Comments on: Arar Decision Cripples Torture Rendition Suits

By: albertchampion

albertchampion — Thu, 05 Nov 2009 07:20:11 +0000

and by the way, what did you think you were getting when you voted for this chicago gangster?

a change? or the theft of your loose change?

you want to look in the mirror to see grotesque ignorance, i think.

the only candidate deserving of your vote was cynthia mckinney. but because she opposed the fascist zionists murdering palestinians, because she questioned the official conspiracy theory concerning the events of 11/09/01 she was marginalized and defeated.

and you welcomed that defeat.

you are a bunch of ignorant individuals. thinking that any candidate of a major political party was more than a puppet.

By: Jeff Kaye

Jeff Kaye — Thu, 05 Nov 2009 07:18:07 +0000

I bow to you on matters of law. But it's a bitter pill, after an evening of listening to my wife, who is railing against lawyers and the courts, if this be the end of such matters. One must resort, like a drunken monomaniac, to the cozened world of Victorian novelists, for a quote I imagine you know only too well, and if it is drained of power by dint of its long overuse, then it still comforts like an old sweater on the coldest of autumn nights:

“If the law supposes that,” said Mr. Bumble,… “the law is a ass — a idiot. If that’s the eye of the law, the law is a bachelor; and the worst I wish the law is that his eye may be opened by experience — by experience.”

Of course, we are not speaking of wives and husbands here, but nation states and criminal empires.

By: albertchampion

albertchampion — Thu, 05 Nov 2009 07:12:35 +0000

yes, he taught constitutional law. just as george walker bush and george herbert walker bush and james baker and henry kissinger and hillary clinton and bill clinton and tony blair taught constitutional law.

savvy?

By: ubetchaiam

ubetchaiam — Thu, 05 Nov 2009 07:09:49 +0000

There is a situation where juries can acquit even in the case of prima facie evidence being presented; are you saying that judges cannot use some similar mechanism when deciding cases?
And when you cite “it is most certainly not the province of the courts to affirmatively intrude upon the war and defense funding and conducting powers of the other two branches.” the question of the legality of the war is again brought up, a case never decided.
This comment is intriguing; “In this case though you have agents of the government acting in a way that they are explicitly barred by both the Constitution and the Criminal code from doing. So my point, which I would make forcefully if I were an attorney, is that they cannot therefore rely on this immunity in any way.” ; is it possible that the CCR didn’t set the best basis for the suit in it’s filings?

By: bluewombat

bluewombat — Thu, 05 Nov 2009 06:48:25 +0000

I’ve heard a rumor that the President of the United States used to teach Constitutional law. Can anyone tell me if this is true, or if it’s just another malicious right-wing smear?

By: bmaz

bmaz — Thu, 05 Nov 2009 06:10:51 +0000

I do not see as how state secrets and the special factors analysis under Bivens are necessarily related nd do not read the decision as saying they are. The language on the thought that state secrets could also preclude is mostly dicta. The main crux of the opinion lies in the Bivens analysis. I take no personal position as to whether the national security and defense powers of the executive are correctly given wide deference by courts, and especially so in a Bivens special factors analysis, but can tell you that has long and consistently been the position of the courts, and it is well supported in precedent. This same analysis was used in the Valerie Plame civil suit, and the court there also gave deference and the Circuit Court affirmed and the Supreme Court refused to set aside the decision, and I do not think they will here either.

By: fuckno

fuckno — Thu, 05 Nov 2009 05:46:54 +0000

“If the US courts are that weak, then the whole concept of checks and balances are a farce.”

Sadly, yes. But what else would one expect from a rogue nation?

By: viejolex1

viejolex1 — Thu, 05 Nov 2009 05:38:39 +0000

So it’s up to the executive and/or the congress to decide if one can seek money damages for a constitutional violation?

Then what the hell are courts for?

Marbury v. Madison, anyone?

By: SadButTrue

SadButTrue — Thu, 05 Nov 2009 04:32:43 +0000

I’m not nearly old enough to have been paying attention to precedent since the country was founded. ;-) But what I’ve seen in the last 50 years certainly corresponds with what you’re saying, and frankly the conclusion is depressing.

I’ll assume that you are an attorney; if not you certainly give the impression of knowing your stuff. I have no legal training, but I understand that the bench cannot affirmatively intrude into any case – by doing so it would become one of the litigants. I also understand why this is necessary.

In this case though you have agents of the government acting in a way that they are explicitly barred by both the Constitution and the Criminal code from doing. So my point, which I would make forcefully if I were an attorney, is that they cannot therefore rely on this immunity in any way.

This seems such a strong point to me that it would force one to the conclusion that the law and common logic are mutually exclusive.

Say the President decides that every American has to put $10 into his personal bank account. He has neither Constitutional nor statutory authority to do that, so if he tries he is not acting in the capacity of the POTUS, so he can’t legally rely on Executive Privilege, Sovereign Immunity, or any other perquisite of the office.

Are you trying to tell me that the judiciary would have no right to make that simple determination – was the WH acting with or without constitutional authority? And this is not just a hypothetical – it appears that the FBI had no probable cause when they took Mr. Arar into custody (more accurately, kidnapped him.) Therefore, no constitutional or statutory authority.

If the US courts are that weak, then the whole concept of checks and balances are a farce.

By: Jeff Kaye

Jeff Kaye — Thu, 05 Nov 2009 04:17:59 +0000

The court specifically looked to Congress to apply a remedy:

…for the elected members of Congress — and not for us as judges — to decide whether an individual may seek compensation from government officers and employees directly, or from the government, for a constitutional violation.

My article specifically references to odious pieces of legislation, signed by Obama, which indicates a special policy of NOT holding torturers accountable, and in fact, hiding their crimes. — If Obama gets much of the heat, the fake-liberal Pelosi leadership deserves much opprobrium for their collusion with the torturers. Playing politics with torture (if this is what they are doing, horse-trading off this issue for others, or biding their time, holding their cards close, or whatever BS metaphor I can dredge up) is unacceptable. The MC legislation and the ban on photos shows who owns Congress on these issues (and don’t even get me started on the votes for funding of Iraq and Afghanistan occupations).

Meanwhile, re the decision itself, humor this couch-sitting lawyer wannabe (in defense of civil liberties, where, I’m aware, such wandering can do more harm than good)…

What have you do say about “the opinion’s ‘dominant holding’ that ‘in the context of involuntary rendition, hesitation is warranted by special factors.’ Supra at [6-7].”

And, given the citation of the “state secrets” privilege, in their dissent, what think you of the minority’s opinion:

First, we think heeding “special factors” relating to secrecy and security is a form of double counting inasmuch as those interests are fully protected by the state-secrets privilege. Second, in our view the applicable test is not whether “special factors” exist, but whether after “paying particular heed to” them, a Bivens remedy should be recognized with respect to at least some allegations in the complaint. Applying that test, we think a Bivens remedy is available.