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Anti Anti-Terrorists Beaten in Brooklyn (Continued) By: Henry Mark Holzer
FrontPageMagazine.com | Friday, March 17, 2006

He alleged that his treatment—within the United States, upon being “rendered” from the United States to Syria, and there being tortured—violated two provisions of American law: a federal statute called the Torture Victim Prevention Act (TVPA), and the Fifth Amendment Clause (Due Process) of the United States Constitution.

Here we need to be very clear about what was not, and what was, before Judge Trager when the government moved to dismiss Arar’s complaint. 


Not before him were the facts Arar had alleged, which the judge had to assume were true.  Not before him was whether this country should facilitate, let alone engage in, the conduct Arar alleged.  Not before him was the wisdom of whatever statutory and/or constitutional provisions might be applicable.  Not before him was either concrete or ephemeral notions of “right and wrong,” “civilized or uncivilized behavior,” or “morality or immorality.”  Not before him were issues of policy, which are the domain of Congress and its elected officials who are responsible to the electorate.


Remember that David G. Trager is a federal district judge He does not make the law.  It is his sworn duty only to apply federal statutes and the Constitution and, if necessary, to interpret both—but not to make policy from the bench.


Thus what was before Judge Trager, in his own words was this: “The questions presented by these motions are whether the facts alleged can give rise to any theory of liability under those provisions of law [the TVPA and the Fifth Amendment] and, if so, whether those claims can survive on prudential grounds in light of the national-security and foreign policy issues involved.”  Not whether as a matter of policy Arar should have recourse, but whether American law as currently written gives Arar any recourse.


Arar’s complaint raised four claims:


First: Violation of the TVPA by the defendants “conspiring with and/or aiding and abetting Jordanian and Syrian officials to bring about his torture.”


Second: Violation of the Fifth Amendment because of the Syrian torture.


Third:  Violation of the Fifth Amendment because of his detention and lack of access to counsel in Syria.


Fourth:  Violation of the Fifth Amendment because of his treatment in the United States.


For relief on claims first, second, and third, Arar sought what’s called  “declaratory judgments,” meaning that he was correct that under the facts as alleged the defendants violated his TVPA and Fifth Amendment rights.  He sought on all four claims both compensatory and punitive damages.


Thus, in summary, the predicates of the case before Judge Trager were these:


·        Arar alleged he had been denied Fifth Amendment rights because of his treatment in the United States, his rendition to Syria, and his treatment in Syria.

·        Arar alleged that all or some of the foregoing violated his rights under the Torture Victim Prevention Act.

·        All of these allegations had to be taken as true for purposes of the government’s motion to dismiss.

·        For relief, Arar wanted compensatory and punitive damages on all four of his claims, and a declaratory judgment on his first three claims.


Arar’s claims for declaratory judgments proved to be a tactical mistake, and they were the first to fall from Judge Trager’s application of settled law.


Before one can seek a declaratory judgment, Article III of the Constitution as interpreted by several decisions of the Supreme Court of the United States requires that he have “standing to sue”—(1) that he himself have suffered an injury to a specific legally protected interest, (2) that there be a causal connection between that injury and what the defendant did to him, and, most important to Arar’s complaint, (3) that it is  likely the injury complained of will be redressed by a favorable decision.”


Putting aside the first two requirements of standing to sue, Arar’s own complaint demonstrated that he failed to satisfy the third because, as Trager wrote,


his only continuing injury is a five-year bar to reentry [to the United States]…..  Thus, any [declaratory] judgment declaring unlawful the conditions of his detention or his removal to Syria [as compared, for example, with a challenge to the order removing Asar from the United States, which he did not complain about] would not alter in any way his ineligibility to reenter this country.  Consequently, Arar’s claim for declaratory relief fails to meet the [Supreme Court] requirement . . . that it be ‘”likely” as opposed to merely “speculative” that the injury—for these purposes, the bar to reentry—would be “redressed by a favorable decision.” 


