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Thursday, September 07, 2006

Arar, Bivens, and Extraterritorial Constitutional Rights

Although it has been available in print for over a month now, I've neglected thus far to note the July 2006 issue of the ABA's National Security Law Report, ably edited by our current guest Bobby Chesney, which includes an interesting piece by (also our current guest) Tung Yin on the Padilla case, excerpts of an important speech by Dr. Phillip Zelikow on legal policy issues and the war on terrorism, and a point/counterpoint by Julian Ku and myself on the Eastern District of New York's decision in Arar v. Ashcroft, dismissing most of the first major damages suit brought by an individual alleging that he was mistreated in conjunction with the U.S. government's "extraordinary rendition" program. (Readers will not be too surprised by which one of us wrote the "point," and which one the "counterpoint.")

I wanted to flag the point/counterpoint specifically, because I think there is a degree to which there is a misapprehension about what Judge Trager actually held in Arar, and why that may or may not matter in future cases. [the rest below the fold...]

Julian, in his essay, notes that there are serious implications to a holding that Arar, a Canadian citizen, is entitled to constitutional protections even when in Syrian custody. Thus, if I understand Julian's position correctly, he sees Arar as rightly decided because the scope of the constitutional rights afforded to non-citizens, at least in the context of Bivens analysis, is a policy question that should be left for Congress. Julian and I may disagree in how we would resolve the underlying constitutional rights question, but I don't think he is wrong that this debate is the real one here...

Unfortunately, Judge Trager's decision, as I read it, does not rest on the non-enforceability (or non-existence) of Arar's constitutional rights; to the contrary, it holds that even if Arar does have constitutional rights capable of such extraterritorial enforcement, courts should not infer a Bivens remedy because of the serious national security concerns raised by such cases. [see especially pp. 67 & 70-77 of the PDF of the opinion.]

My own essay attempts to explain why I believe this holding badly misunderstands Bivens and its progeny, but the deeper question here is about judicial methodology: If Bivens is, itself, a constitutional remedy, then the constitutional avoidance canon provides no answer to why the district court should assume the question of Arar's constitutional rights, rather than the equally obvious outlet of assuming the existence of a Bivens remedy. Put differently, isn't the threshold constitutional rights question more important, and therefore more immediate?

Ultimately, I read Arar as ducking the hard question by wrongly answering the easy one. If Arar is entitled to the constitutional rights that the district court assumed he was, and if the government has engaged in the egregious misconduct and maltreatment that Arar alleged, then, given Congress's silence on the matter, there is virtually no support in the case law for a holding that a Bivens remedy cannot be inferred merely because of background (and amorphous) national security concerns. Otherwise, this newfound "national security exception" to Bivens risks swallowing the whole...

And so, Julian's essay, in my view, highlights the real problem with Arar, for the debate that Julian's thoughtful remarks provoke is, ultimately, the right one. It's just too bad the district court did not agree.

Posted by Steve Vladeck on September 7, 2006 at 02:57 PM in Constitutional thoughts, Steve Vladeck | Permalink


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I have to agree with Steve here. Once the court assumes that the Fifth Amendment applies, it should have held that a Bivens remedy was appropriate.

It seems to me Simon is answering the threshold question, whether or not the Fifth Amendment ought to have applied in the first place, and that is quite a different question.

Posted by: Alan Tauber | Sep 8, 2006 8:20:22 PM

(and even if it isn't, it seems to me you have to actually address what Trager wrote, and Prof. Vladeck's characterization is correct, not Prof. Ku's.)

Posted by: Katherine | Sep 7, 2006 10:37:27 PM

He was in a prison in Brooklyn when the decision was made to send him to Syria to be tortured. I've driven past the place on the BQE on the way to Verrazano.

I'm aware of the entry fiction, but I think it is slightly distinguishable from the mountain passes of Waziristan.

Posted by: Katherine | Sep 7, 2006 10:36:28 PM

Certainly, the Constitution protects the rights of Americans anywhere, and of non-Americans in America. It might, arguably, protect the rights of non-Americans under American jurisdiction. But can it possibly be asked to protect the rights of non-Americans in non-America? I guess I'm at a loss of a "Constitution follows the flag" argument in a case where the flag is not going anywhere. There's perhaps an argument for it when one's talking about transfering an alien to Guantanamo, or really, to any U.S. jurisdiction in a foreign country (if James Bond and Kara Milovy had been trapped on an American air base in Afghanistan, there might be a reasonable argument that their fate is governed by the Constitution), because with an overseas American military base or somesuch, there is a place to which the flag has gone which the Constitution can follow. But in Arar's case, is his complaint not precisely that he was transferred beyond American jurisdiction? If the State of Missisippi were to detain me in pursuance of a warrant for my arrest in the State of Louisiana, and on my transfer to Louisiana, I encounter jail conditions of which I disapprove, can I sue Missisippi for the alleged violations of my rights carried out by Lousiana? As Julian's essay points out, a supposed "right of aliens to invoke the Constitution against U.S. actions overseas has never received unqualified, or even qualified, support from the Supreme Court ... [which] is hardly surprising given the traditional notions of a country’s laws being limited to the territory of that country" (but see M. Waters, Mediating Norms and Identity, 93 Geo. L. Rev. 487 at 531 n.197) (observing that a German court recently allowed a lawsuit to go forward against an Austrialian citizen who had undertaken certain actions in Australia that would have been illegal under German law if had been carried out in Germany).

Ultimately, I think I have to agree with Julian: for all practical purposes, "Arar was in transit and never officially entered United States territory, [and hence] finding that Arar has enforceable constitutional rights would also mean extending constitutional rights to all aliens outside of the United States, including suspected terrorists that the U.S. is currently attempting to capture or kill." I had thought that it was merely a caricature of liberals that they wanted to pursue the war on terrorism as a police action rather than a military one? In any event, even setting aside the question of whether the citizens of Dresden and/or the Imperial Japanese Navy should have sued the United States Government for violations of due process during World War II, it seems to me that the district court's assumption ("it assumed []without deciding[] that Arar did have Fifth Amendment rights that were violated") is the problem, rather than the remedy question. As I see it, Arar was not deprived of any Constitutional rights persons do have (or that he might have had) while in custody in the United States (United States v. Montoya de Hernandez, 473 U.S. 531, held that the "detention of a traveler at the border, [even] beyond the scope of a routine customs search and inspection, is justified" when there exists a reasonable suspicion that "the traveler is smuggling contraband"; surely, if a rule that permits border authorities to detain a person when reasonably suspected of mere drug smuggling is justified, one which permits border authorities to detail a person reasonably suspected of being a threat to national security is also justified, regardless of and independently from how they are subsequently disposed of), and has no Constitutional right capable of violation by the government's decision to deport him to a country of which he was a citizen.

Posted by: Simon | Sep 7, 2006 4:59:33 PM

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