Saturday, March 04, 2006

An Embarrassment of Riches

David Luban

A great deal is disturbing about Judge David Trager’s decision in the Arar case two weeks ago. (Arar is the Canadian of Syrian birth who was snatched by U.S. officials while he was changing planes in New York on his way from Tunisia to Canada, and then shipped off to Syria for ten months of torture and imprisonment in a grave-size cell.) Dismissing Arar’s tort claims against U.S. officials, Judge Trager argued that permitting the law suit to proceed runs the risk that embarrassing information might emerge during the discovery process – for example, information that Canadian officials may have secretly cooperated with the United States in the Arar snatch, despite their denials. In a blistering op-ed, New York Times columnist Bob Herbert accurately paraphrased the argument as an attempt to preserve Canadian officials’ sacred right to lie to their constituents. Judge Trager argues that embarrassing officials in a U.S. courtroom might adversely affect foreign affairs and harm national security.

The Bush Administration’s initial response to the Arar lawsuit, over a year ago, was to invoke the rarely used "state secrets" doctrine, which allows the government an unreviewable privilege to shield state secrets from courtroom revelation. (The doctrine’s most common use has been in cases where Defense Department whistleblowers file actions permitting them a financial award for revealing fraud and corruption. Sometimes, these actions risk revealing secret details of weapons systems.) In the Arar case, the government argued that because every single fact is a U.S. state secret, Arar could not possibly prove his case, and his suit should be dismissed. Veteran litigators referred to the state secret doctrine as "the nuclear option", because of course it automatically obliterates an adversary's case. In theory, the government can, if it wishes, invoke it every time it is sued.

Judge Trager never ruled on the state-secret motion, because he goes one step further. He argues, amazingly, that even invoking the state secret doctrine might prove embarrassing to the government, because "it could be construed as the equivalent of a public admission that the alleged conduct had occurred in the manner claimed." Therefore, the lawsuit must be tossed out without forcing the government to use the nuclear option. It's just too embarrassing to have to go nuclear in order to shield your officials (and those nice Canadians) from having it revealed that they colluded in the torture of their kidnap victim.

The problem is that there is no limit to the anti-embarrassment principle. To take an obvious example, the revelation of the Abu Ghraib photographs undoubtedly embarrassed the United States government and made it more difficult to orchestrate anti-terrorism action with other governments. Therefore, no law suit by Abu Ghraib victims can be permitted. On this logic, no law suit that ever reveals misconduct or criminality by U.S. personnel, no matter how atrocious it is, can ever go forward. After all, anything that might make us look bad could have adverse effects on the prosecution of the War on Terror. In fact, the more atrocious the conduct, the more embarrassing its revelation would likely be - so, under the anti-embarrassment principle, the worse the conduct the more protection it deserves.

So there we have it. Along with the famous "commander in chief override," which supposedly allows the President (in his role as Greatest Field Marshall of All Time) to override any law in the name of national security, we now have the anti-embarrassment principle, which allows courts to dismiss any law suit that might embarrass U.S. officials in the eyes of our allies.

Even this doesn’t get at one of the most breathtaking portions of Judge Trager’s Arar opinion, where he delivers the following obiter dictum on whether the snatch and torture of Arar "shocks the conscience":

While one cannot ignore the "shocks the conscience" test established in Rochin v. California, 342 U.S. 165, 172-73 (1952), that case involved the question whether torture could be used to extract evidence for the purpose of prosecuting criminal conduct, a very different question from the one ultimately presented here, to wit, whether substantive due process would erect a per se bar to coercive investigations, including torture, for the purpose of preventing a terrorist attack. Whether the circumstances here ultimately cry out for immediate application of the Due Process clause, or, put differently, whether torture always violates the Fifth Amendment under established Supreme Court case law prohibiting government action that "shocks the conscience" - a question analytically prior to those taken up in the parties' briefing - remains unresolved from a doctrinal standpoint. Nevertheless, because both parties seem (at least implicitly) to have answered this question in the affirmative, it will be presumed for present purposes that the Due Process clause would apply to the facts alleged.

Until now, no one thought this question "remains unresolved from a doctrinal standpoint." In 1980, the Second Circuit denounced torture in ringing language, in its Filartiga opinion, which established the right of foreign torture victims to sue their torturers in U.S. courts under the Alien Tort Statute. In a footnote, Judge Trager, for whom this decision is controlling precedent, acknowledges the strong anti-torture language in Filartiga, but reads it narrowly to conclude "this dictum does not address the constitutionality of torture to prevent a terrorist attack." He also acknowledges our treaty commitments not to torture, replying "the obligations...can be repudiated," and virtually invites Congress to do so by suggesting that customary international law against torture would not prevail over "congressional legislation to the contrary."

