I've read the decision, but do not feel competent to address the legal issues it raises. (Most of them involve things like jurisdiction and standing.) However, there is one point on which I disagree strongly with the Court. Apparently, one of the counts could have proceeded had the Court not found that the national security questions it raises require that it be deferred to Congress or the executive. The courts, according to the decision, lack the foreign policy expertise to decide such questions, and therefore they should be left to the "political branches" of the government.
I think this is just wrong. Article VI of the Constitution states that "all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby". We have entered into the Convention Against Torture. Article III of that Convention states that "No State Party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture." There are very substantial grounds for believing that someone rendered to Syria, as Arar was, would be tortured, even leaving aside the possibility that we asked the Syrians to torture him. We have therefore violated one of those treaties which are, according to the Constitution, the law of the land.
This means that the extradition of Maher Arar is a violation of the law. It may also have foreign policy implications, but it does not thereby cease to be a violation of the law. And while conducting foreign policy may not fall within normal judicial expertise, reading laws, and determining whether the facts in evidence warrant conviction under them, is exactly what judges do. If determining when conduct violates a law and when it does not does not fall within their purview, I have no idea why on earth we bother to have them.
Moreover, while the Court argues that Congress has not addressed the issue of extraordinary rendition, I would have thought that it did so by ratifying the Convention Against Torture, thereby making it the law of the land.
The only way I can see of holding that Maher Arar's detention should not be justiciable is to say that when something is both (a) a violation of law and (b) significant for foreign policy, its foreign policy significance should trump its illegality. But this would be crazy. Do we really want to say that whenever foreign policy is in any way involved, our laws cease to apply? That whatever our officials do that relates to foreign policy is therefore immune to legal scrutiny? I don't.
The Court also makes much of various prudential arguments against the courts' considering issues that bear on foreign policy. But there are, I think, compelling prudential arguments on the other side as well. For one thing, treaties are not just vague gestures in the general direction of an intention; they are legally binding documents, and should be treated as such. When a treaty specifically outlaws certain forms of conduct, and our government engages in them anyways, our word as a nation is at stake. It would be nice to think that no administration would ever choose to ignore treaties, but Maher Arar's case is itself evidence that sometimes they do.
If there is no way of holding officials accountable under treaties (which almost by definition involve "foreign policy considerations"), then nothing prevents administrations from treating treaties as worthless scraps of paper. There are, it seems to me, very strong prudential arguments against allowing this to happen. And the courts would not be intruding where they do not belong: as I've said, according to the Constitution, treaties are law, and so in adopting a treaty, the Congress is making the conduct they preclude the courts' business.
That someone on a stopover in an airport can be detained by our government, sent to Syria to be tortured, held for ten months, and be left without any legal recourse is unconscionable. Coming just after the Abu Ghraib photos, it leaves me speechless.