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Ninth Circuit Holds that Prolonged Detention of Immigrants Pursuing Motions to Reopen Must Be Reviewed by Immigration Judge

March 10, 2011 Leave a comment

On March 7, 2011, the U.S. Court of Appeals for the Ninth Circuit ruled in Diouf v. Napolitano that an immigrant facing long-term detention pending resolution of their motions to reopen immigration proceedings is “entitled to release on bond unless the government establishes that he  is a flight risk of a danger to the community.”  In so holding, the appellate court reversed the district court’s denial of preliminary injunctive relief to the petitioner, a citizen of Senegal who was granted voluntary departure from the United States in 2003, after overstaying his student visa, but later sought to reopen proceedings and remain in the country as the spouse of an American citizen.

Diouf was represented by the ACLU, ACLU of Southern California, and Stanford Law School Immigrants’ Rights Clinic.  History of the litigation is available here.

The petitioner, Mr. Amadou Lamine Diouf, did not leave the country within the timeframe for voluntary departure specified by the immigration judge because he intended to move to reopen proceedings.  Before he moved to reopen or for an extension of the period for departure, he was detained by Immigration and Customs Enforcement in 2005.  After being detained, Diouf moved the immigration judge to reopen proceedings.  This motion was denied and the Board of Immigration Appeals affirmed.  Diouf appealed to the Ninth Circuit, which granted a stay of removal pending consideration of his petition for review of the BIA decision.

Diouf’s detention, from March 2005 onward, was subject to review on two occasions, pursuant to federal regulation (8 C.F.R. Section 241.4). In these reviews, Immigration and Customs Enforcement determined that he was a possible flight risk and continued detention was justified.

Diouf then filed a petition for writ of habeas corpus (28 U.S.C. Section 2241) before the U.S. district court, requesting a preliminary injunction for his immediate release on the grounds that his continued detention violated 8 U.S.C. 1226(a) and the Due Process Clause of the Fifth Amendment to the U.S. Constitution – or in the alternative, ordering an immigration judge to hold a hearing requiring the government to justify his detention.  In February 2007, the district court required a bond hearing before an immigration judge, who then determined that Diouf did not present a sufficient danger to the community or flight risk and ordered his release.

However, the Ninth Circuit vacated the preliminary injunction because both the district court had assumed that Diouf was held under 8 U.S.C. Section 1226(a) (decision on removal pending), when in fact he was being held under 8 U.S.C. 1231(a)(6) (inadmissible or criminal aliens). Additionally, the Circuit Court “held that Diouf’s detention was authorized by statute because, although it was prolonged, it was not indefinite”. Diouf v. Napolitano at 3158. The Circuit Court remanded for the district court to determine whether aliens held under Section 1231(a)(6) were also entitled to receive bond hearings and be released unless they were proven to be a danger to the community or a flight risk.  The district court answered in the negative and, on appeal, the Circuit Court reversed.

Under Supreme Court jurisprudence, notably Zadvydas v. Davis, 533 U.S. 678 (2001), detention of immigrants pending removal may be extended beyond the 90-day limit following the order of removal for a reasonable period of time where removal is foreseeable (e.g., the immigrant’s home country is willing to take him and there is no other legal barrier to his return); such detention may not be indefinite.

This decision will mean that the legality of continued detention will be determined by an immigration judge, rather than by Immigration and Customs Enforcement officials, and the burden will be on the government to prove that the individual is a danger to the community or is likely to flee if released.

The government had argued that immigrants like Diouf who are collaterally attacking their orders of removal through motions to reopen should be treated differently than those challenging a removal order through the ordinary (direct) appeals process.  The Ninth Circuit disagreed, finding that the liberty interest of the two groups is “comparable” and both channels serve to ensure that immigrants’ rights are not violated and to properly dispose of their claims.

