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August 14, 2008


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?

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.


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.

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

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.

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.

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

This is genuinely good news.

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

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.

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 !!!!

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