Possible Good News

by hilzoy

From the Center for Constitutional Rights (h/t Anderson):

"The 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. (...)

The Center for Constitutional Rights (CCR) case seeks to hold accountable the high level administration officials responsible for sending Maher Arar to be tortured and interrogated in Syria for a year – a practice known as an extraordinary rendition. Based on faulty information, Mr. Arar was detained as he was changing planes at JFK airport on his way home to Canada from a family vacation. A Canadian citizen, he pled with officials not to send him to Syria, the country of his birth, because he would be tortured there.

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 originally filed the case in the Eastern District of New York in January 2004; the first ruling, in February 2006, dismissed the case on the grounds that allowing it to proceed would harm national security and foreign relations. CCR appealed the decision, arguing before a three-judge panel in November 2007, but the Court of Appeals issued a 2-1 decision in June 2008 along similar lines."

What this means is: a panel composed of three judges on the Second Circuit ruled against Maher Arar in June. The entire Second Circuit Court has just issued an order saying: wait, we want to rehear this case -- all of us, not just a panel of three. It's unlikely that they would have done that if they didn't disagree with the panel in some way, and still more unlikely that they would have decided to rehear the case without waiting to be asked, as they did here.

This could be very good news. I hope so: it just should not be possible for our government to kidnap someone, ship him off to Syria knowing that he will be tortured, and then have no one be in any way accountable.

Comments

[Incertus]

That is good news. How does something like this happen? Might the dissenting judge on the original panel have done some robe-tugging on his or her own, pressuring the rest of the panel behind the scenes?

[Ugh]

it just should not be possible for our government to kidnap someone, ship him off to Syria knowing that he will be tortured, and then have no one be in any way accountable.

Buthe'samuslimterrorist9/119/119/11!!

[Anderson]

a panel composed of three judges on the Second Circuit ruled against Maher Arar in June

N.b. that one of the three judges would have ruled in Arar's favor.

The indispensable Howard Bashman (my source) links to the panel op, including the dissent.

[Anderson]

(I see now that Incertus noted the dissent. But look! Links!)

[sootytern]

There is a glimmer of hope in this for justice in the USA. I'm not going to hold my breath but at least someone, in this case the Second Circuit, is taking action in the correct direction (I almost used right instead of correct). I have lost a good deal of confidence in the US government - not the lower level bureaucrats, but the top levels. I don;t trust them any further than I can throw the Earth.

[The Crafty Trilobite]

Incertus, lobbying by the dissent would not be necessary, and would likely be considered somewhat unprofessional or at least uncollegial. The rest of the Circuit would have been very aware of such a high-profile case, and probably started circulating a draft order for en banc rehearing the day the order issued. Probably some judges asked their clerks to do a full work-up on the case before voting, which would have to have been fitted in after scheduled work, which is why it took 2 months.

Just to be clear, the order for en banc rehearing issues from the entire Second Circuit, but is determined by majority vote of active judges. This probably does mean that a majority are willing to overturn the panel. Note, however, that Second Circuit internal rules allow the Senior Judge (Judge McLaughlin) who sat on the original panel to sit on the en banc court along with the active judges. If for any reason (recusal, illness) it comes down to a tie, Judge McLaughlin can break it -- and he was part of the majority on the original panel, so he's a guaranteed vote to affirm.

[Nell]

Thanks for that, Crafty fossil. Let's hope it's not even close to a tie.

This is genuinely good news.

[zmulls]

December 9. After the election. Coincidence? Or just good planning...

[dmbeaster]

This looks highly likely to a reversal, but the key remains on what theories.

But at least it seems likely that this odious opinion will be replaced without something better.

[Ricardo Felippa]

All this news are old news, it is common knoledge and NOTHING happen. Including the Democrats Senate leave the president to do any unconstitutional crimes. WAR CRIMES !!!!