The court also rejected the government’s contention that the regulations provide adequate safeguards of immigrants’ liberty interests, requiring judicial deference.  The court found that deference to the regulations governing review of prolonged detention was not due because:

The DHS regulations governing the 180-day review, however,  do raise serious constitutional concerns. When the 180-day review takes place, the alien has been detained for approximately six months and the review, if unfavorable to the alien, authorizes detention for an additional year. At this point, the alien’s continuing detention becomes prolonged. When the period of detention becomes prolonged,  “the private interest that will be affected by the official action,” is more substantial; greater procedural safeguards are therefore required. […] Thus, at the 180-day juncture, the DHS regulations are appropriate but not alone sufficient to address the serious constitutional concerns raised by continued detention. The regulations do not afford adequate procedural safeguardsbecause they do not provide for an in-person hearing, they place the burden on the alien rather than the government and they do not provide for a decision by a neutral arbiter such as an immigration judge.

Id. at 3170-71 (internal citations omitted).

In concluding its reasoning, the court stated:

Diouf’s own case illustrates why a hearing before animmigration judge is a basic safeguard for aliens facing prolonged detention under § 1231(a)(6). The government detained Diouf in March 2005. DHS conducted custody reviews under § 241.4 in July 2005 and July 2006. In both instances, DHS determined that Diouf should remain in custody pending removal because his “criminal history and lackof family support” suggested he might flee if released. In February 2007, however, an immigration judge determined that Diouf was  not a flight risk and released him on bond. If the district court had not ordered the bond hearing on due process grounds, Diouf might have remained in detention until thisday. To address these concerns, aliens who are denied release in their 180-day reviews must be afforded the opportunity to challenge their continued detention in a hearing before an immigration judge.

Id. at 3172.  Diouf’s motion to reopen removal proceedings is still pending review.

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2010 in Review: IACHR Merits Reports

November 1, 2010 Leave a comment

The Inter-American Commission on Human Rights has published two merits reports so far this year, having to do with deportation of non-citizens without consideration for humanitarian factors (against the United States) and impunity in the death of a journalist (against Brazil).  In addition to the two merits reports, the Inter-American Commission on Human Rights has published thirty-six favorable admissibility decisions, seven inadmissibility decisions, two friendly settlement reports, and thirty-seven decisions to archive petitions with unresponsive petitioners or in which the grounds of the petition no longer subsist.  The seven members of the Commission meet three times per year to review and decide upon admissibility and merits reports prepared by the attorneys of the Executive Secretariat, meet with petitioners, and discuss internal procedures; at two such sessions, the commissioners hold hearings on cases and on issues of concern.  The decisions published in 2010 were adopted at the Commission’s 138th Period of Sessions held in March.  The Commission can be expected to publish additional reports this year, which it  may have adopted at its summer or fall sessions.

WAYNE SMITH, HUGO ARMENDARIZ, ET AL. V. UNITED STATES

In Wayne Smith, Hugo Armendariz, et al v. United States (mentioned previously on this blog here), the Commission concluded that “the United States violated Wayne Smith and Hugo Armendariz’s rights under Articles V [private and family life], VI [family], VII [protection for mothers and children], XVIII [fair trial], and XXVI [due process] of the American Declaration, by failing to provide an individualized balancing test in their removal proceedings”. IACHR, Report No. 81/10, Case 12.562, Wayne Smith, Hugo Armendariz, et al. v. United States, 12 July 2010, par. 66. The petitioners in the case were the Center for Justice and International Law (CEJIL), immigration law firm Gibbs Houston Pauw, and the Center for Global Justice.  In 2006, the Commission published its admissibility decisions in the separate petitions presented on behalf of the two men, and decided to consolidate their cases.