The bottom line for Arar’s three declaratory judgment claims: denied.


In making this ruling, Judge Trager was merely applying Supreme Court precedent, and his reasoning is unimpeachable.  (He neatly distinguished a case decided in the United States Court of Appeals for the Second Circuit in which a deported alien, had, unlike Arar, challenged a removal order.)


That left Arar’s request for damages on his four remaining claims, which in turn depended on whether either the TVPA and/or the Fifth Amendment’s Due Process Clause afforded him any rights that our government had violated.


Trager turned first to the Torture Victim Protection Act.


A preliminary question was whether the act applied to “those who aid or abet, or conspire with, primary violators”—so called “secondary violators.” The government argued “no,” but Judge Trager ruled against it, relying largely on legislative history and a textual statutory interpretation.  That meant that the United States defendants could be, but not necessarily were, liable for what the Syrians might have done to Arar.


Next came the TVPA’s requirement that the wrong allegedly done Arar was committed by the eighteen named and unnamed United States officials under “color of law of any foreign nation.”  After an extensive and penetrating analysis of similar language in the civil rights statute (42 U.S.C. Section 1983), Judge Trager concluded that “the color of ‘foreign law’ requirement [of TVPA], combined with the intent by Congress to use the Torture Victim Protection Act as a remedy for U.S. citizens (emphasis added) subjected to torts [wrongs] committed overseas, strongly supports [the government’s] . . . claim that the Torture Victim Protection Act does not apply here.”  In other words, because Arar had made no allegation that the United States defendants were acting under Syrian law (whatever else they may have done), and also because the TVPA sought to protect U.S. citizens, not aliens, from torture abroad, Arar’s TVPA claim was dismissed “with prejudice,” meaning it could not be brought again.


At this juncture it is worth repeating that none of Judge Trager’s rulings thus far  even impliedly approved of the treatment Arar received in the United States or Syria, if indeed his story was true.  Indeed, accepting them as true, following Supreme Court precedent Trager merely ruled (1) that Arar lacked standing to sue for a declaratory judgment because that relief would in no way redress what had happened to him in the United States and Syria, (2) that Arar’s own complaint failed to show that the government defendants acted under color of Syrian law, and (3) that the TVPA as a matter of statutory interpretation and legislative history did not apply to aliens suing in a federal court, no matter what may have befallen them in a foreign country.


That left Arar’s Fifth Amendment due process claims (second and third) for detention and torture in Syria.


The government argued forcefully that four federal statutes deprived the federal court of jurisdiction over Arar’s Fifth Amendment claim.  In a lengthy analysis of those statutes and other court decisions, Judge Trager shredded the government’s arguments, concluding that none of the statutes “preclude a consideration of the merits of Arar’s alleged [Fifth Amendment] due process violations.”


Judge Trager’s opinion was now getting down to a fine point, rooted in a Supreme Court decision entitled Bivins v. Six Unknown Agents of Fed. Bureau of Narcotics.  The Bivins case established “that the victims of a constitutional [e.g., Fifth Amendment due process] violation by a federal agent have a right to recover damages against the official in a federal court despite the absence of any statute conferring such a right.”


Taking Arar’s allegations as true for the purpose of the government’s motion to dismiss, at first look it would seem that he would have a viable Bivins claim.  However, the Supreme Court has ruled that a Bivins remedy is not available when “‘special factors counseling hesitation’ are present.”  One example is a situation where a particular issue is “best decided by coordinate branches of government."


And now the nub of the matter.


The government made two arguments.  One, which Judge Trager found “unpersuasive,” was that Arar had recourse under the Immigration and Nationality Act.


The second was that Arar’s case was subject to a Bivens exception “because the foreign policy and national-security concerns raised [by the Arar case] . . . are properly left to the political branches of government,” e.g., the President as Commander in Chief.


This argument Judge Trager found “compelling”—as is his analysis and his conclusion, which are the most courageous, albeit most vulnerable, parts of his lengthy opinion.


