Login HereThe Second Circuit Court of Appeals issued an extremely rare order that the case of Canadian rendition victim Maher Arar would be heard en banc by all of the active judges on the Second Circuit on December 9, 2008. For the court to issue the order sua sponte, that is, of its own accord without either party submitting papers requesting a rehearing, is even more rare.
"We are very encouraged," said CCR attorney Maria LaHood. "For the court to take such extraordinary action on its own indicates the importance the judges place on the case and means that Maher may finally see justice in this country. As the dissenting judge noted, the majority’s opinion gave federal officials the license to 'violate constitutional rights with virtual impunity.' Now the court has the opportunity to uphold the law and hold accountable the U.S. officials who sent Maher to be tortured."...
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.
CCR has been working on this case since 2004, trying to hurdle roadblock after roadblock in digging out information that has been classified to hide the extent of government conduct and complicity in torturing a Canadian man determined to be innocent.
The legal beagles out there know how rare a sua sponte decision for rehearing is. That someone at the appeals court reviewed the panel decision and evidence and decided further review was warranted -- and then managed to convince a majority of the appeals court judges to vote for an en banc rehearing? That says that someone caught something troubling in the filings or the arguments. The big question is: what caught their eyes?
En banc means the entire appeals court bench will hear the case, not just a three judge panel. Which is a very big deal, because that means that whatever the issues in question are, the full court feels they are important enough to be addressed emphatically. And they determined this on their own without being prodded yet by counsel. Very, very intriguing.
This has been particularly rare in national security cases through the years, where deference to the executive branch has been almost a reflexive action due to an abundance of caution where evidence is presented regarding a credible threat. The question always comes back to whether or not the threat was really credible. Does Korematsu ring a bell?
That the Bush Administration has lost that good faith assumption altogether in this case is an epic failure. And they haven't just lost it in the Second Circuit, as the SCOTUS has been showing a bit more skepticism of Bush Administration national security and secrecy claims as well.
The parties in the Arar case were given additional time to file supplemental briefs and memoranda, and responses to each other, with oral argument scheduled for December 9th, 2008.
The Second Circuit includes NYC, and they have often had to deal with terrorist and other national security cases through the years, including the first Twin Towers bombing case which was successfully prosecuted in the SDNY. And it is highly telling that these judges in an extremely influential circuit on national security matters are publicly smacking the Bush Administration by ordering a full rehearing.
You can find the Order for Rehearing En Banc (PDF) here.
Meanwhile, there has still been no word on whether there will be any recriminations for folks like Larry Thompson and others at DOJ who approved rendition and torture of Maher Arar expressly in violation of American law and DOJ policies thereon. Given AG Mukasey's "bygones" approach to politicization at the DOJ, I'm sadly expecting a "what's a little torture among friends" asshattery, but I hope I'm proven wrong.
More on Arar from Jane Mayer, Obsidian Wings, and CCR. How Appealing tackles the sua sponte decision as well as the prior three judge panel ruling. Much more to come...
(YouTube -- report on the Arar treatment from Anderson Cooper, including interviews with Arar and his wife.)
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Hi Christy! Off to read….
Love it when you do the legal coverage, Christy. And this case? even more glad that I read it first from you. Thanks!
Heya all — this is a huge reversal on this from the three panel decision that happened in June. That the court did this on its own is a big rebuke. And I’m dying to know what turned this around. Will let you all know if I hear anything on this…
Christy, this is a wonderful piece of news. Thank you for bringing it to us…
Wow, this is good. This is very good! I was very disappointed with the decision on the Arar case, but now it looks like we actually have at least one branch of government still willing to stand up for the Constitution as pledged.
I still can’t believe the Bush Administration sends people to Syria to be tortured. If a Democrat visits Syria on a diplomatic mission, their patriotism is questioned; when the Bush Administration works hand-in-iron-fist with Syria, that’s just fine. Where’s the corporate media? To torture people. Media? To torture innocent people? Media? Bueller? Bueller? Or even Ben Stein?
I think the slapdowns in Boumediene, Parhat, and at Gitmo itself, and so many other things such as the revelations in Mayer’s book and all of it in totality, have caused the Federal jusiciary to wake up and regrow some balls. Sure, there is something in the record that will be pointed to, but just the public atmosphere plays a role too I think. It is turning. Slowly.
Hi Christy. IANAL so I’ll take your word for it that it’s a good and big deal. What kind of reputaiton does the 2nd Circuit have? I know that the 9th, for instance, is frequently derided by conservatives as being too liberal. Any reputation for this one that anyone knows of?
Isn’t it shameful that we are excited that someone may get justice in this country? Who would ever have imagined….. thanks, Christy.