Read more…

Jeffrey Landrigan Executed in Contravention of IACHR Recommendations

October 27, 2010 Leave a comment

Jeffrey Timothy Landrigan was executed by lethal injection late last night in Arizona following the U.S. Supreme Court’s order yesterday, allowing the execution to proceed despite the unknown origin of one of the drugs, sodium thiopental, to be used by Arizona. [Arizona Republic]  The unnamed British drug manufacturer had not received approval from U.S. regulatory agency the Food and Drug Administration for its version of the drug, as would generally be required to broadly market it in the United States.  [National Post] In a 5-4 decision in favor of vacating the Arizona District Court’s stay of execution (temporary restraining order), a majority of the U.S. Supreme Court justices held that the plaintiffs were required to provide “evidence that the use of the drug is ‘sure or very likely to cause serious illness and needless suffering’” and had not met their burden.  Mere speculation on the part of the District Court judge that use of a non-FDA approved drug could cause pain and suffering was insufficient.  Justices Ginsburg, Breyer, Sotomayor and Kagan favored denying the application to vacate the stay.  Reprieve founder Clive Stafford Smith wrote yesterday in the Guardian that the British company supplying the sodium thiopental “should be named and shamed”.

The execution was carried out in contravention of the precautionary measures and merits report issued by the Inter-American Commission on Human Rights last week, which requested that the U.S. not execute Landrigan at least until he had been provided an opportunity to present evidence of mitigating factors and another sentencing hearing, in line with the U.S. Supreme Court’s 2002 decision in Ring v. Arizona which established that the state sentencing scheme requiring judges, rather than juries, to find aggravating circumstances and establish the corresponding penalty was unconstitutional.  The IACHR determined that the Supreme Court’s subsequent decision not to apply Ring to cases that had already gone through appeal violated Landrigan’s due process and equal protection rights.  As IACHR President Felipe González pointed out at last week’s press conference announcing the decisions, several States in the Western Hemisphere have federal systems, but are nonetheless responsible for ensuring compliance with the Commission’s decisions at all levels of government.  The United States’ continued argument that it cannot force individual states to comply with the federal government’s international obligations has time and again attracted condemnation from international tribunals, particularly in death penalty cases.  There was no public comment from the U.S. State Department on the Landrigan case, although the Commission itself forwarded its decisions to Arizona authorities. [IACHR]

Former Arizona trial judge, Cheryl Hendrix, who sentenced Landrigan to death in 1990 has since advocated commutation of his sentence in favor of life imprisonment, saying she had no choice but to impose the death penalty in the absence of evidence of mitigating circumstances.  Judge Hendrix said she would have sentenced Landrigan to life had she been presented with such evidence, including Landrigan’s history of mental illness, the brain damage caused by his mother’s alcohol use while pregnant, troubled childhood and a family history of violence. [Boston Herald]  For his part, Landrigan has argued that, had he fully understood the implications, he would have allowed such evidence to be presented.  Amnesty International recently issued an Urgent Action appeal highlighting Judge Hendrix’ comments and the importance of the mitigating circumstances in Landrigan’s case.

Landrigan’s case also involves allegations of innocence, based on DNA evidence showing someone other than Landrigan was at the crime scene, which Landrigan argued excluded him as the actual killer or a major participant in the murder. [Boston Herald]  Those claims were heard by the Arizona Supreme Court and the U.S. Court of Appeals for the Ninth Circuit.  Yesterday, the Ninth Circuit denied Landrigan’s request for a stay of execution, finding that the new DNA test results tending to show that someone else was present at the crime scene did not support the prima facie showing required by the Antiterrorism and Effective Death Penalty Act of 1996 that new facts which could not have been discovered earlier exercising due diligence “if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense”. 28 U.S.C. § 2244(b)(2)(B)(i) and (ii).

