August 14, 2008
3-judge panel declares "do-over" on Arar case
According to the Center on Constitutional Rights, the US Second Circuit of Appeals has decided to re-open the case of Maher Arar, the Syrian-born Canadian citizen who was deported to Syria by the US while transiting through JFK airport in New York. The case will be re-heard on December 9.
The court will hold a hearing "en banc" (meaning
in private with a full panel of judges [thanks matthew]) on December 9. Unusually, the decision was made "sua sponte" or on the judges' own initiative, rather than in response to any motions that had been filed. Eva Luna tells me that she can't think of another case of this magnitude where the court has decided to go back and re-examine its previous decision on its own.
The CCR, which filed the case on behalf of Mr. Arar, summarizes his treatment:
Based on faulty information, Mr. Arar was detained as he was changing planes at JFK airport on his way home to Canada from a family vacation. A Canadian citizen, he pled with officials not to send him to Syria, the country of his birth, because he would be tortured there.
After nearly two weeks in New York, with access to counsel and the court obstructed, he was flown to Jordan on a chartered jet in the middle of the night and taken by land to Syria. Mr. Arar was tortured, interrogated and kept in a 3x6x7-foot underground cell for a year until the Syrian government, finding no connections to terrorism, released him home to Canada.
However, in response to the CCR's filing, the 2nd Circuit ruled in June 2008:
that Mr. Arar’s constitutional claims for being sent to Syria to be tortured and arbitrarily detained could not be redressed because Congress already provided a remedy by permitting foreign citizens to petition a court to review their removal orders, even though in this case the U.S. officials prevented Mr. Arar from doing so. The court also found these claims could not be heard because they would interfere with U.S. foreign relations and impede national security.
The CCR also links the original order (pdf).
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Given, the range of my court experience is narrow, but the typical sua sponte reopening I have seen is when someone in deportation proceedings rushes into the courtroom 2 hours late, just after being ordered deported in absentia for not showing up, having been involved in a traffic accident or the like. To have a Federal circuit court decide of its own volition to rehear a case is downright freaky. I'd love to know what made them decide to do it.
Posted by: Eva Luna at August 14, 2008 08:22 PM
Technical correction -- "en banc" means full panel of judges. In private would be "in camera"; in blatant public view would be "in front of the cameras". Ok, the last one is not true, but seriously, en banc means ALL the judges of the court are engaged.
Rehearings en banc are not dramatically rare though a court doing it on its own (sua sponte) long after a decision is made by a smaller panel does indeed sound freaky.
It is possible that some language in Supreme Court or other recent decisions inspired this, as well as a simmering outrage among other judges. If I recall the initial decision, while ultimately bowing to national security, was not at all kind in its recital of government action and expressed a measure of sympathy.
Also this recent public news about absence of clearance for torture issues and DHS inestigating its own with new secret evidence may have steered things.
Posted by: matthew hogan at August 14, 2008 09:50 PM