I think that’s right. And I was rally surprised by this — totally unexpected but very interesting on what prompted the change of heart from the court. You know how rare this sort of thing is for any civil case, but in one with national security implications it is beyond rare. Truly.
‘So shines a good deed in a weary world’ - Willie Wonka
The Second Circuit tends to be one of the more influential ones, actually — because they handle very complex litigation on financial matters, primarily, given their location near Wall Street. But also with national security concerns — there and the DC Circuit, by and large on those types of cases. So this has the potential of having some far reaching ripples depending on the issues that the court hits. Wingnuts tend to deride it as a more liberal circuit, but a number of conservative judges have been appointed to it the last few years. LHP and some of the other folks who practice in the 2nd circuit can likely speak much more in detail about that, though…
Sorry that this is so way off topic, but I’m puzzled by not seeing any comments about the agreement between the Obama and the Clinton’s campaigns regarding her name being placed in nomination at the convention?
Thanks.
they have mananged to change the discussion, a few years ago the wing nuts would argue left and right;
“we do not torture”
but once the president admits that we do, the dialogue changes;
“torture is fine”
man, I cannot believe how easy it is for the sheep to follow their leader
This is good news what will be better is if it represents the beginnings of a breaking of the dam that sends the whole bunch to prison (maybe Gitmo)
Christy, what is the composition of the 2nd Circuit? How many are appointees since the rise of the Federalists and how many are legacies of those lost times since the strawman of “judicial activism” was the key measure of a judges worth?
That’s been under negotiation since early June between the two camps. It’s been hashed and rehashed and rehashed some more for weeks. I’m not certain there is much more to say other than both sides likely traded off a number of things to reach accord, which happens in pretty much any negotiation…and it will be a while until we know exactly what on the details, I’d imagine. But my modem fried and I had to get a new one, so I’ve been out of the loop since yesterday afternoon, so I’ve likely missed some of the scuttlebutt. Just now starting to catch up on e-mail since my connection came back online a little over an hour ago…
Can’t tell you that off the top of my head without doing some extensive research since I don’t practice in that circuit. Maybe one of our readers who does can answer it?
1,735 DAYZ AND THE KILLIN’ GOEZ ON AND ON AND…
Citizen Hardin Smith and the Firepup Freedom Fighters:
After a moment for an exuberant “HAZZAH!!”, my more reflective response is “too little too late”. First of all the date of the rehearing is AFTER the election and the fall session. Secondly, I believe that we are beginnin’ ta see a a slow turn toward the exits for institutions which have, to this point, been either complicit by their silence or actively involved in unconstitutional, unlawful and horribly immoral actions by this government. Thirdly, the hollowing out of our government and institutions and the constitutional fabric which has held them together is complete, and what remains in the rubble is the corrupted justice system which has, since the fall of 2000, been the single most effective vehicle for the institutionalization of fascism in our country.
So let’s not sit back and wait for a lame duck appeals court ruling that will do nuthin’ but attempt ta wash the blood of responsibility from those judges in that particular court. This is like the Libby trial…absent the political will to use the mechanism of impeachment, not only will the perpetrators get away with it but those structures which have survived for 200 years to protect against jest such systemic corruption will be gone into the dustbin of legal and historical precedent.
So let’s not stop for more’n a moment to applaud the ass coverin’ actions of the Court of Appeals…we gotta keep the political pressure on from the street and thru the ballot box…the window of survival for some sort of legitimate constitutional government is closin’ fast.
KEEP THE FAITH AND PASS THE AMMUNITION AND DON’T FORGET…DON’T EVER FORGET!!!
Very interesting.
Nice catch Mrs. Redd Hedd.
it’s alway nice that you can distill it down to my level of comprehension, as IANAL.
Thank you.
All it really means is that Clinton is going to be treated the same as all the other losing/runner-up Democratic Party primary candidates has been treated over the years.
Her name will be placed in nomination, the vote will be taken, Obama will win, HRC or a surrogate will move that the nomination be proclaimed unanimous by acclimation, it will be so ordered and the Dems will move on to the next order of business.
Hi Christy,
thanks for the illumination.
imagine having your spouse just disappeared
Yep, that’s exactly right — this is how it was done with Teddy Kennedy, for example, the year he lost the primary to Jimmy Carter. At least, if my memory is correct — I was a little younger then. *g*
dugg
And thanks, Christy.
I can’t imagine what that would be like — I’d be terrified. And then I’d get seriously pissed. And, as the days moved on, I’d be back to terrified. Especially after the call his wife got from him telling her that he was held in NYC and then…poof…he disappears again.