The last sentence of the quote is remarkable – it admits that even the Bush Administration doesn’t deny or contest that torture shocks the conscience and violates the constitution. So Judge Trager's musings on the subject are entirely gratuitous. He is just sounding off. The whole point of the paragraph seems to be a judicial protest that, for heaven’s sake, somebody ought to be arguing that interrogational torture does not shock the conscience. It looks as if Judge Trager was eager to lay down the first precedent toward that conclusion in a published judicial opinion.

At least for Judge Trager, the sands have shifted from the world of 1980, when the Filartiga court labeled torture a "dastardly and totally inhuman act," to a world where torture is not only thinkable, but not even shocking – at least when it’s done by us to stop terrorists. His opinion contemplates a world where U.S. officials torture away with an entirely clear conscience, while resting secure in the knowledge that no court will embarrass them by allowing their victims a forum to prove that it ever happened.


Great post, Professor Luban.

There has been a public inquiry in Canada into the Arar rendition, and it is now common knowledge north of the border that the United States sent Arar to Syria to be tortured on the basis of information forwarded by CSIS (Canada's CIA). The judge, therefore, couldn't have been concerned with embarrassing Canada's government, which is out of office in any case. Not only was this a poor legal argument, it was a poor policy argument as well.

It should also be pointed out that Mr. Arar denies that he is a terrorist, and no one has produced a shred of evidence suggesting that what happened to him was in any way connected to preventing a terrorist attack. If Mr. Arar was a member of Al Qaeda and possessed such vital information then Canada would not let him walk around free today. The Judge has chosen to paint this as a "ticking bomb" scenario a la certain academics (Dershowitz etc.,) in an attempt to justify the unjustifiable.

I agree with both previous commenters and it also seems to me that there was either some pretty poor lawyering on the plaintiff's side or the judge made himself a part of the defense team. I hope the plaintiff has good appellate counsel because I look forward to the Court of Appeals decision.

Jeremy Waldron has taught us that the prohibition on torture falls into a very powerful category of legal norms, what he calls an archetype - something which lawyers and courts are to hold in reverence and to which in no event are the Dickensian lawyer's tools of parsing and niggling to be applied. Britain's highest court cites Waldron approvingly and follows his analysis. But Judge Trager clearly has a different view of the matter. Latent in the folds of his opinion is the viewpoint that torture is a perfectly legitimate tool of statecraft and it will be frustrated if courts are allowed to apply judicial scrutiny. What is most amazing and disturbing about this opinion is its passage to the side of torture-enabling. At some point, judicial officers may also enmesh themselves in the conspiracy to torture and may make themselves culpable under criminal law. Indeed, judges have been prosecuted when they "prostitute the administration of justice to corrupt political ends" as one of America's greatest prosecutors said of war crimes which bear many similarities to the Extraordinary Renditions program. David Luban's analysis is trenchant and very important. The enormity of the offense against justice presented by the Trager opinion is slowly dawning on many. It brings dishonor on our entire legal system and it is now up to the Second Circuit to apply a judicial purgative.

Well, Diogenes, the similarity between returning a Syrian citizen to Syria and invading Poland and killing three million Polish Jews rather escapes me, but as long as you're having fun being self-righteous, I guess it's okay.

For myself, the return of Elian Gonzalez to Cuba seemed more similar to the conduct prosecuted at Nuremburg, but I'm confident that you can't see that similarity at all.

i would like to know how returning a child to his family, even if that family resides in cuba, even remotely equates to the nazi policies of world war two.

Sean, Arar is a Canadian, not a Syrian; he was rendered to Syria for purposes of being interrogated using highly coercive techniques, and the CIA's list of questions was handed over with him. The program which was the point of reference was the Nacht- und Nebelerlass, which had nothing to do with the extermination of Jews in Poland or anywhere else. It authorized the apprehension of those suspected of creating a threat to German soldiers because of their association with partisan groups, such as the French resistance. Those taken were to be seized under cover of night and were to "disappear" without a trace in the local criminal justice system. The fate of those taken is largely unknown, but it probably dealt with about 7,000 people - which is certainly many more than covered by the Extraordinary Renditions program. Otherwise, however, the conception of the programs is extremely similar, and the arguments presented by the Nuremberg defendants for their legality are identical to those raised by the Bush Administration today.

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