Followers of the case are outraged, while the four dissenting justices opted to each write their own strongly worded opinions, one going so far as to open with a quote from Hamlet. Critics are comparing the decision to Dred Scott, the infamous judicial decision that upheld slavery in free states in the nineteenth century. With several years of backstory and countless pages of legal opinion, what is actually going on here? Is this case as crucial—and as abominable—as its critics believe? Here are the key opinions for understanding what this means for the judicial system, torture, and extraordinary rendition:
- From the Court Chief Judge Dennis Jacobs's argument in a nutshell: This matter isn't for the courts to decide, for reasons of both regular legal process and national security. First, the court dismisses a claim regarding Arar's Fifth Amendment rights because he couldn't say which U.S. government officials were obstructing justice and violating his right to due process. The rest of the decision then involves the argument that Congress is better equipped to deal with this case than the courts. For example, to continue considering these cases, courts would have to admit secret evidence, which "should provoke hesitation, given the strong preference in the Anglo-American legal tradition for open court proceedings." Then comes a part that angers critics: "An investigation ... would potentially embarrass our government through inadvertent or deliberate disclosure of information harmful to our own and other states." He is furthermore worried that such a suit would encourage "graymail," in which people sue the government expecting a settlement, because the government would rather pay to make the case disappear than risk exposing classified information. The conclusion:
We recognize our limited competence, authority, and jurisdiction to make rules or set parameters to govern the practice called rendition. By the same token, we can easily locate that competence, expertise, and responsibility elsewhere: in Congress.
- The Wrong Decision Dissenting judge Guido Calabresi writes instead "when the history of this distinguished court is written, today’s majority decision will be viewed with dismay." Far from respecting separation of powers, he thinks the decision shows "utter subservience to the executive branch," and does not so much modestly decline to decide as engage in "extraordinary judicial activism" on behalf of extraordinary rendition. Reluctance to endanger a country is understandable, he argues, but "in calmer times, wise people will ask themselves: how could such able and worthy judges have done that?"
- Horrifying Implications Salon's Glenn Greenwald says this decision shows "precisely how the character of a country becomes fundamentally degraded when it becomes a state in permanent war." Here's he quotes a part of the opinion he found particularly offensive, then offers his non-legalese translation:
"Providing a damages remedy against senior officials who implement an extraordinary rendition policy would enmesh the courts ineluctably in an assessment of the validity of the rationale of that policy and its implementation in this particular case, matters that directly affect significant diplomatic and national security concerns" (p. 39). In other words, government officials are free to do anything they want in the national security context--even violate the law and purposely cause someone to be tortured--and courts should honor and defer to their actions by refusing to scrutinize them."
- How About Encouraging Congress to Do Something? It's fine if the court passes the buck, according to Will at The League of Ordinary gentlemen. But "if the court is going ignore a manifest injustice for the sake of separation-of-powers, shouldn’t they at least have the decency to urge the Administration and Congress to do something about the victims of extraordinary rendition?" He's not going to argue with the conclusion, but says "the entire episode strikes me as a colossal missed opportunity to jump-start an important public debate over an issue that deserves more attention."
- Translation: No Accountability Jesse Lobdell, a caseworker at the British Columbia Civil Liberties Association, says the American treatment of this case "effectively removes accountability for American police and spy agencies so long as state secrets are involved."
- Bound for Historical Infamy: This Is the Modern Dred Scott, argues attorney Scott Horton. "In the Arar case, state secrecy claims are preposterous because the diplomatic and intelligence relationship that would supposedly have been compromised was that with Canada, and the Canadians had already come clean about what had happened and confessed to their own part in it." Instead,
The court’s majority delivered an example of timidity in the face of government misconduct the likes of which have not been seen since the darkest days of the Cold War. When the history of the Second Circuit is written, the Arar decision will have a prominent place. It offers all the historical foresight of Dred Scott, in which the Court rallied to the cause of slavery, and all the commitment to constitutional principle of the Slaughter-House Cases, in which the Fourteenth Amendment was eviscerated.