And then to have him come home after all of the torture? I cannot imagine what they have both had to go through, let alone their children.
Thank you, Christy, for bringing this to our attention and explaining the significance of the action!
I’m reminded of the old saying, which bustedknuckles also remembers, that
“The wheels of justice turn slowly, but they grind exceedingly fine”. I tried to google that, and haven’t found a source yet. The Bushies thought they could make new realities because the executive can move much faster than the other two branches of Government, but hopefully it will grind exceedingly fine as it takes apart the BushCo criminal conspiracy.
Bob in HI
1,735 dayz and the killin’ goez on and on and:
Citizen Ann in AZ:
Josh Marshall over at “The Talking Point Memo” has a great quick review of the agreement and a comment from a real blog journalist on the negotiations and the positions taken by the two sides in this. It’s illuminating and helps to clear up where the craziness has been comin from. It seems that Mrs. Clinton doesn’t have as much control of her shock troops as one would imagine given the top down nature of her operation.
KEEP THE FAITH AND PASS THE AMMUNITION…AND MAKE SURE YA AIM AT WHERE YER SHOOTIN’!!!
I went and researched and the only time it didn’t happen since ‘60 was in Y2K when Bradley released his delegates officially a couple of days prior to the nomination. Otherwise, ALL the losing Dems got their moment in the sun.
I have grown skeptical …
this very well could be ‘a little too late’ for actual justice to occur, and might just be a mending presenting their better nature, after the bad stuff has already happened. They cannot undue the damage done to this man, or the constitution. Justice delayed is justice denied.
This is just another ‘investigation’ by a corrupt system of itself. I have no hope that any legal justice will rule against BushCo. and still keep their reputation. Most lawyers refuse to accept that the justice system is just not working. They keep holding out hope.
Damn phone.
That someone at the appeals court reviewed the panel decision and evidence and decided further review was warranted –
Maybe. Let’s call that “Possibility ‘a’”…
A growing inability to look at the face reflected in the mirror - aka ‘conscience’? maybe “Possibility ‘b’”.
bmaz’ theory that the 2nd Circuit is finding itself somewhat embarrassed as it views the the braver stands being taken elsewhere? “Possibility ‘c’”.
HellifIknow. But good, and *very* interesting news nonetheless.
And no, I’ve never seen a sua sponte action like this before. It’s kind of reminiscent of the Court of Appeals letting Siegleman out of jail pending appeal.
maybe the worm is indeed turning….
Thanks — I thought I remembered that correctly, but I was 12 at the time, so… *g* (And yes, I watched all the convention coverage because I was a political junkie back then, too.)
Wasn’t Learned Hand a 2nd Circuit judge? It’s been so long. Almost forget what real jurists used to be able to do in this country.
Agreed — it is highly unusual to second guess judges on your own court and a decision this recently made. I would have thought something like this would have waited until the fall term began again, for instance, if it happened at all. Coming this close on the heels of the decision in June was interesting enough — but to do so on their own, without motion from counsel having had time to be fully filed with the court was really a shocker.
Am asking around with some involved folks about what may have gone on with this and I’ll definitely let you all know when and if I hear anything back…
Yes, he was. Good call!
FYI, the ACLU has put up another blogging dispatch from Gitmo today — from attorneys who are down there working on cases and/or observing for the ACLU. Thought some folks might be interested in the read…
Citizen Grandma:
The American system of justice has been a tool for the application of power of the few over the many through the empowerment of the corporations since 1877 and certainly since the SCOTUS decision which gave personhood to corporations. I too am not gunna wait for a few judges from a discredited court system to do ANYTHING that could lead to anything like justice for the criminals in our government…criminals in all three branches.
KEEP THE FAITH AND DON’T GIVE UP…DO IT FOR THE CHILDREN!
My late grandpa, who was then in his 80s, showed up at our house in NM one day. He was on his way to the Republican Convention, taking the bus from Oklahoma. My dad tried to explain that they wouldn’t let him in, and he just went on anyway.
LOL…they let him in. He chatted to all the people outside and they just loved him.;)
somewhat OT - sitting here trying to bang out a Motion while listening to Ron Suskind on Democracy Now!
Not much of a beat, but I can dance to it.
War dance.
That’s a hoot! Great story — thanks so much for sharing it. I needed that chuckle today. ;-)
Did you see the YouTube from my post yesterday of Suskind on The Daily Show? It was a great clip. (Unfortunately, my modem blew out before the post went up, so I couldn’t tell everyone how good it was in the comments. Arrrgh. You don’t know how much you depend on the internet until you don’t have any. *g*)
Actually, I saw it live. Sorta. “Dvr’d live”. heh.