Perhaps realizing that his opinion would turn on the defensibility of this section, the judge began with a lengthy preamble about national security and foreign policy considerations:


Defendants [the government] next argue that this court should decline to extend a Bivens remedy in light of the national-security concerns and foreign policy decisions at the heart of this case. Such determinations, they claim, are uniquely reserved to the political branches of government and counsel against the extension of a damages remedy here….


This case undoubtedly presents broad questions touching on the role of the Executive branch in combating terrorist forces--namely the prevention of future terrorist attacks within U.S. borders by capturing or containing members of those groups who seek to inflict damage on this country and its people. Success in these efforts requires coordination between law-enforcement and foreign-policy officials; complex relationships with foreign governments are also involved. In light of these factors, courts must proceed cautiously in reviewing constitutional and statutory claims in that arena, especially where they raise policy-making issues that are the prerogative of coordinate branches of government.

A number of considerations must be noted here. First, Article I, Section 8 of the U.S. Constitution places the regulation of aliens squarely within the authority of the Legislative branch. Congress has yet to take any affirmative position on federal-court review of renditions; indeed, by withholding any explicit grant of a private cause of action [a claim] under the Torture Victim Protection Act to plaintiffs like Arar, or to any plaintiff under [another federal statute] . . . , the opposite is the more reasonable inference.

Second, this case raises crucial national-security and foreign policy considerations, implicating “the complicated multilateral negotiations concerning efforts to halt international terrorism….”  The propriety of these considerations, including supposed agreements between the
United States and foreign governments regarding intelligence-gathering in the context of the efforts to combat terrorism, are most appropriately reserved to the Executive and Legislative branches of government. Moreover, the need for much secrecy can hardly be doubted. One need not have much imagination to contemplate the negative effect on our relations with Canada if discovery were to proceed in this case and were it to turn out that certain high Canadian officials had, despite public denials, acquiesced in Arar's removal to Syria. More generally, governments that do not wish to acknowledge publicly that they are assisting us would certainly hesitate to do so if our judicial discovery process could compromise them. Even a ruling sustaining state-secret-based objections to a request for interrogatories, discovery demand or questioning of a witness could be compromising. Depending on the context it could be construed as the equivalent of a public admission that the alleged conduct had occurred in the manner claimed--to the detriment of our relations with foreign countries, whether friendly or not. Hence, extending a Bivens remedy “could significantly disrupt the ability of the political branches to respond to foreign situations involving our national interest…..”  It risks

“produc[ing] what the Supreme Court has called in another context ‘embarrassment of our government abroad’ through ‘multifarious pronouncements by various departments on one question…..’” As the Supreme Court recently noted, “[r]emoval decisions, including the selection of a removed alien's destination, ‘may implicate our relations with foreign powers’ and require consideration of ‘changing political and economic circumstances…..’”


The Supreme Court has further noted that “any policy toward aliens is vitally and intricately interwoven with contemporaneous policies in regard to the conduct of foreign relations, the war power, and the maintenance of a republican form of government. Such matters are so exclusively entrusted to the political branches of government as to be largely immune from judicial inquiry or interference…..”

Third, with respect to these coordinate branch concerns, there is a fundamental difference between courts evaluating the legitimacy of actions taken by federal officials in the domestic arena and evaluating the same conduct when taken in the international realm. In the former situation . . .  judges have not only the authority vested under the Constitution to evaluate the decision-making of government officials that goes on in the domestic context, whether it be a civil or a criminal matter, but also the experience derived from living in a free and democratic society, which permits them to make sound judgments. In the international realm, however, most, if not all, judges have neither the experience nor the background to adequately and competently define and adjudge the rights of an individual vis-à-vis the needs of officials acting to defend the sovereign interests of the United States, especially in circumstances involving countries that do not accept our nation's values or may be assisting those out to destroy us.