In its May 2007 judgment in Schriro v. Landrigan, a 6-3 majority of the U.S. Supreme Court reversed a Ninth Circuit decision, and held that the District Court had not abused its discretion in refusing to grant Landrigan an evidentiary hearing in his post-conviction federal habeas petition alleging ineffective assistance of counsel for failure to investigate mitigating circumstances.  The Court found that Landrigan had specifically instructed his defense counsel not to present mitigating evidence at sentencing and, therefore, the state court was entitled to conclude that Landrigan would not have allowed any mitigating evidence to be presented, regardless of its nature; accordingly, he would be unable to demonstrate that his counsel’s actions prejudiced the outcome of the sentencing hearing and was therefore not entitled to an evidentiary hearing.

U.S. Judge Excludes Evidence Obtained through Torture in New York Trial of Former GITMO Detainee Ahmed Ghailani

October 6, 2010 Leave a comment

Judge Lewis Kaplan of the U.S. District Court for the Southern District of New York ruled today that the federal government could not use the testimony of a reportedly key witness in the prosecution’s case against former Guantanamo detainee Ahmed Ghailani, who is on trial for his suspected involvement in the 1998 bombings of U.S. embassies in Kenya and Tanzania. [Washington Post; BBC]  Today’s judgment is available here. [JNSLP]  The witness, Hussein Abebe, also a Tanzanian citizen, was reportedly to testify that he provided Ghailani with explosives.  The government did not seek to admit Ghailani’s coerced statements themselves.

In 1998, the U.S. government presented charges against Ghailani in the Southern District of New York, and an indictment and warrant for his arrest were issued.  Ghailani remained at large until 2004, when he was captured by the Pakistani government and handed over to the CIA, which held him for roughly two years in various “black sites”.  He was transferred to Guantanamo Bay in 2006 and remained there until his transfer to face trial in New York in June 2009.

Judge Kaplan’s highly redacted August 18 ruling ordered a hearing to hear argument on the issue of Abebe’s testimony. [JNSLP]

Today, Judge Kaplan ruled that Abebe’s testimony was fruit of a poisonous tree and could not be admitted into evidence.  In reaching his decision, Judge Kaplan found that the existence of the would-be witness for the prosecution was learned through coercive interrogation of Ghailani carried out by the CIA at secret detention sites and Guantanamo, and was not convinced by the government’s arguments that it would have found the witness without the use of the coerced information or that the link between government coercion of Ghailani and the witness’ testimony was too remote to violate the Constitution.  Ghailani had argued that the witness’ testimony should be excluded because the identity of the witness was obtained through coerced interrogation, in that Ghailani was denied the right to counsel and was subjected to “extremely harsh interrogation methods”.  The defense classified the interrogation methods as torture.

Judge Kaplan had previously ruled on Ghailani’s motion to dismiss the indictment for violation of his speedy trial right (having been held for nearly five years before being presented for trial).  In his July 12, 2010 ruling, the judge denied the motion based on his findings that the government’s delay “served a valid purpose” of protecting national security, “Ghailani would have been detained as an enemy combatant  throughout the period of the government’s delay in this prosecution” anyway, and “Ghailani’s status as an enemy combatant always has made it uncertain whether he ever will be freed, regardless of the outcome of the criminal case”.

Judge Kaplan’s most recent ruling in the case also clearly states his understanding that Ghailani could legally be held indefinitely, writing:

his status as an “enemy combatant” probably would permit his detention as something akin to a prisoner of war until hostilities between the United States and Al Qaeda and the Taliban end even if he were found not guilty in this case.

For more on U.S. courts’ interpretation of Executive power to authorize continued detention of terrorism suspects, see Human Rights First’s publication Habeas Works.

Ghailani’s trial has been rescheduled to begin October 12, allowing the government time to reformulate its litigation strategy.

