necessity of no alternative remedy and "special factors" discouraging judicial interventions.
  • Lominardo v. Raichanti (Presumed), which, though not explicitly detailed in the judgment, was relevant to jurisdiction and removal proceedings.

The court also discussed doctrines like the state-secrets privilege, which can exclude sensitive information from litigation, further complicating the adjudication of national security-related claims.

Legal Reasoning

The court's reasoning centered on the following legal tenets:

  • Substantive Due Process: Arar claimed violations under the Fifth Amendment, but the court found his allegations insufficient to meet the stringent "shock the conscience" standard required for substantive due process claims.
  • Bivens Remedy: The majority was cautious about extending Bivens to new contexts, especially those intertwined with national security and foreign policy. They emphasized existing statutory remedies (like the INA) and highlighted "special factors" that counsel against judicially creating new causes of action.
  • State-Secrets Privilege: While acknowledged, the court dismissed its relevance due to other grounds for dismissal, maintaining judicial restraint in matters of national security.

The majority concluded that the INA provided "a convincing reason" to refrain from recognizing a new Bivens action, especially given the national security implications and existing governmental frameworks for addressing such claims.

Impact

This judgment reinforces the limitations of the Bivens doctrine in contexts heavily influenced by national security and foreign policy. It underscores the judiciary's reluctance to interfere with executive actions in these realms, especially when statutory frameworks like the INA are in place. Additionally, it highlights the challenges plaintiffs face in seeking constitutional redress in cases involving complex interactions between multiple government agencies and international actors.

Furthermore, the decision signals to law enforcement and governmental officials the boundaries of accountability in cases where actions are justified under the guise of national security. It may prompt a re-evaluation of how information sharing and coordination between agencies and foreign entities are conducted to prevent abuses.

Complex Concepts Simplified

Bivens Remedy

Bivens refers to an implied cause of action that allows individuals to seek damages from federal officials accused of violating their constitutional rights. However, its applicability is limited and primarily recognized in contexts where no other statutory remedy exists.

State-Secrets Privilege

The state-secrets privilege allows the government to withhold sensitive information in legal proceedings to protect national security interests. When invoked, it can prevent plaintiffs from accessing crucial evidence needed to support their claims.

Substantive Due Process

Substantive Due Process protects individuals from arbitrary and unjust governmental actions, ensuring fundamental fairness. For a violation to be recognized, the unlawful act must be egregious enough to "shock the conscience."

Conclusion

The Second Circuit's decision in ARAR v. ASHCROFT delineates significant boundaries for the extension of constitutional remedies in national security contexts. By affirming the dismissal of Arar's claims under both the TVPA and the Fifth Amendment, the court emphasizes the judiciary's deference to statutory frameworks and executive authority in matters relating to national security and foreign policy. This judgment serves as a critical reference point for future litigations involving alleged governmental abuses intertwined with international relations and highlights the ongoing tension between individual rights and national security imperatives.

Moving forward, this case underscores the importance of clearly defined legal avenues for individuals alleging constitutional violations, especially in complex scenarios involving multiple jurisdictions and sensitive national security considerations.

Case Details

Year: 2008
Court: United States Court of Appeals, Second Circuit.

Judge(s)

Robert David SackJose Alberto Cabranes

Attorney(S)

David Cole, Center for Constitutional Rights, New York, N.Y. (Katherine Gallagher, William Goodman, Maria Couri LaHood, Jules Lobel, Barbara Olshansky, Center for Constitutional Rights, New York, NY, Joshua S. Sohn. Robert Fink, Stanley McDermott III, Sarah J. Sterken, DLA Piper U.S. LLP, New York, NY, on the brief), for Plaintiff-Appellant Maher Arar. Jamie Kilberg (John J. Cassidy, Stephen L. Braga, Jeffrey A. Lamken, Allyson N. Ho, Stephanie R. Dourado, on the brief), Baker Botts LLP, Washington, DC, for Defendant-Appellee Larry Thompson. Jeffrey Bucholtz, Principal Deputy Assistant Attorney General, (Peter J. Keisler, Assistant Attorney General, Rosylnn R. Mauskopf, United States Attorney, Eastern District of New York, Barbara L. Herwig, Robert M. Loeb, Mary Hampton Mason, Jeremy S. Brumbelow, on the brief), United States Department of Justice, Washington, DC, for Official Capacity Defendants-Appellees and for Amicus Curiae the United States of America. Shveta Kakar, (Jeremy Maltby, Margaret L. Carter, George James Bagnall V), O'Melveny Myers LLP, Los Angeles, CA and New York, NY, for Defendant-Appellee Robert S. Mueller III. Thomas G. Roth, West Orange, NJ, for Defendant-Appellee J. Scott Blackman. Thomas M. Sullivan (Debra L. Roth on the brief), Shaw, Bransford, Veilleux Roth, P.C., Washington, DC, for Defendant-Appellee Edward J. McElroy. William A. McDaniel, Jr. (Bassel Bakhos, on the brief), Baltimore, Maryland, for Defendant-Appellee James W. Ziglar. Sidney S. Rosdeitcher, Paul, Weiss, Rifkind, Wharton Garrison LLP (Jonathan Hafetz, Brennan Center for Justice at New York University School of Law, on the brief), New York, NY, for Amicus Curiae Retired Federal Judges, supporting Plaintif-Appellant. Nancy Morawetz, New York University School of Law, New York, NY, for Amicus Curiae U.S. and Canadian Scholars, supporting Plaintiff-Appellant. Bridget Arimond, Center for International Human Rights, Northwestern University School of Law, Chicago, IL, for Amicus Curiae Center for International Human Rights of Northwestern University School of Law, supporting Plaintiff-Appellant. Kristina A. Huskey (Akbar Siddiqui, Sabrina Balgamwalla, of counsel), International Human Rights Law Clinic, American University Washington College of Law, for Amicus Curiae Center for Justice and Accountability, International Federation for Human Rights, Minnesota Advocates for Human Rights, World Organization Against Torture, supporting Plaintiff-Appellant. Mr. Siddiqui and Ms. Balgamwalla appear pursuant to Local Rule 46(e) (appearance by eligible law students). Baher Azmy (Jenny-Brooke Condon, Meetali Jain, Scott Michelman, of counsel), Center for Social Justice, Seton Hall Law School, for Amicus Curiae Scholars of American Constitutional Law, supporting Plaintiff-Appellant.

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