Still waiting for him to address the contention that it was Feith’s office that actually did the dirty deed.
I don’t see the versions as inherently inconsistent. Suskind’s source evidently said they were told by Tenet to “handle it”.
Maybe the “handled it” by dropping it on Dougie’s desk. “Now let’s see - who do we know that is completely amoral, a total Pro-administration, pro-war stooge - and is both stupid and evil enough to do this?”
Dougie kinda leaps to mind, huh?
An amazing development. Edge of seats, watching.
I’m not sure bmaz meant that the 2nd Cir was being embarassed with braver stands taken elsewhere - more perhaps that the kinds of facts about these secret government torture activities have become less secret and the circuit may be willing to have some judicial notice of that in the interests of justice?
I think the 2nd has been a relatively “brave” court. Remember that the 2nd Cir is the one that ruled Padilla could not be disappeared into military abuse without things like charges and due process. They were punked, though, bc while Padilla started out in DOJ NYC custody (Comey et al), during the pendency the DOJ crew conspired with DOD to hand off Padilla for shipment out of state and out of the the court’s jurisdiction, to a military brig. The Sup Ct nixed the very good 2nd Cir decision that Padilla had to be charged or released went up to the Sup Ct on the technical grounds that since Padilla was now in the 4th Cir, the 2nd had no jurisdiction (I guess if they had taken him to a blacksite in Poland the ruling would have been the same - pretty bad ruling IMO that jurisdiction could de-attach by involuntary transfer)
Waiting for that Sup Ct ruling is when Comey & Ashcroft put together their Padilla press conf/sideshow on how Padilla was a terrorist mastermind, capable of separating nuclear materials by swinging a bucket. Or maybe he forgot to add that last part.
Anyway - setting the hearing for Dec kind of forces a fish or cut bait for Bush on pardons. And I’m not expecting to have any of the lawyers at DOJ involved in the Arar mess to do what Levin did and correct any of the representations about nobody knowing nuttin bout no torture that were made to the tribunal.
I don’t expect there ever was a lit hold placed on anything much and I’m sure destruction of evidence has been merrily taking place for years now. I don’t expect anyone will want to talk about prior torture of other Canadians as a partial basis for the DOJ’s decision to assist in handing off Arar to Jordan (where we had not even a glint of a reason for sending him - he was a Canadian or Syrian citizen, not Jordanian and Jordan had no charges pending against him) and then to Syria.
Obama has ducked ever mentioning Arar about as skillfully as any Republican or guy named “Chuck” Congress knows all about Arar and knew as they were voting for the MCA that these kinds of things were happening left and right with the Bush admin and all the Dems could do was assist in the cover ups and destruction of habeas and naked grants of power to be depraved without consequence.
Maybe something will come of the 2nd Cir hearing, but it’s hard to be optimistic. Given the overall scenario, I’m not sure Arar can ever expect much from this country. Not even a “classified” or “State Secret” note of apology.
I know these usually go nowhere but the liberal blogs, but still, this is gonna be mighty fun
man, I want them to subpeona cheney, which gives him a no win decision, he shows up and testifies, to which whitehouse will tear him a new hole, or he defies subpeoan and insinuates his own guilt
TASTEY
OOPS, forgot the link
http://rawstory.com/news/2008/....._0813.html
Specifically, do just what? Go into it. Less sloganeering, more detail, please.
And another matter: have you actually studied in any depth the sorry history of revolutions? And if you have done, what conclusions have you drawn?
The Second Circuit has certainly been a helluva lot better than, say, the 4th Circuit or certain segments of the DC circuit. *g*
And like you, I’ve been appalled at how little any of this has been discussed, including habeas and other civil liberties issues. It’s something I’m hoping to corner a few choice people on in Denver. Jane promised to bring here little video camera with her, so if we can find the folks I want to talk with about it and get it on film, we’ll post it for everyone. I’m starting a wish list, so if folks have issues and/or people they’d like us to try and talk with, let us know…
48 - Oh, don’t worry much CHS. After all, we can all just relax about things like torture and massive violations of the fourth amendment in acknowledge, but “classified” government programs.
After all, Galadriel took the ring, Obama will be President, the National Anthem will be changed to “Don’t Worry, Be Happy” and . . .
Good luck at the Convention and I’ll keep hoping for the best, but the Obama/Cass Susstein duo singing “Let It Be” doesn’t begin to end up on my Ipod.
Tula upstairs
Mary wins my vote for best comments (@44 & @49) of the thread!
Thanks, for the info in the post. SCOTUS agreed to review Boumediene on its own. I suppose that’s what your link is to.