On a related point, despite plaintiff's counsel's contention to the contrary at oral argument, the qualified immunity defense, which works effectively in the domestic sphere to protect officials in the performance of their duties, is not a sufficient protection for officials operating in the national-security and foreign policy contexts. This is because the ability to define the line between appropriate and inappropriate conduct, in those areas, is not, as stated earlier, one in which judges possess any special competence. Moreover, it is an area in which the law has not been developed or specifically spelled out in legislation. Nor can we ignore the fact that an erroneous decision can have adverse consequences in the foreign realm not likely to occur in the domestic context. For example, a judge who, because of his or her experience living in the community, rejects a police claim that a certain demonstration is potentially violent and, as a result, allows the demonstration to proceed over the objections of these law-enforcement officials faces a much smaller risk that this decision will result in serious consequences even if, with the benefit of hindsight, his or her judgment turns out to be wrong. On the other hand, a judge who declares on his or her own Article III authority that the policy of extraordinary rendition is under all circumstances unconstitutional must acknowledge that such a ruling can have the most serious of consequences to our foreign relations or national security or both.

Accordingly, the task of balancing individual rights against national-security concerns is one that courts should not undertake without the guidance or the authority of the coordinate branches, in whom the Constitution imposes responsibility for our foreign affairs and national security. Those branches have the responsibility to determine whether judicial oversight is appropriate. Without explicit legislation, judges should be hesitant to fill an arena that, until now, has been left untouched--perhaps deliberately--by the Legislative and Executive branches. To do otherwise would threaten “our customary policy of deference to the President in matters of foreign affairs….”  In sum, whether the policy be seeking to undermine or overthrow foreign governments, or rendition, judges should not, in the absence of explicit direction by Congress, hold officials who carry out such policies liable for damages even if such conduct violates our treaty obligations or customary international law.


What, then did Judge Trager’s views mean for whether to recognize a Bivens exception to Arar’s second and third claims for what allegedly happened to him in Syria?


For these reasons,” Trager wrote, consistent with applicable Supreme Court

precedents, “I conclude that a remedy under Bivens for Arar's alleged rendition to Syria is foreclosed.” There is an exception, and so there would be no remedy under Bivins.  Accordingly, Judge Trager dismissed Arar’s second and third claims.


That left only Arar’s fourth claim: the alleged Fifth Amendment due process violation for his detention within the United States.


As to that, Judge Trager recognized that the rights of an alien like Arar, not resident here but only passing through, are far from settled legally or constitutionally, though a consensus seems to exist that they have some rights—at a minimum, according to one court, the right to be free from “gross physical abuse.”


Because Arar’s complaint, construed in a light most favorable to his claim, alleged such a possible due process violation, Trager let that claim stand—but only subject to Arar repleading his “gross physical abuse” allegations more specifically, and actually naming the defendants who were personally involved in the alleged violation of his due process rights.


What happens next in the Arar case is a tactical question for Arar’s counsel and their backers.  If the CCR lawyers are smart, they will walk away from Judge Trager’s dismissal of their client’s “Syria rendition” claims, swallowing the judge’s decision because it was rendered (no pun intended) in only one of scores of federal district courts in the United States, and thus has no wider precedential effect. 


On the other hand, if the Center for Constitutional Rights does not walk away, and instead takes the “Syria rendition” issue to the Court of Appeals and ultimately to the Supreme Court, they may lose much more than they have already.  They may find that the Court of Appeals and the Supreme Court agree with Judge Trager’s well-reasoned, eminently defensible opinion that found that national security considerations trump an otherwise arguable Bivins claim. 


No matter what the legal-left does next, all Americans owe Judge David G. Trager a debt of gratitude for his understanding and appropriate application of the Constitution of the United States, and his recognition of the threat to our nation posed by radical Islam. 


Henry Mark Holzer, Professor Emeritus at Brooklyn Law School, is a constitutional lawyer and author most recently of The Supreme Court Opinions of Clarence Thomas, 1991-2006, A Conservative’s Perspective.

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