News Clips – September 20, 2010

September 20, 2010 Leave a comment
  • In a heartbreaking blow to Afghan hopes for peace, several U.S. soldiers are under investigation for murdering at least three Afghan civilians last year as part of a rogue “kill team” that was allegedly formed when a staff sergeant who had served in Iraq in 2004 joined the platoon stationed in Kandahar province. [Washington Post]
  • The French Senate has approved a ban on the use of full-face veils in public, subject to a fine of 150 Euros ; the legislation will now be reviewed by the Constitutional Council [Impunity Watch; BBC]
  • On Thursday, the U.S. state of Virginia will execute Teresa Lewis, following her conviction for the 2002 deaths of her husband and stepson; she will be the first woman to be executed in the state in 98 years and is reported to have “severe learning difficulties”. [Guardian]
  • Polish police have detained exiled Chechen leader Akhmed Zakayev, who was granted asylum in the United Kingdom in 2003, but Polish authorities have not determined whether he will be extradited to Russia, where he is sought on charges of armed revellion, murder and kidnapping. [BBC; RNW]
  • Italy and Libya’s joint agreement to intercept would-be migrants at sea has led to several incidents where Libyan patrols have fired upon Italian boats in the mistaken belief that they were carrying migrants. [Impunity Watch; Human Rights Watch]
  • Ecuador and Colombia have met to discuss the plight of the approximately 135,000 displaced Colombians living in Ecuador, due to ongoing violence [Impunity Watch; ADN]
  • Leading Russian gay rights activist, Nikolai Alekseyev, has been released after being held by Russian authorities for two days while they allegedly pressured him to withdraw a complaint before the European Court of Human Rights. [Radio Free Europe]
  • A U.S. citizen has been released from Iranian custody after inadvertently crossing Iranian border from Iraq while hiking; meanwhile, while Amnesty calls attention to 30,000 held in Iran without trial and prominent Iranian human rights activist Shiva Nazar Ahari has been sentenced to six years’ imprisonment. [Guardian; NYT; Amnesty]
  • The Philippine National Police will support the installation of a human rights desk in every police station, following torture accusations levied against the police. [Manila Bulletin]
  • In Kyrgyzstan, human rights reporter Azimjon Askarov has been sentenced to life imprisonment on charges the Committee to Protect Journalists says are completely unfounded. [CPJ]
  • Peruvian President Alan Garcia approved a repeal of recent Legislative Decree 1097, amidst fears that the law would provide amnesty for security forces members accused of human rights violations. [Peruvian Times]  The repeal was viewed favorably by the IACHR, which had criticized the decree. [IACHR]
  • Citing “the lack of the right to legitimate defence in Rwanda today”, a French court has rejected Rwanda’s request to extradite Eugene Rwamucyo, a doctor wanted for his alleged involvement in the Rwandan genocide. [RNW]
  • Hamas and UN Relief & Works Agency clash over human rights curriculum in schools. [NPR]
  • The Observatory for the Protection of Human Rights Defenders has released its annual report, Steadfast in Protest, provides a region-by-region analysis of government  protection (or repression) of the media and civil society (note that the Table of Contents is at the end of the 500-plus page report).  The report is choc-full of individual examples of human rights defenders who were subjected to harassment or prosecution, and instances of dissent which were stifled – particularly during elections – in 2009. [FIDH]
  • Human Rights Watch calls for the establishment of an international Commission of Inquiry for Burma, to investigate past abuses by the military and armed groups.  [HRW]
  • The U.S. Senate is poised to vote on legislation, which has been approved by the House of Representatives, and which would repeal the military’s “Don’t Ask, Don’t Tell” policy towards gay and lesbian members of the military. [ACLU]
  • Kashmiri separatists protest curfew laws and Indian occupation in bloody battles with Indian troops, in which at least three protesters have lost their lives, while Human Rights Watch calls for the repeal of the Armed Forces Special Powers Act, which protects members of the Indian military from prosecution and grants broad powers to use force and conduct warrantless arrests. [BBC; HRW]
  • UN Special Rapporteur on the right to adequate housing warns of the high rate of forced evictions in Kazakhstan. [OHCHR]
  • The IACHR has presented a case to the Inter-American Court involving Chilean courts’ denial of parental custody rights to a lesbian mother because of her sexual orientation.  Karen Atala’s petition is the first to be decided by the Commission relating to discrimination on the basis of sexual orientation. [IACHR]
  • UN expert calls on Sudanese authorities to investigate the September 2nd killing of dozens of civilians in North Darfur. [OHCHR]
  • A Reprieve investigator reports that the FBI has been deeply involved in the questioning and detention of individuals connected to the World Cup bombings in Kampala this year, the investigation of which has included the arbitrary detention of two Kenyan human rights defenders arrested in Uganda last week.  They had been working on behalf of three Kenyans subjected to extraordinary rendition and charged in Uganda for their alleged role in the Kampala World Cup bombings. [Huffington Post]
  • Organizations call for the immediate release of 19-year-old blogger being held incommunicado in Syria for nine months now.  [AFP; HRW]
  • Attacks against journalists threaten lives and freedom of expression in Mexico. [Impunity Watch]
  • The Costa Rican Supreme Court has ruled that the high crime rate in the country cannot justify arbitrary police checkpoints on public roads, which may be established only when there is substantiated evidence or actual notice of a crime having been committed. [CEJIL]
  • 18 protesters were injured, and one killed, in a confrontation between Peruvian police and protesters opposed to a dam and agricultural irrigation system which residents of Espinar fear would leave them without water. [Reuters; AlertNet]
  • In Thailand, planning for anti-government protests is underway as the fourth anniversary of the military coup approaches. [Democracy Now]