(Fuzzy memory) Isn’t that what Luttig (Yea, him. Shocking!) had a fit when they pulled this stunt?
Oh, forgot to hit reply, that was to Mary @ 44
As one of the Canadians in the crowd, I’ll just say “WAHOO!”
This makes my day!
I’m so proud of the justices for standing up
and so proud of Maher Arar for being so patient.
With gratitude,
Heather
No, the rendition of Arar was shameful. The 3 panel decision was shameful. This decision is to be celebrated. Let’s hope for a judicious ruling from the en banc panel.
53/53
It was a complicated mess, but that’s not quite the ruling/approach that griped Luttig.
The sequence was something like (and this is from memory so I may screw up parts of it or get some wrong, but this will give you the gist)
Padilla gets held forever long as a material witness, Comey/Ashcroft try to prevent him from having a lawyer, Mukasey rules that he does have to have a lawyer. Then I THINK Mukasey or other dist ct judge there moved that they could continue to hold after the material witness warrant expired (or they could have ruled the other way - I don’t remember the lower court action very well) and it went up on appeal to 2nd Cir
Meanwhile, Ashcroft/Comey had disappeared their US citizen material witness to Rumsfeld (and Mukasey granting him a right to a lawyer is probably why we know the little we do know) who got him out of NY/2nd Cir and spirited off to be blackholed at the So Car brig.
The case hits the 2nd Cir, where, among other things, DOJ argues that the 2nd Cir has no right to continue to hear the case bc the complaint should have named the head of the brig (as the physical custodian), not Rumsfeld (head of DOD and guy in charge), and should now be pursued in the 4th Circuit.
2nd Cir says a pox on your house DOJ, charge or release.
Charge or release ruling goes to Sup Ct. and Ct buys into the “this should be in the 4th Cir” argument. So the 2nd Cir decision is voided
In the 4th Cir, case goes to Luttig, who gets all kinds of briefings on the bucketswinger, and continuously agrees to allow Padilla to be used for human experimentation and abusive interrogation/pre-trial punishment.
Meanwhile, Hamdi comes out. Scalia shocks the snot out of many by saying even in the war on terror, ubetcha a US citizen on US soil should have habeas protections and if Ex Parte Quillen says anything to the contrary, it should be overruled. Eyes pop.
Luttig’s rulings in Padilla on detention are now wending their way to the Sup Ct so Padilla is once again on target to go to the court, now with the news of torture at Abu Ghraib out as well. Bush picks Alito over Luttig for the open Sup Ct slot, bc Luttig would not be able to rule on the case since it was his from the lower court and with Scalia questionable, Bush needs every vote he can get.
Clement goes and argues to the Sup Ct, (with the Arar civil suit pending and the waterboarding discussions in DOJ and by numerous Admin lawyers rife) that the US doesn’t do torture or things like torture. In other news, apparently the Federal healthcare program for the Solicitor General’s office does include cosmetic surgery for work related disfigurements of face (aka - nose that just keeps growing)
Things aren’t looking good for Luttig’s opinion to be upheld. Comey does his best for the team by trying to hold a smiley face, we’re the good guys, never mind the disappeared children and torture of the mentally incompetent, Padilla Press Conf.
Luttig is mad that DOJ thinks his opinion won’t be upheld. He’s likely madder that he’s lost his shot at the Sup Ct bc he DID kiss Bush’s feet. Then DOJ pulls a fast one on him and tells him all about the horrible reasons they have to keep holding Padilla - then, right b4 the Sup Ct was about to rule on Luttig’s Padilla opinion and the detentions, DOJ transfers Padilla to Fla for trial on things unrelated to the dirty bomb allegations and moves to dismiss the Sup Ct appeal as moot, bc the relief requested (Padilla’s transfer to criminal justice system) has been effectuae.
Luttig is now very pissed - that they have no confidence his erudition will carry the day on appeal, that he’s not in Alito’s shoes, that they just finished telling him one thing and doing another, etc. so he rules that Gov isn’t allowed to dismiss the case in front of him without his ok, even though Padilla is now in Fla.
Meanwhile, Roberts wipes his sweaty brown and immediately denies the Padilla appeal as moot.
Something like, if not exactly this.
I wonder if the review at the en banc level was made because someone pointed out some sort of prosecutorial malfeasance that “led to” judicial error. It seems unlikely that the the en banc hearing would be made simply on the basis of the technical decision of the three-judge panel.
Note that the press release specifically pointed out that a review had occurred because of a review of “the evidence”. Judges simply don’t “miss” evidence…something had to be tainted or illegally held back in order for this action to be taken.