In recent times, it’s not often that the federal courts have shown much deference to either the executive branch or Congress when it comes to terrorism and national security. In cases such as Boumediene v. Bush (2008) and Hamdan v. Rumsfeld (2006), the court has exercised little judicial restraint in an area it once thought was, more often than not, the province of the political branches. So, when any of the federal courts show a bit of inter-branch comity, as the U.S. Court of Appeals for the Second Circuit explicitly did yesterday in Arar v. Ashcroft, special note should be taken.
Maher Arar was a dual citizen of Syria and Canada. In 2002, while flying through New York’s Kennedy airport in transit from Tunisia to Canada, he was detained by immigration authorities and the FBI after Canadian intelligence had tipped them off that Arar had links to al Qaeda. Arar was then held for nearly two weeks of questioning, after which he was put on a plane to Jordan and then handed over to the Syrian government. While in Syrian hands, Arar was interrogated further and likely tortured. Upon being released into the custody of Canadian officials in late 2003, Arar then sued the responsible U.S. officials for damages, arguing that they had been complicit in his torture and had, in turn, violated the Torture Victim Protection Act of 1991.
Dismissing the applicability of the Torture Victim Protection Act, along with other elements of the suit, the court says that “it is clear from the face of the complaint that Arar explicitly targets the ‘policy’ of extraordinary rendition”—the apprehension and transfer of a person from one state to another. After observing that the U.S. government has been utilizing renditions for terrorist suspects since at least 1995, the majority opinion admits that the issues surrounding the policy are extraordinarily complex, involving intelligence, state-to-state relations, and an array of public safety judgments. It then concludes that these are matters “generally accepted” as falling within “the province and responsibility of the Executive” in the first instance and, absent congressional authorization, an area the courts should be “hesitant to intrude” on. “Absent clear congressional authorization, the judicial review of extraordinary rendition would offend the separation of powers and inhibit this country’s foreign policy.”
“None of this,” the court argues, means “that extraordinary rendition is or should be a favored policy choice.” But given the “competing obligations” of those involved in making such decisions, it should give the courts “pause” before expanding its writ into this area.
The court’s restraint in this instance is even more remarkable in light of the fact that it could well be that Arar was in fact wronged. A Canadian investigation of his case concluded that he was probably tortured and that the intelligence passed to the United States about him was not as certain as initially set forth. (In early 2008, the Canadian government issued an apology to Arar and provided some $10 million in compensation to him and his family.) Although the press reports that the United States still has Arar on its “watch list” and refuses to allow him in the country on the basis of other intelligence it believes is credible, it would have been easy enough for most modern jurists to devise some legal remedy in order to give Arar what many would perceive his just due, or to use the case to make new law when it comes to rendition itself—a notably noxious counterterrorist policy.
Of course, we may still reach that point if this case or a similar one were to be taken up by the Supreme Court. Given the 5-4 and 5-3 decisions in the cases mentioned above, no smart money would lay any bets down that the higher court will show the same restraint exhibited by the bench below it. But, at least for one day, let’s be pleased with a decision that acknowledges that the Constitution’s underlying theory of separation of powers is predicated on the view that each of the branches has relatively distinct responsibilities and functions. And that, when it comes to matters of national security, less court, more president and Congress, is probably a pretty good rule of thumb.