Ninth Circuit Dismisses Rendition Lawsuit against Boeing Subsidiary, Granting Government’s Invocation of State Secrets Privilege

September 11, 2010 Leave a comment

On September 8, an en banc panel of the U.S. Court of Appeals for the Ninth Circuit dismissed a civil suit filed under the Alien Tort Claims Act by five extraordinary rendition victims against a Boeing subsidiary, Jeppesen DataPlan, Inc. for its role in their rendition.  [Amnesty International USA ; ACLU]  The federal government intervened in the suit, arguing that any divulgence of information relating to Jeppesen’s work for the CIA would make public privileged information.  The district court granted the government’s motion to dismiss.  On appeal, a three-judge panel of the Ninth Circuit Court of Appeals reversed and remanded.  An eleven-judge panel of the Ninth Circuit took up the case en banc, the majority then “reluctantly” concluding that the state secrets privilege applied and, on the facts of the case, required dismissal.

The five plaintiffs are non-U.S. citizens who were detained in Sweden, Pakistan, Gambia and Jordan before being rendered to Egypt, Morocco, and Afghanistan, where they allegedly suffered torture and inhumane conditions of detention.  Several allege that they were sentenced to lengthy prison terms after giving false confessions under severe torture. Two of the plaintiffs, Binyam Mohamed and Bisher al-Rawi, were eventually transferred to Guantanamo, where they spent years in detention.

Unlike the district court, the circuit court relied on the privilege established in Reynolds (state secrets evidentiary privilege) rather than on the Totten bar (barring adjudication where the very subject of the litigation is a state secret).  The state secrets privilege is intended to protect information when “strictly necessary to prevent injury to national security”. See, e.g., Mohamed v. Jeppesen Dataplan, Case 08-15693, Slip Op. at 13538 (9th Cir. Sept. 8, 2010), quoting Ellsberg v. Mitchell, 709 F.2d 51, 57 (D.C. Cir. 1983).  The effect of a sustained claim of the state secrets privilege is the excision of the protected evidence from the litigation.  In Mohamed, the Ninth Circuit held that dismissal was required because the privileged evidence could not be separated from nonprivileged information, creating an “unacceptable risk of disclosing state secrets” were the case to continue. Id. at 13540 et seq.  In spite of the hundreds of pages of nonprivileged documents offered into evidence by the plaintiffs (listed in the dissent’s appendix), the majority concluded that Jeppesen’s response to such evidence would require disclosure of privileged information. Id. at 13551-52.  The majority also took note – on two occasions – that the Obama administration had revised the federal standards for invocation of the state secrets privilege and certified to the court its compliance with those standards in this case. Id. at 13528-29, 13552-53.  [See Michael Isikoff’s critical Newsweek article on that issue here].

With regard to the plaintiffs’ possibilities for relief, the majority wrote:

Our holding today is not intended to foreclose — or to prejudge — possible nonjudicial relief, should it be warranted for any of the plaintiffs. […].

First, that the judicial branch may have deferred to the executive branch’s claim of privilege in the interest of national security does not preclude the government from honoring the fundamental principles of justice. The government, having access to the secret information, can determine whether plaintiffs’ claims have merit and whether misjudgments or mistakes were made that violated plaintiffs’ human rights. Should that be the case, the government may be able to find ways to remedy such alleged harms while still maintaining the secrecy national security demands. For instance, the government made reparations to Japanese Latin Americans abducted from Latin America for internment in the United States during World War II. See Mochizuki v. United States, 43 Fed. Cl. 97 (1999).

Second, Congress has the authority to investigate alleged wrongdoing and restrain excesses by the executive branch. “ […]

Third, Congress also has the power to enact private bills. See Nixon v. Fitzgerald, 457 U.S. 731, 762 n.5 (1982) (Burger, C.J., concurring) (“For uncompensated injuries Congress may in its discretion provide separate nonjudicial remedies such as private bills.”) […]  When national security interests deny alleged victims of wrongful governmental action meaningful access to a judicial forum, private bills may be an appropriate alternative remedy.

Fourth, Congress has the authority to enact remedial legislation authorizing appropriate causes of action and procedures to address claims like those presented here. When the state secrets doctrine “compels the subordination of appellants’ interest in the pursuit of their claims to the executive’s duty to preserve our national security, this means that remedies for . . . violations that cannot be proven under existing legal standards, if there are to be such remedies, must be provided by Congress. That is where the government’s power to remedy wrongs is ultimately reposed.” Halkin v. Helms, 690 F.2d at 1001 (footnote omitted).

Id. at 13553-56 (internal citations omitted).

The Ninth Circuit’s decision is an interesting echo of the Second Circuit’s dismissal of Maher Arar’s suit against U.S. government officials alleging wrongful detention and torture in connection with his extraordinary rendition to Syria.  While the Second Circuit did not reach the questions of qualified immunity or the state secrets privilege, the court placed primary importance on non-judicial remedies in the resolution of such cases, explaining that “if a civil remedy in damages is to be created for harms suffered in the context of extraordinary rendition, it must be created by Congress”.  The U.S. Supreme Court recently declined review of the Second Circuit’s dismissal.

In their sharply worded opinion, the five dissenting judges argued that the majority’s holding was procedurally flawed, in that the plaintiffs’ allegations were sufficient to survive dismissal and the state secrets privilege should not have been used to prevent plaintiffs from proving (through non-secret evidence) the veracity of allegations “that any reasonable person would agree to be gross violations of the norms of international law, remediable under the Alien Tort Statute.”  Id.  at 13559. Rather, review of the privilege’s application should have taken place with regard to specific pieces of evidence, once the complaint had been answered and discovery had begun (not, as in this case, immediately after the complaint was filed), so as to avoid that the privilege trump due process of law. Id. at 13559-61.  The dissent’s – highly compelling – argument is that the majority allowed the state secrets privilege to apply to facts, rather than to evidence, prohibiting the plaintiffs from alleging certain conduct and knowledge by Jeppesen  rather than barring the introduction of pieces of evidence that could jeopardize national security (without having regard to whether privileged information could also support their allegations). Id. at 13568.  The dissent concludes by arguing that the alternative remedies identified by the majority fly in the face of the notion of judicial review and the concept of checks and balances.

The tie-breaking concurring opinion argued in favor of applying the Totten bar to dismiss.

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